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C.A.11 (Fla.),2013.
Absolute Trading Corp. v. Bariven S.A.
Slip Copy, 2013 WL 49735 (C.A.11 (Fla.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
trial, the district judge entered a judgment in favor of Bariven. Absolute appeals, arguing that the district court erred
in finding that Bariven's April and July 2009 revocations of the milk purchases were valid. Specifically, Absolute
contends that Bariven's April 2009 revocation was not timely and lacked a good faith basis. Absolute also argues
that Bariven's July 2009 revocation of acceptance was not valid because “Bariven's unjustified revocation on April
23, 2009 waived its right to seek further remedies.” After careful consideration, we affirm the decision of the district
Act (FSIA) prevents us from exercising jurisdiction over Bariven and, accordingly, the district court judgment
should be set aside for lack of jurisdiction. See 28 U.S.C. § 1605(a)(2).
[1] “Under the [FSIA], a foreign state is presumptively immune from the jurisdiction of United States courts;
unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign
activity at issue involves a government's contract for purchase and sale of goods, the activity is commercial, and not
sovereign.” Samco Global Arms, Inc. v. Arita, 395 F.3d 1212, 1216 (11th Cir.2005). This being the case, Bariven's
contract with Absolute falls under the commercial activity exception to the FSIA and we properly exercise jurisdic-
tion.
Central Fla. Antenna Serv., Inc. v. Crabtree, 503 So.2d 1351, 1353 (Fla. 5th DCA 1987). However, in some cases,
the validity of a revocation is decided as a matter of law. See Royal Typewriter Co., a Div. of Litton Bus. Sys., Inc. v.
Xerographic Supplies Corp., 719 F.2d 1092, 1106 (11th Cir.1983). Where the buyer gives some notice of the
breach, the issues of timeliness and sufficiency are questions of fact. See T.J. Stevenson & Co. v. 81,193 Bags of
Flour, 629 F.2d 338, 359 (5th Cir.1980). FN2
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
the buyer discovers or should have discovered the ground for it.” Fla. Stat. § 672.608 (2012). “Whether a time for
taking an action required by this code is reasonable depends on the nature, purpose, and circumstances of the ac-
tion.” Fla. Stat. § 671.204(1) (2012).
[2] Here, Bariven's delay in revoking the milk is explained by the several obstacles that Bariven faced in testing
United States. Finally, PDVSA sent the samples to the laboratory. On March 27, 2009, the laboratory informed
Bariven that unsafe levels of melamine were present in all twenty samples of the milk. In light of these circumstanc-
es, the delay in revocation was reasonable.
Our conclusion that the delay was reasonable is further supported by the fact that Bariven notified Absolute of
Absolute argues that Bariven's April 2009 revocation lacked a good faith basis because Bariven revoked all
nineteen milk shipments with knowledge of contamination in only one shipment. Specifically, Absolute contends
that the trial court improperly found Bariven's revocation valid when the “shipments were from two different suppli-
ers and the test results were from a single shipment from only one supplier who supplied less than 10 percent of the
milk.” Thus, Absolute argues it is impossible for Bariven to show that all shipments were in non-conformity at the
the ‘value’ of the goods has been ‘substantially impaired.’ ” Barrington Homes of Fla., Inc. v. Kelley, 320 So.2d
841, 843 (Fla.App.1975). Here, the milk was purchased because of extensive food shortages in Venezuela. The val-
ue of the milk was impaired because it was potentially lethal. In view of the potential hazards and liabilities of dis-
tributing the contaminated milk, Absolute's argument that Bariven's revocation lacked good faith is not persuasive.
We agree with the district court that Bariven's discovery of the melamine contamination in shipment three “called
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
The district court found that even if the April 2009 revocation was improper, the July 9, 2009 letter from Bariv-
en to Absolute properly revoked the first nineteen shipments and cancelled the twentieth shipment. Absolute con-
tends that the district court erred in so finding because “Bariven's unjustified revocation on April 23, 2009 waived
its right to seek further remedies upon wrongful revocation.” Specifically, Absolute contends that because Bariven's
revocation on April 23, 2009 was invalid, Bariven was in breach of the contract from that time forward. Absolute's
FN1. Melamine is a potentially lethal substance that is intentionally added to food to falsely increase the
apparent level of protein.
FN2. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), this Court adopted as binding
precedent all decisions of the former Fifth Circuit prior to October 1, 1981.
though China stopped its own milk exports because of the contamination, Bariven did not revoke the milk
purchases for several months after receiving assurances from Absolute.
FN4. In a related argument, Absolute asserts that the agreement was an installment contract, such that
“must be subjectively measured from the standpoint of the purchaser”). Thus, Bariven's revocation was not
improper on this ground.
