bellman agreement that was entered into in florida and that that bailment agreement called for performance in florida as a matter of florida law not as a matter of what was in the agreement itself not as result the court had subject matter jurisdiction based on the first sentence of six you'll fight a two that is that the claim was based upon commercial activity carried on in the united states and while we believe the court was wrong in analyzing the case under the first clause of the commercial activity exception the court did focus in on what we believe is the primary question here and that is where was performance since the world over decision by the supreme court the courts have uniformly analyzed breach of contract cases under the third clause of the commercial activity exception the direct effect exception because what the courts are vandalised is that a breach a contract by a foreign state is an act that occurs outside the united states the actual breach the decision not to perform is one which is taken at the location of the state which clearly is outside the united states so then the question is whether that activity if it's commercial and there isn't an issue here with respect to the contract issue as to whether or not that's commercial the question therefore is was there a direct effect and that turns entirely on the issue of where performance is joe and this now the critical point in looking at that is the one continued and consistent allegation in each iteration of the complaint and in each of the affidavits that have been submitted by the plight of the plane it has consistently said that he maintained possession custody and control of his collection while he was in venezuela and he turned it over he relinquished that position in then as well it was in his first complaint it's in his first affidavit that was submitted in connection with the application for default judgment it's initially created of bailment agreement to have the turnover of the property that's exactly correct your honor so the bell my contract had to have been created to where  well the judge looked at florida watch determine where is performance still under florida law and generally under u s law generally the ballygunge can perform by making the property available to the bail or we have the bailey is and the alternative is that the baileys can return the property to the bill or at the place where the baileys obtained possession but in the absence of an express agreement that the property would be returned to the bail or at some other point there's no obligation to do so so therefore when you when you examine this case there was certainly there was no obligation on the part of then as well of the republic to return this property to the plaintiff in the united states the obligation at most was to make it available at the place where the property had been turned over which is indisputable even as well and as we pointed out in oral argument to the district court even the point the for payment to the plaintiffs in the united states and that money had not been paid and there was a claim for breach of that agreement that is the payment obligation then yes is there would have been a direct effect through any state's evidence that the seem to me that would be it was formed in venezuela where the property was turned over would be performed in venezuela where the claimant would go and seek its return but in the other it could be looked at as a tort of conversion so the conversion would have occurred it seems to me and venezuela i think that's absolutely right your honor and in fact the the first theory that the plate of posited was effectively  claim although i mean it seems to me also that one of the arguments at least this is how i understood it that is being made by the plaintiffs is that there were i mean effectively two agreements the first one was an agreement to either an agreement to either agreement with venezuela to bring the stuff down there and that venezuela would either buy it or have which would have been the bailment so why is it not the case that the first one was not breached well you are first of all we take issue with the fact that there was any first agreement at all because as alleged says i never would have got on the plane but for this agreement that they would negotiate a sale or give me the property back which is a difficult contract to have we had the property in his pocket so i don't i don't quite understand w right because he's going to a different country he knows that when he goes to the other country you know i guess there's some possibility that he is in the absence of an agreement of the nature that was described that the property could be stripped from him so i mean to me that actually makes proper you know complete sense that he never would have gotten on the on the plane in the absence of an agreement that either the collection would have been purchased or he would have been able to return to the united states with the collection i mean that makes sense to me but you know let's let's break that that down if there was such an agreement where was that agreement reached that agreement was breached when the property was not returned to him in the absence of the contract consummated for the sale of the property but that's was i mean it seems to me the default is that the property wasn't returned in the united states he was back in the united states so it seems like that's where it would have been required to have been returned your honor that would be a point had intended the property in the united states he did not he said is that agreement to reach a later agreement does it have enough had the parties that that's a that's a wholly different animal and i would agree if the parties had come to it a purchase and sale agreement in the united states then that's a completely different type of contract at best they had an agreement to agree well let me ask you about that i would agree if all they had was an agreement that they were going to agree but here there's more than that right the agreement is either we will reach agreement on a sale price or if we don't that there was this statement upon which he lied in getting on the airplane in orlando that's what he that's what he alleges and we don't know what my