The opinion
Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
7-26-1995
Neely v Club Med
Precedential or Non-Precedential:
Docket 93-2069
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 93-2069 and 93-2102
________________
EILEEN ANNE NEELY,
Appellant in No. 93-2069
v.
CLUB MED MANAGEMENT SERVICES, INC.;
CLUB MED SALES, INC.;
CLUB MED, INC., Third-Party Plaintiffs;
HOLIDAY VILLAGE (ST. LUCIA), LTD.
v.
JOSEPH LEMAIRE,
Third-Party Defendant
Club Med Management Services, Inc. and
Holiday Village (St. Lucia) Inc.
Appellants in No. 93-2102
__________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 91-cv-07416)
__________________________
Argued: August 8, 1994
Before: MANSMANN, COWEN, and McKEE, Circuit Judges.
__________________________
Reargued in banc February 7, 1995
Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
NYGAARD, ALITO, ROTH, LEWIS, McKEE, and SAROKIN,
1
Circuit Judges.
(Filed July 26, l995 )
M. KELLY TILLERY, ESQUIRE (ARGUED)
MICHAEL V. TINARI, ESQUIRE
BARRY L. COHEN, ESQUIRE
Leonard, Tillery & Sciolla
1515 Market Street, 18th Floor
Philadelphia, PA 19102
Attorneys for Eileen Anne Neely
BETTINA B. PLEVAN, ESQUIRE (ARGUED)
JOHN SIEGAL, ESQUIRE
MONIQUE A. TUTTLE, ESQUIRE
Proskauer, Rose, Goetz &
Mendelsohn
1585 Broadway
New York, New York 10036
Attorneys for Club Med Management
Services, Inc.; Club Med Inc.;
Holiday Village (St. Lucia), Ltd.
LOUIS BELL
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103
Attorneys for Club Med Management
Services, Inc.; Holiday Village
(St. Lucia), Ltd.
TABLE OF CONTENTS
Introduction 3
I. Facts and Procedural History 7
II. The Lauritzen Triad and Subject Matter Jurisdiction 13
A. The Non-Jurisdictional Nature of the Lauritzen
Choice-of-Law Analysis 13
B. Federal Question and Admiralty Jurisdiction 22
1. Federal Question Jurisdiction Under 28 U.S.C.
§ 1331 22
2. Admiralty Jurisdiction Under 28 U.S.C. § 1333
24
2
III. Applicability of American Law Under the Lauritzen Triad
27
A. Introduction 27
B. Purposes of and Problems with the Lauritzen
Analysis 29
C. The Two Steps of the Lauritzen Choice of Law
Inquiry 32
1. Do the Contacts Show a Basis for Prescriptive
Jurisdiction? 37
2. Are the Contacts Such That Application of
American Law Would Be Reasonable? 41
a. Inaccessibility of a Foreign Forum 50
b. Law of the Forum 50
c. Place of the Wrongful Act 51
d. Place of Contract 55
e. Law of the Flag 56
f. Defendants' Allegiance, Bases of
Operations, and Other Contacts with the
United States 59
g. Domicile or Allegiance of the Injured
Seaman 62
h. Summary and Conclusion 67
IV. The Molding of the Verdict 69
A. Waiver of Comparative Causation on the
Unseaworthiness Claim 71
B. Lack of Authority to Mold the Verdict 77
C. Joint and Several Liability 82
V. Conclusion 83
_____________________
OPINION OF THE COURT
_____________________
BECKER, Circuit Judge.
INTRODUCTION
Plaintiff Eileen Anne Neely, a young American employed at a
Club Med resort in St. Lucia, was seriously injured when she was
sucked into the propellers of a scuba diving vessel, the Long
John. Plaintiff was a member of the crew of the vessel, which
was in St. Lucian coastal waters at the time of the accident.
3
She brought suit in the District Court for the Eastern District
of Pennsylvania, and a jury there, responding to special
interrogatories, found her employers negligent and the vessel
unseaworthy, and awarded plaintiff a large verdict on her Jones
Act, general maritime law, and maintenance and cure claims.
Molding the verdict in response to post-trial motions, the court
modified and substantially reduced the verdict by applying to the
unseaworthiness claim the percentage of contributory negligence
found by the jury with respect to the Jones Act claims. Then, on
cross-appeals, a panel of this court, invoking Lauritzen v.
Larsen, 345 U.S. 571, 73 S. Ct. 921 (1953), vacated the entire
judgment for the plaintiff on the ground that the district court
had lacked subject matter jurisdiction over the action. We
granted rehearing in banc and vacated the panel opinion and
judgment.
While the appeals present a large number of questions, we
address only the subject matter jurisdiction, choice of law, and
verdict molding issues.0 With respect to subject matter
jurisdiction, we conclude that the multi-factored analysis
0
We find without merit and without need for discussion the defendants’ contentions that there
was insufficient evidence to support the jury’s findings: (1) that defendant Club Med
Management employed plaintiff; (2) that defendant Holiday Village was the owner pro hac vice
of the Long John; and (3) that the unseaworthy condition of the
Long John was a proximate cause of plaintiff’s injuries. The
same is true of plaintiff’s contentions: (1) that the district
court erred in submitting the issue of her contributory
negligence to the jury (on the grounds of insufficient evidence);
(2) that the court erred in its charge with respect to the
defendants’ denial of certain maintenance payments; and (3) that
a new trial should have been granted because of the cumulative
effect of discovery rule violations, prejudicial conduct by
defense counsel, and “judicial misconduct.”
4
established by Lauritzen, Romero v. International Terminal
Operating Co., 358 U.S. 354, 79 S. Ct. 468 (1959), and Hellenic
Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731 (1970)
(together, the “Lauritzen triad”), governs choice of law, not
subject matter jurisdiction, in Jones Act and American general
maritime law claims. Then, applying the usual analyses for
federal question and admiralty jurisdiction, we conclude that the
district court had subject matter jurisdiction over this suit.
Turning our attention to the multi-factored “substantial
contacts” test of the Lauritzen triad, we adopt a two-stage
interpretation of that test, subjecting the Lauritzen factors to
a relatively simple sufficiency test followed by a more involved
reasonableness inquiry. We first find American maritime law
potentially applicable in this case because the plaintiff is an
American citizen. Accordingly, we consider whether applying
American law is reasonable under the circumstances. Because the
defendants did not inform the district court of the content of
St. Lucian law, any interests St. Lucia might have in this case
are undefined and, consequently, do little to render application
of American law unreasonable. Additionally, in considering the
significance of the various Lauritzen factors, we pay heed to the
non-traditional context of this suit. By this we do not mean
that the vessel involved here was unlike those in traditional,
international shipping cases; rather, the activity here was non-
traditional, for the Long John did not take its crew from sea to
sea in pursuit of international commerce but rather only from
beach to reef in aid of scuba diving adventures.
5
The accident occurred in St. Lucian waters, which as we
explain is an important consideration in non-shipping contexts.
And one of the defendants is a corporation organized under the
laws of St. Lucia, a factor that also reflects some interest on
the part of St. Lucia in applying its law. But these factors do
not mean that American law may not be reasonably applied under
the circumstances. Even when we add to these some evidence that
the Long John, the vessel that injured plaintiff, was registered
in St. Lucia, we cannot conclude that St. Lucia’s interests,
whatever they may be, are so threatened or so strong that
America’s interests must be ignored.
As our opinion explains, the United States has an overriding
interest in assuring adequate compensation for its injured
seamen. In the non-shipping context of this case, the
significance of plaintiff’s American allegiance is an especially
important factor, and the relevance of the plaintiff’s having
entered into her employment contract in the United States is also
enhanced. Conversely, the law of the flag of the Long John is of
diminished importance in the non-traditional context, and, at all
events, the law of the flag would be entitled to virtually no
significance here both because there was no evidence that the
Long John actually flew the flag of St. Lucia (or any other
nation) and because the district court was presented with no
information as to the content of St. Lucian law.
Additionally, two of the defendants are American
corporations, the Long John was built in America to American
specifications, and the St. Lucian defendant, whose operations
6
are in large measure run by one of its affiliated American co-
defendants, derives the majority of its income from American
tourists booked by another affiliated American co-defendant.
Because the connections between this incident and the United
States implicate significant American interests, and because
consideration of all the circumstances confirms the
reasonableness of applying United States law, we conclude that
the contacts with the United States are “substantial,” and
American laws, both the Jones Act and our general maritime law,
apply to this suit.
We also conclude that the district court erred in molding
the verdict to apply the percentage of comparative negligence
found by the jury with respect to the Jones Act claim to the
unseaworthiness claim. We so hold because the defendants waived
the issue, and because the court, which did not submit it to the
jury, lacked authority to later make the omitted factual
determinations sua sponte. We will therefore affirm the order of
the district court holding two of the defendants liable under
American law, but will vacate the district court's order of
January 26, 1993, and direct it, on remand, to enter judgment for
the plaintiff against Club Med Management and Holiday Village in
the full amount of damages found by the jury, as more fully
explained below.
I. FACTS AND PROCEDURAL HISTORY
The defendants in this action are Club Med, Inc., Club Med
Sales, Inc., and Club Med Management Services, Inc., all of which
7
have offices in New York, and Club Med, Inc.’s wholly owned
subsidiary Holiday Village (St. Lucia) Ltd. Of the 10,000 to
15,000 people per year who vacation at the Club Med Holiday
Village resort, approximately seventy to eighty percent come from
the United States. Seventy to eighty percent of Holiday
Village’s annual income of approximately fifteen million dollars
is generated by Holiday Village’s American sales bureau, Club Med
Sales.
Plaintiff is an American citizen domiciled in Telford
(Montgomery County), Pennsylvania. After vacationing at a Club
Med resort, she applied to Club Med for a position as a scuba
diving instructor. Plaintiff was interviewed in New York by Club
Med Management, a New York corporation. Following the interview,
plaintiff received a letter of interest from the defendants,
followed several months later by a phone call, initiated in New
York by Club Med Management, offering her a position at Holiday
Village, which she accepted. In early May of 1991, the
defendants arranged and paid the travel expenses for her to go to
Holiday Village in St. Lucia.
Plaintiff was hired to work as an “au pair” for a six-week
period. She was not given a cash salary, but rather received
room and board in exchange for her work. Once at Holiday
Village, she served as either Scuba Diving Instructor or
Divemaster on approximately thirteen or fourteen voyages from May
13 to May 23, 1991. She typically had trips twice in the morning
and once in the afternoon. She was responsible for checking and
preparing all equipment (which was stored aboard scuba diving
8
boats) for each voyage. During the trips, she provided
instruction and warnings to the Club Med guests who would be
diving.
The scuba expeditions on which plaintiff worked were
conducted by a small fleet operated by Holiday Village. The
fleet consisted of the Blue Lagoon, owned by Club Med, and the
Long John, chartered by Holiday Village for use as a diving
vessel from its title owner Joseph LeMaire (who lives in Miami,
Florida but is not a United States citizen). A declaration
executed by LeMaire claimed that the Long John, which was built
in the United States, was “registered” in St. Lucia, but the
charter left blank the state of registry.
On May 23, 1991, plaintiff served Club Med guests on a scuba
diving excursion on the Long John, which was captained by Philipe
Le Cann. When the boat arrived at the dive site in coastal
waters off St. Lucia, the passengers and dive crew prepared to
enter the water. The boat was put in neutral, and, after donning
her gear, plaintiff entered the water.
It was disputed whether Stephane Gaudry, the Divemaster, had
given the signal to enter the water before plaintiff jumped in:
the uncontroverted testimony was that Gaudry made no entry of
plaintiff’s dive time on the dive log. Whatever the precise
sequence of events, after plaintiff had entered the water, the
captain put the ship’s engines into reverse. The churning
propellers of the twin 350 horsepower diesel engines sucked
plaintiff under the boat and into the ship’s propellers, which
were not shielded by propeller guards, and she emerged on the
9
starboard side with extremely serious injuries to various parts
of her body. She was brought on board the ship, taken
immediately to shore, and thereafter to a clinic and then a
hospital.
