Amicus Curiae Brief — Stephen Douglass, Individually and as Personal Representative of the Estate of Shingo Alexander Douglass, et al., Petitioners v. Nippon Yusen Kabushki Kaisha

Case No. 22-562

IN THE

Supreme Court of the United States

STEPHEN DOUGLASS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF SHINGO

ALEXANDER DOUGLASS, ET AL.,

Petitioners,

v.

NIPPON YUSEN KABUSHIKI KAISHA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

BRIEF OF ASSOCIATION OF TRANSPORTATION LAW

PROFESSIONALS, INC. AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

LANE POWELL PC

CALLIE A. CASTILLO

CASSANDRA EKURE

KATIE SMITH MATISON*

COUNSEL OF RECORD

ERIKA O’SULLIVAN

MATTHEW A. STOLOFF

ANDREW G. YATES

1420 Fifth Avenue, Suite 4200

P.O. Box 91302

Seattle, Washington 98111-9402

206.223.7000

matisonk@lanepowell.com

Counsel for Association of Transportation Law

Professionals, Inc.

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iv

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 4

A. Admiralty Law Is Deeply Rooted In The

Constitution ......................................................... 4

B. The Application Of The “At Home”

Requirement Will Have A Deleterious

Impact On Admiralty Law .................................. 6

1. Personal Jurisdiction In Admiralty Law

Does Not Depend On The “At Home”

Requirement .................................................. 6

2. Admiralty Cases Are “Exceptional Cases”

Within The Meaning Of Daimler ................ 11

C. Vessel

Collisions

Are

Matters

Of

International Maritime Law Over Which The

Federal Courts Have And Should Exercise

Jurisdiction ........................................................ 12

1. The Maritime Law Of Collision Is

Communis Juris .......................................... 12

ii

2. The District Court Sitting In Admiralty

Should Have Applied The Applicable

Treaties Between The United States And

Japan ........................................................... 14

3. Judicial Precedent Required The District

Court To Adjudicate This Dispute .............. 16

D. Congress Set Forth A Comprehensive

Statutory Scheme For Claims Involving

Death On The High Seas Which Invokes

Federal

Courts’

Exclusive

Admiralty

Jurisdiction ........................................................ 18

1. History And Enactment Of The Death

On The High Seas Act ................................. 18

2. The Death On The High Seas Act Was

Properly Invoked By Petitioners And The

District Court Should Hear The Merits

Of Their Claims ........................................... 20

3. Most Of The Corporate Shipowners

Involved In Global Maritime Commerce

Are Not “At Home” In The United States .. 24

E. Additional Practical Considerations Militate

In Favor Of Federal Court’s Exercise Of

Jurisdiction In This Case .................................. 25

1. Actions Against The Government For

Death On The High Seas ............................ 25

iii

2. Limitations

On

Remedies

For

Servicemen And The Fifth Circuit

Decision Threaten To Destroy The

Underlying Purpose Of DOHSA ................. 26

CONCLUSION ......................................................... 28

iv

TABLE OF AUTHORITIES

Cases

Am. Home Assurance Co. v. M/V One Helsinki,

546 F. Supp. 3d 90 (D. Mass 2021) ...................... 10

Azzopardi v. Ocean Drilling & Exploration Co.,

742 F.2d 890 (5th Cir. 1984) ................................ 21

Bearce v. United States,

614 F.2d 556 (7th Cir. 1980) ................................ 26

Blakey v. U.S.S. Iowa,

991 F.2d 148 (4th Cir. 1993) ................................ 27

Blumenthal v. United States,

189 F. Supp. 439 (E.D. Pa. 1960) ......................... 25

Bon v. United States,

802 F.2d 1092 (9th Cir. 1986) .............................. 27

Bowoto v. Chevron Corp.,

No. C 99-02506, 2006 WL 2455761

(N.D. Cal. Aug. 22, 2006) ..................................... 20

Daimler AG v. Bauman,

571 U.S. 117 (2013) ................................. 2, 9-11, 24

Dardana Ltd. v. Yuganskneftegaz,

317 F.3d 202 (2d Cir. 2003) .................................... 9

Davidsson v. Hill,

2 K.B. 606 (U.K. 1901).......................................... 18

v

De Bardeleben Marine Corp. v. United States,

451 F.2d 140 (5th Cir. 1971) .......................... 26, 27

Exec. Jet Aviation, Inc. v. Cleveland,

409 U.S. 249 (1972) .............................................. 22

Exxon Corp. v. Central Gulf Lines, Inc.,

500 U.S. 603 (1991) ................................................ 7

Feres v. United States,

340 U.S. 135 (1950) ........................................ 26, 27

Fitzgerald v. U.S. Lines Co.,

374 U.S. 16 (1963) .................................................. 6

Foremost Ins. Co. v. Richardson,

457 U.S. 668 (1982) .............................................. 12

Gkiafis v. S.S. Yiosonas,

387 F.2d 460 (4th Cir. 1967) ................................ 17

Hillier v. S. Tow. Co.,

714 F.2d 714 (7th Cir. 1983) ................................ 27

Howard v. Crystal Cruises,

41 F.3d 527 (9th Cir. 1994), cert. denied,

514 U.S. 1084 (1995) ............................................ 21

In re Air Crash Disaster near New Orleans, La. on

July 9, 1982, 821 F.2d 1147 (5th Cir. 1987) ........ 17

Ins. Co. v. Dunham,

78 U.S. 1 (1871) ...................................................... 7

vi

Int'l Shoe Co. v. Washington,

326 U.S. 310 (1945) .............................................. 10

Jerome B. Grubart, Inc. v. Great Lakes Dredge &

Dock Co., 513 U.S. 527 (1995) .............................. 12

Juno SRL v. S/V Endeavour,

58 F.3d 1 (1st Cir. 1995) ....................................... 14

LaCourse v. PAE Worldwide Incorp.,

980 F.3d 1350 (11th Cir. 2020) ............................ 22

Kuntz v. Windjammer Barefoot Cruises, Ltd.,

573 F. Supp. 1277 (W.D. Pa. 1983) ...................... 20

Langnes v. Green,

282 U.S. 531 (1931) ................................................ 6

Liaw Su Teng v. Skaarup Shipping Corp.,

743 F.2d 1140 (5th Cir. 1984) .............................. 17

Martha's Vineyard Scuba Headquarters, Inc. v.