point is on this is that that is not a contract which is forcible it's like in the sheps case which we've cited in the second circuit where there was a visit by believe it was a representative of the alleged to be a representative of the austrian government in new york sat down with the plaintiff and they discussed whether or not there would be the purchase of some artwork where they agreed to in new york was to continue those negotiations in austria where they did in this and the court found that that is simply not an agreement upon which you can seeking a claim and if this is at best that's what this is so i would agree that had they've had the parties come to some terms and again even if the agreement was reached in the united states that's jurisdictional issue turns on where was the performance obligation and that's all it is i mean there's an everybody knew the plan of lived in the united states right well yes and you know there's no indication that he had any bank accounts and venice well you you've already told me that that's correct your honor but there was never an agreement to purchase so there was never an obligation express or implied to turn over any funds so i is to be at the place where it was tendered and that's when israel what if it was a payment that had to go to florida i mean that would be an act causing a direct effect of you know states where if the parties had had a contract to purchase and the contract provided for payment in the united states and that payment was not made yes then they had to fix the price and exactly honor that that there is no such contract well but i mean you seem willing to imagine you know they give it back and they but that if that happens it happens in venezuela but you don't same wind you know consider the other that they bought the payment would go down to florida well the reason i make the distinction your honor is because the pleading alleges the specific agreement about your return it to me if we don't there is no allegation that the parties ever had a contract for the for the purchase and if the if the parties had entered into such a contract and the good morning your honor smacked surprise on behalf of richard durbin go with the plaintiff in the underline case and i want to cut to the conclusion of the matter after reading venezuela's pleadings and hearing argument if we take this to its logical conclusion and this court grants their motion the question is what is the precedent that this court will be setting for all other foreign countries especially countries that are that are and one of the president i'm concerned about creating is the notion that just any time an american citizen goes to another country and enters into some kind of commercial relationship with a foreign sovereign the fact that they are that the foreign sovereign knows that they're a united states citizen and that there's an indie absence of any evidence that they've got a bank account and if and foreign country that if if they allege a breach that that subjects the foreign implications but that's not the facts in this case the facts in this case is you have an individual richard durbin go who has this family collection he wants to sell it venezuela comes into our country on our soil under the protections of venezuela and show it to us right now the idea is you know we're interested but we need to examine it we need to look at the providence of the collection we need to authenticate it and once we do that we'll do one of two things will either buy it from you as well about the end of the day once he gets down there he don't know forcible contract that has been breached i mean i mean he's gone down there they don't have a definite price they haven't negotiated a prize has he demanded it's returned their no one sees they're in there doing the examination he's going to return home they summon him to the home of hugo chavez themself and say this and they say would you leave the collection so we can continue the examination now if you would have said no what would have happened supposedly they would have put him on a plane with his collection and he'd be back home in florida to this day with no problems it's just dangerous business dealing with mr chavez well i think he and i would suggest that his life saving the answer of yes says sure i'll leave it with you to do further examination but now hold on a second now we're going to suggest and this is what they suggest to have a whole brand new agreement where you have this bailment and by the way if we don't like the collection or we don't want to pay you now you have the burden of coming back to venezuela and asking us for it was that what they contemplated the answer is no and you have to look at the definition in this case but you know even under the law that deals with bailment and it talks about a reasonable inference of the parties and that's part of the definition that's not only in the black letter law but also in the case law that they ignore position of your client sure i'm just trying to understand what the enforceable contract here in forcible contract is your original one made in orlando where they agreed that they were going to come to an agreement that they term and which you know a specific period in which they would examine it or return and there's no he could there's no agreement about what the price would be if after examination they wanted i don't see where there's enough here to say that that's an enforceable contract as far as we know they're still examining it well again a question then becomes one of reasonable ness because after he left the exam date for the next hundred years would that be ok under the contract of course not but that how do we know that well what's what when when how do we know from this alleged contract how long they had you know it's like a car recently bought from someone i said look i want to take the car into mike mechanic have them check it out and if i want to buy it i'll buy it if not a good back to you well it's been at my mechanics now for ten years and maybe one hundred years and well did we have a contract well sure we had a contract the contract was called i would examine it if i was going to i pay only that's a bailment agreement and if i go back and i demand my car back and the