After being treated, plaintiff was out of work for
approximately five and one half months. During this time, she
convalesced at her parents’ home in Telford, where they cared for
her on a daily basis. Despite two surgeries for nerve damage,
her use of her right arm was permanently restricted; she also
will require plastic surgery for her numerous conspicuous scars.
Plaintiff eventually brought suit in the District Court for
the Eastern District of Pennsylvania, pleading the federal
question and admiralty statutes, 28 U.S.C. §§ 1331 and 1333
(1988), as bases for subject matter jurisdiction. She alleged
that her injuries were caused by negligence in violation of the
Jones Act, and by the unseaworthy condition of the vessel in
violation of the general maritime law. The defendants interposed
a host of defenses, including contributory negligence and,
relying on Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921
(1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90
S. Ct. 1731 (1970), the claim that the district court lacked
subject matter jurisdiction to apply American law. Although they
argued that St. Lucia had a greater interest in having its law
applied, the defendants did not present the court with any
information concerning the law of St. Lucia.
The district court denied defendants’ motion to dismiss for
lack of subject matter jurisdiction and failure to state a claim,
10
and allowed the suit to go to trial. During trial, the court
ruled, without objection from the defendants, that contributory
negligence was not a defense to the unseaworthiness claim. At
the close of trial, the court instructed the jury and provided it
with a special verdict form, the first draft of which had been
prepared by defense counsel. The form required the jury to
answer a number of specific questions, grouped and captioned as
we now describe.
The first set of questions were presented under the heading
“Jones Act Claim.” In these, the jury was asked whether
plaintiff was employed by one or more of the defendants; if so,
which defendant or defendants were her employer; whether her
employer or employers were negligent; whether any such negligence
was a substantial factor in bringing about plaintiff’s injuries;
whether plaintiff was contributorily negligent; whether any such
contributory negligence was a substantial factor in bringing
about her injuries; and how the causal negligence should be
allocated (totalling 100%) among the employer or employers and,
if appropriate, the plaintiff.
The second set of questions were grouped under the caption
“General Maritime Claim.” In this section of the form the jury
was required to answer whether any of the defendants owned or
sufficiently controlled the Long John to qualify as owner or
owner pro hac vice; if so, which defendant(s) controlled the
vessel; whether the plaintiff had shown that the vessel was
unseaworthy; and if so, whether the unseaworthiness was a
11
substantial factor contributing to plaintiff’s injuries. This
section asked no questions about contributory responsibility.
The third section of the special verdict sheet was labeled
“Damages.” The jury was there directed to “[s]tate the amount of
damages, if any, sustained by the Plaintiff as a result of the
accident, without regard to and without reduction by the
percentage of causal negligence, if any, that you have attributed
to the plaintiff.”
The fourth and final portion of the verdict sheet was
captioned “Maintenance.” There, the jury was asked whether it
found the plaintiff entitled to maintenance, and whether any of
the defendants (and, if so, which) acted unreasonably in denying
maintenance to her.
On the Jones Act questions, the jury found that plaintiff
was employed by Club Med Management and by Holiday Village, that
those defendants had been negligent, and that their negligence
was a substantial factor in causing the plaintiff’s injuries.
The jury also found, however, that the plaintiff was
contributorily negligent. It allocated the total causal
negligence thirty percent to Club Med Management, ten percent to
Holiday Village, and sixty percent to the plaintiff. In answer
to the General Maritime Law questions, the jury found that
Holiday Village exercised sufficient control over the Long John
to be its owner pro hac vice. It also found the Long John to
have been unseaworthy, and that the unseaworthiness was a
substantial factor causing plaintiff’s injuries.
12
On the remaining questions, the jury found the plaintiff’s
total damages sustained from the accident, without regard to any
causal negligence on her own part, to be $545,000. It also found
that the plaintiff was entitled to maintenance, but that none of
the defendants had acted unreasonably in withholding payment.
Thereupon, the district court molded the verdict to reflect
plaintiff’s comparative negligence: On the Jones Act claim, the
court entered judgment against Club Med Management and Holiday
Village in the amount of forty percent of $545,000, that is,
$218,000. On the maintenance claim, the court entered judgment
against the same defendants for $11,700, but denied attorney’s
fees to plaintiff because the jury had found that the denial of
maintenance was not unreasonable. On the unseaworthiness claim,
the court entered judgment in plaintiff’s favor against Holiday
Village in the full amount of $545,000.
A week later the defendants moved the district court to mold
the verdict on the unseaworthiness claim. Relying upon case law
holding that comparative fault is a partial defense to general
maritime law unseaworthiness claims, the defendants urged the
district court to reduce the unseaworthiness verdict by sixty
percent, the percentage of the plaintiff’s contributory
negligence on the Jones Act claim. Over plaintiff’s objection,
the district court entered an order so modifying the judgment.
Plaintiff filed a timely appeal, and defendants cross-
appealed. Under 28 U.S.C. § 1291 (1988), we have appellate
jurisdiction over the final orders of the district court.
13
II. THE LAURITZEN TRIAD AND SUBJECT MATTER JURISDICTION
Beginning with their initial answer in the district court,
the defendants have argued that, pursuant to the multi-factored
analysis developed in Lauritzen v. Larsen, 345 U.S. 571, 73
S. Ct. 921 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S.
306, 90 S. Ct. 1731 (1970), the district court lacked subject
matter jurisdiction over plaintiff’s Jones Act and general
maritime law unseaworthiness claims. Because subject matter
jurisdiction restrictions impose a limit on the power of the
federal courts to entertain an action, we must first consider
whether the district court had subject matter jurisdiction over
plaintiff’s suit. If the district court lacked such
jurisdiction, it would be our duty to vacate the judgments in
plaintiff’s favor and direct the district court to dismiss her
action.
We hold that the district court had subject matter
jurisdiction over this suit. This ruling primarily reflects a
disagreement with defendants’ premise that the Lauritzen triad
(composed of Lauritzen, Rhoditis, and Romero v. International
Terminal Operating Co., 358 U.S. 354, 79 S. Ct. 468 (1959))
provides the framework for determining whether a district court
has subject matter jurisdiction in Jones Act or general maritime
law cases.
A. The Non-Jurisdictional Nature of the
Lauritzen Choice-of-Law Analysis
In Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921 (1953),
the Supreme Court enunciated a number of factors to be considered
14
by courts evaluating whether a plaintiff may sue under the Jones
Act. These factors include:
(1) the place of the wrongful act,
(2) the law of the flag,
(3) the allegiance or domicile of the injured plaintiff,
(4) the allegiance of the defendant,
(5) the place of contract,
(6) the inaccessibility of a foreign forum, and
(7) the law of the forum.
See Lauritzen, 345 U.S. at 583-92, 73 S. Ct. at 928-33. The
Court reiterated the relevance of these factors in Romero, see
358 U.S. at 383, 79 S. Ct. at 486, and in Hellenic Lines, Ltd. v.
Rhoditis, 398 U.S. 306, 90 S. Ct. 1731 (1970), it added the
defendant’s base of operations to this list, id. at 309, 90
S. Ct. at 1734.
Defendants believe that this inquiry determines whether the
district court has subject matter jurisdiction. This view was
not challenged in the district court, which considered the
factors and found subject matter jurisdiction, or before the
panel, which reconsidered them but found no jurisdiction.
Moreover, a number of cases in various jurisdictions so hold.
However, after granting rehearing in banc, we sua sponte directed
the parties to prepare supplemental briefing on the question
whether the Lauritzen-Romero-Rhoditis factors (henceforth
referred to as the “Lauritzen factors” for simplicity) in fact go
to subject matter jurisdiction. With the benefit of counsel’s
briefing and argument, and after studying the Supreme Court’s
opinions and numerous cases interpreting them, we conclude that
the Lauritzen factors are not a test for subject matter
jurisdiction, but rather constitute a non-exhaustive list of
15
contacts for choice of law analysis in suits for maritime
injuries with foreign connections.
In Lauritzen, the Supreme Court was called on to answer a
question of the extraterritorial applicability of the Jones Act.
While in New York, Larsen, a Danish seaman, had signed onto a
ship of Danish flag and registry owned by Lauritzen, another
Danish citizen. The ship’s articles that Larsen signed were
written in Danish and specified that Danish law would govern the
crewmembers’ rights. After being injured in the course of his
employment while in Havana harbor, Larsen brought suit against
Lauritzen in the District Court for the Southern District of New
York, seeking to recover damages under the Jones Act. Over
Lauritzen’s objection that Danish law rather than American law
governed, the district court allowed the case to go to the jury
under the Jones Act, which rendered a verdict in Larsen’s favor.
The Court of Appeals for the Second Circuit affirmed, and the
Supreme Court granted certiorari.
The Court formulated the “key issue” as “whether statutes of
the United States should be applied to this claim of maritime
tort.” Lauritzen, 345 U.S. at 573, 73 S. Ct. at 923. As did the
defendants herein, Lauritzen had framed his objection in terms of
subject matter jurisdiction, but the Court quickly disposed of
this argument:
The question of jurisdiction is shortly answered. . . . As
frequently happens, a contention that there is some barrier
to granting plaintiff’s claim is cast in terms of an
exception to jurisdiction of subject matter. A cause of
action under our law was asserted here, and the court had
power to determine whether it was or was not well founded in
law and in fact.
16
Id. at 574, 73 S. Ct. at 924. Thus, the Court’s later analysis
introducing the now-famous Lauritzen factors was directed to
choice of law, see id. at 583, 73 S. Ct. at 928, not subject
matter jurisdiction, which the Court had already determined was
present.
Similarly, in Romero v. International Terminal Operating
Co., 358 U.S. 354, 79 S. Ct. 468 (1959), the Court faced suit
brought under American law by a foreign sailor. Romero, a
Spanish seaman, had signed onto the crew of a vessel of Spanish
registry that sailed under the Spanish flag and was owned by a
Spanish corporation. After departing from a Spanish port, the
ship made numerous stops, including one in Hoboken, where Romero
was injured when struck by a cable on the ship’s deck. He filed
suit in the District Court for the Southern District of New York,
contending inter alia that the shipowner (“Compania”) was liable
to him under the Jones Act and under the general maritime law of
the United States for unseaworthiness of the ship, maintenance
and cure, and maritime tort. The alleged bases for jurisdiction
were the Jones Act, federal question jurisdiction, and diversity
jurisdiction.
The district court dismissed the complaint after a pre-trial
hearing. It concluded that the Jones Act provided no right of
action to an alien seaman under the circumstances involved, and
thus that the court lacked jurisdiction over the Jones Act claim
against Compania. The court dismissed the general maritime claim
against the corporation because the company was not of diverse
citizenship from Romero and because of its conclusion that the
17
federal question statute did not embrace general maritime law
claims.
The Court of Appeals affirmed the dismissal of the
complaint, and the Supreme Court granted certiorari. In Part I
of its opinion, entitled “Jurisdiction,” id. at 359, 79 S. Ct. at
473, the Court concluded that the district court possessed
subject matter jurisdiction of the claims. With respect to the
Jones Act claims, it noted:
[T]he question whether jurisdiction exists has been confused
with the question whether the complaint states a cause of
action. Petitioner asserts a substantial claim that the
Jones Act affords him a right of recovery for the negligence
of his employer. Such assertion alone is sufficient to
empower the District Court to assume jurisdiction over the
case and determine whether, in fact, the Act does provide
the claimed rights.
Id. (internal quotation marks and citation omitted). The Court
then affirmed Lauritzen’s holding that the usual federal question
approach to subject matter jurisdiction governs Jones Act suits.