Unidentified, Wrecked and Abandoned Steam

Vessel, 833 F.2d 1059 (1st Cir. 1987) ............ 14, 15

Meier v. Sun Int’l Hotels, Ltd.,

288 F.3d 1264 (11th Cir. 2002) ............................ 12

Miles v. Apex,

498 U.S. 19 (1990) .......................................... 20, 22

Miller v. United States,

42 F.3d 297 (5th Cir. 1995) .................................. 27

vii

Milliken v. Meyer,

311 U.S. 457 (1940) .............................................. 10

Mobile Oil Corp v. Higgenbotham,

436 U.S. 618 (1978) .............................................. 20

Moragne v. State Marine Lines, Inc.,

398 U.S. 375 (1970) ........................................ 18, 19

Moran v. United States,

102 F. Supp. 275 (D. Conn. 1951) ........................ 25

O'Berry v. ENSCO Int'l, LLC,

No. CV 16-3569, 2017 WL 1048029

(E.D. La. Mar. 20, 2017) ....................................... 10

Offshore Logistics, Inc. v. Tallentire,

477 U.S. 207 (1986) ........................................ 19, 22

Ogden v. GlobalSantaFe Offshore Servs.,

31 F. Supp. 3d 832 (E.D. La. 2014) ...................... 10

Oldfield v. Pueblo De Bahia Lora, S.A.,

558 F.3d 1210 (11th Cir. 2009) .......................... 7, 9

Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd.,

484 U.S. 97 (1987) ................................................ 11

Patterson v. Aker Sols. Inc.,

826 F.3d 231 (5th Cir. 2016) .................................. 9

Pike v. Clinton Fishpacking, Inc.,

143 F. Supp. 2d 162 (D. Mass. 2001) ..................... 7

viii

Potts v. United States,

723 F.2d 20 (6th Cir. 1983) .................................. 27

Roberts v. United States,

498 F.2d 520 (9th Cir. 1974) ................................ 26

Romero v. Int'l Terminal Operating Co.,

358 U.S. 354 (1959) ................................................ 6

Rux v. Republic of Sudan,

495 F. Supp. 2d 541 (E.D. Va. 2007) .................... 23

Schulman v. Institute for Shipboard Educ.,

624 F. App'x 1002 (11th Cir. 2015) ........................ 9

Shell Offshore, Inc. v. Tesla Offshore, L.L.C.,

No. 13-6278, 2015 WL 5714629

(E.D. La. Sept. 28, 2015) ...................................... 15

Skoglund v. PetroSaudi Oil Servs. (Venezuela) Ltd.,

No. CV 18-386, 2018 WL 6112946

(E.D. La. Nov. 20, 2018) ......................................... 9

Snyder v. Royal Caribbean Cruises Ltd.,

540 F. Supp. 3d 1175 (S.D. Fla. 2021) ................... 9

Submersible Sys., Inc. v. Perforadora Cent., S.A.

de C.V., 249 F.3d 413 (5th Cir. 2001) .................... 9

Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de

Equip. Medico, 563 F.3d 1285 (Fed. Cir. 2009) ..... 9

System Pipe & Supply, Inc. v. M/V Viktor

Kurnatovskiy, 242 F.3d 322 (5th Cir. 2001) .......... 7

ix

The Alaska,

130 U.S. 201 (1889) .............................................. 19

The Belgenland,

114 U.S. 355 (1885) .................................. 13, 16, 17

The Harrisburg,

119 U.S. 199 (1886) ........................................ 18, 19

The Lottawanna,

88 U.S. 558 (1874) .................................................. 5

Thompson v. Carnival Corp.,

174 F. Supp. 3d 1327 (S.D. Fl. 2016) ................... 10

Touchcom, Inc. v. Bereskin & Parr,

574 F.3d 1403 (Fed. Cir. 2009) ............................... 8

United States v. Gavagan,

280 F.2d 319 (5th Cir. 1960) ................................ 25

United States v. Swiss Am. Bank, Ltd.,

274 F.3d 610 (1st Cir. 2001) ................................... 7

United States v. Wiltberger,

18 U.S. 76 (1820) .................................................... 5

W. Africa Trading & Shipping Co v. London Int'l.

Grp., 968 F. Supp. 996 (D.N.J. 1997)..................... 7

Whitaker v. Blidberg-Rothchild Co.,

195 F. Supp. 420 (E.D. Va. 1961) ......................... 20

x

Williams v. United States,

711 F.2d 893 (9th Cir. 1983) ................................ 26

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) .............................................. 11

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996) .............................................. 19

Yee Ying Ching v. M/V Maratha Endeavour,

301 F. Supp. 809 (E.D. Va. 1968) ......................... 17

Zicherman v. Korean Air Lines Co., Ltd.,

516 U.S. 217 (1996) .............................................. 20

Constitution and Statutes

U.S. Const., art. III, § 2...................................... 1, 2, 4

28 U.S.C. § 1333 ....................................................... 16

28 U.S.C. § 1333(1)..................................................... 7

28 U.S.C. § 2680(j).................................................... 26

33 U.S.C. §§ 1601-1608 ........................................ 2, 14

46 U.S.C. § 761 ............................................... 3, 18, 19

46 U.S.C. §§ 30301-30308 ...........................1, 3, 19, 22

46 U.S.C. § 30302 ............................................... 19, 22

46 U.S.C. § 30306 ..................................................... 21

xi

46 U.S.C. § 30901 ..................................................... 25

46 U.S.C. § 31101 et seq. ......................................... 25

Regulations

33 C.F.R § 81 ............................................................ 14

Other Authorities

2 Benedict on Admiralty § 81a (2022) ..................... 18

2 Benedict on Admiralty § 81b (2022) ..................... 21

2

Commentaries on the

Constitution of The United States, 450, § 1665

Joseph

Story,

(4th ed. 1873) .......................................................... 6

28 U.S.T. 3459, T.I.A.S. No. 8587,

1050 U.N.T.S. 16 .................................................... 2

59 Cong. Rec. 4482-4486 (1920)............................... 19

Amendments to Federal Rules of Civil Procedure,

146 F.R.D. 401 (1993) ............................................. 8

Deep Sea Mining Act, 1981, c.53 (U.K.) .................. 22

H.R. Rep. No. 447, 95th Cong., 1st Sess. 1 (1977).. 2, 14

H.R. Rep. No. 674, 66th Cong., 2d Sess. (1920) .... 119

Nicholas J. Healy & Joseph C. Sweeney, The

Law of Marine Collision (1st Ed. 1998) ............... 13

xii

International Maritime Organization, History of

IMO,

https://www.imo.org/en/About/HistoryOfIMO/P

ages/Default.aspx ................................................ 15

International

Maritime

Organization,

Introduction to the International Maritime

Organization,

https://www.imo.org/en/About/Pages/Default.a

spx ......................................................................... 15

International Monetary Fund Blog, Yan

Carrière-Swallow, et al., How Soaring

Shipping Costs Raise Prices Around the

World,

https://www.imf.org/en/Blogs/Articles/2022/03/

28/how-soaring-shipping-costs-raise-pricesaround-the-world .................................................. 24