mechanic doesn't give it back to me he's breach the agreement is breached law under the bailment the bailment is clearly says and you return it to the owner in the state of florida or you pay them in the state of florida and if your if you are looking at this chart as an agreement which is what i understood you to be saying originally as an agreement that either event is he then either your client in venezuela would negotiate a contract for venezuela to buy it or if they didn't that venezuela would return the property it was here in the state of florida walk why not where it turned up where it was turned over because again if you go to the definition of bailment ok bailment says in certain instances if i leave the car with my mechanic i you from your house with your car to the mechanics but deliver it to your mechanic's airplane maybe it wasn't best examples but in this instance when he was in venezuela and he was when he was in venezuela coming home if he would have said no to venezuela he would have been allowed to come home and he would have his collection but what their suggestion is because he gave them the courtesy of continuing to examine it somehow we entered into a new bellman agreement to it and now i think that's a hell or a shame right that lie as their agreement that he gave them the opportunity to examine it i thought that was what you were saying earlier that this was an agreement that they would be given an opportunity to examine it but subsequently when he wants to come home when they want to continue to with us and you go home guess what if we don't want to you're going to have to manage to get yourself on a plane and come back and get it and that instances of techno get me up i'm leaving now and i'm taking it with me that's why i was sent for simple agreement you didn't have those kinds of terms worked out what was going to happen then you would agree with me that this theory of bailment that they're trying to sell you on down the base well it is an agreement doesn't it and there  bailment agreement here when you turn props up your property over to somebody else well hucks all that and it and if you demand it back i think they're obliged to give it back to you big problem that big problem you turned it over in venezuela and you'd have to ask for it back and you have him allowing them to continue to look at it was only in furtherance of the original agreement here in the state of florida and which they were either going to buy it or return it to and that's bailment agreement was down and i may as well that's because he misunderstood florida law about they all meant ok well and again then the question is did they have an agreement here in the state of florida a binding contract we're going to buy it i'm going to sell it to you and here's our grammont here's our contract you got to examine it and if you want to buy it then negotiate a price or if we can't come up to a price or you're not going to buy it i get it back that's not a contract that's not a meeting of the do harm to american citizens if you go with us have a license to come into the state of florida come into the united states go to any american citizen and say hey you know we're really interested in buying suppose assets look why don't you come into our country we're going to examine it there you know what us congress has passed a law that recognizes that there are situations where our citizens my in fact be injured back or in sovereigns and our courts aren't open to do anything about it you congress would one have wanted an american court to hear this case and what richard they've been go is coming in and saying is i want this case heard here in florida in the united states because i came to an agreement with venezuela in fine in terms of jurisdiction but he didn't and that's honest to defend a chair it's not on the republican bill as well or under the structure of a sovereign we respect i also i think i don't think i necessarily need to remind the court about this but this is not a merits determination here and we can all have our own view as to what the equities are this is a jurisdictional determination and it's more than that it is foreign sovereign immunity which has a special the supreme court has made clear in all of its recent decisions on this including the most recent one which is them are looking vain case which just came down about a month and a half ago or two months two months and a half ago there was a intimation i think that council referred to the plate of suspicion to leave the collection with the venezuelans as a life saving decision so seemed sounds to me although there isn't any allegation anywhere in this case of any kind of duress it's been implied and just let me say first of all not only is there no allegation that at all but to the extent that it's consistent with anything in this case it's consistent with the original pleading in the case which was that this was an expropriation and when we pointed out to the court that there is no jurisdiction here based on the expropriation clause of the exception sixty five eighty three because the property are probably exchange for is not in the united states this became a commercial activity case and no longer was exposed creation case so i don't think it's fair for council to be jumping from one theory to another depending on whether or not it's going it was a reasonable expectation of the plaintiff that the property would be returned to him in the united states it's all relevant whether it's true or not and there is no allegation in the complaint by the way to which one of judge martin's earlier questions in paragraph twenty three of the operative complaint is specifically alleged that there was no purchase agreement ever reached so in terms of the hypothetical we were talking about the pla taken that out of the case by specifically alleging that there never was any such agreement and again it we we believe that the case case inches upon the fact that come into effect when the property was turned over as a matter of florida law which is the law we're all operating under here and the obligation to return it therefore is not legation that was incurred in venezuela and there can be no jurisdiction of the sovereign meters act we has that the court reversed the decision