See id.0
Importantly, the Romero Court turned to the Lauritzen
factors (in Part II of its opinion, entitled “The Claims Against
Compania Transatlantica--The Choice-of-Law Problem,” id. at 381,
79 S. Ct. at 485) only after concluding that the district court
had erred in dismissing Romero’s suit for lack of subject matter
jurisdiction. Thus, the Court’s decision in Romero confirms that
0
The issue of subject matter jurisdiction over the unseaworthiness and general maritime law tort
claims was more complicated due to the procedural posture of the case, which preceded the 1966
procedural unification of the civil and admiralty “sides” of federal district court. We note here
only that the Supreme Court held that where plaintiffs properly alleged a Jones Act claim, the
district court might exercise “pendent jurisdiction” to determine whether they also properly stated
a general maritime law cause of action, even if the complaint was not filed as a libel in admiralty.
For further discussion, see GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY
§ 6-62 (2d ed. 1975).
18
the Lauritzen factors are not a test for subject matter
jurisdiction but rather govern choice of law. The innovation in
Romero was its pronouncement that the Lauritzen analysis should
govern not only Jones Act claims but also claims under the
general maritime law for personal injury damages. Id. at 382, 79
S. Ct. at 485.
Our understanding of these precedents is confirmed by a
leading admiralty treatise. See GRANT GILMORE & CHARLES L. BLACK,
JR., THE LAW OF ADMIRALTY § 6-63 (2d ed. 1975) [hereinafter LAW OF
ADMIRALTY]. Discussing “Choice of Law in Actions Brought in the
United States by Seamen Injured on Foreign-Flag Ships,” the
authors explain that when “a seaman brings an action to recover
for personal injuries, the court must initially decide whether it
has jurisdiction and, if it has, whether United States law or the
law of a foreign nation is applicable.” Id. at 471. They go on
to discuss Lauritzen and Romero as follows:
The majority of the Court concluded that neither the situs
of the injury nor Romero’s treatment in this country made a
case, under the Lauritzen criteria, for application of
American law in Romero’s action against his employer, the
Spanish Line. Justice Frankfurter’s opinion emphasized that
the issue was one of choice of law and not of subject matter
jurisdiction. That is, the District Court, having decided
that Romero’s action against his employer was not governed
by American law, could have retained jurisdiction of the
action and decided it under Spanish law.
Id. at 473 (emphasis supplied).0
The Supreme Court’s third and latest pronouncement on the
role of the Lauritzen factors came in 1970. While the Court’s
0
The district court had chosen as a matter of discretion not to exercise admiralty jurisdiction over
any claims that Romero might have under Spanish law. See id. at 358, 79 S. Ct.
at 472. See also infra note 30.
19
opinion in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90
S. Ct. 1731 (1970), is partially opaque, it does not signal a
change in the purpose and use of the Lauritzen analysis.
Rhoditis concerned a suit under the Jones Act by a Greek seaman
for injuries he suffered aboard a ship in the Port of New
Orleans. Because the Supreme Court agreed with the trial and
appellate courts that the Jones Act applied, the Court did not
need to differentiate between subject matter jurisdiction and the
plaintiff’s entitlement to proceed under the Jones Act--both were
present. But the opinion’s description of the Lauritzen analysis
makes clear that the Court viewed the factors as bearing on
applicability of the Act, rather than subject matter
jurisdiction.
The Court explicitly endorsed the description of the
Lauritzen analysis offered by Judge Medina, who in Bartholomew v.
Universe Tankships, Inc., 263 F.2d 437 (2d Cir. 1959), had
written:
[T]he decisional process of arriving at a conclusion on the
subject of the application of the Jones Act involves the
ascertainment of the facts or groups of facts which
constitute contacts between the transaction involved in the
case and the United States, and then deciding whether or not
they are substantial.
Id. at 441 (quoted in Rhoditis, 398 U.S. at 309 n.4, 90 S. Ct. at
1734 n.4) (emphasis supplied here). Furthermore, in adding the
shipowner’s base of operations to the analysis, the Court
characterized it as “another factor of importance in determining
whether the Jones Act is applicable.” Rhoditis, 398 U.S. at 309,
90 S. Ct. at 1734 (emphases supplied).
20
It is true that the Court’s opinion in Rhoditis twice used
the word “jurisdiction.”0 However, the presence of two
occurrences of the word “jurisdiction” is too ambiguous to
mandate a change in the jurisprudence,0 particularly since the
Court likely meant to refer to “legislative jurisdiction,” see
id. at 314 & n.2, 90 S. Ct. at 1736-37 & n.2 (Harlan, J.,
dissenting) (which is also known as prescriptive jurisdiction,
0
“Of these seven factors, it is urged that four are in favor of the shipowner and against
jurisdiction.” Id. at 308, 90 S. Ct. at 1733. See also id. at 309, 90
S. Ct. at 1734 (referring to “the national interest served by the
assertion of Jones Act jurisdiction”).
0
One district court has suggested that perhaps the Supreme Court’s reference to “Jones Act
jurisdiction” was not “intended to overrule Lauritzen and Romero,” but rather was
“merely an unguarded and passing dictum.” Karvelis v.
Constellation Lines SA, 608 F. Supp. 966, 968 n.2, aff’d, 806
F.2d 49 (2d Cir. 1986). In this regard, we take special note of
Rodriguez v. Flota Mercante Grancolombiana, S.A., 703 F.2d 1069
(9th Cir. 1983), which is one of very few reported cases to
attempt a careful analysis of the nature of the Lauritzen
inquiry. In Rodriguez, the court of appeals rejected a Colombian
seaman’s attempt to sue his employer (a Colombian corporation
based in Colombia) under the Jones Act. But, as then-Judge
Kennedy recognized in a separate concurrence, the majority went
astray when it read Rhoditis as authorizing a district court to
dismiss a Jones Act case for lack of subject matter jurisdiction
when the Lauritzen factors do not support application of American
law. See id. at 1072. Judge Kennedy agreed that the plaintiff
failed to state a claim under the Jones Act but wrote separately
“to call attention to a conceptual problem in these cases,
namely, whether to characterize an unsuccessful Jones Act claim
as lacking in subject matter jurisdiction or as failing to state
a cause of action.” Id. at 1075. Judge Kennedy believed that
the Supreme Court’s reference in Rhoditis to “jurisdiction” was
“only a passing and unguarded remark.” Id. at 1076. After
reviewing Lauritzen, Romero, and several Court of Appeals cases,
Judge Kennedy concluded that Lauritzen analysis does not go to
subject matter jurisdiction, for “the issue is whether or not
there is a failure to state a claim, and we resort to choice of
law principles to answer the question.” Id. See also Dracos v.
Hellenic Lines Ltd., 705 F.2d 1392, 1397-98 & n.1 (4th Cir. 1983)
(Murnaghan, J., dissenting) (properly analyzing Lauritzen factors
as choice of law contacts, not subject matter jurisdiction
factors), on reh’g, 762 F.2d 348 (1985) (en banc).
21
see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW Pt. IV, at 230 (1987)).
Moreover, subject matter jurisdiction was not presented in the
Questions for Review in the petition for certiorari. See
Petition for Writ of Cert. at 2-3, Hellenic Lines Ltd. v.
Rhoditis, 412 F.2d 919 (5th Cir. 1969) (No. 661), cert. granted,
396 U.S. 100, 90 S. Ct. 554 (1970). Rather, the first Question,
which is characteristic, was:
Were the lower courts correct in applying the Jones Act to
an action by a Greek seaman, himself a resident of Greece,
against a Greek corporate owner for injury occurring aboard
a Greek flag vessel, solely on the ground that the majority
stock holder of the corporate ship owner, although himself a
Greek citizen, resided in the United States as a
representative of Greece to the United Nations.
Id. (emphasis supplied).
Moreover, treating the Lauritzen analysis as going to
subject matter jurisdiction would be out of keeping with the
approach of most jurisdictional inquiries, which tend to be
straightforward threshold questions. “The dangers of a totality-
of-the-circumstances approach to jurisdiction would be obvious.
An undefined test requires courts and litigants to devote
substantial resources to determine whether a federal court may
hear a specific case.” Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 115 S. Ct. 1043, 1057 (1995) (Thomas, J.,
concurring in the judgment). The federal judiciary “pursues
clarity and efficiency in other areas of federal subject-matter
jurisdiction, and it should demand no less in admiralty and
maritime law.” Id. at 1059.
Thus, we conclude that the multi-factored analysis of
Lauritzen, Romero, and Rhoditis is not to be used to determine
22
whether a district court has subject matter jurisdiction over
suits brought under the Jones Act or the general maritime law.
Insofar as Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d
Cir. 1991), holds that the Lauritzen factors govern subject
matter jurisdiction over Jones Act or general maritime law
claims, it is overruled. In so ruling, we agree with the cases
from other circuits that have used the Lauritzen analysis to
determine choice of law, not subject matter jurisdiction. See,
e.g., Schexnider v. McDermott Int’l, Inc., 817 F.2d 1159 (5th
Cir. 1987) (affirming district court’s determination that
Lauritzen dictated applicability of Australian law but requiring
that district court retain jurisdiction and try the case); cf.
also supra note 21 (citing concurring and dissenting opinions
that correctly apprehend the issue). Concomitantly, we
necessarily disagree with those cases from other circuits holding
(without addressing the clear force of Romero) that the Lauritzen
analysis may be used to dismiss a Jones Act claim for lack of
subject matter jurisdiction. See, e.g., Gutierrez v. Diana
Investments Corp., 946 F.2d 455, 456-57 (6th Cir. 1991) (per
curiam) (affirming dismissal of suit for lack of subject matter
jurisdiction flowing from non-applicability of American law under
Lauritzen analysis); Dracos v. Hellenic Lines, Ltd., 762 F.2d
348, 349-50 (4th Cir. 1985) (en banc) (same);0 Rodriguez v. Flota
0
While Dracos did cite Romero, the en banc majority read it as
merely holding that federal courts have jurisdiction to consider
their own jurisdiction. See Dracos, 762 F.2d at 350 (citing
Romero, 358 U.S. at 359, 79 S. Ct. at 473). As our foregoing
discussion shows, this is not what Romero holds.
23
Mercante Grancolombiana, S.A., 703 F.2d 1069, 1071-72 (9th Cir.
1983) (same).
B. Federal Question and Admiralty Jurisdiction
Although we have demonstrated that the Lauritzen inquiry is
non-jurisdictional in nature, there remains the question whether
the district court had subject matter jurisdiction over
plaintiff’s claims, which the defendants have contested
throughout this litigation. We conclude that it did, under both
the federal question and the admiralty jurisdiction statutes.
1. Federal Question Jurisdiction Under 28 U.S.C. § 1331
In its first Jones Act case, the Supreme Court held that the
Jones Act, as a federal statute providing remedies for injured
seamen, is subject to the usual rule for “arising-under”
jurisdiction. See Panama R.R. Co. v. Johnson, 264 U.S. 375, 383-
84, 44 S. Ct. 391, 392 (1924) (“This case arose under a law of
the United States [i.e., the Jones Act] and involved the
requisite amount, if any was requisite; so there can be no doubt
that the case was within the general jurisdiction conferred on
the district courts by [the federal question statute] . . . .”);
see also Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891,
2917 (1993) (Scalia, J., dissenting in part) (discussing
Lauritzen and distinguishing subject matter jurisdiction from
applicability of American law).
Section 1331 provides that the federal “district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331 (1988). “The question of whether the district
24
court had subject matter jurisdiction pursuant to [the Jones Act]
is not whether [plaintiff] had a valid cause of action against
the [defendants] under federal . . . law. Rather, the subject
matter jurisdiction analysis is one of whether the determination
of the existence vel non of that cause of action is a question
‘arising under the . . . laws . . . of the United States.’”
