Amicus Curiae Brief — Spector v. Norwegian Cruise Line Ltd.
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Court, U.S.
, ILED
a Vara
No. 03-1388 OFFICEOF THE CLERK |
IN THE
Supreme Court of the United States
DOUGLAS SPECTOR, et al.,
Petitioners,
v.
NORWEGIAN CRUISE LINE LTD.,
Respondent.
On Writ oF CERTIORARI TO THE
UNITED StaTEs Court OF APPEALS
FOR THE FirtrH CIRCUIT
BRIEF OF AMICUS CURIAE
JONATHAN M. GUTOFF
IN SUPPORT OF PETITIONERS
—--— —
Davip M. ZLOTNICK
ROGER WILLIAMS UNIVERSITY
SCHOOL OF LAw
10 Metacom Avenue
Bristol, Rhode Island 02809
(401) 254-4614
Counsel for Amicus Curiae
191312 g
COUNSEL PRESS
(800) 274-3321 + (800) 359-6859
oreign-flag
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that operate
QUESTION PRESENTED
ships with
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LF
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A
=
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(“Title III’), applies to
cruise
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TABLE OF CONTENTS
QUESTION PRESENTED ....ccccsccscccccess
TABLES OF COINSEIINED oc ccccecedentesubenne
I.
FLAGS OF CONVENIENCE GRANTED BY
NATIONS WITH OPEN REGISTRIES
REPRESENT A COMMER-CIAL DECISION
BY VESSEL OWNERS RATHER THAN
A SOVERIGN INTEREST OF THE
FLAGGING NATION. .................
A. Background of Flags of Convenience. . .
B. The Mechanics of Open Registries and
Flags of Comvemiemce .........ccee0.
1. National and Open Registries
eo eee
2. The Role of Classification
Societies—The Privatization of
Sovereign Authority. ............
C. Flags of Convenience and the Cruise Ship
Pe”
11
13
II.
ill
Contents
BECAUSE THE DISCRIMINATION
ALLEGED BY MR. SPECTER COMES
WITHIN THE ADMIRALTY JURISDICTION
OF THE FEDERAL COURTS WELL-
ESTABLISHED ADMIRALTY OF CHOICE-
OF-LAW PRINCIPLES APPLY TO HIS
Ci CCCUeb eee ebeesceseesec cons
A. Mr. Spector’s Claim is Within the
Admiralty and Maritime Jurisdiction of
Cg eee
B. Admiralty Choice of Law Principles
Involve a Consideration of a Variety of
Factors in Addition to The Flag of the
Vessel and Applies to Laws the Have the
Potential to Affect the Structure of A
Vessel, As Opposed to Labor-Manage-
EE
1. Admiralty Choice of Law Principles
Involve More than Consideration of
the Flag of a Vessel. ............
2. The Lauritzen-Romero-Rhoditis
Choice of Law Analysis is Applicable
to Claims Relating to Ship
Management and Construction. ...
C. Congress Was Aware of the Lauritzen-
Romero-Rhoditis Test When It Enacted
SEG
Cin cab Wancecsvccesececes:
Page
17
17
20
20
22
27
29
iv
TABLE OF CITED AUTHORITIES
Page
Constitutional Provisions
U.S. Const. Art. Ill, §2,cl.1 .............. 17
Statutes
Act of Dec. 29, 1982, P.L. 97-389. Tit]
96 Stat.1955 ......... tees oe 28
An Act to Establish the Judicial Courts of the United
States, ch. 20, § 9, 1 Stat. ee li) | 18
28 U.S.C. § 1333(1) I eg ed ie os Pei. 18
42 U.S.C. §§ 12181-12187 (2000) (“Title III”) .... passim
46 U.S.C. app. § 289 (2000) ................... 14
46 U.S.C. app. § 688 (2000) (the “Jones gS 20, 28
46 U.S.C. § 8103 (2000) ...................... 8
46 U.S.C. § 12102 (2000) ..................... 8
Legislative Materials
128 Cong. Rec.H. 7,631 (daily ed. Sept. 28, 1982)
(+000 euwie concede abe eee bsWabale ih bodes 28
H.R. 3942, 97th Cong., 2d Sess. ee 28
H.R. 4863, 97th Cong., 2d Sess. a 28
H.R. Rep. No. 97-863, 97th Cong., 2d Sess., 1982 .. 28
Cited Authorities
Page
Treaties and Conventions
International Convention on Load Lines, April 5,
1966, 18 U.S.T. 1857 (with 1988 Protocol) .... 12
International Convention for the Safety of Life at Sea,
1974 (with 1978 and 1988 Protocols), 14 I.L.M.
959 (“SOLAS”) ..... cc ccccccccercccccccees 12, 15
International Convention on Tonnage Measurement
of Ships, June 23, 1969, TIAS 10490, 34 U.S.T.
ec ick cs uedcdaeteevensssnneveesaeWons 12
Supreme Court Cases
Boudin v. Lykes Brothers Steamship Co., 348 U.S. 336
CORED 6 cke cn dcsnsecsaprerssenscoeswenesse 24
Benz v. Compania Naviera Hidalgo,S.A. , 353 U.S.
REGIE a vc vcccccnncecscsscesccececssees 22, 26
Crumady v. The Joachim Hendrik Fisser, 358 U.S.
ot, errr rrr errr rae rere trier. 24, 25
Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923) .. +
East River S.S. Corp. v. Transamerica Deleval, Inc.,
476 U.S. 858 (1986) ...... cece ee eee eee ees 24
Ferguson v. Moore-McCormack Lines, Inc., 352 USS.
23
FT) 2) ee err ere ee eee ee ee
vi
Cited Authorities
Page
Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970)
Ee eT eT TPO SET TET SOOO Tee passim
Italia Societa per Azioni di Navigazione v. Oregon
Stevedoring Co, 376 U.S. 315 (1964) ......... 24
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
ee | ae 18, 19
Keremec v. Compagnie Transatlantique 358 U.S. 625
Ce ee a a Pr 18, 24
Kernan v. American Dredging Co., 355 U.S. 426
SUE wh oe 54 6600 4c kek dbo eee eneasein 23
Lauritzen v. Larsen, 345 U.S. 571 (1953) ........ passim
Lewis v. Lewis and Clark Marine, Co., 531 U.S. 438
NE Kc 000s bide dines been ube baba tee dcoes l
Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944) ... 23
McCulloch v. Sociedad Nacional de Marineros
de Honduras, 372 U.S. 10 (1963) ............. 26, 27
Michalic v. Cleveland Tankers, Inc. 364 U.S. 325
ee + V becdadhcaswecssgenkes Hissin 24, 25
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ...26, 27
Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)
vil
Cited Authorities
Page
Moragne v. States Marine Line, Inc., 398 U.S. 375
SEED v cecdenccedicesecevssisecudssepes es 23
The Moses Taylor, 71 U.S. 411 (1866) id eidaeds 18
Norfolk Shipbuilding & Drydock Corp. v. Garris,
or gid BolT, | rere rrr errr rr 25-26
Norfolk Southern Ry. Co. v. Kirby, 125 S. Ct. 385
Pr rrrerrrrrrrrrrt iret tier ie 18
Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953) .. 18
Romero v. International Terminal Operating Co., |
SOB UD. TOG CHGS) wc ccc cccceseccccccsccss passim
Sission v. Ruby, 497 U.S. 358 (1990) ........... 18
Waldron v. Moore-McCormick Lines, 386 U.S. 724
BUTE cc aneerectcecceeseceueauasdseeseses 24
Lower Court Cases
Alpert v. Zim Lines, 370 F.2d 115 (3d Cir. 1966) ... 19-20
American President Lines, v. Lundstrom, 323 F.2d 817
SOU GEE, TIE onc sv ccccccccvccvcsecccousess 20
Beretta v. Home Lines, Inc., 1990 A.M.C. 1857
(S.D.N.Y. 1990) ....... cece ccc e eee eeeneees 24
Chamberlin v. Chandler, 5 F.Cas. 412 (C.C.D. Mass.
Coo) ky). Serene i9
Vill
Cited Authorities
Chicago, D. & GB. Transit Co. v. Moore, 259 F. 490
(6th Cir.), cert. denied, 251 U.S. 553 (1919) ...
Defrier v. The Nicaragua, 81 F. 745 (S.D. Ala. 1897)
ee 26 8 @-e
se.