John Paul Jones, Collisions, 8 Benedict on

Admiralty (7th Ed. Rev.) ...................................... 16

S. Rep. No. 92-1079, 92d Cong. (2d Sess.1972) ....... 26

The Federalist No. 80................................................. 4

The Johann Friederich, 1 Wm. Rob. 35................... 13

United Nations Conference on Trade & Develop.,

Review

of

Maritime

Transport,

https://unctad.org/topic/transport-and-tradelogistics/review-of-maritime-transport ................ 24

1

INTEREST

OF AMICUS CURIAE 1

The Association of Transportation Law

Professionals,

Inc.

(“ATLP”),

a

Maryland

corporation, files this brief in support of Petitioners.

ATLP members include practicing transportation

attorneys, government officials, corporate counsel,

and industry professionals. ATLP is concerned about

the impact of the Fifth Circuit’s decision on the

uniform exercise of admiralty jurisdiction by federal

courts over foreign defendants under the United

States Constitution Article III, Section 2, Clause 1

and the Death on the High Seas Act, 46 U.S.C.

§§ 30301-30308.

1 Pursuant to Supreme Court Rule 37, notice of ATLP’s intent

to file this amicus curiae brief was received by counsel of record

for all parties at least ten days prior to the due date of this

brief. The undersigned further affirms that no party’s counsel

authored this brief in whole or in part, and no person or entity,

other than ATLP and its counsel, made a monetary

contribution to fund the brief’s preparation or submission.

2

SUMMARY OF ARGUMENT

All cases brought by United States citizens for

deaths occurring on the high seas or territorial

waters of other nations are now at risk of dismissal

if foreign defendants are not “at home” within the

meaning of Daimler AG v. Bauman, 571 U.S. 117

(2013). But this Court has never held that the “at

home” requirement envisioned in Daimler applies to

admiralty cases.

The United States Constitution Article III,

Section 2, Clause 1 confers subject matter

jurisdiction over admiralty cases on federal courts,

which have applied Federal Rule of Civil Procedure

4(k)(2) to admiralty cases to establish personal

jurisdiction over foreign defendants. The Fifth

Circuit’s decision threatens to restrict the

constitutional delegation of admiralty jurisdiction to

federal

courts

over

international

disputes,

disregarding over a century of judicial precedent

from this Court.

The Fifth Circuit’s decision restricts the

ability of federal courts sitting in admiralty to

exercise jurisdiction over matters communis juris

even when the parties are citizens of countries that

are signatories to international treaties, such as the

Convention for International Regulations for

Preventing Collisions at Sea (COLREGS). 28 U.S.T.

3459, T.I.A.S. No. 8587, 1050 U.N.T.S. 16; 33 U.S.C.

§§ 1601-1608; see H.R. Rep. No. 447, 95th Cong., 1st

Sess. 1 (1977). Moreover, the decision limits the

remedies of U.S. citizens under the Death on the

3

High Seas Act (DOHSA), 46 U.S.C. § 761 et seq.

(reorganized and restated at 46 U.S.C. §§ 3030130308), in contravention of clear congressional intent

to provide exclusive jurisdiction to federal courts

over those claims.

The impact of the Fifth Circuit decision is that

no foreign defendant can ever be brought under the

jurisdiction of a federal court to respond to a DOHSA

claim. Only this Court can provide clarity and

reconcile this judicial anomaly.

4

ARGUMENT

A. Admiralty Law Is Deeply

Constitution.

Rooted In The

Federal courts’ authority to hear admiralty

cases is rooted in a constitutional mandate. The

Constitution provides that the federal judicial power

“shall extend . . . to all Cases of admiralty and

maritime jurisdiction” including between United

States Citizens and “foreign States, Citizens or

subjects.” U.S. Const., art. III, § 2, cl. 1. 2

After the Constitution was enacted, the Court

rejected the narrower jurisdiction traditionally

exercised by English courts over admiralty cases,

enabling substantial expansion of admiralty

jurisdiction over the following years. In 1820, the

Court held that admiralty jurisdiction applies to

persons on board a vessel on the high seas:

2

Even before the Constitution was put in place, Alexander

Hamilton explained in The Federalist Papers the need for a

national admiralty power:

Maritime causes . . . so generally depend on the

laws of nations, and so commonly affect the

rights of foreigners, that they fall within the

considerations which are relative to the public

peace. The most important part of them are by

the present confederation submitted to federal

jurisdiction.

The Federalist No. 80.

5

The ocean, the high seas, are a common

domain; and every ship, private as well

as public, is there upon the territory the

her sovereign; and amenable to no laws,

but the laws of her sovereign, and the

law of nations . . . . If the crew had all

shipped in England, and been English

subjects, they would have been equally

entitled to protection, and equally

amenable to our laws. If, upon the

ocean, or high seas, a foreigner had

been murdered, his death would have

been equally avenged by our laws. . . . If

a foreigner on board this ship, had

committed an offence, he would equally

have been liable. It is not correct, then,

to say, that personal jurisdiction is

universal, as to citizens; nor that it does

in no case extend to foreigners.

United States v. Wiltberger, 18 U.S. 76, 88 (1820).

More than 50 years later, the Court stated

that it was “unquestionable” that the framers of the

Constitution did not intend “to place the rules and

limits of maritime law under the disposal and

regulation of the several states, as that would have

defeated the uniformity and consistency at which the

Constitution aimed on all subjects of a commercial

character affecting the intercourse of the states with

each other or with foreign states.” The Lottawanna,

88 U.S. 558, 575 (1874).

The Court has consistently interpreted the

6

constitutional grant of admiralty jurisdiction to

empower federal courts “to continue the development

of [admiralty] law.” Romero v. Int’l Terminal

Operating Co., 358 U.S. 354, 361 (1959). As the Fifth

Circuit’s decision below acknowledges, “Admiralty’s

broad jurisdiction has been described as extending

‘to all acts and torts done upon the high seas, and

within the ebb and flow of the sea.’ Indeed, in no

other context do courts ‘have complete jurisdiction

over suits . . . between foreigners.’” Pet. App. 28

(quoting 2 Joseph Story, Commentaries on the

Constitution of The United States, 450, § 1665 (4th

ed. 1873)); Langnes v. Green, 282 U.S. 531, 544

(1931)). Likewise, the Fifth Circuit’s dissent reminds

that, “[f]ederal courts hold a unique role in admiralty

to define causes of action and to hear cases arising in

the world’s common areas—the high seas—as the

Supreme Court has made clear.” Pet. App. 109

(Elrod, J., dissenting); see also Fitzgerald v. U.S.