Airco Indus. Gases, Inc. v. Teamsters Health & Welfare Pension
Fund, 850 F.2d 1028, 1032 (3d Cir. 1988). Plaintiff clearly
meets that standard, for whether she could assert claims under
the Jones Act and general maritime law is a question of federal
law. The district court clearly had jurisdiction over
plaintiff’s Jones Act claims.0
2. Admiralty Jurisdiction Under 28 U.S.C. § 1333
Plaintiff’s remaining claims against the defendants allege
violations of the general maritime law duty to provide a
seaworthy vessel. Again, although the Lauritzen factors are to
be used in determining the applicability of substantive American
maritime law, they do not go to subject matter jurisdiction.
Rather, for non-statutory causes of action, we apply the
customary admiralty jurisdiction analysis of Executive Jet
Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S. Ct. 493
(1972), Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S. Ct.
2654 (1982), and Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892
0
Defendants do not contend, nor could they, that the district court lacked subject matter
jurisdiction on the ground that plaintiff’s Jones Act claim “clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or [that her] claim is wholly insubstantial
and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83, 66 S. Ct. 773, 776
(1946).
25
(1990), as recently reaffirmed in Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 115 S. Ct. 1043 (1995).
“[A] party seeking to invoke federal admiralty jurisdiction
pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy
conditions both of location and of connection with maritime
activity.” Id. at 1048. For tort claims, the locality test
requires that “the tort occurred on navigable water or . . .
injury suffered on land was caused by a vessel on navigable
water.” Id. Here, the locality test is “readily satisfied,” id.
at 1049, for plaintiff’s injuries occurred in navigable waters
and were caused there by a vessel, see id. at 1048.
The maritime connection inquiry is two-fold. First, we
“assess the general features of the type of incident involved to
determine whether the incident has a potentially disrupting
impact on maritime commerce.” Id. (internal citations and
quotation marks omitted). Second, we “determine whether the
general character of the activity giving rise to the incident
shows a substantial relationship to traditional maritime
activity.” Id. (internal citations and quotation marks omitted).
With respect to the potential disruption prong, we describe
the incident “at an intermediate level of possible generality.”
Id. at 1051. Following the Supreme Court’s lead, the “general
features of the incident at issue here may be described as damage
by a vessel in navigable water to [a seaman].” Id.0 “So
0
On appeal, the defendants did not challenge plaintiff’s seaman status, which flowed from her
being a crewmember of the vessels in the Club Med fleet, and which we accordingly take as
given for purposes of this case. Cf. Chirinos de Alvarez v. Creole Petroleum
Corp., 613 F.2d 1240, 1245 n.5 (3d Cir. 1980).
26
characterized, . . . this is the kind of incident that has a
potentially disruptive impact on maritime commerce.” Id. Injury
to a seaman in navigable waters “could lead to restrictions on
the navigational use of the waterway,” id., during necessary
investigations into the accident, which could be especially
lengthy in a case where the seaman’s injuries proved fatal.
Additionally, a vessel’s need to replace an incapacitated seaman
could lead to delays in commercial shipping. Although this case
involves a pleasure boat rather than a vessel engaged in
commercial shipping, that fact does not affect the jurisdictional
result. In Sisson v. Ruby, the features of the incident were
described as “a fire on a vessel docked at a marina on navigable
waters,” 497 U.S. at 363, 110 S. Ct. at 2896, even though the
“vessel” was a pleasure boat.
The second prong of the maritime connection test is also
easily met here. “In the second Sisson enquiry, we look to
whether the general character of the activity giving rise to the
incident shows a substantial relationship to traditional maritime
activity.” Jerome B. Grubart, Inc., 115 S. Ct. at 1051.
“Navigation of boats in navigable waters clearly falls within the
substantial relationship . . . .” Id. Thus, the travels of the
Long John qualify despite the short distances involved in its
voyages. Cf. Sinclair v. Soniform, Inc., 935 F.2d 599, 600 (3d
Cir. 1991) (upholding admiralty jurisdiction over claim arising
from failure of crew of vessel that transported plaintiff to
detect symptoms of and administer proper care for decompression
sickness suffered during scuba diving investigation in navigable
27
waters); see also 1 STEVEN F. FREIDELL, BENEDICT ON ADMIRALTY § 171, at
11-22 to -23 nn.54-56 (7th ed. rev. 1995) (citing cases finding
admiralty jurisdiction over claims that navigation errors or
negligent operation of vessel injured others) [hereinafter
BENEDICT ON ADMIRALTY]. Since the locality and maritime connection
tests were clearly met, the district court had admiralty
jurisdiction over plaintiff’s claims.0
0
In so holding we note that the Supreme Court has not been receptive to defendants’ arguments
that “virtually every activity involving a vessel on navigable waters would be a traditional
maritime activity sufficient to invoke maritime navigation.” Jerome B. Grubart, Inc., 115
S. Ct. at 1052 (internal quotation marks omitted). Nor has the
Court departed far from the situs test for admiralty
jurisdiction, see id. at 1052-53, but rather has “simply . . .
reject[ed] a location rule so rigid as to extend admiralty to a
case involving an airplane, not a vessel, engaged in an activity
far removed from anything traditionally maritime.” Id. at 1053.
Although not “every tort involving a vessel on navigable waters
falls within the scope of admiralty jurisdiction no matter what,
. . . ordinarily that will be so.” Id. This case lacks any
exceptional circumstances that could take it out of the ordinary
run. Accordingly, plaintiff’s general maritime law claims come
within the federal courts’ admiralty jurisdiction.
Additionally, although diversity or alienage were not pled
as bases for the district court’s jurisdiction over Neely’s
claims against Club Med Management and Holiday Village, the
amount in controversy has at all times easily exceeded $50,000,
and so the facts show that the district court had diversity
jurisdiction, 28 U.S.C. § 1332(a)(1) (1988), over the claims of
Neely (a Pennsylvania citizen) against Club Med Management (a New
York corporation), and Club Med Sales (a Delaware corporation),
and alienage jurisdiction, 28 U.S.C. § 1332(a)(2) (1988), over
the claims against Club Med, Inc. (a Cayman Islands corporation)
and Holiday Village (a St. Lucian corporation). By statute, we
are authorized to permit amendment to the complaint to correct
defective allegations. See 28 U.S.C. § 1653 (1988) (“Defective
allegations of subject matter jurisdiction may be amended, upon
terms, in the trial or appellate courts.”). Thus, if we had
doubts whether the plaintiff’s general maritime law claims fell
within the district court’s admiralty jurisdiction, we could
permit amendment (as plaintiff has requested) to avoid the great
waste of judicial resources that would otherwise attend the
plaintiff’s having alleged only two bases for jurisdiction
(federal question and admiralty), rather than three (those plus
28
III. APPLICABILITY OF AMERICAN LAW UNDER THE LAURITZEN TRIAD
A. Introduction
The questions whether American law actually applies under
the Lauritzen triad, and if so whether the facts entitle the
plaintiff to recover, arise only when, as here, a district court
has subject matter jurisdiction over a Jones Act or American
general maritime law claim. Moreover, Lauritzen analysis is a
choice of law methodology, and, like a plaintiff’s need to prove
one or more of the specific statutory elements of his or her
claims, choice of law issues may be waived.0 Thus, if defendants
diversity). Cf. Local No. 1 (ACA) Broadcast Employees of Int’l
Bhd. of Teamsters v. International Bhd. of Teamsters, 614 F.2d
846 (3d Cir. 1980) (allowing plaintiff to amend complaint to cure
defective jurisdictional allegations). We therefore need not
rely on the doctrine that where plaintiffs invoke federal
question jurisdiction to bring a Jones Act suit, federal district
courts have “pendent” jurisdiction over parallel unseaworthiness
claims. See, e.g., Romero, 358 U.S. at 380-81, 79 S. Ct. at 484-
85; Hagans v. Lavine, 415 U.S. 528, 548 n.14, 94 S. Ct. 1372,
1385 n.14 (1974) (recognizing existence of this doctrine); 28
U.S.C. § 1367 (Supp. V 1993) (generally granting district courts
“supplemental jurisdiction over all other claims that are so
related to claim in the action within [the district courts’]
original jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution”).
0
See, e.g., Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619
F.2d 1001, 1005 n.1 (3d Cir. 1980); Bagdon v.
Bridgestone/Firestone, Inc., 916 F.2d 379, 383 (7th Cir. 1990);
Corrugated Paper Prods., Inc. v. Longview Fibre Co., 868 F.2d
908, 910 n.2 (7th Cir. 1989); R.L. Clark Drilling Contractors,
Inc. v. Schramm, Inc., 835 F.2d 1306, 1308 (10th Cir. 1987);
Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th
Cir. 1986); Bilancia v. General Motors Corp., 538 F.2d 621, 622-
23 (4th Cir. 1976). See also Larry Kramer, Rethinking Choice of
Law, 90 COLUM. L. REV. 277, 284 (1990) (“It is the parties’
responsibility to call a choice of law issue to the court’s
attention. If plaintiff bases his claim on inapplicable law
(i.e., a law that does not give plaintiff a right to relief), the
defendant must notify the court in a motion to dismiss or a
motion for directed verdict. Failure to make a timely motion
29
do not argue that American law is inapplicable as a matter of
choice of law, the court will not analyze the Lauritzen factors.
The plaintiff would need only to prove the particular elements of
the cause of action, such as seaman status, employer status,
negligence, causation, and damages (for a Jones Act case).
When a defendant does raise the Lauritzen issue, a plaintiff
suing for personal injury damages under American maritime law
must, as with any other cause of action, both establish the
applicability of the law under which the case was brought and
prove the elements of the other nations.0ary course, fail on the
merits.0
B. Purposes of and Problems with the Lauritzen Analysis
Determining whether or not American maritime law (statutory
or general) applies with respect to a given incident entails a
choice of law analysis, mandated by the Supreme Court as a matter
waives any claim--however meritorious--that plaintiff is not
entitled to recover as a matter of law.”); id. at 291.
0
The two identified purposes are not unrelated, for if American law were held to apply in
situations where the United States has no appreciable interest, it would invi. 1962) (“Generally a
party must establish a fact which is essential to his claim or defense . . . .”). If American law is
not applicable, or if the plaintiff fails to prove one of the specific elements of the cause of action,
the suit would, in the o
0
If the plaintiff has also pled in the alternative the applicability of foreign law (which Neely has
not done here), the court may of course adjudicate any such claims over which there is a basis for
subject matter jurisdiction. Where the locality and maritime connection tests are met, see
supra at 25-28 (discussing admiralty jurisdiction tests), 28
U.S.C. § 1333 will provide such a basis. We note also that some
courts have not required a plaintiff affirmatively to plead the
applicability of foreign law at the outset, but instead have
applied foreign law after concluding that American law does not
apply. See, e.g., Schexnider v. McDermott Int’l, Inc., 817 F.2d
1159, 1160-61, 1164 (5th Cir. 1987). Where American law does not
apply and the plaintiff and defendant are both foreign, however,
admiralty courts sometimes decline to exercise jurisdiction. See
1 BENEDICT ON ADMIRALTY § 128, at 8-40 to -41 & n.9.
30
of statutory construction. The Court adverted to choice of law
principles because of the facial universality of the Jones Act,
whose terms offer a remedy to “any seaman.” 46 U.S.C. § 688(a)
(1988). In Lauritzen--which involved a lawsuit by a Danish
sailor (for injuries suffered in the coastal waters off Cuba)
against his employer, a Danish shipowner with whom he had
contracted (in Danish)--the Court was concerned with restricting
the “literal catholicity,” Lauritzen, 345 U.S. at 576, 73 S. Ct.
at 925, of the Jones Act’s language to ensure that it would not
apply to situations where “the seaman, the employment [and] the
injury [lack] the slightest connection with the United States.”
Id. at 577, 73 S. Ct. at 925. Thus, the first aim of Lauritzen
analysis is to assure that American maritime law is not applied
to incidents that lack any significant American connection.