"Ve 898 02666068 6 6 6 6
i. £ es S
i |
Friedman v. Cunard Line Ltd., 996 F
be Supp.
(S.D.N.Y. 1998) upp. 303
a. is
7VVACee Cae eve Owe ee
“ef © @ «©
Harnesk v. Carnival Cruise Lines, 1992
’ A.M. .
(S.D. Fla. 1991) C. 1857
Karvelis v. Constellation Lines S.A., 806 F.2d 49 (2d
Cir. N.Y. 1986), cert. denied sub nom.,
Constellation Lines, S. A. yv. Ka lise
a3 olen rvelis, 481 U.S.
is Fe se Fy
eee ec eee eee ep eeese eee
*_e* ef @ «
Kornberg v. Carnival Cruise Lines, 74
, 41 F.
(11th Cir. 1984) 2d 1332
Keefe v. Bahama Cruise Lines, Inc., 715 F. Supp. 1069
(M.D. Fla. 1989), aff’d, 902 F.2
ame uff .2d 959 (11th Cir.
’ ,
Oispuk v. Oceanic Steam Navigati
gation Co., 58 F.2
(S.D.N.Y. 1932) win
Page
19
19
19
24
21
19
24
24
19
ix
Cited Authorities
Page
Pandazopoulos v. Universal Cruise Line, Inc.,
365 F. Supp. 208 (S.D.N.Y. 1973) .......+++:: 22
Silivanch y. Celebrity Cruises, Inc., 171 F. Supp. 2d
241 (S.D.N.Y. 2001), app. dismissed, 333 F.3d 355
(2d Cir. 2003), cert. denied sub. nom., Essef Corp.
v. Silivanch, 124 S. Ct. 1047 (2004) ........... 24-25
Spector v. Norwegian Cruise Line, Ltd., 356 F.3d 641
(Sth Cir. 2004) ........ ce eee ee cere reer eens 22
Sundance Cruise Corp. v. American Bureau of
Shipping, 7 F.3d 1077 (2d Cir. 1993) ........- 12
Books and Reports
10 Benedict on Admiralty (7th rev. ed. 2003) ..... 14
Committee of Inquiry into Shipping: London,
H.M.S.O. 1970, Cmnd 4337 .........--00 005: 6
Richard H. Fallon, et al., Hart and Wechsler’s Federal
Courts and the Federal System (Sth ed. 2003) .. l
Grant Gilmore & Charles L. Black, Jr., The Law of
Admiralty (2d ed. 1975) ......--0e esse ener 21
International Ship Registry Review, The Official
Guide to Ship Registries, 233 (2002) ......... 8,9, 10
William Langweische, The Outlaw Sea (2004) .... 4
N.P. Ready, Ship Registration (1991) ........... 3
x
Cited Authorities
Robert Rienow, Test of the Nationality of a Merchant
eT Te eee kee ee
Kay Showker & Bob Schlinger, The Unofficial Guide
Ss ED oon. cn dGdewencevdscuex
United Nations Consolidated Appeal Process , Liberia:
Mid-Year Review (2004) .................4.
Articles
H. Edward Anderson III, The Nationality of Ships and
Flags of Convenience: Economics, Politics, and
Page
14
Alternatives 21 Tul Mar. L.J. 139 (1996) .... 4
Leslie J. Buglass, Marine Insurance and General
Average in the United States, 30-31 (1981) .... 11
James Book, Landlocked Mongolia’s Seafaring
Tradition, N.Y. Times, Jul. 2, 2004, sec. W, p.1 col.3
(5:0 6beeeeneer enn Gandsneseeakd be kebne deen 5
Richard H. Fallon, et a/., Hart and Wechsler’s Federal _
Courts and the Federal System, 737, 738, 931
SE Gibk haben eney eda eceleeeees es l
Machael A. Miller, Liability of Calssification Societies
from the Perspective of Untied States Law,
22 Mar. Law. 75, 84(1997) ............... 11-12, 13
xi
Cited Authorities
Somini Sengupta, Young Guns for Hire, Warriors in
West Africa Need Jobs As Well as Peace
Treaties, N.Y. Times, May 23, 2004 sec.1 p.5S col.1
Stephen Thomas, Jr., State Regulation of Cruise Ship
Pollution: Alaska's Commercial Passenger Vessel
Compliance Program as a Model for Florida,
13 J. Transnat’! L. & Pol’y 533 (2004) .........
Websites
http://www.access-board.gov/pvaac/guideline.htm
(last visited Nov. 29, 2004) ................
http://www. guidetoshipregistries.com (last visited
ee ae re
http://www. guidetoshipregistries.com /Private/Flags/
Bermuda/Bermuda%20Crewing.htm (last visited
ee aa eak ghee bau edwen kas baens we
http://www. guidetoshipregistries.com/
Private/Flags/Bermuda
Bermuda%20Shipowner%20Eligibility.htm
(last visited Nov. 29, 2004) ~-................
http://www. guidetoshipregistries.com/Private/Flags/
BermudaBermuda%20Vessel%20Eligibility
%20&%20Survey%20 Requirements.htm (last
SED 6 eed necccweccesdeecens
Page
10
9,10
xii
Cited Authorities
http://www. guidetoshipregistries.com/ Private/Flags/
Bermuda/Bermuda%20Taxation.htm (last visited
FEE Heb UD 0b chk os ec kiveedeess oeesdesas
http://www. itf.org.uk/English/flagsconvenience/
countries (last visited Oct. 16, 2004) ..........
http://www. liscr.com (last Visited Nov. 19, 2004) ...
http://www.ncl.com/ destinations/hawaii/ index.htm
es PE CUE SU ED 0 6o-6 cdc ewscsideds
http://www.oduport.org/REGULATORYISSUES.htm
(last visited Nov. 28, 2004) .................
Page
l
INTEREST OF AMICUS CURIAE'
Amicus Curiae is an Associate Professor of Law at Roger
Williams University School of Law in Bristol, Rhode Island.
His main teaching and research interests are maritime practice
procedure. Professor Gutoff’s courses include Admiralty, Marine
Pollution, Maritime Practice and Procedure and Salvage. For
three years, from 2001-2003, he was Acting Director of the
Marine Affairs Institute at Roger Williams, which, with the
University of Rhode Island’s Sea Grant program, sponsors
symposia, research, community outreach and a joint J.D.-Master
of Marine Affairs program. In addition to various presentations
at symposia sponsored by the Marine A ffairs Institute, Professor
Gutoff has presented his work at conferences and symposia
sponsored by the Universities of Pisa and Genoa, the Luso-
American Foundation and the Association of American Law
Schools. Professor Gutoff’s work has been widely cited in
articles on maritime law and international law. In addition his
works have been cited by courts, including this Court, see Lewis
v. Lewis and Clark Marine, Co., 531 U.S. 438, 444 (2001), and
by scholarly works on federal jurisdiction. See, e.g., Richard H.
Fallon, et a/., Hart and Wechsler’s Federal Courts and the Federal
System, 737, 738, 931 (Sth ed. 2003). As a teacher of, and writer
on, maritime law, Professor Gutoff has an interest in the
consistent and principled application of that body of law in
accord with the realities of the maritime industry.
SUMMARY OF ARGUMEP'T
First, since the end of the Second World War, the maritime
world has seen various nations open their vessel registries to
vessel owners of all nations, no matter the lack of connection
between the vessel being registered and the nation operating
1. No counsel for a party authored this brief in whole or in part.
No person or entity, other than the Roger Williams University School of
Law, which paid for the printing of this brief through Professor Gutoff’s
research account, made a monetary contribution to the preparation or
submission of this brief. This brief is filed with the written consent of
the parties, reflected in letters on file with the Clerk.
2
the registry. These so-called “open registries” or “flags of
convenience” generally give over their obligation to inspect and
regulate vessels registered with them to private classification
societies, which inspect vessels for their compliance with various
requirements to ensure their safety at sea. Accordingly, nations
with open registries do not have their sovereignty wrapped up
with the vessels in their registries. Some nations with open
registries do not have a strong sovereign presence at sea, and,
some cannot be said to be fully functioning sovereign nations.