Lines Co., 374 U.S. 16, 20-21 (1963) (“This Court has

long recognized its power and responsibility in this

area and has exercised that power where necessary

to do so.”). If the decision below stands, it threatens

the exceptional nature of admiralty cases.

B. The Application Of The “At Home” Requirement

Will Have A Deleterious Impact On Admiralty

Law.

1. Personal Jurisdiction In Admiralty Law Does

Not Depend On The “At Home” Requirement.

There is no controversy that federal district

courts have subject matter jurisdiction based on any

7

civil case of admiralty law. Exxon Corp. v. Central

Gulf Lines, Inc., 500 U.S. 603, 608 (1991) (citing 28

U.S.C. § 1333(1); Ins. Co. v. Dunham, 78 U.S. 1, 26

(1871)). There is also no controversy that where

subject matter jurisdiction is based on admiralty

law, the court’s jurisdiction over the parties is

national in scope, and therefore the Due Process

Clause of the Fifth Amendment, and not the

Fourteenth Amendment controls. Pike v. Clinton

Fishpacking, Inc., 143 F. Supp. 2d 162, 166 (D. Mass.

2001). “[U]nder the Fifth Amendment, a plaintiff

need only show that the defendant has adequate

contacts with the United States as a whole, rather

than with a particular state.” United States v. Swiss

Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).

By extension, courts have long recognized the

applicability of Federal Rule of Civil Procedure

4(k)(2) to admiralty cases to establish personal

jurisdiction over foreign defendants. See, e.g.,

Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d

1210, 1219 n.24 (11th Cir. 2009); System Pipe &

Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d

322, 325 (5th Cir. 2001); W. Africa Trading &

Shipping Co v. London Int’l. Grp., 968 F. Supp. 996,

1000 (D.N.J. 1997).

Rule 4(k)(2) is particularly apt to admiralty

cases because defendants are often not based in the

United States. The Federal Circuit Court observed

that:

Rule 4(k)(2) closed a loophole that

existed prior to the 1993 amendments

of the Federal Rules of Civil Procedure.

8

Before the adoption of Rule 4(k)(2), a

non-resident defendant who did not

have “minimum contacts” with any

individual state sufficient to support

exercise of jurisdiction, but did have

sufficient contacts with the United

States as a whole, could escape

jurisdiction in all fifty states. Rule

4(k)(2) was adopted to ensure that

federal claims will have a U.S. forum if

sufficient national contacts exist.

Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403,

1414 (Fed. Cir. 2009) (citations omitted).

In evaluating national contacts, the 1993

Amendments to the Federal Rules of Civil Procedure

note:

There remain constitutional limitations

on

the

exercise

of

territorial

jurisdiction by federal courts over

persons outside the United States.

These restrictions arise from the Fifth

Amendment . . . . [which] requires that

any defendant have affiliating contacts

with the United States sufficient to

justify the exercise of personal

jurisdiction over that party.

Amendments to Federal Rules of Civil Procedure,

146 F.R.D. 401, 571-72 (1993) (internal citations

omitted).

9

Significantly, courts have recognized that

under Rule 4(k)(2), the exercise of jurisdiction is

dependent upon the defendant’s national contacts

and is measured by reference to the Fifth

Amendment. See, e.g., Synthes (U.S.A.) v. G.M. Dos

Reis Jr. Ind. Com de Equip. Medico, 563 F.3d 1285,

1295-96 (Fed. Cir. 2009); Dardana Ltd. v.

Yuganskneftegaz, 317 F.3d 202, 207 (2d Cir. 2003);

Submersible Sys., Inc. v. Perforadora Cent., S.A. de

C.V., 249 F.3d 413, 420 (5th Cir. 2001).

When Rule 4(k)(2) became effective in 1993,

courts sitting in admiralty continued to adhere to

the traditional minimum contacts analysis. See, e.g.,

Oldfield, 558 F.3d at 1218-24.

But after the Court in Daimler was asked to

address a question arising under the Fourteenth

Amendment in a case that involved foreign plaintiffs

suing foreign defendants based on foreign conduct,

some courts, including the Fifth and Eleventh

Circuits, relied upon the decision for the proposition

that the “at home” requirement also applied to

admiralty cases, including this one. 3

In fact, a district court sitting in admiralty

observed that: “In the wake of the Supreme Court’s

decision in Daimler, it appears unlikely that general

See, e.g., Schulman v. Institute for Shipboard Educ., 624 F.

App’x 1002, 1005-6 (11th Cir. 2015); Patterson v. Aker Sols.

Inc., 826 F.3d 231, 234 (5th Cir. 2016); Skoglund v. PetroSaudi

Oil Servs. (Venezuela) Ltd., No. CV 18-386, 2018 WL 6112946,

at *5 (E.D. La. Nov. 20, 2018); Snyder v. Royal Caribbean

Cruises Ltd., 540 F. Supp. 3d 1175, 1182-3 (S.D. Fla. 2021).

3

10

jurisdiction over a foreign defendant could ever be

available under 4(k)(2).” 4 Thompson v. Carnival

Corp., 174 F. Supp. 3d 1327, 1338 n.9 (S.D. Fl. 2016).

By applying the “at home” requirement to

maritime cases, the courts are effectively ignoring

the purpose of Rule 4(k)(2) and abandoning the

traditional minimum contacts analysis based on a

fundamental misunderstanding that Daimler applies

to admiralty law cases and the Due Process Clause

of the Fifth Amendment. Consequently, many courts

including the Fifth and Eleventh Circuits, are

permitting foreign defendants in admiralty cases to

escape jurisdiction from all 50 states—which is

exactly what Rule 4(k)(2) was intended to prevent.