The second, related purpose of the analysis is to resolve
and avoid conflicts with the maritime laws of other nations.0
See Lauritzen, 345 U.S. at 582, 73 S. Ct. at 928. To this end
the Court invoked a presumption that in the absence of specific
direction to the contrary, statutes of Congress would not be
interpreted to violate international law. See 345 U.S. at 577,
581, 73 S. Ct. at 926, 927-28. Applying this presumption to the
Jones Act, the Court in Lauritzen adopted a form of interest
analysis to cabin the sweep of the Jones Act. See id. at 582, 73
0
The two identified purposes are not unrelated, for if American law were held to apply in
situations where the United States has no appreciable interest, it would invite other nations to
construe their laws in a similar fashion, cf. Lauritzen, 345 U.S. at 582, 73 S.
Ct. at 928 (discussing reciprocity concerns), inevitably
escalating the number of true conflicts in international maritime
contexts to an unacceptably high level.
31
S. Ct. at 928 (“The criteria, in general, appear to be arrived at
from weighing of the significance of one or more connecting
factors between the shipping transaction regulated and the
national interest served by the assertion of authority.”)
(emphasis supplied); id. at 577, 73 S. Ct. at 925 (extolling
expertise of “courts long accustomed to dealing with admiralty
problems in reconciling our own with foreign interests”). Courts
ruling on the reach of American law were thus directed to
consider seven factors that were, in part for pragmatic reasons,
accorded various degrees of importance.
In Romero v. International Terminal Operating Co., 358 U.S.
at 354, 79 S. Ct. at 468, the Supreme Court emphasized that the
Lauritzen factors were gleaned not from the terms of the Jones
Act but rather from more general maritime law choice of law
principles, and that they were intended to guide courts generally
in applying maritime law regarding personal injury claims to
incidents with foreign connections. See 358 U.S. at 382, 79
S. Ct. at 485.0 Finally, in Hellenic Lines Ltd. v. Rhoditis, the
Supreme Court elaborated upon the Lauritzen analysis. In
particular, the Court added an eighth factor for consideration,
see 398 U.S. at 309, 90 S. Ct. at 1734, and attached a label to
the types of contacts with the United States necessary to sustain
applicability of American law in light of the aims of the
0
Courts are of course, subject to explicit congressional directives as to choice of law, see
Lauritzen, 345 U.S. at 579 n.7, 73 S. Ct. at 926 n.7, where they
are constitutional, see Cruz v. Chesapeake Shipping, Inc., 932
F.2d 218, 234 (3d Cir. 1991) (Cowen, J., concurring in the
judgment).
32
Lauritzen analysis: “substantial” contacts. Id. at 309 n.4, 90
S. Ct. at 1734 n.4.
In adopting this terminology, the Court placed its focus
primarily, though not myopically, on whatever American contacts
the transaction may have. See id. (“The decisional process . . .
involves the ascertainment of the factors or groups of facts
which constitute contacts between the transaction involved in the
case and the United States, and then deciding whether or not they
are substantial.”) (quoting Bartholomew v. Universe Tankships,
Inc., 263 F.2d 437, 441 (2d Cir. 1959)); id. at 310, 73 S. Ct. at
1734 (“The [foreign contacts present] are in the totality of the
circumstances of this case minor weights in the scales compared
with the substantial and continuing contacts that this alien
owner has with this country.”).
Despite these developments, Lauritzen interest analysis
remained a somewhat amorphous process. The Supreme Court
stressed in Rhoditis that Lauritzen’s choice of law interest
analysis is not mechanical, that the significance of each factor
is variable, and that the enumerated factors are not exhaustive
of potentially relevant considerations. See 398 U.S. at 308, 90
S. Ct. at 1734. The analysis is consequently imbued with a
flexibility that permits courts to take account of the context of
any incident that American law is alleged to govern, but this
malleability has not always proven the surest guide. Indeed, one
troubled trial court remarked that the case law applying the
Lauritzen triad had “made the relative significances of the
‘factors’ almost infinitely variable,” and it feared “that each
33
‘factor’s’ significance is sufficiently obscure or variable to
justify any judicial conclusion.” Munusamy v. McClelland
Engineers, Inc., 579 F. Supp. 149, 153 (E.D. Tex.), mandamus
denied (with request for certification), 742 F.2d 837 (5th Cir.
1984), order vacated, 784 F.2d 1313 (1986). Academic commentary
has been similarly critical. See, e.g., Michael Boydston, Cruz v.
Chesapeake Shipping and the Choice-of-Law Problem in Admiralty
Actions, 27 TEX. INT’L L.J. 419, 434 (1992); Symeon Symeonides,
Maritime Conflicts of Law from the Perspective of Modern Choice
of Law Methodology, 7 MAR. LAW. 223, 242-43 (1982) [hereinafter
Symeonides, Maritime Conflicts].
C. The Two Steps of the Laurit_!oice of Law Inquiry
The solution to the lack of guidance lies in approaching the
Lauritzen analysis in a way that is faithful to its nature as a
specialized form of interest analysis designed to ensure that
American maritime law of personal injuries applies only where
significant American interests are implicated and only in
conformity with international law. Specifically, we interpret
the notion of “substantial contacts” to embody these twin
concerns in a two-step inquiry derived from international law.
We conclude below that, in a Jones Act or general maritime law
case, a court deciding whether American contacts are
“substantial” (so that American law applies) must at the
threshold ask whether one of the following factors is involved in
the incident, in which case there is a basis for prescriptive
jurisdiction (which, we explain infra subsection 1, means that
significant American interests are implicated): injury to an
34
American seaman or a seaman with American dependents, injury in
American territory, American defendants, an American flagged
ship, or a contractual choice-of-law clause specifying American
law. If so, the second step in the substantial contacts inquiry
is for the court to ascertain whether application of American law
is reasonable under the circumstances, in which case (as
subsection 2 describes) international law is satisfied.0
In this case, as we explain below, the plaintiff succeeds on
both steps of the inquiry. Her American citizenship satisfies
the threshold requirement of a basis for prescriptive
jurisdiction, and consideration of the Lauritzen factors reveals
that the American interests at stake here are such that American
law may be reasonably applied. Hence, the American contacts are
“substantial” and the plaintiff was entitled to sue under
American law.
0
The dissent rejects our analysis, suggesting that “under the Lauritzen test, the
plaintiff must prove that a simple majority or preponderance of
the factors weighs in favor of United States law.” Dissenting
op. infra at 7-8 (emphasis supplied). While the meaning of this
is somewhat unclear (for it seems a hybrid of a counting test and
a balancing test), it does not constitute an accurate rendering
of the “substantial contacts” formulation adopted in Rhoditis.
The “substantial contacts” concept was borrowed from Judge
Medina, who explained that “something between minimal and
preponderant contacts is necessary if the Jones Act is to be
applied.” Bartholomew, 263 F.2d at 440 (emphases supplied). This
articulation of the “substantial contacts” standard occurs in the
paragraph of Judge Medina’s opinion immediately preceding the
paragraph that the Supreme Court quoted. Judge Medina’s
explanation of “substantial contacts” is thus crucial to
understanding the approach adopted by the Court in Rhoditis, and
it shows that the American contacts must be more than minimal but
need not be preponderant. Hence, the dissent’s proposed standard
is too stringent.
35
In the following analysis, we “rely on the Restatement
(Third) of Foreign Relations Law for the relevant principles of
international law. Its standards appear fairly supported in the
decisions of [the Supreme] Court construing international choice-
of-law principles ([e.g.,] Lauritzen, Romero, and McCulloch [v.
Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83
S. Ct. 671 (1963)]) . . . .” Hartford Fire Ins. Co. v.
California, 113 S. Ct. 2891, 2920 (Scalia, J., dissenting in
part). A primary reason for relying on the Restatement of
Foreign Relation Law is that one of the Court’s chief motives for
cabining the potentially unlimited scope of the Jones Act in
Lauritzen was a concern that the legislation not violate norms of
international law. While the dissent argues that the sections we
rely on “were not meant to apply in a tort case such as this,”
dissenting op. infra at 4 (quoting RESTATEMENT Pt. IV, Ch. 1,
Introd. Note, at 237), the passage it quotes reveals that the
Restatement’s rules are not unconditionally irrelevant to tort
cases: they only “do not necessarily apply.” Id. at 5 (different
emphasis supplied). However, “[i]n some circumstances, issues of
private international law may also implicate issues of public
international law, and many matters of private international law
have substantial international significance and therefore may be
considered foreign relations law[.]” RESTATEMENT § 101, cmt. c, at
23 (emphasis supplied). The Jones Act and American maritime law
more generally are examples of just such matters, as is reflected
by the Supreme Court’s concern in Lauritzen about the prospect of
36
violating international law.0 See also infra note 40(discussing
0
While the Restatement of Conflict of Laws is by its terms applicable to cases with foreign
elements, see RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 10 (1971)
[hereinafter RESTATEMENT OF CONFLICTS], this is only “usually” the
case, see id. § 10, cmt. c, and “[t]here are significant
differences between interstate and international cases,” see id.
§ 10, cmt. d.
Additionally, to the extent that the Restatement of Foreign
Relations Law might seem inapplicable, and the Restatement of
Conflicts applicable, we note that these two Restatements in many
respects do not fundamentally differ. The Restatement of Foreign
Relations Law explains that “[t]he concepts, doctrines, and
considerations that inform private international law also guide
the development of some areas of public international law,
notably the principles limiting the jurisdiction of states to
prescribe, adjudicate and enforce law.” RESTATEMENT § 101, cmt. c,
at 23. The Restatement of Conflicts provides that “[a] court may
not apply the local law of its own state to determine a
particular issue unless [that] would be reasonable in the light
of the relationship of the state and of other states to the
person, thing or occurrence involved.” RESTATEMENT OF CONFLICTS § 9,
at 31. This is the same sort of analysis employed in our
opinion. Indeed, the reasonableness factors of § 403 of the
Restatement of Foreign Relations Law, see infra note 44 and
accompanying text, incorporate the general choice of law factors
of § 6 of the Restatement of Conflicts, see RESTATEMENT § 403,
reporters’ note 10, at 254; the latter are used to determine the
state with the most significant relationship to the occurrence
and the parties, the law of which state governs (under the
Restatement of Conflicts) the rights and liabilities of the
parties with respect to tort issues, see RESTATEMENT OF CONFLICTS
§ 145, at 414. Additionally, although “[]public international
law is dealt with only incidentally” in the Restatement of
Conflicts, the rules of the Restatement of Conflicts “do conform
. . . to the requirements of public international law.” Id. § 2,
cmt. d, at 6. There is thus important congruence between the
Restatement of Foreign Relations Law and the Restatement of
Conflicts with respect to the issues before this court.
However, the Restatement of Conflicts rule for personal
injury actions specifies that “the local law of the state where
the injury occurred determines the rights and liabilities of the
parties, unless . . . some other state has a more significant
relationship . . . to the occurrence and the parties . . . .”
Id. § 146, at 430. This rule gives far too much general
significance to the place of the wrongful act to constitute a
satisfactory interpretation of Lauritzen. See infra at 57-57
(discussing the variable significance of this factor). Indeed
its very formulation seems alien to Lauritzen-type analysis,
which is the touchstone of Part III of our opinion; this suggests
37
difference between maritime laws and conventional tort law).