Accordingly, the presumption, employed by the court below,
that United States law applied to a foreign flagged vessel within
United States waters would impinge the sovereignty of the
flagging nation makes no sense in light of the current reality of
the shipping industry in general and the cruise ship industry in
particular; for, the vast majority of cruise ships fly flags of
convenience and are under control not of sovereign nations,
but of commercial classification societies.
Second, because a claim of discrimination by a cruise ship
passenger aboard the vessel involves a claim arising out of a
maritime contract and a maritime tort, the choice of law involved
for such a case should be the choice of law principles established
by this Court. Under these principles the law of the flag of the
vessel involved is only one factor, of at least eight, to be
considered. Where the flag is a flag of convenience the law of
the flag should not be given very much import. Because the
requiements of Title III are very much like duties imposed by
the general maritime law and do not regulate the relation between
employers and employee, or between the officers and crew, of
foreign vessels, the general maritime law principles of choice
of law should determine whether Title III applies to a foreign
flagged vessel.
3
ARGUMENT
I.
FLAGS OF CONVENIENCE GRANTED BY NATIONS
WITH OPEN REGISTRIES REPRESENT A COMMER-
CIAL DECISION BY VESSEL OWNERS RATHER THAN
ASOVERIGN INTEREST OF THE FLAGGING NATION.
The decision of the Fifth Circuit below was based, in part,
on the consideration that to apply Title III to foreign flagged
cruise ships in United States waters would impinge upon the
sovereignty of the nations providing those vessels with a flag.
This holding is based on a misperception of the maritime
industry in general and the cruise ship industry in particular.
Today, many nations open their ship registries to vessel owners
from around the world. These nations, for the most part, delegate
their control over their merchant marine to a variety of
classification societies, organizations that were founded to serve
the insurance industry and provide certificates of compliance
with various safety regulations. The decision of a vessel owner
on where to flag its vessel is based on commercial convenience.
This is especially true of the United States cruise ship industry,
cruise ships operating out of the United States are, with one
exception, only nominally connected to the nations whose flags
they fly.
A. Background of Flags of Convenience.
The registration of a ship with a particular nation gives that
vessel the protection, indicated by the flag, of the registering
nation in return for an agreement by the owner and operator of
the vessel to follow the registering nation’s law. N.P. Ready,
Ship Registration 8-9 (1991). Until recently the purpose of a
nation state in maintaining a registry of merchant vessels was
to be able to take advantage of their shipping capacity in time
of war. Robert Rienow, Test of the Nationality of a Merchant
Vessel 155- 57 (1937). It is therefore interesting, if not ironic,
that the practice of registering ships with nations other than
that of their owner or their base of operation has its modern
4
origins in the period preceding this country’s entry in the Second
World War. The federal government encouraged carriers
bringing war material to the United Kingdom to register their
vessels in Panama to avoid United States neutrality law. William
Langweische, The Outlaw Sea 5 (2004).?
Following the Second World War, United States vessel
owners became aware of the great cost savings of Panamanian
registry as it freed them from United States shipping regulations.
Id. Similarly, with encouragement from the State Department
the Liberian registry was created by American oil companies
for their tankers both as a means of avoiding United States
regulations and a tool for foreign aid. /d. at 6. As this Court
observed in 1953, “it is common knowledge that in recent years
a practice has grown, particularly among American shipowners,
to avoid stringent shipping laws by seeking foreign registration
eagerly offered by some countries.” Lauritzen v. Larsen, 345
U.S. 571, 587 (1953).
In the 1980s a large number of other nations started opening
up their registries to the owners of vessels from around the world.
Since then the number of open registries and vessels flying those
registries flags has continued to grow. The nations providing
open registries gain income from the registration fees and any
taxes they may impose. The vessel owners gain freedom from
regulation and, very often, taxes from the countries in which
they are located or where they base their operations. Vessel
owners shop around for registries that will provide them with
the best possible conditions in terms of fees, regulation and
access to various markets, and registries compete with each other
2. Some trace the origins to the desire of vessel owners to avoid
the prohibition-era ban on the sale of alcohol aboard U.S.-registered
vessels. See H. Edward Anderson III, The Nationality of Ships and Flags
of Convenience: Economics, Politics, and Alternatives 21 Tul Mar. L.J.
139, 156 (1996). This Court has held, however, that the national
prohibition against alcoholic beverages applied to foreign flagged vessels
voluntarily entering United States waters. Cunard S.S. Co. v. Mellon,
262 U.S. 100 (1923).
5
for the business of vessel owners. Indeed there is a commercial
website on which subscribers can, with the click of a mouse,
comparison shop among various ship registries to find the
registry best suited, in terms of cost and regulatory environment,
for a vessel owner. See http://www.guidetoshipregistries.com
(last visited Nov. 20, 2004).
For example, one nation that has recently started providing
an open registry is landlocked Mongolia. Its maritime code was
drafted by a Mongolian scholarship student in the Soviet Union
who had accidentally been directed to study deep sea fishing,
rather than fish farming. The law went into effect in 1999 and
the registry opened for business in 2003. According to the
administrator of Mongolia’s registry, the registry earned
Mongolia about $200,000 in 2003 and this year Mongolia is
receiving 20-30 new registrations per month. James Book,
Landlocked Mongolia’s Seafaring Tradition, N.Y. Times,
Jul. 2, 2004, sec.W, p.1 col.3.
A more troubling example is that of Liberia, whose registry
contains more vessels than that of any other nation. Liberia
currently administers its registry though International Registries,
a firm located in Vienna, Virginia, and has its headquarters in
New York. While the Liberian registry is notably successful in
attracting vessel owners, it can hardly be said to represent the
sovereign control of Liberia over the vessels registered in its
name; for Liberia has only recently concluded a violent civil
war in which large numbers of the populace were displaced and
subject atrocities. See generally United Nations Consolidated
Appeal Process , Liberia: Mid-Year Review (2004) (describing
the current conditions in Liberia and the need for humanitarian
aid). Currently, the United Nations is attempting to disarm and
relocate over 50,000 armed men and women, and as of the
middle of this year the U.N. had received only one-third of the
estimated 12-20 million dollars needed to complete the initial
stage of disarmament. Somini Sengupta, Young Guns for Hire,
Warriors in West Africa Need Jobs As Well as Peace
Treaties, N.Y. Times, May 23, 2004 sec.1 p.5 col.1. To be sure
6
the money gained by Liberia from its registry provides much
needed foreign exchange for that country; however, aside from
the controls of provided by its offices in the United States,
Liberia cannot, and does not, exercise any effective control over
the vessels in its merchant marine.
B. The Mechanics of Open Registries and Flags of
Convenience.
The current understanding of a flag of convenience is
the nationality provided to a vessel by_an open registry.
The characteristics of these registries were first comprehensively
articulated in 1970 by the United Kingdom in what is generally
known as the “Rochedale Report.” See generally Committee of
Inquiry into Shipping: London, H.M.S.O. 1970, Cmnd 4337.
According to the Rochedale Report there are six characteristics
of a flag of convenience:
(1) the country of registry allows ownership and/or
control of its merchant vessels by non-citizens;
(2) access to the registry is easy; ship may usually
be registered at a consulate abroad and, equally
important, transfer from the registry at the owner’s
option is not restricted;
(3) taxes on the income from the ships are either
not levied locally or are very low, and registry fees
and an annual fee, based on tonnage, are normally
the only charges made;
(4) the country of registry is a small power with no
national requirement under any foreseeable
circumstances for all the shipping registered, but
receipts from very small charges on a large tonnage
may produce a substantial effect on its national
income and balance of payments;
(5) crewing of ships by non-nationals is freely
permitted; and
7
(6) the country of registry has neither the power nor
the administrative machinery effectively to impose
any governmental or international regulations; nor
has the country even the wish or the power to control
the companies themselves.
Id. at 151.