If left unaddressed, foreign defendants in

admiralty cases—including Respondent in this

case—that otherwise have satisfied the traditional

minimum contacts will continue to enjoy immunity

from suits while reaping the benefits of the

American legal system. This offends the “traditional

notions of fair play and substantial justice.” Int’l

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(quoting Milliken v. Meyer, 311 U.S. 457, 463

(1940)); World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 297 (1980).

4 Other courts, however, have apparently disregarded the “at

home” requirement to admiralty cases. See, e.g., Ogden v.

GlobalSantaFe Offshore Servs., 31 F. Supp. 3d 832, 839 (E.D.

La. 2014); O’Berry v. ENSCO Int’l, LLC, No. CV 16-3569, 2017

WL 1048029, at *9 (E.D. La. Mar. 20, 2017); Am. Home

Assurance Co. v. M/V One Helsinki, 546 F. Supp. 3d 90, 94-95

(D. Mass 2021).

11

2. Admiralty Cases Are “Exceptional Cases”

Within The Meaning Of Daimler.

The Court previously acknowledged that, in

exceptional cases, a corporation’s operations may be

so substantial in a forum that jurisdiction would be

warranted even though the forum is not the

corporation’s formal place of incorporation or

principal place of business. Daimler AG, 571 U.S. at

139 n.19. Admiralty cases, such as this one, are such

“exceptional” cases. Foreign corporations which

engage in maritime activity that significantly

impacts U.S. marine commerce or U.S. citizens

engaged in maritime activities should be held

accountable in federal courts, just as if they were “at

home” here.

Though it may not have been this Court’s

intention, the Daimler decision has imposed a sea

change to admiralty law. The impact is palpable, and

this Court should once again be concerned about “the

consequences of the inability” to bring suit against

foreign defendants, particularly in the context of

admiralty law. Omni Capital Int’l, Ltd. v. Rudolf

Wolff & Co., Ltd., 484 U.S. 97, 111 (1987).

Justice Sotomayor foresaw the exact issue this

case presents: “a parent whose child is maimed due

to the negligence of a foreign hotel owned by a

multinational conglomerate will be unable to hold

the hotel to account in a single U.S. Court, even if

the hotel company has a massive presence in

multiple States.” Daimler, 571 U.S. at 159

12

(Sotomayor, J., concurring) (referencing Meier v. Sun

Int’l Hotels, Ltd., 288 F.3d 1264 (11th Cir. 2002)).

Justice Sotomayor’s concerns have now

become a reality in admiralty law. Multinational

corporations, such as Respondent, are presently

immune from injuries and deaths of United States

citizens that take place on the high seas. Maritime

incidents, however, have “a potentially disruptive

impact on maritime commerce.” Jerome B. Grubart,

Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.

527, 534 (1995) (internal citations omitted). And the

collision of two vessels at sea that results in injuries

and deaths of U.S. citizens bears even more

significant relationship with maritime commerce.

See Foremost Ins. Co. v. Richardson, 457 U.S. 668,

675 (1982) (observing that the “potential disruptive

impact of a collision between boats on navigable

waters, when coupled with the traditional concern

that admiralty law holds for navigation, compels the

conclusion” that a collision between boats on

navigable waters “has a significant relationship with

maritime commerce.”).

C. Vessel Collisions Are Matters Of International

Maritime Law Over Which The Federal Courts

Have And Should Exercise Jurisdiction.

1. The Maritime Law Of Collision Is Communis

Juris.

“Modern Anglo-American collision law was

developed very largely by Stephen Lushington, judge

of the English High Court of Admiralty from 1838 to

13

1867. During this period collision cases become much

more frequent.” 5 Maritime collision laws are

indisputably well-developed in the federal general

maritime law of the United States, international

treaties as the supreme law of the land pursuant to

Article VI, Clause 2 of the Constitution, and the laws

of all other maritime trading nations.

For more than a century, this Court has

recognized that certain causes of action in admiralty

are “communis juris—that is, where they arise under

the common law of nations . . . .” The Belgenland,

114 U.S. 355, 365 (1885). “‘All questions of collision

are questions communis juris’’” and accordingly are

matters of international law. The Belgenland, 114

U.S. at 367 (quoting The Johann Friederich, 1 Wm.

Rob. 35). “Both, [salvage and collision] when acted

on the high seas, between persons of different

nationalities, come within the domain of the general

law of nations, or communis juris, and are prima

facie proper subjects of inquiry in any court of

admiralty . . . .” Id. at 362. Finally, because collision

liability is routinely governed by international

treaties, this Court acknowledged that an admiralty

court is competent to construe treaty stipulations

between the United States and the country of a

foreign ship. Id. at 364.

5 Nicholas J. Healy & Joseph C. Sweeney,

Collision, at 5 (1st Ed. 1998).

The Law of Marine

14

2. The District Court Sitting In Admiralty

Should Have Applied The Applicable

Treaties Between The United States And

Japan.

As seafaring nations, the United States and

Japan are signatories to certain international

conventions which regulate the worldwide shipping

industry and impose general uniformity on

international shipping to enhance safety and

promote world trade. Importantly in this case, both

the United States and Japan are signatories to the

Convention for International Regulations for

Preventing Collisions at Sea, Oct. 20, 1972 (the

“COLREGS”), 28 U.S.T. 3459, T.I.A.S. No. 8587,

1050 U.N.T.S. 16. In 1975, the Senate consented to

the ratification of the Convention. See H.R. Rep. No.

447, 95th Cong., 1st Sess. 1 (1977). Shortly

thereafter, the United States began implementing

the COLREGS through federal legislation and

administrative regulations. See id.; see also 33

U.S.C. §§ 1601-1608; 33 C.F.R § 81. These uniform

regulations function as maritime “traffic laws” and

govern rules at sea including vessel speed, visibility,

look out and pilotage requirements, maneuvering,

and collisions. U.S. District Courts have interpreted

and applied COLREGS provisions. See, e.g., Juno

SRL v. S/V Endeavour, 58 F.3d 1, 4 (1st Cir. 1995)

(“The history of the COLREGS shows that they were

enacted because of the need to establish a code of

international rules of the road for maritime traffic

throughout the world.” (citing H.R. Rep. No. 447,

95th Cong., 1st Sess. 1977, 1977 U.S.C.C.A.N. 509));

Martha’s Vineyard Scuba Headquarters, Inc. v.