Furthermore, the views of Lea Brilmayer, one of the leading
authorities in the area, support use of the Restatement of
Foreign Relations Law here. Professor Brilmayer has analyzed
conflict of laws as “the domestic counterpart of the
international law issue of the extraterritorial application of
American law.” Lea Brilmayer, The Extraterritorial Application
of American Law: A Methodological and Constitutional Appraisal,
50 L. & Contemp. Probs. 11, 11 (Summer 1987). Of particular
relevance here, she has noted the unhelpfulness of the
public/private distinction as regards international law:
“Whether or not that distinction is viable, it does not describe
the different roles of the two Restatements. Some private law
cases, such as Lauritzen v. Larsen, fall under the Restatement of
Foreign Relations Law.” Id. at 12 (footnote observing that
Lauritzen is mentioned in the Restatement of Foreign Relations
Law § 403, reporters’ note 2 omitted; emphasis supplied).0
the inappropriateness of the Restatement of Conflicts to this
case, whatever the declarations of the drafters. Thus, despite
the dissent’s comments, we are convinced that our reliance on the
Restatement of Foreign Relations Law is proper.
0
Cf. also Mary B. McCord, Responding to the Space Station Agreement:
The Extension of U.S. Law into Space, 77 GEO. L.J. 1933, 1945
(1989) (suggesting combining the Lauritzen and Restatement of
Foreign Relations Law factors to determine propriety of applying
American law to incidents aboard hypothetical multinational space
station). Additionally, we believe that relying on current
versions of the Restatement to interpret both general maritime
law and the Jones Act--even though it was adopted long after the
Supreme Court announced the Lauritzen factors--is permissible
because the Jones Act was not locked rigidly into place when
adopted, see, e.g., McAllister v. Magnolia Petroleum Co., 357
U.S. 221, 225 n.6, 78 S. Ct. 1201, 1204 n.6 (1958) (discussing
change in Jones Act statute of limitations upon amendment of FELA
after enactment of Jones Act); the Act was relatively recently
38
1. Do the Contacts Show a Basis for Prescriptive Jurisdiction?
The first essential question in Lauritzen analysis is
whether the suit implicates significant interests of the United
States. In accordance with Lauritzen’s direction to construe
American maritime law so as not to violate international law, we
identify this preliminary inquiry with the question whether there
is a basis for the United States to exercise prescriptive
jurisdiction over the incident at issue.
“International law has long recognized limitations on the
authority of states to exercise jurisdiction to prescribe in
circumstances affecting the interests of other states.”
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW Pt. IV, Introd. Note, at 230
(1987) [hereinafter RESTATEMENT]. The Restatement defines
prescriptive jurisdiction--which is not to be confused with
subject matter jurisdiction--as the authority of a state “to make
its law applicable to the activities, relations, or status of
persons, or the interests of person in things . . . .” RESTATEMENT
§ 401(a). It lists several alternative bases for prescriptive
amended, see Pub. L. 97-389, Title V, § 503(a), 96 Stat. 1955
(Dec. 29, 1982); when the Court in Rhoditis adopted the concept
of “substantial contacts” in 1970, it did not specify how to
determine whether a case in fact involves such contacts with the
United States; as we have stated, see supra note 37, the
Restatement of Foreign Relations Law factors on which we rely
below derive from the general choice of law factors of the
Restatement (Second) of Conflicts of Law, which was adopted and
promulgated by the American Law Institute in 1969; and “United
States courts have considered [rules of international law as to
prescriptive jurisdiction], and interpreted the known or presumed
intent of Congress, in the light of changing understandings,”
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW Pt. IV, Ch. 1, at 236-37
(1987) (emphasis supplied).
39
jurisdiction. As a general matter (subject to restrictions we
discuss below), nations may prescribe law
with respect to
(1) (a) conduct that, wholly or in substantial part,
takes place within its territory;
* * *
(c) conduct outside its territory that has or is
intended to have substantial effect within
its territory; [and]
(2) the activities, interests, status, or relations of
its nationals outside as well as within its
territory[.]
RESTATEMENT § 402. Additionally, the Restatement recognizes the
authority of a state to apply its law to activities connected
with vessels flying its flag. See id. § 502.
The Lauritzen factors directly provide the answer to the
first question in the Lauritzen choice of law interest
analysis--whether (in the terminology of the Restatement) the
United States has a basis for prescriptive jurisdiction with
respect to the incident. When an American worker or a worker
with American dependents is injured, application of United States
law will affect the interests and relations of Americans, and
there are likely to be substantial effects within the United
States. Hence, application of American maritime law in suits for
personal injuries to American seamen or seamen with American
dependents affects the interests of nationals of the United
States, thus providing a basis for prescriptive jurisdiction
pursuant to Restatement § 402(2) and § 402(1)(c).0 Next, by
0
Since Neely is undisputedly an American domiciliary and citizen, we do not need to decide here
what is necessary for a seaman to be treated as an American for purposes of Lauritzen
40
definition, injuries occurring in American territory (including
waters) fall within § 402(1)(a), which thus recognizes that the
United States has a basis for prescriptive jurisdiction over such
incidents. Where the defendants are American, a basis for
prescriptive jurisdiction to apply United States law exists
analysis. Cf. Brian Jay Corrigan, The Status of the Quasi-
American Bluewater Seaman in the American Courts, 10 MAR. LAW. 269
(1987). But cf. 46 U.S.C. § 688(b)(2) (1988) (placing conditions
on availability of Jones Act to brownwater seamen not citizens or
permanent resident aliens of the United States). Additionally,
we acknowledge that the “passive personality principle,” which
“asserts that a state may apply law--particularly criminal
law--to an act committed outside its territory by a person not
its national where the victim of the act was its national[,]
. . . . has not been generally accepted for ordinary torts or
crimes . . . .” RESTATEMENT § 402 cmt. g. However, the Jones Act
and the general maritime law unseaworthiness cause of action are
primarily “concerned with prescribing particular remedies, rather
than . . . regulating commerce or creating a standard for
conduct.” Rhoditis, 398 U.S. at 313, 90 S. Ct. at 1736 (Harlan,
J., dissenting). Moreover, these causes of action are civil, not
criminal, and thus represent a lesser potential intrusion on the
prescriptive jurisdiction of other sovereigns. See RESTATEMENT
§ 403 Reporter’s Note 8 (“In applying the principle of
reasonableness, the exercise of criminal (as distinguished from
civil) jurisdiction in relation to acts committed in another
state may be perceived as particularly intrusive. . . . It is
generally accepted by enforcement agencies of the United States
government that criminal jurisdiction over activity with
substantial foreign elements should be exercised more sparingly
than civil jurisdiction over the same activity, and only with
strong justification.”). Finally, where seamen are injured in
the course of their employment, torts are not “ordinary,” for
seamen have long been considered wards of admiralty entitled to
special protection different from that afforded by conventional
tort law. See, e.g., Seas Shipping Co. v. Sieracki, 328 U.S. 85,
104, 66 S. Ct. 872, 882 (1946) (Stone, C.J., dissenting) (“[T]he
seaman has been given a special status in the maritime law as the
ward of the admiralty, entitled to special protection of the law
not extended to land employees.”); Socony-Vacuum Oil Co. v.
Smith, 305 U.S. 424, 430-31, 59 S. Ct. 262, 266 (1939) (citing
cases); id. at 431, 59 S. Ct. at 266 (“[S]eamen are the wards of
the admiralty, whose traditional policy it has been to avoid,
within reasonable limits, the application of rules of the common
law which would affect them harshly because of the special
circumstances attending their calling.”).
41
pursuant to § 402(2). Where the ship involved flies the American
flag, § 502 of the Restatement recognizes prescriptive
jurisdiction on the part of the United States.
Finally, parties may generally consent to application of
American law to govern their relations, as evidenced by a choice
of law clause. Cf. National Ass’n of Sporting Goods Wholesalers,
Inc. v. F.T.L. Mktg. Corp., 779 F.2d 1281, 1285 (7th Cir. 1985)
(citing Casio, Inc. v. S.M. & R., Co., 755 F.2d 528, 531 (7th
Cir. 1985)). In such cases it may be technically imprecise to
speak of prescriptive jurisdiction, for American law applies not
by virtue of the sovereign power of the United States but rather
by the choice of the parties. However it is styled, a
reasonable, mutual, ex ante choice of American law would create
an American interest in applying the Jones Act or American
general maritime law sufficient to meet the threshold
requirement.0
In sum, then, we hold that a plaintiff generally must
establish one of the following to demonstrate a basis for
prescriptive jurisdiction, which under the Lauritzen analysis is
a threshold requirement for American maritime law to apply:
0
In contrast, however, the mere making of a contract in the United States, without a provision
agreeing to American law and without other American contacts, would generally be insufficient
by itself to meet the threshold requirement of a significant American interest in applying
American law. Since international commercial shippers customarily have taken on help where
they have needed it, see Lauritzen, 345 U.S. at 588, 73 S. Ct. at 931,
the happenstance of a contract’s being made in an American port
cannot reasonably be presumed to reflect consent to application
of American law to any injuries to the bluewater seaman, nor
would it (without more) ground prescriptive jurisdiction over an
injury abroad pursuant to § 402(1)(a), for it would not in our
view constitute a “substantial part” of the relevant conduct.
42
(a) injury to an American seaman or a seaman with American
dependents,
(b) injury in American territory,
(c) American defendants,
(d) an American flagged ship, or
(e) a contractual choice-of-law clause specifying American
law.
See also Bailey v. Dolphin Int’l, Inc., 697 F.2d 1268, 1278 n.25
(5th Cir. 1983) (“[A] sufficient American interest in a
particular transaction can rest on the presence of even one
substantial contact between the transaction and this country
. . . .”), overruled on other grounds by In re Air Crash Disaster
Near New Orleans, 821 F.2d 1147 (5th Cir. 1987) (en banc).
The plaintiff’s threshold burden of proving one of these
contacts with the United States arises when a defendant alleges
that American law is inapplicable under the Lauritzen triad. The
plaintiff must proffer evidence from which a jury might conclude
that one of the specified factors supporting prescriptive
jurisdiction exists, and if the evidence introduced by either
side (as to the existence vel non of one of the pertinent United
States contacts) as a whole does not establish by a preponderance
that such a factor exists, the court must hold American law
inapplicable.
In the present case, the Lauritzen factors clearly exhibit a
basis for prescriptive jurisdiction. It is uncontested that
Neely, the injured seaman, is an American citizen. This American
contact is among those we have identified as implicating
significant American interests, and we turn therefore to the
second step of the inquiry.
43
2. Are the Contacts Such That Application of American Law Would
Be Reasonable?
Where plaintiffs have shown that there is a basis for
prescriptive jurisdiction, significant American interests are
implicated, and courts must consider the second goal of the
Lauritzen analysis in determining whether American law is
applicable. The second step in the Lauritzen choice of law
inquiry is concerned with resolving or avoiding conflicts with
foreign law by construing American law in harmony with
international law. We identify the pertinent inquiry primarily
with the restriction on prescriptive jurisdiction described by
§ 403(1) of the Restatement. Section 403(1) expresses a
limitation on the exercise of prescriptive jurisdiction. It
specifies that “[e]ven when one of the bases for jurisdiction
under § 402 is present, a state may not exercise jurisdiction to
prescribe law with respect to a person or activity having
connections with another state when the exercise of such
jurisdiction is unreasonable,” RESTATEMENT § 403(1); in determining
whether it is reasonable to apply American law, courts are to
consider “all relevant factors,” id. § 403(2), which includes the
American contact that provided a basis for prescriptive
jurisdiction.0
0
For determining whether application of American law is reasonable, the Restatement directs
courts to evaluate
all relevant factors, including where appropriate:
(a) the link of the activity to the territory of the regulating state, i.e., the extent
to which the activity takes place within the territory,
or has substantial, direct, and foreseeable effect upon
or in the territory;
44
Thus, the plaintiff’s burden of proving the applicability of
American law translates at this step to a burden of proving
reasonableness. This burden does not require the plaintiff to
show the absence of foreign contacts, or to bear a burden of
proof with respect to each of the Lauritzen factors, as the
(b) the connections, such as nationality, residence, or
economic activity, between the regulating state and the
person principally responsible for the activity to be
regulated, or between that state and those whom the
regulation is designed to protect;
(c) the character of the activity to be regulated, the
importance of regulation to the regulating state, the
extent to which other states regulate such activities,
and the degree to which the desirability of such
regulation is generally accepted;
(d) the existence of justified expectations that might be
protected or hurt by the regulation;
(e) the importance of the regulation to the international
political, legal, or economic system;
(f) the extent to which the regulation is consistent with
the traditions of the international system;
(g) the extent to which another state may have an interest
in regulating the activity; and
(h) the likelihood of conflict with regulation by another
state.