1. National and Open Registries Compared.
A comparison between the flagging requirements of the
United States and the four registries providing flags of
convenience for the major cruise lines operating out of the
United States—Bahamas, Bermuda, Liberia and Panama’ — will
provide a ready illustration of how a flag of convenience differs
from a flag issued by a national registry. The United States
requires a registered vessel to be over 5 tons and is open only to
(1) an individual who is a citizen of the United
States;
(2) an association, trust, joint venture, or other
entity—
(A) all of whose members are citizens of
the United States; and
(B) that is capable of holding title to a
vessel under the laws of the United States
or of a State;
(3) apartnership whose general partners are citizens
of the United States, and the controlling interest in
the partnership is owned by citizens of the United
States;
’
3. There are many more open registries. The International Transport
Workers’ Federation lists 28 registries as providing flags of convenience:
Antigua and Barbuda; Bahamas; Barbados; Bermuda; Bolivia; Burma;
Cambodia; Cayman Islands; Comoros; Cyprus; Equatorial Guinea; the
German International Ship Registry; Gibraltar; Honduras; Jamaica;
Lebanon; Liberia; Malta; Marshall Islands; Mauritius; Mongolia;
Netherlands Antilles; Panama; Sao Tome and Principe; St Vincent; Sri
Lanka; Tonga; and Vanuatu. See http://www.itf.org.uk/English/
flagsconvenience/countries (last visited Oct. 16, 2004).
8
(4) acorporation established under the laws of the
United States or of a State, whose president or other
chief executive officer and chairman of its board of
directors are citizens of the United States and no
more of its directors are non-citizens than a minority
of the number necessary to constitute a quorum;
(5) the United States Government; or
(6) the government of a State.
46 U.S.C. § 12102 (2000). In addition Congress has imposed
strict crewing requirements. If a vessel is built with United States
subsides then all of the crew must be United States Nationals,
and, in any event one-quarter of a U.S. registered vessel’s crew
must be citizens of this country. 46 U.S.C. § 8103(b)(1)(B)
(2000). Moreover, the master, chief engineer, radio operator,
and all deck and engineering watch officers must be citizens of
this country.46 U.S.C. § 8103(a) (2000). United States ships
are subject to inspection by the Coast Guard for compliance
with United States shipping law and regulations. All this is in
great contrast to requirements offered by flags of convenience.
Liberia officially requires vessels in its registry to be owned
by a Liberian national entity, however, that entity may be a
corporation. See International Ship Registry Review, The
Official Guide to Ship Registries, 233 (2002). Incorporation in
Liberia is task that may be accomplished in a single day. See
http://www.liscr.com (last visited Nov. 19, 2004). Moreover,
the ownership requirements may be waived when the owner
qualifies and secures registration as a Foreign Maritime Entity.
The Official Guide to Ship Registries at 233. Vessels up to twenty
years of age may be registered, although the age limit may be
waived. The Official Guide to Ship Registries at 236, and
Liberia, allows vessels in its merchant marine to be inspected
9
by 10 separate classification societies. See http://www. liscr.com
(last visited Nov. 19, 2004). ¢
Registration in the Bahamas, with the Bahamas Maritime
Authority in London, England, requires neither corporate nor
beneficial local ownership, The Official Guide to Ship Registries
at 22, and there are no crewing requirements. /d. at 25. The
minimum wage of crew members and union recognition is up
to the vessel owner. /d. The Bahamas imposes no corporate
tax and international business corporations are exempt from
capital gains, real estate, inheritance, sales and customs taxes.
Id. at 23. Income from vessels and capital gains on vessel sales
is tax free. Jd. Bahamas offers registration to vessels over 1,600
tons and less than twelve years old; however, exemptions may
be granted. /d. at 24-25. Eight classification societies are
authorized to inspect vessels for the Bahamas’, and initial
registration requires a vessel to be surveyed by a number of
private surveyors located around the world. /d.
The Bermuda Registry of Shipping, located in Bermuda,
requires that corporate vessel owners be incorporated in the
United Kingdom or its territories, and that individual be
British, Irish, European Union or NATO-member state nationals.
See http://www. guidetoshipregistries. com/Private/Flags/
Bermuda/Bermuda%20Shipowner%20Eligibility.him (last
visited Nov. 29, 2004). The master of the vessel must meet the
same citizenship requirement as an individual owner, but there
is no other nationality-based crewing requirement. See hAttp://
www. guidetoshipregistries.com/Private/Flags/Bermuda/
4. American Bureau of Shipping; Bureau Veritas; China
Classification Society; Det Norske Veritas;Germanischer Lloyd; Korean
Register of Shipping; Lloyd’s Register; Nippon Kaiji Kyokai; Registro
Italiano Navale; and Russian Maritime Register. http://www.|liscr.com
(last visited Nov. 19, 2004).
5. American Bureau of Shipping; Bureau Veritas; Det Norske
Veritas; Germanischer Lloyd; Korean Regisry of Shipping; Lloyd’s
Register; Nippon Kaiji Kyokai; and Registro Italiano Navale. The Official
Guide to Ship Registries at 25.
10
Bermuda%20Crewing.htm(last visited Nov. 30, 2004).
Bermuda does not impose corporate, income, capital gains, or
any withholding tax. See http://www. guidetoshipregistries.com/
Private/Flags/Bermuda/Bermuda%20Taxation.htm (last
visited Nov. 30, 2004). Most attractive to owners of smaller or
older vessels, Bermuda does not impose any size~
or age restrictions on vessels in its registry. See http://
www. guidetoshipregistries.com/Private/Flags/Bermuda/
Bermuda%20Vessel%20Eligibility%20&%20Survey%20
Requirements.htm (last visited Nov. 30, 2004). Bermuda
authorizes six classification societies to inspect its vessels.°
The Panama Maritime Authority, whose offices are in
New York City, The Official Guide to Ship Registries at 319,
imposes no nationality requirements for the ownership, id. at
317, or crewing, id. at 321, of its vessels. Panama imposes no
income or withholding tax for non-resident shipping companies
when the income is derived from activity outside Panama. /d.
at 317. Panama will allow registration of any size or age vessel,
but vessels older than 20 years are subject to special inspection.
Id. at 321. Panama authorized 24 classification societies’ to
inspect its vessels. /d. at 321
6. American Bureau of Shipping; Bureau Veritas; Det Norske
Veritas; Germanischer Lloyd’s Register; and Registro Italiano Navale.
See http://www. guidetoshipregistries.com/Private/Flags/Bermuda/
Bermuda%20 Vessel%20Eligibility%20&%20Survey%20Requirements.
htm.
7. American Bureau of Shipping; Bureau Veritas; China
Classification Society; China Corporation Register of Shipping; Det
Norske Veritas; Germanischer Lloyd; Hellenic Register of Shipping;
Honduras International Naval Surveying and Inspection Bureau; Isthmus
Bureau of Shipping; Korean Register of Shipping; Lloyd’s Register;
National Shipping Adjusters; Nippon Kaiji Kyokai; Panama Bureau of
Shipping; Panama Marine Survey and Certification Services; Panama
Maritime Documentation Services; Panama Maritime Survey Bureau;
Panama Register Corporation; Registro Italiano Navale; Registro
Internacional Naval, S.A.; and the Russian Maritime Register. See The ~
Official Guide to Ship Registries at 321.
11
2. The Role of Classification Societies—The
Privatization of Sovereign Authority.
Because nations offering flags of convenience generally do
not have the resources to police their own merchant marines,
they typically rely on classification societies to inspect vessels
on their behalf. While there is nothing necessarily wrong with
the inspection performed by the classification societies, and they
perform a vital function in the maritime industry by facilitating
the issuance of various forms of marine insurance, classification
societies are private commercial entities that compete for
business. By delegating their inspection function to classification
societies, open registries allow vessel owners to shop not oaly
among flagging nations, but also, and primarily, among private
inspecting entities. While there may be much to be said about
fostering a free market in vessel inspections and insurance, that
vessel owners may choose to take advantage of one market
player, by choosing to register with a particular flag and choose
a particular classification society, does not indicate deep
sovereign interest on the part of the registering nation.
Classification societies have their origins in the world of
marine insurance. Issuers of hull insurance, that is insurance
payable to a vessel owner in case of damage to or loss of a
vessel, need a means of evaluating the seaworthiness of a vessel
for a particular purpose. For instance, a vessel meant to carry
bulk cargo in the North Atlantic will have very different
structural requirements than a vessel intended to carry passengers
in the Gulf of Mexico.