C.A.11 (Fla.),2013.
Absolute Trading Corp. v. Bariven S.A.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
trial, the district judge entered a judgment in favor of Bariven. Absolute appeals, arguing that the district court erred
in finding that Bariven's April and July 2009 revocations of the milk purchases were valid. Specifically, Absolute
contends that Bariven's April 2009 revocation was not timely and lacked a good faith basis. Absolute also argues
that Bariven's July 2009 revocation of acceptance was not valid because “Bariven's unjustified revocation on April
23, 2009 waived its right to seek further remedies.” After careful consideration, we affirm the decision of the district
Act (FSIA) prevents us from exercising jurisdiction over Bariven and, accordingly, the district court judgment
should be set aside for lack of jurisdiction. See 28 U.S.C. § 1605(a)(2).
[1] “Under the [FSIA], a foreign state is presumptively immune from the jurisdiction of United States courts;
unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign
activity at issue involves a government's contract for purchase and sale of goods, the activity is commercial, and not
sovereign.” Samco Global Arms, Inc. v. Arita, 395 F.3d 1212, 1216 (11th Cir.2005). This being the case, Bariven's
contract with Absolute falls under the commercial activity exception to the FSIA and we properly exercise jurisdic-
tion.
Central Fla. Antenna Serv., Inc. v. Crabtree, 503 So.2d 1351, 1353 (Fla. 5th DCA 1987). However, in some cases,
the validity of a revocation is decided as a matter of law. See Royal Typewriter Co., a Div. of Litton Bus. Sys., Inc. v.
Xerographic Supplies Corp., 719 F.2d 1092, 1106 (11th Cir.1983). Where the buyer gives some notice of the
breach, the issues of timeliness and sufficiency are questions of fact. See T.J. Stevenson & Co. v. 81,193 Bags of
Flour, 629 F.2d 338, 359 (5th Cir.1980). FN2
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
the buyer discovers or should have discovered the ground for it.” Fla. Stat. § 672.608 (2012). “Whether a time for
taking an action required by this code is reasonable depends on the nature, purpose, and circumstances of the ac-
tion.” Fla. Stat. § 671.204(1) (2012).
[2] Here, Bariven's delay in revoking the milk is explained by the several obstacles that Bariven faced in testing
United States. Finally, PDVSA sent the samples to the laboratory. On March 27, 2009, the laboratory informed
Bariven that unsafe levels of melamine were present in all twenty samples of the milk. In light of these circumstanc-
es, the delay in revocation was reasonable.
Our conclusion that the delay was reasonable is further supported by the fact that Bariven notified Absolute of
Absolute argues that Bariven's April 2009 revocation lacked a good faith basis because Bariven revoked all
nineteen milk shipments with knowledge of contamination in only one shipment. Specifically, Absolute contends
that the trial court improperly found Bariven's revocation valid when the “shipments were from two different suppli-
ers and the test results were from a single shipment from only one supplier who supplied less than 10 percent of the
milk.” Thus, Absolute argues it is impossible for Bariven to show that all shipments were in non-conformity at the
the ‘value’ of the goods has been ‘substantially impaired.’ ” Barrington Homes of Fla., Inc. v. Kelley, 320 So.2d
841, 843 (Fla.App.1975). Here, the milk was purchased because of extensive food shortages in Venezuela. The val-
ue of the milk was impaired because it was potentially lethal. In view of the potential hazards and liabilities of dis-
tributing the contaminated milk, Absolute's argument that Bariven's revocation lacked good faith is not persuasive.
We agree with the district court that Bariven's discovery of the melamine contamination in shipment three “called
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
The district court found that even if the April 2009 revocation was improper, the July 9, 2009 letter from Bariv-
en to Absolute properly revoked the first nineteen shipments and cancelled the twentieth shipment. Absolute con-
tends that the district court erred in so finding because “Bariven's unjustified revocation on April 23, 2009 waived
its right to seek further remedies upon wrongful revocation.” Specifically, Absolute contends that because Bariven's
revocation on April 23, 2009 was invalid, Bariven was in breach of the contract from that time forward. Absolute's
FN1. Melamine is a potentially lethal substance that is intentionally added to food to falsely increase the
apparent level of protein.
FN2. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), this Court adopted as binding
precedent all decisions of the former Fifth Circuit prior to October 1, 1981.
though China stopped its own milk exports because of the contamination, Bariven did not revoke the milk
purchases for several months after receiving assurances from Absolute.
FN4. In a related argument, Absolute asserts that the agreement was an installment contract, such that
“must be subjectively measured from the standpoint of the purchaser”). Thus, Bariven's revocation was not
improper on this ground.
C.A.11 (Fla.),2013.
Absolute Trading Corp. v. Bariven S.A.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