15

Unidentified, Wrecked and Abandoned Steam

Vessel, 833 F.2d 1059, 1065-66 (1st Cir. 1987); Shell

Offshore, Inc. v. Tesla Offshore, L.L.C., No. 13–6278,

2015 WL 5714629, at *3-*4 (E.D. La. Sept. 28,

2015). 6

The United States and Japan are also

Member States and participants in the International

Maritime Organization (“IMO”) and are signatories

to the IMO Convention. 7 The IMO is a specialized

agency of the United Nations, whose purpose “is the

global standard-setting authority for the safety,

security and environmental performance of

international shipping.” 8 Moreover, the United

States and Japan ratified the 1974 International

Convention for the Safety of Life at Sea (“SOLAS”),

Nov. 1, 1974, 32 U.S.T. 47, T.I.A.S. No. 9700. SOLAS

is considered the most important international

treaty covering the safety of cargo and passenger

ships.

6 Notably, the underlying factual dispute between the parties

was whether the Respondent’s Japanese flagged vessel had a

proper lookout. The United States District Court sitting in

admiralty should have applied the COLREGS to the facts of

the case.

7 “The IMO Convention entered into force in 1958 . . . .”

International Maritime Organization, History of IMO,

https://www.imo.org/en/About/HistoryOfIMO/Pages/Default.asp

x (last visited Dec. 14, 2022).

International Maritime Organization, Introduction to the

Maritime

Organization,

https://www.imo.org/en/About/Pages/Default.aspx (last visited

Dec. 14, 2022).

8

International

16

The lower court should have applied

COLREGS and other applicable treaty stipulations

to the collision between Respondent’s Japanese

flagged vessel and the United States naval ship. The

admiralty court had an interest in interpreting the

international laws applicable to this collision,

notwithstanding the fact that Respondent is a

foreign entity operating a foreign flagged vessel.

3. Judicial Precedent Required The District

Court To Adjudicate This Dispute.

It is well settled that pursuant to 28 U.S.C.

§ 1333, “federal district courts have admiralty

jurisdiction to entertain actions, in personam or in

rem, arising from collisions on the navigable waters

of the United States, the high seas, or the territorial

waters of other nations.”

John Paul Jones,

Collisions, 8 Benedict on Admiralty, § 9.03, (7th Ed.

Rev.). This Court has acknowledged that a suit in

admiralty, even between foreigners, is within the

jurisdiction of United States District Courts. The

Belgenland, 114 U.S. at 368-69 (There is “no good

reason” why a party injured on the high seas “should

ever be denied justice in our courts” even when both

parties are “foreigners[.]”). 9

Although The Belgenland involved an in rem

action, the Fifth Circuit in this case incorrectly

The Belgenland involved interpretation of collision liability

between two foreign flagged vessels. Here, the dispute is

between the personal representatives of U.S. Navy sailors and

a Japanese vessel.

9

17

limited The Belgenland’s holding to vessel in rem

actions. In so doing, the Fifth Circuit ignored long

standing and consistent application of the precedent

supporting

a

finding

of

jurisdiction

over

international parties for incidents occurring on the

high seas. See, e.g., Liaw Su Teng v. Skaarup

Shipping Corp., 743 F.2d 1140, 1142-43, 1145-46

(5th Cir. 1984), overruled on other grounds by In re

Air Crash Disaster near New Orleans, La. on July 9,

1982, 821 F.2d 1147 (5th Cir. 1987); Gkiafis v. S.S.

Yiosonas, 387 F.2d 460, 462 (4th Cir. 1967) (“A suit

in admiralty between foreigners is within the

jurisdiction of the District Courts of the United

States. Not only does jurisdiction exist, but it will be

exercised ‘unless special circumstances exist to show

that justice would be better subserved by declining

it.’” (quoting The Belgenland, 114 U.S. at 367)); Yee

Ying Ching v. M/V Maratha Endeavour, 301 F.

Supp. 809, 809-10 (E.D. Va. 1968). Further, the Fifth

Circuit’s analysis failed to evaluate or account for

the historical backdrop upon which The Belgenland

was decided or the specific nature of vessel collisions.

See Pet. App. 28-30.

As Judge Elrod’s Dissent portends, if the Fifth

Circuit’s decision is permitted to stand, federal

courts’ “ability to hear many cases sounding in

admiralty—an area of law in which [federal courts]

have long been empowered to adjudicate claims

involving far-flung parties aboard vessels in farflung places on the seven seas” will be vastly

curtailed, in contravention of constitutional and

statutory doctrines. Pet. App. 109 (Elrod, J.,

18

dissenting). Accordingly, the district court should

have exercised admiralty jurisdiction in this case.

D. Congress Set Forth A Comprehensive Statutory

Scheme For Claims Involving Death On The

High Seas Which Invokes Federal Courts’

Exclusive Admiralty Jurisdiction.

1. History And Enactment Of The Death On

The High Seas Act.

In 1846, England enacted the Lord Campbell’s

Act, later known as the Fatal Accidents Act, which

provided a civil remedy for death caused by

negligence. 9 & 10 Vict. c. 93; 27 & 28 Vict. c. 95. 10

In Davidsson v. Hill, 2 K.B. 606 (U.K. 1901), Justices

Kennedy and Phillimore applied the Fatal Accidents

Act 1846 to the death of a foreign seaman on a

foreign ship, resulting from a collision with a British

ship on the high seas. In doing so, the English court

recognized the importance of a cause of action for

dependents of a person negligently killed was

regarded as a universal principle to be treated as

part of the international law maritime.

Prior to 1920, the federal general maritime

law did not provide a cause of action for the death of

a person on navigable waters. See The Harrisburg,

10 “Subsequently, all of the states of the United States enacted

wrongful death statutes that resembled Lord Campbell’s Act.” 2

Benedict on Admiralty § 81a (2022); Moragne v. State Marine

Lines, Inc., 398 U.S. 375, 390 (1970) (discussing state wrongful

death statutes).

19

119 U.S. 199, 213 (1886); The Alaska, 130 U.S. 201,

209 (1889). In 1920, Congress enacted the Death on

the High Seas Act (“DOHSA”), 46 U.S.C. § 761 et

seq. (reorganized and restated at 46 U.S.C. §§ 3030130308). DOHSA’s aim was to provide an “effective

wrongful death remedy for survivors of persons

killed on the high seas.” Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 214 (1986). Congress

sought to join other maritime nations, like England,

to enact a rational, uniform law to claims arising

from such incidents on the high seas. 11 H.R. Rep. No.

674, 66th Cong., 2d Sess., 3-4 (1920); Moragne v.

State Marine Lines, Inc., 398 U.S. 375, 398 (1970);

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.