Classification societies set out, and inspect for, various
requirements for different types, or classes of vessels. Before
deciding whether to issue insurance, and at what rates, a hull
insurer will look to make sure that a vessel has met its class
requirements. See Leslie J. Buglass, Marine Insurance and
General Average in the United States, 30-31 (1981). Similarly,
issuers of protection and indemnity, so-called “P&I,” insurance,
which covers a vessel owner’s liability to third parties, will
require a vessel to be in class. See Machael A. Miller, Liability
12
of Calssification Societies from the Perspective of Untied States
Law, 22 Mar. Law. 75, 84 (1997) (hereinafter “Miller’’). Also,
while underwriters of cargo insurance will usually not require
proof of classification of a carrier’s vessel, underwriters will
remove coverage on learning that a vessel carrying the cargo
has lost coverage and shippers will check for classification.
Id. at 85.
For vessels flying flags of convenience, classification
societies also have a quasi-public function. They inspect for
compliance with a variety of international conventions, most
importantly the International Convention for the Safety of Life
at Sea, 1974 (with 1978 and 1988 Protocols), 14 I.L.M. 959
(“SOLAS”), and the International Convention on Load Lines,
April 5, 1966, 18 U.S.T. 1857, (with 1988 Protocol), and issue
certificates under The International Convention on Tonnage
Measurement of Ships, June 23, 1969, TLAS 10490, 34 U.S.T.
2363, which shows the weight of the vessel as measured under
international standards. See Sundance Cruise Corp. v. American
Bureau of Shipping, 7 F.3d 1077, 1078 (2d Cir. 1993) (describing
an agreement between a vessel owner and classification society
for inspection of a vessel registered in the Bahamas).
Because vessel owners pay for classification societies to
inspect them, and there are different societies, societies are under
economic pressure to classify vessels without causing a vessel
owner to incur great costs. As one marine economist has put it:
Classification societies have no legal authority.
Consequently, they compete with each other for
shipowner clients, thereby raising doubts about their
safety enforcement performance—given the
insoluble conflict of interest between themselves and
shipowners that arises when hired by shipowners to
class their ships. If a society requires a shipowner to
incur expenses to class his ships, the shipowner’s
profits will decline, all else held constant. In a
competitive environment for shipowner clients, and
when shipowners themselves are facing stiff
13
competition, societies are under pressure to reduce
their safety demands, possibly classing non-
seaworthy ships.
Wayne K. Talley, Regulatory Issues: The Role of International
Maritime Institutions, available at http://www.oduport.org/
REGULATORYISSUES.htm (last visited Nov. 28, 2004).°
Whether or not private classification societies provide
generally effective regulation, their use by open registries for
compliance with national requirements allows vessel owners
to shop twice, once for the registry with the most favorable
terms, and again among classification societies approved by the
registry.
C. Flags of Convenience and the Cruise Ship Industry
Because the cruise ship industry provides what are, in many
instances, domestic \ ‘sation services and because the cruise
ship industry relies heavily upon flags of convenience, to allow
foreign registry of a vessel automatically to defeat the application
of Title III of the ADA to cruise ships in domestic waters would,
allow a large part of the leisure industry, essentially under
regulation by no sovereign, to avoid United States policy by a
simple commercial choice—where to flag a cruise ship. For
8. To be sure, the economic pressures on classification societies
are not one-sided. If insurers and shippers cannot trust a classification
they will not insure or ship with vessel classed by untrustworthy societies.
Ten classification societies, as members, and two others as associate
members now form [nternational Association of Classification Societies
(“IACS’), to for prescribe minimur:: standards for members. These
standards are designed to prevent “classification society shopping.”
Miller, 22 Mar. Law.at 77. The members of the IACS are American
Bureau of Shipping, Bureau Veritas, China Classification Society, Det
Norske Veritas, Germanisher Lloyd, Korean Register of Shipping,
Lloyd’s Register, Nippon Kaiji Kyokai, Registro Italiano Navale, and
the Russian Maritime Register. The associate members are the Croatian
Register of Shipping and the Indian Register of Shipping. See http://
iacs.org.uk/members.htm (last visited Nov. 29, 2004). There are,
however, over 50 classification societies.
14
most nations offering flags of convenience all extent of control
is checking that a vessel owner has paid its fees and that
certificates have been issued by a private organization hired by
the vessel owner. And this is the extent of sovereign control
under which most cruise ships operate.
As their name implies, many United States cruise voyages
depart and return from the same port. Many others, notably the
cruises of the Alaskan coast spend most of their time in United
States waters. The Passenger Services Act of 1886, 46 U.S.C.
app. § 289 (2000), prohibits foreign-flagged vessels from
transporting passengers between United States ports. These so-
called cabotage regulations were designed to protect the United
States merchant marine. Whatever their benefits to the domestic
passenger ferry industry, the cabotage rules have little impact
on the cruise industry. They do not prevent foreign-flagged
vessels going from a United States port and back. Similarly the
cabotage rules do not prevent a vessel owner from taking
passenger on a cruise from a United States port and returning
them by air, or from flying passengers to foreign ports and then
taking them on a cruise to a United States port. See Kay Showker
& Bob Schlinger, The Unofficial Guide to Cruises 1999, at 9
(1999) (stating that “the spectacular growth in cruise vacations
really took off . .. when cruise lines discovered the benefits of
joining forces with airlines.) Even in Alaskan cruises, where
the ship will ply the coastal waters of Alaska allowing passengers
to see and visit that State’s spectacular coast line, owners are
able to avoid United States cabotage laws by bussing their
passengers from Seattle to Vancouver, 3ritish Columbia, to
board their vessels. See 10 Benedict on Admiralty § 2.02 at 2-2
(7th rev. ed. 2003). As a result there is no effective requirement
that cruise ships serving the United States market be registered
in this country. a
Thus, nearly “all of the major cruise lines operating in the
North American market from ports in the U.S. register
their ships with ‘flags of convenience.’” Stephen Thomas, Jr.,
State Regulation of Cruise Ship Pollution: Alaska’s Commercial
15
Passenger Vessel Compliance Program as a Model for Florida,
13 J. Transnat’! L. & Pol’y 533 , 540 (2004). Starting this year,
Norwegian Cruise Lines has had one, and, in 2005, plans to
have another, United States-registered vessel; however, the
vessels are for the coastwise market in Hawaii, and Norwegian
Cruise Lines still runs foreign-flagged vessels out-of Hawaii to
Fanning Island, in the Republic of Kiribati. See http://
www.ncl.com/ destinations/hawaii/ index.htm (last visited Nov.
29, 2004).
To hold that a foreign flag, per se, exempts a vessel owner
from compliance with Title III would exempt the cruise ship
industry, a large part of the United States leisure market, from
compliance with the statute. And in most, if not all cases, no
great competing interest of a foreign sovereign would be served
by this exemption. For example, in the case of a Alaskan tour
operator bussing United States passengers from Seattle to
Vancouver for a cruise in United States waters off the coast of
Alaska in a vessel registered in Liberia, the Seattle hotel in which
the passengers might stay for a day would have to comply with
Title III, as would the bus carrying passengers for a few hours;
however under the Fifth Circuit’s holding the vessel in which
United States passengers might spend two weeks in United States
waters would be exempt. To hold that Liberia has a greater
interest in the non-application of Title III a United States
Passenger to a vessel operated in United States waters than the
United States has in its application simply because the vessel is
registered in Liberia’s offices in the United States and is
inspected by a private organization approved of by Liberia
makes no sense.
Similarly, no classification society has anything to say about
disability access, so classification is not contrary to any
requirements imposed by Title II], and nothing inTitle III is
directly contrary either to SOLAS or to the requirements of
classification. To be sure, some international safety requirements
might mean that a cruise ship might not be made as accessible
to persons with certain disabilities as are similar land based
16
structures, like hotels. For example, because a vessel needs to
have a water tight and compartmentalized (that is, requiring
raised thresholds in the doorways) bulkhead deck to restrict
flooding in a vessel, an entire vessel might not able to be made
accessible to persons confined to wheelchairs. Indeed, the
recent proposed Title III regulations for passenger vessels take
into account the requirements of a watertight bulkhead deck.
See Draft Passenger Vessel Accessibility Guideline and
Supplementary Information, V206.2, Exception 4, available at
http://www.access-board.gov/pvaac/ guideline.htm (last visited
Nov. 29, 2004). That does not mean, however, that a vessel’s
upper decks cannot, and should not be make as accessible as
possible.’