RESTATEMENT § 403(2); see also Republic of Philippines v.
Westinghouse Elec. Corp., 43 F.3d 65, 76 n.1 (3d Cir. 1994)
(noting usefulness of these factors).
Romero and Rhoditis provide benchmarks by which to gauge
this reasonableness. In both of these cases there was a basis
for prescriptive jurisdiction, for the injuries occurred in
American waters. In Romero, where the injured seaman was
Spanish, the ship was of Spanish registry and sailed under the
Spanish flag, the shipowner was a Spanish corporation, and the
seaman’s employment contract was entered into in Spain, the
Supreme Court held that the contacts with the United States (the
place of the seaman’s injury and treatment and the largely
immaterial law of the forum) were not sufficient to justify
application of American law, 358 U.S. at 383-84, 79 S. Ct. at
486; we take this to mean that the application of American law
would not have been reasonable in those circumstances. In
Rhoditis, in contrast, the Court determined that the American
contacts--the place of the wrongful act, law of the forum, and
defendant’s base of operations--were in combination substantial,
398 U.S. at 310, 90 S. Ct. at 1734; application of American law
was reasonable.
45
defendants urge, see Reply Br. of Appellees/Cross-Appellants, at
3. While there is a dearth of precedent concerning the scope of
the plaintiff’s burdens when the defendant invokes the Lauritzen
triad, logic dictates that the plaintiff need adduce evidence
concerning only those factors that he or she believes support the
reasonableness of applying American law. The individual factors
are not required elements of a Jones Act or general maritime law
claim--the Supreme Court has made clear that no particular factor
need reflect a contact with the United States for a plaintiff to
have a claim under American law, see, e.g., Rhoditis, 398 U.S.
306, 90 S. Ct. 1731 (applying American law despite foreign
employer, foreign-flag ship, foreign plaintiff, and contract in
foreign language specifying foreign law)--but rather are
subsidiary indicia of the reasonableness of applying American
law. Moreover, general choice of law analyses do not deem a
plaintiff responsible for bringing forth information on all
circumstances--whether helpful or harmful to the plaintiff’s
case--that might inform the choice of law. For all these
reasons, we decline to impose such a requirement here.0
0
The dissent misapprehends the nature of our analysis, believing that our opinion requires
“defendants to show that United States law does not apply.” Dissenting op. infra
at 6. This inference is unsupported by the quoted passage, which
only requires defendants to prove the existence of foreign
contacts to avoid an adverse judgment once plaintiffs have proven
that there are significant American interests implicated, and
which does not relieve plaintiff of the ultimate burden of
showing the applicability of American law. Similarly, the
dissent’s bald assertion that under our analysis, defendants who
show that “more of the factors weigh in favor of the application
of foreign law” still must “show that the application of United
States law is unreasonable,” dissenting op. infra at 8, divorces
the statement on which it relies (“[U]nless virtually all of the
Lauritzen factors point away from the United States, application
46
Instead, once the plaintiff has established the existence of
a basis for prescriptive jurisdiction, it is incumbent upon
of American law will be reasonable . . . .”) from the actual
framework of the analysis. Unlike the dissent, our opinion
clearly states that the quoted proposition is limited to cases
where there appear no foreign contacts. In such a case, where
significant American interests are implicated and no foreign
interests (so far as the court can tell) are threatened, the
plaintiff has met his or her burden of showing that application
of American law is reasonable because only American interests
have been shown to be at risk.
Moreover, the dissent apparently believes that a plaintiff’s
burden of proving that the American contacts are “substantial”
implies that individual Lauritzen factors count against the
plaintiff until she or he proves otherwise. See, e.g.,
dissenting op. infra at 21 (“Because plaintiff bears the burden
of proof, this factor [inaccessibility of a foreign forum, which
the majority opinion treats as neutral] weighs against applying
United States law to this dispute.”). For this reason the
dissent’s approach and ours are fundamentally at odds. In
metaphorical terms, the majority opinion starts with a normal
scale, one in balance, and requires the plaintiffs to bring it
down onto the American side; we compare whatever weights the
defendants put in the scale against whatever weights the
plaintiffs put in the scale; and if the scale remains down on the
foreign side or if it remains in balance at the end of all this,
the plaintiffs have not made out their burden of proof as to the
substantiality of American contacts and thus have not prevailed.
The dissent, in contrast, apparently would start with a skewed
scale, one pre-positioned down on the foreign side, and require
plaintiffs first to bring the scales back to equipoise and then
further to move the American pan beyond that point. This goes
beyond placing the burden of proof on the plaintiffs by building
in a presumption (albeit in theory rebuttable) that in each case
the Lauritzen factors come stacked against application of
American law. That approach is itself unsupported by case law.
In rejecting the dissent’s position, we do not suggest that
the significance of foreign contacts is irrelevant to the
question whether American contacts are “substantial” enough for
American law to apply; nevertheless, courts should not uniformly
presume from the outset that every Jones Act or general maritime
law suit implicates important foreign interests that will be
compromised by application of American law. If the defendant in
a case does not urge that American law is inapplicable under the
Lauritzen triad, the court need not even engage in the analysis,
regardless of what foreign interests could be implicated. If the
defendant does not put on evidence that foreign interests are
indeed implicated, courts should not presume otherwise.
47
defendants to prove the existence of foreign contacts’. This
allocation of burdens comports with the remedial policies behind
the Jones Act (and the unseaworthiness cause of action), which is
designed for the protection of seamen. Information relevant to a
great variety of the circumstances that could figure in a
Lauritzen analysis may be in the hands of defendants. We
therefore believe that it would be at odds with Congress’s
solicitous intent for courts to require seamen to make a negative
showing with respect to factors on which they do not rely in
establishing the reasonableness of applying American law.0
If the court concludes that the evidence as a whole does not
establish the existence of any foreign contacts that would
provide a foreign nation with a basis for prescriptive
jurisdiction, the plaintiff immediately prevails on the choice of
law issue: a preponderance of--indeed, all--the evidence shows
that the application of American law in such a case is
reasonable. As long as the plaintiff has shown a basis for
prescriptive jurisdiction, cf. DeMateos v. Texaco, Inc., 562 F.2d
895, 900 (3d Cir. 1977) (“[D]ue process require[s] the
identification of significant American interests before an
American sovereignty . . . [may] export its laws to foreign
transactions . . . .”), American interests are implicated, and
maritime law may apply unless concerns about conflicts with the
law of other interested nations compel the conclusion that this
would not be reasonable. Where there are no significant foreign
0
Cf. infra note Error! Bookmark not defined. and accompanying
text.
48
contacts, the court cannot conclude that any other nation is
interested in the relevant sense. And since the plaintiff has by
this step of the inquiry established an American contact that
implicates significant American interests, this in turn
establishes that application of American law is reasonable and
proper.
Foreign contacts standing alone, however, are of extremely
limited value, for “the actual conflict before the court is a
conflict between competing laws, not between physical contacts.
Such conflicts can be resolved intelligently and rationally only
by ascertaining and evaluating the policies underlying the
competing laws.” Symeonides, Maritime Conflicts, 7 MAR. LAW. at
245; see also Romero, 358 U.S. at 383, 79 S. Ct. at 486 (“The
controlling considerations are the interacting interests of the
United States and of foreign countries . . . .”) (emphasis
supplied). Indeed, Lauritzen analysis generally seems to
presuppose that the court has information concerning the
substantive content of foreign law. See, e.g., Lauritzen, 345
U.S. at 575-76, 73 S. Ct. at 924-25 (developing at outset the
conflict between American and Danish law); id. at 582, 73 S. Ct.
at 928 (“The criteria, in general, appear to be arrived at from
weighing of the significance of one or more connecting factors
between the shipping transaction regulated and the national
interest served by the assertion of authority.”) (emphasis
supplied).
Consequently, where the substance of foreign law is unknown,
the Lauritzen inquiry could at most be used prophylactically, to
49
steer clear of potential but unknown conflicts. Because holding
American law inapplicable at this point would do so without a
textual mandate--and with significant American interests
present--such judicially imposed restraint should not be de
rigueur. A court typically should not hold that the United
States’ exercise of prescriptive jurisdiction is unreasonable in
a case where the substance of relevant foreign law is unknown,
unless it concludes that the basis for prescriptive jurisdiction
is exceedingly weak and that virtually all other contacts likely
implicate policies of the foreign nation.
Moreover, the plaintiff generally has no responsibility to
demonstrate the content of potentially applicable foreign law.0
At this step of the inquiry, a defendant’s continued insistence
that the established American contacts are not “substantial”
amounts to the argument that American law should be interpreted
not to apply in order to accommodate the policies served by some
foreign law.0 In effect, then, the defendant seeks to rely on
foreign law to set up an obstacle to American law. For the same
or similar reasons that plaintiffs need not establish Lauritzen
0
But see infra note Error! Bookmark not defined. and accompanying
text (discussing burden on foreign plaintiffs in Jones Act
cases).
0
In construing the Jones Act in Lauritzen, the Supreme Court observed that the
Act was
enacted with regard to a seasoned body of maritime law
developed by the experience of American courts long
accustomed to dealing with admiralty problems in reconciling
our own with foreign interests and in accommodating the
reach of our own laws to those of other maritime nations.
345 U.S. at 577, 73 S. Ct. at 925 (emphasis supplied).
50
factors that do not support their case,0 the responsibility for
demonstrating the content of foreign law rests with the
defendants who wish to use it to defeat a claim under American
law.0 To hold otherwise would be at odds with congressional
intent, for where Congress does want to impose upon a seaman the
onus of establishing the content of foreign law in order to
proceed under American law, it knows how to draft an appropriate
provision: In the 1982 amendments to the Jones Act, Congress
denied the benefit of the Act to foreign seamen in certain
circumstances unless they show that foreign law offers them no
remedy. See 46 U.S.C.A. § 688(b)(2).0
0
See also Lauritzen, 345 U.S. at 584, 73 S. Ct. at 929 (referring to
the many “varieties of legal authority” through whose territorial
jurisdiction a seaman might pass).
0
This holding also accords with Federal Rule of Civil Procedure
44.1, which provides that “[a] party who intends to raise an
issue concerning the law of a foreign country shall give notice
by pleadings or other reasonable notice.” Cf. 9 CHARLES A. WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2443, at 642
(2d ed. 1994) (“Notice normally will be given by the party whose
claim or defense is based on foreign law. It would be contrary
to the purpose of the rule, however, to allow the other party to
remain silent if no notice has been given and claim at the last
moment that the opposing party, who has relied irretrievably on
domestic law, is required to look to foreign law.”) (emphasis
supplied).
0
See also Symeonides, Maritime Conflicts, 7 MAR. LAW. at 225-26
(“[C]ongressional delineation of the transnational reach of
American maritime legislation should be very useful in resolving
conflicts problems in those areas of admiralty law where Congress
has not spoken or has spoken with insufficient clarity, such as
in the area of the general maritime law or the Jones Act.”). As
Symeonides notes, the explicit reach of those Congressional
statutes affecting seamen that do address the choice of law issue
may suggest that the Jones Act and general maritime law
unseaworthiness causes of action should be given broad sweep:
In all of the above cases where Congress has specifically
addressed the choice-of-law problem, it has delineated the
reach of American legislative jurisdiction in such an
expansive way as to include many essentially foreign cases
51
In this case, the evidence presented at trial establishes
the existence of foreign contacts, but the defendants have
presented no information concerning what potentially applicable
St. Lucian law might provide. Indeed, even at in banc reargument
before this court they were unable to state what the law of St.
