Our lawyers represent crewmembers and seafarers from all over the world. One of the first questions that must be answered when a client contacts the law firm is whether United States law applies to their personal injury claim. When it comes to the United States based cruise lines such as Carnival, Norwegian (NCL), Disney, Royal Caribbean, Celebrity, Holland America, Princess, United States law will most likely apply. The application of United States law is more complex when it comes to cargo vessels or cruise ships that are not based in the United States. This article is meant to assist injured seafarers in determining whether United States law applies to their personal injury claims.
The courts determined the word “seaman” found in the Jones Act is not limited to American citizens or residents. A foreign seaman can take advance of Unites States law including the Jones Act, Penalty Wage Act as well as general maritime law claims of unseaworthiness and failure to provide maintenance and cure. In other words, just because a seaman is a citizen of another country it does not necessarily mean the seafarer cannot bring a Jones Act negligence or general maritime law claim in the United States.
The Supreme Court set forth eight (8) factors to consider when deciding the question of whether United States or foreign law applies to a seaman’s injury claim. These factors have been given varying degrees of importance by the courts and are thus explained:
Place of Injury
This factor has been given less importance because of the fortuitous nature as the accident usually occurs on a ship that that sails form place to place. When a seafarer is injured on a ship engaged in international trade the local government or citizens of the country where the accident happened to occur generally have little interest in the situation. That is why courts given this factor little importance.
Flag of the Ship
Originally, the flag of the ship was given great importance. However, as shipping companies decide to register or “flag” their ships in whatever country that offers the best tax rate, courts have began to give this factor less importance.
Domicile of the Seafarer
The seafarer’s domicile is “especially significant in [the] choice of laws analysis” The reason for the heaver weight of this factor is that each country has an interest in protecting its citizens.
Domicile of the Employer or Shipowner
As with the flag of the ship factor, the domicile of the employer or shipowner has been given less importance over the years. Often times, maritime employers and ship owners incorporate overseas in an effort to avoid taxes. In fact, every major cruise line is incorporated in a foreign countries eventhough their corporate headquarters are in the United States.
Place of Contract
The importance of this factor is generally dependant upon whether the contract contains a choice of venue or forum clause. However, if there is not venue selection clause this factor has been given medium weight.
Accessibility of the Forum
This factor is given significant weight. However, this factor only applies when the injured crewmember has no access to the foreign court such as in times of civil unrest of if the judicial system is corrupt to the point the seaman will not have an impartial trial. The fact that foreign law may provide less remedies than United States law, trial may not be conducted by jury or there is no contingency fee system are not reasons to support a finding that the foreign forum is not assessable.
Law of the Forum
Courts have generally given this factor minimal significance. As one court pointed out, “merely because the [American] court has jurisdiction over the parties involved in the claim does not necessarily support application of the Jones Act”
Base of the Employer’s and Shipowner’s Operation
The maritime employer or shipowner’s base of operation had been given varying degrees of importance. However, the mere fact that the base of operation is in the United States alone will not cause a court to apply United States law.
As you can see, the answer to whether United States law applies to a foreign seaman’s claim can be quite involved. However, applying the above factors in a realistic way a maritime lawyer can advise his client on the likelihood of whether a court will apply the Jones Act and general maritime law to his person injury claim.