This is not to say that a foreign flag, even a flag of
convenience, should be ignored in considering the application
of Title III or other United States law. Rather, the interest of the
sovereigns with a stake in the outcome of the case should be
intelligently balanced. Happily, for maritime cases, this Court
has developed a methodology for choice of law that takes into
account not just the flag of a vessel, but also the other various
interest involved in an action where a plaintiff seeks to apply
United States law to the owners of a foreign vessel. It is this
methodology that should apply to the applicability of the Title
III to foreign flagged vessels in United States waters.
9. Of course, were Title III to render either SOLAS compliance
or classification impossible none of the many passenger and car ferries
that ply United States waters and are registered in the United States
would be able to pass inspection or to obtain insurance.
17
BECAUSE THE DISCRIMINATION ALLEGED BY MR.
SPECTER COMES WITHIN THE ADMIRALTY
JURISDICTION OF THE FEDERAL COURTS WELL-
ESTABLISHED ADMIRALTY OF CHOICE-OF-LAW
PRINCIPLES APPLY TO HIS CLAIM.
Mr. Spector’s claim of discrimination arises out of a
maritime contract, contract of passage. Also, the treatment
Norwegian Cruise Lines gave to Mr. Specter occurred on the
navigable waters of the United States, arises out of a traditional
maritime activity—the carriage of passengers, and poses a threat
to maritime commerce by inhibiting the ability of disabled
passengers to take advantage of cruise ship services. Thus, it
constitutes a maritime tort. From the very beginning of this
country’s judiciary the federal courts have had jurisdiction over
maritime torts and contracts. The general maritime law of the
United States has a variety of doctrines that protect the life and
safety of seamen and passengers at sea. These doctrines, which
include the warranty of seaworthiness to seamen, as well as
negligence and products liability for all at sea, impose
requirements for vessel safety—including construction,
equipping and crewing—to all to whom they apply. Nonetheless,
this court has concluded that these doctrines may apply to foreign
flagged vessels, and has established a methodology for deciding
when federal maritime law applies to cle:ms arising under the
federal admiralty jurisdiction. Because shipboard claims of
disability-based discrimination against a passenger fall within
the admiralty jurisdiction, this-Court’s this methodology for
admiralty choice of law should apply.
A. Mr. Spector’s Claim is Within the Admiralty and
Maritime Jurisdiction of the District Courts.
Article III of the Constitution extends the judicial power of
the United States to, among other matters, “all cases of admiralty
and maritime jurisdiction.” U.S. Const. Art. III, § 2, cl. 1. The
First Congress gave the District Courts “exclusive jurisdiction
18
in all civil cases of admiralty and maritime jurisdiction, saving
to suitors all remedies to which they are entitled at common
law.” An Act to Establish the Judicial Courts of the United States,
ch. 20, § 9, 1 Stat. 73, 77 (1789). That grant now exists in
28 U.S.C. § 1333(1) (2000), which extends the jurisdiction of
the District Courts to any “civil case of admiralty and maritime
jurisdiction saving to suitors all other remedies to which they
are otherwise entitled.” When a case falls within the admiralty
jurisdiction, whether or not it is brought pursuant to that
jurisdiction in federal court, and even if it is brought in state
court, maritime choice of law principles will apply. See Keremec
v. Compagnie Transatlantique 358 U.S. 625, 628-29 (1959),
see also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 411 (1953)
(“{S]ubstantial rights . . . are not to be determined differently
whether [a] case is labelled ‘law side’ or ‘admiralty side’ on a
district court’s docket”), quoted in Norfolk Southern Ry. Co. v.
Kirby, 125 S. Ct. 385, 392 (2004).
The admiralty jurisdiction extends to all contracts that ar<
of a maritime nature, Kirby, 125 S. Ct. at. 393 (citing cases),
and, as this Court held in The Moses Taylor, 71 U.S. 411 (1866),
a contract of carriage of a passenger is subject to the admiralty
jurisdiction of the federal court. /d. at 427. Accordingly, the
contract between Mr. Specter and Norwegian Cruise Lines was
a maritime contract.
In tort the grant of admiralty jurisdiction in 28 U.S.C.
§ 1333(1) extends to those torts occurring on the high seas and
on the navigable waters of the United States and, at least where
the tort occurs on the navigable waters of the United States, this
Court has required that there be a connection with traditional
maritime activity such that the tort have a significant connection
with traditional maritime activity and there be a threat of
disruption to maritime commerce. See Sission v. Ruby, 497 U.S.
358, 363-65 (1990); Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 534 (1995). While not all
cases that occur on a vessel in navigable waters will come within
the admiralty jurisdiction this court has explained that they
19
usually will. See Grubart 513 U.S. at 541-42. In this case there
can be no doubt that the discrimination suffered by Mr. Specter
comes within the admiralty jurisdiction. The carriage of
passengers is a traditional maritime activity, and, as one District
Court has noted, “opulent cruise ships have been part of the
world’s maritime tradition at least since the launching of
Cleopatra’s barge.” Friedman v. Cunard Line Lid., 996 F. Supp.
303, 307(S.D.N.Y. 1998). Moreover, discrimination against and
mistreatment of passengers of a particular class threatens to
disrupt that class’s ability to take part in the maritime commerce.
Indeed, claims of discrimination against passengers have
long been recognized as part of the law of admiralty.
In Chamberlin v. Chandler, 5 F.Cas. 412 (C.C.D. Mass. 1823)
(No. 2,575) the court considered the case of a woman who had
booked passage on a vessel from Hawaii to Boston and who
was subjected to treatment that caused her to confine herself to
her cabin. In the course of awarding punitive damages for the
defendant’s tortuous conduct, Justice Story, sitting on circuit,
explained the nature of a contract of passage as being:
not for mere ship room, and personal existence, on
board; but for reasonable food, comforts,
necessaries, and kindness. It is a stipulation, not for
toleration merely, but for respectful treatment, for
that decency of demeanor, which constitutes the
charm of social life, for that attention, which
mitigates evils without reluctance, and that
promptitude, which administers aid to distress.
Id. at 414. Accord, Kornberg v. Carnival Cruise Lines, 741 F.2d
1332, 1334 (11th Cir. 1984); Chicago, D. & GB. Transit Co. v.
Moore, 259 F. 490 (6th Cir.), cert. denied, 251 U.S. 553 (1919);
The Oregon, 133 F. 609, 617-18 (9th Cir.1904); Defrier v. The
Nicaragua, 81 F. 745 (S.D. Ala. 1897). Thus, without reference
to the ADA the general maritime law gives relief to disabled
passengers where a vessel owner knew or should have known
of the passenger’s disability and failed reasonably to
accommodate that disability. See Alpert v. Zim Lines, 370 F.2d
20
115, 116 (3d Cir. 1966); American President Lines, v. Lundstrom,
323 F.2d 817, 818 (9th Cir. 1963).
Because this case arises out of a maritime contract and
involves a tort on the navigable waters which bears a significant
relation to traditional maritime activity and has a potential to
disrupt maritime commerce it falls within the admiralty
jurisdiction of the federal courts. Therefore, the choice of law
principles articulated by this Court for admiralty cases should
apply.
B. Admiralty Choice of Law Principles Involve a
Consideration of a Variety of Factors in Addition
to The Flag of the Vessel and Applies to Laws the
Have the Potential to Affect the Structure of A
Vessel, As Opposed to Labor-Management
Relations.
1. Admiralty Choice of Law Principles Involve
More than Consideration of the Flag of a
Vessel.
In a series of three cases this Court has articulated the
principles for choice of law in cases subject to the admiralty
jurisdiction of the district courts. In Lauritzen v. Larsen,
345 U.S. 571 (1953), this Court considered whether the of the
Jones Act, 46 U.S.C. app. § 688 (2000), which by its terms
authorizes “any seaman” to bring an action against a “defendant
employer” for negligence, applies to an injury to an alien seaman
on a foreign-flagged vessel. The court set out seven factors to
be considered: (1) the place of the wrongful act; (2) the law of
the flag; (3) the allegiance or domicile of the injured party; (4)
the allegiance of the ship owner; (5) the place of the contract;
(6) the inaccessibility of the foreign forum; and (7) the law of
the forum. /d. at 583-91.'°
10. The Lauritzen Court distinguished that case from one where
an injured United States citizen would seek relief, noting that “each
nation has a legitimate interest that its nationals and permanent
(Cont'd)
21
Subsequently, in Romero v. International Terminal
Operating Co., 358 U.S. 354 (1959), the Court decided that not
_only claims under the Jones Act, but also those arising under
the general maritime law should be subject to the Lauritzen
¢.io0ice of law analysis. /d. at 381.