199, 215 (1996). DOHSA provides the decedent’s

personal representative the right to maintain an

action in rem or in personam. 46 U.S.C. § 761

(recodified as 46 U.S.C. § 30302) (The action may be

11 As Congressman Volstead stated during the March 17, 1920

floor debate:

The object of this bill is to give a cause of action

in case of death resulting from negligence or

wrongful act occurring on the high seas. Nearly

all countries have modified the old rule which

did not allow relief in the case of death under

such circumstance. Under what is known as

Lord Campbells act, England many years ago

authorized recovery in such cases. France,

Germany, and other European countries now

followed this more enlightened policy and allow

dependent partis to recover in case of death of

their near relatives upon the high seas.

59 Cong. Rec. 4482-4486 (1920).

20

maintained “against the vessel, person or

corporation which would have been liable if death

had not ensued.”). DOHSA brought a measure of

uniformity and predictability to the law on the high

seas and courts should not “rewrit[e] rules that

Congress has affirmatively and specifically enacted.”

Mobile Oil Corp v. Higgenbotham, 436 U.S. 618, 625

(1978) overruled on other grounds by Miles v. Apex,

498 U.S. 19, 20 (1990).

2. The Death On The High Seas Act Was

Properly Invoked By Petitioners And The

District Court Should Hear The Merits Of

Their Claims.

For decades, courts have applied DOHSA

whenever death occurs on the high seas, whether

caused by negligence or unseaworthiness. E.g.,

Zicherman v. Korean Air Lines Co., Ltd., 516 U.S.

217, 221-30 (1996) (DOHSA claim against airline

brought by survivors of passenger killed when

airline was shot down over Sea of Japan in Soviet

missile attack); Kuntz v. Windjammer Barefoot

Cruises, Ltd., 573 F. Supp. 1277, 1282-84 (W.D. Pa.

1983) (cruise company liable for fatal scuba-diving

accident on high seas); Whitaker v. Blidberg–

Rothchild Co., 195 F. Supp. 420, 421-23 (E.D. Va.

1961) (vessel and its owner liable for death of

drowned seaman), or even intentional conduct, see,

e.g., Bowoto v. Chevron Corp., No. C 99–02506, 2006

WL 2455761, at *5 (N.D. Cal. Aug. 22, 2006)

(DOHSA “clearly” applied to a claim brought on

behalf of Nigerian individuals allegedly killed by the

Nigerian military because the deaths “occurred [on

21

an oil drilling platform] off the Nigerian coast and

well over one marine league from U.S. shore”).

Courts typically do not limit the term “high seas”

within the meaning of DOHSA to international

waters, but include the territorial waters of a foreign

nation as long as they are more than a marine

league away from any United States shore. 2

Benedict on Admiralty § 81b (2022). 12

DOHSA also includes a provision expressly

permitting claims under the laws of a foreign

country along with, or instead of, DOHSA claims. 46

U.S.C. § 30306 (“When a cause of action exists under

the law of a foreign country for death by wrongful

act, neglect, or default on the high seas, a civil action

in admiralty may be brought in a court of the United

States based on the foreign cause of action, without

abatement of the amount for which recovery is

authorized.”). Through this provision, Congress

preserved the right to recover under the law of

another sovereign nation for whatever measure of

damages such law might provide, regardless of any

inconsistency with the measure of damages under

DOHSA. The complaint in this case alleged that the

Japanese wrongful death statute could be applied.

46 U.S.C. § 30306.

See Howard v. Crystal Cruises, 41 F.3d 527, 529-30 (9th Cir.

1994), cert. denied, 514 U.S. 1084 (1995) (territorial waters of

Mexico); Azzopardi v. Ocean Drilling & Exploration Co., 742

F.2d 890, 892-94 (5th Cir. 1984) (English Channel).

12

22

Since the passage of DOHSA, Congress

expanded the scope of DOHSA’s applicability to

provide for remedies to those involved in airplane

accidents, in which death occurs on the high seas.

Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century, Pub. L. No. 106-181, 114

Stat. 61, 131, amending 46 U.S.C. §§ 761-762

(recodified as 46 U.S.C. §§ 30301-30308); see also

Offshore Logistics, 477 U.S. at 218; Exec. Jet

Aviation, Inc. v. Cleveland, 409 U.S. 249, 264, 268

(1972). Similarly, England has expanded the Fatal

Accidents Act to include other maritime perils,

including deep sea and offshore mining operations.

See Deep Sea Mining Act, 1981, c.53 (U.K.).

Here, Petitioners sought redress for the

deaths of the decedents under DOHSA, and the

federal district court should hear the merits of their

claims. 46 U.S.C. § 30302. The purpose of DOHSA

was to codify and provide a maritime cause of action

for parties—here United States’ citizens. See Miles,

498 U.S. at 24 (“The Jones Act and DOHSA

established a policy in favor of maritime wrongful

death recovery.”). The circumstances of this case fall

squarely within the ambit of DOHSA. See LaCourse

v. PAE Worldwide Incorp., 980 F.3d 1350, 1357-58

(11th Cir. 2020) (“Where a death occurs on the high

seas, DOHSA applies, full stop.”). Since enactment of

DOHSA, Congress has sought to expand, not limit

recovery under the act. It cannot be that absent a

principal place of business or a company sufficiently

“at home” in the United States, a century of

precedent and congressional action are rendered

ineffective or null.

23

Perplexingly, if the Fifth Circuit’s ruling

stands, it may be easier to obtain recourse against

foreign sovereigns in U.S. courts than foreignheadquartered corporations with extensive ties to

the U.S. For example, courts have recognized that

DOHSA claims may be pursued against foreign

sovereigns under certain circumstances for deaths

occurring on the high seas. See, e.g., Rux v. Republic

of Sudan, 495 F. Supp. 2d 541, 559, 563 (E.D. Va.

2007) (holding DOHSA may be invoked against a

foreign state under § 1605(a)(7) of the Foreign

Sovereign Immunities Act, and that Sudan was

liable to plaintiffs under DOHSA for the wrongful

deaths of the seventeen sailors killed aboard a U.S.

warship in the Port of Aden, Yemen). Here, the

district court should have allowed Petitioners to

pursue recourse against international corporations

doing extensive business in the United States.

The Fifth Circuit’s decision strips courts of

jurisdiction provided under the Constitution and

explicitly expanded by Congress. The Fifth Circuit’s

ruling, if allowed to stand, will “redirect United

States citizen-plaintiffs—asserting United States

federal law claims and invoking United State federal

law service of process—offshore, often to countries

with far less developed legal systems than Japan.”