Lucia provided (and they have made no post-argument submissions).
Accordingly, we cannot calibrate the extent of foreign interests
at stake, and unless virtually all of the Lauritzen factors point
away from the United States, application of American law will be
reasonable in light of the American interests that the plaintiff
has shown to be implicated. With this in mind, we now consider
the various factors.
a. Inaccessibility of a Foreign Forum
We regard the potential inaccessibility of a foreign forum
as a relatively insignificant factor in favor of the law of any
which would normally fall outside the reach of American law.
Thus, although all other factors may be foreign, the
temporary physical presence of the seaman in American waters
at the time of the filing of the suit suffices for the
application of the Seamen’s Act. Similarly, the beginning
or the termination of the voyage at an American port,
without any other American connection, suffices for the
application of the Limitation of Liability Act and COGSA.
American law is thus made applicable on the showing of only
a minimum connection with the American legal order. . . .
[T]his overreach of American legislative jurisdiction is
less than commendable from an internationalist view point;
nevertheless, it is the only congressional directive we have
to delineate the transnational reach of American maritime
law in general. Nationalistic or not, the spirit of this
legislation should provide a guideline in resolving choice-
of-law problems in those areas where Congress has not
spoken, or has spoken with insufficient clarity as in the
area of general maritime law, the Jones Act and the Death on
the High Seas Act (DOHSA).
Id. at 234-35 (footnotes omitted).
52
jurisdiction, American or St. Lucian. As the Supreme Court
explained in Lauritzen, inaccessibility of a foreign forum is a
consideration more appropriate to a forum non conveniens-type
analysis than to the question of the extraterritorial reach of a
statute. See Lauritzen, 345 U.S. at 589-90, 73 S. Ct. at 932.
Accordingly, we do not think that the degree to which a forum in
St. Lucia might be inaccessible to Neely particularly supports
application of American law in this case. Nor, however, does it
count against the reasonableness of applying American law, and
especially so because the defendants have presented the court
with no information about what remedies St. Lucian law might or
might not offer the plaintiff.
b. Law of the Forum
We do know what American law provides, but the law of the
forum (the seventh factor) was considered by the Supreme Court in
Lauritzen to be a very weak consideration in favor of application
of American law:
The purpose of a conflicts-of-laws doctrine is to assure
that a case will be treated in the same way under the
appropriate law regardless of the fortuitous circumstances
which often determine the forum. Jurisdiction of maritime
cases in all countries is so wide and the nature of its
subject matter so far-flung that there would be no
justification for altering the law of a controversy just
because local jurisdiction of the parties is available.
Lauritzen, 345 U.S. at 591, 73 S. Ct. at 932. Despite this
disparagement of the law of the forum, the Court treated it as a
relevant factor in Rhoditis. See Rhoditis, 398 U.S. at 308, 90
53
S. Ct. at 1733. Thus, albeit weakly, the law of the forum
supports application of American law.0
c. Place of the Wrongful Act
In conducting the Lauritzen reasonableness inquiry, courts
must attend to the context of the incident at the heart of the
suit. Where seamen are not plying the world’s seas in
traditional international shipping activity, some contacts take
on heightened significance and others diminished significance,
for some of the rationales concerning the significance of the
factors articulated in the Lauritzen opinion do not apply with
the same force in all circumstances. See, e.g., Zipfel v.
Halliburton Co., 832 F.2d 1477, 1482-83 (9th Cir. 1987); Chiazor
v. Transworld Drilling Co., 648 F.2d 1015, 1019 (5th Cir. 1981),
overruled on other grounds by In re Air Crash Disaster Near New
Orleans, 821 F.2d 1147 (5th Cir. 1987) (en banc). Although some
of the cases recognizing the variability of the Lauritzen
factors’ significance refer to the type of vessel at issue, see,
e.g., Zipfel, 832 F.2d at 1482 (“cases involving atypical
vessels”), the basis for the distinctions is not the nature of
the vessel but rather, as our discussion below illustrates, the
nature of the activity, see, e.g., Fogleman v. ARAMCO, 920 F.2d
278, 282 (5th Cir. 1991) (“[T]he significance of each factor in a
0
While the dissent correctly characterizes the passage we quote from Lauritzen as
signifying that the law of the forum factor “should not dictate
the substantive law to be applied,” dissenting op. infra at 27
(emphasis supplied), it is incorrect in suggesting that the law
of the forum is irrelevant: there is a difference between being
irrelevant and being non-dispositive. Hence our conclusion is
that the law of the forum factor favors the plaintiff here only
“weakly.”
54
nontraditional maritime context like offshore oil production may
vary from that in the traditional shipping context in which the
Lauritzen-Rhoditis test arose.”) (emphases supplied); Phillips v.
Amoco Trinidad Oil Co., 632 F.2d 82, 86 (9th Cir. 1980)
(distinguishing the case before the court from “a typical
maritime case involving a vessel sailing in international
commerce”) (emphasis supplied). Common sense confirms that this
is a non-traditional Jones Act case. The activity here took the
Long John and its crew not from sea to sea in pursuit of
international commerce but rather from beach to reef in aid of
scuba diving adventures. This case is thus the antithesis of a
traditional international shipping case, and we treat it
accordingly.0
0
The dissent believes that the majority opinion “adopts inconsistent positions when discussing the
traditional or nontraditional character of the activity in which the Long John was engaged
. . . .” Dissenting op. infra at 15. However, there is no
inconsistency. Our jurisdictional conclusion in Part II supra
was that the activity of the Long John was “substantial[ly]
relat[ed] to traditional maritime activity.” Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 115 S. Ct. 1043, 1051
(1995) (quoted without alteration or emphasis supra at 25). The
Supreme Court itself has distinguished between vessels actually
“engaged in commercial maritime activity”, Foremost Ins. Co. v.
Richardson, 457 U.S. 668, 674, 102 S. Ct. 2654, 2658 (1982), and
ones whose activity “bears a substantial relationship to
traditional maritime activity,” id. at 675 n.5, 102 S. Ct. at
2658 n.5. Only the latter is necessary for admiralty
jurisdiction, but more than that is presupposed at some points in
the reasoning of Lauritzen.
In this case, the Long John’s expeditions, involving
navigation of a vessel in navigable waters, bore a substantial
relationship to traditional maritime activity, but the vessel was
not engaged in commercial maritime activity. Here, the salient
fact, that to which we refer by the designation “non-traditional
activity,” is that the Long John did not travel the world’s seas
engaged in commercial shipping. As our opinion explains, it is
this substantive factor of traveling or lack thereof -- and not
any purported formal similarity of the Long John to various oil-
55
In traditional international shipping contexts, the place of
the wrongful act is accorded little importance in the choice of
law inquiry. International shipping vessels journey through the
waters of many different nations, and the local law might
therefore change frequently, see Lauritzen, 345 U.S. at 585, 73
S. Ct. at 930, rendering difficult the protection or even the
formation of justified expectations about the law governing
seamen’s employment relations if the place of the injury were a
significant factor. Cf. Romero, 358 U.S. at 384, 79 S. Ct. at
486 (“an unduly speculative burden”). Moreover, the site of the
injury will largely be fortuitous when the seaman is exposed to
the same risks throughout the course of the journey and an
accident happens to occur in a particular locale. See, e.g.,
id.; Fogleman, 920 F.2d at 282 (“The place of the wrongful act is
accorded little weight in traditional maritime cases, in which
the locality of the ship changes constantly.”).
In non-traditional contexts, however, the vessels at issue
do not ply the waters of multiple seas. It may be predicted at
the outset that any injuries will likely occur, non-fortuitously,
in the locale where the vessel is stationed. Thus, the justified
expectations would not be thwarted if the place of the act were
considered a significant choice of law factor. See, e.g.,
Fogleman, 920 F.2d at 282 (“When the injury stems from work on a
drilling rigs or supposed resemblance of the Long John’s scuba
diving missions to oil-drilling operations -- that bears upon
some of the rationales in Lauritzen and thus upon the
significance of some of the Lauritzen factors.
56
permanently situated offshore oil rig or work platform, however,
the place of the wrong assumes greater importance.”).
This “shift” is relevant in this case, which did not arise
in a traditional international shipping context. Admittedly, the
Long John, the ship that injured plaintiff, was a sixteen metric
ton vessel capable of plying the high seas, unlike the drilling
platforms that have been involved in many non-traditional cases.
But as we have already explained, it is the nature of the
activity, not of the vessel, that matters. The Long John was
used at the time of plaintiff’s accident solely for Club Med
scuba diving expeditions in the waters off St. Lucia. Similarly,
plaintiff, an American citizen, contracted in the United States
to serve as a scuba instructor, specifically to take Club Med
guests on scuba diving expeditions off the coast of St. Lucia.
She was a crewmember of a fleet (which included the Long John)
used solely for this purpose. Thus, the location of this accident
was not “fortuitous” in the same way as that of a shipboard tort
against a traditional seaman. Due to the non-traditional context
of this suit, the place of the wrongful act would normally take
on greater significance.
All parties now agree that the injury occurred in St. Lucian
waters, and there is no suggestion that the allegedly improper
training complained of by the plaintiff in her Jones Act count
occurred in the United States. The location of this accident
presumably implicates, with more force than it might in cases
involving traditional sea-going vessels, whatever regulatory
interests St. Lucia may have in applying its law to this
57
accident. But because St. Lucia’s interests are undefined in
this case, this factor does not strongly suggest that application
of American law would not be reasonable.0
d. Place of Contract
Another factor whose significance shifts in non-traditional
contexts is the place of contract. In Lauritzen, the Supreme
Court discounted the importance of the place of contract for
choice of law. It reasoned that “[a] seaman takes his
employment, like his fun, where he finds it; a ship takes on crew
in any port where it needs them.” 345 U.S. at 588, 73 S. Ct. at
931. However, although the place of contracting is “of little
import due to its ‘fortuitous’ occurrence for the traditional
seaman, [it] becomes a substantial factor in nontraditional
maritime employment aboard a vessel more or less permanently
located off the coast of a particular country.” Fogleman, 920
F.2d at 283 (footnotes omitted). See also Chiazor, 648 F.2d at
1019.
The relatively stationary nature of the employment setting
allows the ex ante formation of reasonable beliefs about the
locale of likely work-related injuries, and there are therefore
0
The dissent asserts that this conclusion contradicts our earlier conclusion that the accident here is
the sort with a potential for disrupting maritime commerce. See dissenting op. infra
at 23. There is no contradiction. We do not doubt the
possibility that St. Lucia could have interests in investigating
incidents such as this one or in preventing unseaworthy
conditions such as those involved here. However, without knowing
the content of St. Lucian law, we have no basis for concluding
that application of American law threatens whatever St. Lucia’s
interests may be, and thus the place of the wrongful act in this
case presents little reason to “accommodate the reach” of
American maritime laws to those of St. Lucia. See supra note
50and accompanying text.
58
fewer unforeseen contingencies to detract from the importance of
the site of contracting. The Court downplayed this factor in
Lauritzen largely because of the fortuity of the place of
contracting, when international shippers took on crew as needed
in various nations’ ports. However, with a non-traditional
operation such as the one here, employers need not (and do not)
take on crewmembers at random ports as hiring needs dictate;
rather, they may (and do) select employees in advance, wherever
they choose.
In this case, the place of contracting was the United
States. After interviewing in the United States, plaintiff
received a letter of interest from the defendants before their
need for another scuba instructor at Holiday Village even arose.
Several months later she formed an oral contract to work for Club
Med Management and Holiday Village in St. Lucia for six weeks,
with offer and acceptance occurring during a telephone call
between New York and either Washington, D.C. or Pennsylvania.
Thus, since the parties contracted in America for employment in a
determinate, fix_!
59