Finally, in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306
(1970) this Court cautioned that the factors listed in Lauritzen
were meant neither to be applied mechanically nor to be
exclusive. Jd. at 309. Rather, the court concluded that the ships
base of operations, along with other possible factors, was another
factor to be considered. /d. at 308-09.
Accordingly, under the Lauritzen-Romero-Rhoditis trilogy
there are at least eight factors to be considered in determining
whether foreign or domestic law will apply in an action within
the admiralty jurisdiction. The flag of the vessel involved is
only one. Thus in Rhoditis the Court concluded that United States
law should apply to an action by a seaman of Greek nationality
who had signed an employment agreement in Greece for work
aboard a Greek owned and flagged vessel, and who was injured
on that vessel, where the injury took place in United States
waters, the vessel owner was a resident alien of the United States,
and had his base of operations in New York, and the owners
vessels had their major source of income from shipping to and
from the United States. Accordingly, after Rhoditis lower courts
have applied the general maritime law of the United States to
foreign seamen on foreign vessels. See, e.g., Karvelis v.
Constellation Lines S.A., 806' F.2d 49, 50-51 (2d Cir. 1986),
cert. denied sub nom., Constellation Lines, S. A. v. Karvelis,
481 U.S. 1015 (1987). Indeed even though the Lauritzen Court
(Cont'd)
inhabitants be not maimed or disabled from self-support.” 345 U.S. at
586. As the authors of a leading work on maritime law have explained,
“the fair implication of [the language in Lauritzen] is that American law
applies to Ameican citizens . . . whether they serve on American-flag or
foreign flag ships. . . .” Grant Gilmore & Charles L. Black, Jr., The Law
of Admiralty 476 (2d ed. 1975).
22
stated that the law of the flag-state “must prevail unless some
heavy counterweight appears,” 345 U.S. at 586, the Lauritzen
Court itself, see 345 U.S. at 587, and various lower courts have
made “equally clear that the law of a flag of convenience state
is not entitled to the same conclusive effect as that of a
‘legitimate’ flag state and cannot be used to oust otherwise
applicable law.” Pandazopoulos v. Universal Cruise Line, Inc.,
365 F. Supp. 208, 214 (S.D.N.Y. 1973) (citations omitted).
While the proper application of the Lauritzen-Romero-
Rhoditis factors depends on a case by case analysis—the injury
to an a United States citizen aboard a round-the-world bound
vessel based in a foreign country and simply stopping to pick
up passengers in a United States port, might result in a different
conclusion from that where a United States Citizen is injured
on board a United States-based vessel that departs and returns
to a port in this country—exclusive reliance on vessel’s flag,
without any consideration of the nature of that flag or the other
factors outlined in Lauritzen and Rhoditis is contrary to the
proper analysis this Court has established for maritime cases.
2. The Lauritzen-Romero-Rhoditis Choice of Law
Analysis is Applicable to Claims Relating to
Ship Management and Construction.
The Fifth Circuit below relied on this Court’s decisions in
Benz v. Compania Naviera Hidalgo, S.A. , 353 U.S. 138 (1957)
and McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10 (1963) to conclude that Title III of the
ADA could not apply to foreign flag vessels because there was
no express intent by Congress to apply the ADA extraterritorially.
See Spector v. Norwegian Cruise Line, Ltd., 356 F.3d 641, 644-
45 (Sth Cir. 2004). According to the Fifth Circuit, the structural
changes mandated by Title III would have a permanent, extra-
territorial effect on the structure of a foreign-flagged vessel,
which would impinge on the sovereignty of the flagging nation.
Id. at 648. As explained above, that argument has no foundation.
Moreover, it proves too much; for, if no law having an impact
on the structure on vessel were applicable to foreign flagged
23
vessels, then neither the Jones Act, nor large portions of the
general maritime law would be applicable to foreign flagged
vessels.
As this Court held in Lauritzen, the question of whether
the Jones Act is applicable aboard foreign flagged vessels
involves a balancing test, and whether the general maritime law
of the United States applies to claims involving foreign flagged
vessels should be analyzed under the standards set out in
Lauritzen. See Romero 358 U.S. at 381. Both the Jones Act and
the general maritime law of the United States provide ample
basis for imposing on vessel owners and operators changes in
the structure and management of their vessels to insure the safety
of passengers and crew.
As explained above, the Jones Act, provides “any seamen”
with an action for negligence against the seaman’s employer.
While a Jones Act action may be based on violation of a statutory
duty, see Kernan v. American Dredging Co., 355 U.S. 426, 432
(1958), it may also be based on breach of a non-statutory
duty of care, such as the requirement to furnish a seaman with
proper equipment to perform a task the employer could have
anticipated. See, e.g., Ferguson v. Moore-McCormack Lines,
Inc., 352-U.S. 521, 522-23 (1957) (concluding that failure to
furnish a shipboard baker with an implement safely to serve
hard-frozen ice cream may result in Jones Act liability).
In addition to the Jones Act, the general maritime law
provid :eamen with an action for seaworthiness. The doctrine
of seaworthiness imposes on a vessel owner the non-delegable
duty of providing to seamen a vessel that is fit for its intended
voyage. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548-
49 (1960); Mahnich v. Southern S.S. Co., 321 U.S. 96, 100-101
(1944). As a form of strict liability, seaworthiness had, by the
middle of the twentieth century, become the primary vehicle
for recovery by injured seamen. Moragne v. States Marine Line,
Inc., 398 U.S. 375, 399 (1970). The warranty of seaworthiness
applies to the hull of a ship, the ship’s cargo-handling machinery,
24
hand tools aboard the ship, ropes and tackle and to all other
equipment either belonging to the ship or brought aboard by
stevedores. See Italia Societa per Azioni di Navigazione vy.
Oregon Stevedoring Co, 376 U.S. 315, 322-23 (1964); Michalic
v. Cleveland Tankers, Inc. 364 U.S. 325, 328 (1960); Crumady
v. The Joachim Hendrik Fisser, 358 U.S. 423, 427 (1959).
Moreover, the crew itself is warranted as seaworthy. See Waldron
v. Moore-McCormick Lines, 386 U.S. 724, 726 (1967); Boudin
v. Lykes Brothers Steamship Co., 348 U.S. 336, 339-40 (1955).
While there has been general agreement that the warranty
of seaworthiness does not extend to passengers, see Kermarec,
358 U.S. at 628, passengers are owed a duty of reasonable care.
Id. at 630. Fulfilling that duty may require that a vessel owner
to make modifications to the structure of vessel where the owner
knows, or has reason to know that the vessel is unsafe.
See Harnesk v. Carnival Cruise Lines, 1992 A.M.C. 1857 (S.D.
Fla. 1991) (holding a vessel owner liable for a negligently
constructed bathroom); Beretta v. Home Lines, Inc., 1990
A.M.C. 1857 (S.D.N.Y. 1990) (same); Keefe v. Bahama Cruise
Lines, Inc., 715 F. Supp. 1069 (M.D. Fla. 1989) (holditig vessel _
owner liable for injury caused by a slippery, uncovered outdoor
dance floor), aff'd 902 F.2d 959 (11th Cir. 1990); Oispuk v.
Oceanic Steam Navigation Co., 58 F.2d 673 (S.D.N.Y. 1932)
(holding vessel owner liable for negligently failing to provide
an outside door with a vestibule or to furnish a control to slow
down the door’s closing).
Finally, the general maritime law recognizes the doctrine
of products liability. See East River S.S. Corp. v. Transamerica
Deleval., Inc., 476 U.S. 858, 873-74 (1986). The ability to hold
a manufacturer or vendor strictly liable for the products it puts
into commerce doctrine may not impose liability directly on a
vessel owner. However, the ability of passengers to bring an
action for unreasonably dangerous product aboard a vessel will
have an effect on the construction of the vessel and the fittings
with which it is equipped. Cf. Silivanch v. Celebrity Cruises,
Inc., 171 F. Supp. 2d 241 (S.D.N.Y. 2001) (entering judgment
25
on passengers’ claims of strict products liability and negligence
against filter manufacturer and negligence against vessel owner
for a whirlpool spa that caused a shipboard outbreak of
legionnaire’s disease), app. dismissed 333 F.3d 355 (2d Cir.