Pet. App. 124 (Higginson, J., dissenting).

24

3. Most Of The Corporate Shipowners Involved

In Global Maritime Commerce Are Not “At

Home” In The United States.

It is difficult to overstate the impact this

decision will have on the ability of those harmed in

accidents occurring on the high seas to seek recourse

in United States’ courts. Today, at least eighty

percent of global cargo is transported on the high

seas, implicating trillions of dollars of economic

activity. 13 Most corporate shipowners of other

maritime nations are likely not “at home” in the

United States under the Daimler test. If the Fifth

Circuit’s decision is permitted to stand, American

and foreign citizens will be unable to avail

themselves of U.S. courts when accidents involving

foreign corporate shipowners and U.S. ships

inevitably occur on the high seas.

13 United Nations Conference on Trade & Develop.,

Maritime

Transport,

Review of

https://unctad.org/topic/transport-andtrade-logistics/review-of-maritime-transport (last visited Nov.

23, 2022); International Monetary Fund Blog, Yan CarrièreSwallow, et al., How Soaring Shipping Costs Raise Prices

Around

the

World,

https://www.imf.org/en/Blogs/Articles/2022/03/28/how-soaringshipping-costs-raise-prices-around-the-world (last visited Nov.

23, 2022).

25

E. Additional Practical Considerations Militate In

Favor Of Federal Court’s Exercise Of

Jurisdiction In This Case.

1. Actions Against The Government For Death

On The High Seas.

Following enactment of the Federal Tort

Claims Act (“FTCA”), an individual could pursue an

action against the U.S. government for wrongful

death on the high seas. E.g., United States v.

Gavagan, 280 F.2d 319, 321 (5th Cir. 1960) (holding

United States liable under DOHSA through the

FTCA for deaths resulting from negligent rescue

efforts on the high seas); Blumenthal v. United

States, 189 F. Supp. 439, 446-47 (E.D. Pa. 1960) (“In

the same manner as a private person is liable under

the Death on the High Seas Act, so, too, is the

Government under the Federal Tort Claims Act.”);

Moran v. United States, 102 F. Supp. 275, 279 (D.

Conn. 1951).

Subsequently, Congress enacted the Suits in

Admiralty Act (“SIA”), 46 U.S.C. § 30901, et seq.,

and The Public Vessels Act (“PVA”), 46 U.S.C.

§ 31101, et seq., which operate as a waiver of

sovereign immunity by the United States in cases to

which they apply. The SIA provides a waiver of

federal sovereign immunity for admiralty claims

arising from the use of government-owned ships as

merchant vessels, and the PVA deals with claims for

damage caused by public vessels, such as warships,

Coast Guard vessels, and other ships not involved in

the merchant trade. The 1960 amendment to the SIA

26

extended jurisdiction under the SIA “to the full

range of admiralty cases which might have been

maintained had a private person or property been

involved rather than the Government or its agents

and employees or property.” S. Rep. No. 92-1079, 92d

Cong. (2d Sess.1972); Bearce v. United States, 614

F.2d 556, 558 (7th Cir. 1980); De Bardeleben Marine

Corp. v. United States, 451 F.2d 140, 142–45 (5th

Cir. 1971). This includes claims brought under

DOHSA. E.g., Williams v. United States, 711 F.2d

893, 897 (9th Cir. 1983)(“[A] DOHSA suit against the

United States mandates a pleading of the [SIA.]”);

Roberts v. United States, 498 F.2d 520, 526 (9th Cir.

1974) (“[T]he Suits in Admiralty Act, as amended,

encompasses aviation wrongful death actions against

the United States arising under the general

maritime law or under the Death on the High

Seas.”).

2. Limitations On Remedies For Servicemen

And The Fifth Circuit Decision Threaten To

Destroy The Underlying Purpose Of DOHSA.

While most individuals may pursue an action

against the government for death or injury occurring

on the high seas, active-duty military personnel may

not. See 28 U.S.C. § 2680(j) (FTCA exception for

claims arising out of combatant activities during

time of war); Feres v. United States, 340 U.S. 135,

146 (1950) (holding that the federal government “is

not liable under the [FTCA] for injuries to

servicemen where the injuries arise out of or are in

the course of activity incident to service”) (the “Feres

Doctrine”).

27

Military personnel are generally barred under

the Feres doctrine from pursuing actions against the

U.S. government for tortious injuries resulting from

duty on the high seas, whether brought under the

FTCA, the SIA, or the PVA. See Blakey v. U.S.S.

Iowa, 991 F.2d 148, 151–52 (4th Cir. 1993); Miller v.

United States, 42 F.3d 297, 300 (5th Cir. 1995) (“The

Feres doctrine applies with equal force to bar actions

by service members under the Suits in Admiralty

Act and the Public Vessels Act.”); Bon v. United

States, 802 F.2d 1092, 1094 n.2 (9th Cir. 1986); Potts

v. United States, 723 F.2d 20, 22 (6th Cir. 1983)

(“The rationale supporting the ruling in Feres

limiting the waiver of sovereign immunity applies

with equal force in the context of governmental

liability in admiralty.”); Hillier v. S. Tow. Co., 714

F.2d 714, 721, 724 (7th Cir. 1983) (“[S]ervicemen on

active duty have never been allowed to bring tort

suits against the government under the Suits in

Admiralty Act either. . . . [A]s the government has

never had a tort duty to its sailors, an indemnity

action based on the theory that the government was

the primary or active tortfeasor in an accident to a

sailor has no basis in admiralty law . . . .”); De

Bardeleben Marine Corp., 451 F.2d at 142-43.

The Fifth Circuit decision eliminates one of

Petitioners’ few remaining avenues for recourse—the

lower court’s ability to hear active duty service

members’ claims against Respondent, as a private

entity. Accordingly, the Fifth Circuit incorrectly

declined jurisdiction and its judgment should be

reversed.

28

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

LANE POWELL PC

CALLIE A. CASTILLO

CASSANDRA EKURE

KATIE SMITH MATISON*

COUNSEL OF RECORD

ERIKA O’SULLIVAN

MATTHEW A. STOLOFF

ANDREW G. YATES

1420 Fifth Avenue, Suite 4200

P.O. Box 91302

Seattle, Washington 98111-9402

206.223.7000

matisonk@lanepowell.com

Counsel for Association of

Transportation Law

Professionals, Inc.