2003), cert. denied sub. nom., Essef Corp. v. Silivanch, 124 S.
Ct. 1047 (2004).
Accordingly, both the Jones Act and the general maritime
law have potential to require permanent alteration in a ship’s
structure and equipment. For example, the law of seaworthiness
may require a vessel owner to change the way it maintains
equipment on board, see Crumady, 328 U.S. 427-28, or to alter
the type of tools it makes available to the crew of the vessel.
See Michalic, 364 U.S at 328-29. These duties do not differ in
their level of internal interference with a vessel’s operations
from those imposed by Title III, and there is no reason why
passengers complaining of the safety of a bathroom or a
whirlpool spa should be able to take advantage of United States
law, but those denied access to same facilities should be, per se,
barred from that law’s protection.
Because the Fifth Circuit’s holding prohibits application
of domestic law that could require the alteration of the structure
of a vessel, the Jones Act, the doctrine of seaworthiness, and
the United States maritime law of negligence and products
liability could never be applicable to foreign flagged vessels,
and that is clearly contrary to the point of the Lauritzen-Romero-
Rhoditis trilogy, which is to decide whether or not claims under
the Jones Act and the General Maritime Law of the United States
should apply to foreign flagged vessels. ''
11. If Romero’s understanding of choice of law and the Fifth
Circuit’s holding are both to survive, it would result in the odd situation
of the general maritime law regarding vessel safety and conditions, which
has been fashioned by the judiciary, being applicable to foreign flagged
vessels, but, absent some specific declaration of Congress, Congressional
enactments would never applicable. Indeed, given this Court’s deference
to Congressional action in the area of maritime law, see Norfolk
(Cont'd)
26
A much better reading of Benz and McCulloch in
conjunction with Romero would be to hold that the “internal
affairs” of a vessel constitutes labor-management relations, and
that absent some specific statement from Congress, laws relating
to labor relations would not have any applicability to foreign
flagged vessels; however, where a statute concerns areas
presently addressed by the general maritime law, including the
treatment of passengers, it should be treated under the usual
maritime choice of law analysis. The Court’s opinion in
McCulloch and subsequent case law demonstrate that this is
the correct reading.
The McCulloch Court considered the use of the balancing
test proposed by the National Labor Relations Board (the
“NLRB”) to see whether it had jurisdiction over an attempt to
organize by foreign seamen working on a foreign vessel.
372 US. at 15. The court held that the foreign flag of the vessel
per se excluded the NLRB’s jurisdiction over the effort by the
foreign seamen to organize. The court emphasized that a
balancing test would rot be appropriate in dealing with the
“internal discipline and order” of a foreign vessel, id. at 19, and
concluded that there it would not infer the authority to interfere
with the “management and internal affairs” of a foreign vessel.
Id. at 20. In the context of the case the only reasonable reading
of “management and internal affairs” is labor-management
relations, not the sort of vessel conditions covered by doctrines
of negligence, under the Jones Act, and seaworthiness and
regulated by Title III. Thus the Court acknowledged that its
conclusion does not foreclose such a procedure in
different contexts, such as the Jones Act, 46 U.S.C.
§ 688, where the pervasive regulation of the internal
order of a ship may not be present.
(Cont'd)
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001);
Miles v. Apex Marine Corp., 498 U.S. 19, 21 (1990), such a position
would make no sense.
27
372 U.S. at 19 n.9. The Court defined “management and internal
affairs” of a vessel by associating it with “internal order” in
opposition to the physical conditions regulated by the Jones
Act.
To be sure the Court went on to note that for the Jones Act
the Lauritzen Court had emphasized the “cardinal importance
of the law of the flag.” Jd. (citing Lauritzen). Nonetheless, only
four years after McCulloch, in Rhoditis, this Court expanded
the reach of the Jones Act by adding the base of operations as
another, and in that case determinative factor, to its choice of
law balancing test. Rhoditis demonstrates that McCulloch did
not change this Court’s understanding set out in Lauritzen and
Romero that claims under for negligence under the Jones Act
and unseaworthiness under the general maritime law, both of
which could effect the structure of a vessel, could be brought
for clain arising on a vessel with a foreign flag.
In this case Title III, like the Jones Act and the law of
seaworthiness negligence and products liability speaks, only to
the physical conditions on a vessel—in Title III's case for
passengers—not to the master, owner, or employer’s managerial
relations with the crew, and should be + .bject to a similar choice
of law test. Moreover, Congress can he assumed to have been
aware of the applicability of the Lauritzen-Romero-Rhoditis test
at the time it enacted Title III.
C. Congress Was Aware of the Lauritzen-Romero-
Rhoditis Test When It Enacted Title III.
This Court has explained that it will assume that Congress
is familiar with the law when it enacts legislation, no less in
maritime cases than in any other. See Miles v. Apex Marine Corp.,
498 U.S. 19, 32 (1990). In this case, an assumption that Congress
was aware of this Court’s maritime choice of law jurisprudence
at the time of Title III’s enactment would be especially valid;
for, prior to the enactment of Title III Congress had legislated
in response to the application of that jurisprudence in the lower
courts.
28
In 1982 Congress amended the Jones Act to add what is
now 46 U.S.C. app. § 688(b), which excludes from the act’s
coverage aliens working in energy and mineral exploration in
the waters, or above the continental shelf of foreign countries.
See Act of Dec. 29, 1982, P.L. 97-389, Title V, § 503(a),
96 Stat. 1955. The 1982 amendments were enacted along with
the rest of a House Bill, the Fisheries Amendments of T982,
H.R. 3942, 97th Cong., 2d Sess. (1982). The Jones Act
amendments provision of that bill, section 503, was adopted
from H.R. 4863, 97th Cong., 2d Sess. (1982). See 128 Cong.
Rec.H. 7,631 (daily ed. Sept. 28, 1982). The committee report
on H.R. 4863, H.R.Rep. No. 97-863, 97th Cong., 2d Sess., 1982,
explained the purpose of the amendment:
The courts have generally found that the substantive
rights granted by the Jones Act do not extend to
foreign nationals who lack sufficient contacts with
the United States. These court decisions are not a
denial of equal access but rather a determination of
lack of standing. The decisions generally hold that
the litigant has no right which can be enforced in a
U.S. court. H.R. 4863 codifies this case law and
clarifies that the substantive rights granted by the
Jones Act do not extend to foreiga offshore workers.
The legislation is in accord with customary
international law and international agreements in that
it recognizes the rights of a nation to regulate activity
within its territorial waters and in the Outer
Continental Shelf adjacent to the coast of that nation.
The present situation whereby domestic United
States law is applied to actions and occurrences
within the jurisdiction of a sovereign foreign nation
is an unwarranted application and extraterritorial
extension of U.S. law and not in accord with our
treaties of friendship and navigation.
Id. at 7. Congress was, in fact, aware of the efforts by foreign
seamen to extend the Jones Act, along with the general maritime
29
law of the United States, to foreign seamen in foreign waters.
While Congress did not approve of such an extension, and
codified its rejection by the lower courts, it did nothing to change
the avoid the result in Rhoditis, which concluded that a foreign
plaintiff injured on a foreign vessel in United States waters could
recover under the Jones Act. A fortiori, it would appear that
Congress approved of recovery by a United States plaintiff
injured aboard a foreign vessel in United States waters.
Congress’ understanding of the Jones Act should be read
as background to the passage of Title III; for, as noted above,
Title Ill, like the Jones_Act does not interfere with labor
management relations aboard a ship. Indeed, because it does
not apply to employees Title III is less intrusive on a vessel’s
“management and internal affairs” than the Jones Act. The
foreign status of a vessel should not, per se, preclude recovery
under Title III; rather the applicability of Title III should be
____ determined by the familiar Laruitzen-Romero-Larsen test.
CONCLUSION
For all the forgoing reasons, this Court should reverse the
judgment of the United States Court of Appeals for the
Fifth Circuit.
Respectfully submitted,
Davip M. ZLOTNICK
RoGer WILLIAMS UNIVERSITY
ScHOOL OF Law
10 Metacom Avenue
Bristol, Rhode Island 02809
(401) 254-4614
Counsel for Amicus Curiae
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