                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-1995

Neely v Club Med
Precedential or Non-Precedential:

Docket 93-2069




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Neely v Club Med" (1995). 1995 Decisions. Paper 198.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/198


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                 ________________

             Nos. 93-2069 and 93-2102
                 ________________

                EILEEN ANNE NEELY,

                  Appellant in No. 93-2069

                        v.

        CLUB MED MANAGEMENT SERVICES, INC.;
               CLUB MED SALES, INC.;
      CLUB MED, INC., Third-Party Plaintiffs;
         HOLIDAY VILLAGE (ST. LUCIA), LTD.

                        v.

                  JOSEPH LEMAIRE,

                    Third-Party Defendant

      Club Med Management Services, Inc. and
         Holiday Village (St. Lucia) Inc.

                  Appellants in No. 93-2102

            __________________________

  On Appeal From the United States District Court
     For the Eastern District of Pennsylvania
            (D.C. Civ. No. 91-cv-07416)
            __________________________

              Argued: August 8, 1994

Before: MANSMANN, COWEN, and McKEE, Circuit Judges.
            __________________________

         Reargued in banc February 7, 1995

 Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
 MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
 NYGAARD, ALITO, ROTH, LEWIS, McKEE, and SAROKIN,


                                                      1
                         Circuit Judges.

                    (Filed   July 26, l995 )

               M. KELLY TILLERY, ESQUIRE (ARGUED)
               MICHAEL V. TINARI, ESQUIRE
               BARRY L. COHEN, ESQUIRE
               Leonard, Tillery & Sciolla
               1515 Market Street, 18th Floor
               Philadelphia, PA 19102

               Attorneys for Eileen Anne Neely

               BETTINA B. PLEVAN, ESQUIRE (ARGUED)
               JOHN SIEGAL, ESQUIRE
               MONIQUE A. TUTTLE, ESQUIRE
               Proskauer, Rose, Goetz &
                  Mendelsohn
               1585 Broadway
               New York, New York 10036

               Attorneys for Club Med Management
               Services, Inc.; Club Med Inc.;
               Holiday Village (St. Lucia), Ltd.

               LOUIS BELL
               Marshall, Dennehey, Warner,
                  Coleman & Goggin
               1845 Walnut Street
               Philadelphia, PA 19103

               Attorneys for Club Med Management
               Services, Inc.; Holiday Village
               (St. Lucia), Ltd.


                         TABLE   OF   CONTENTS

                                                 Introduction   3

                        I.   Facts and Procedural History       7

II.   The Lauritzen Triad and Subject Matter Jurisdiction 13
         A.   The Non-Jurisdictional Nature of the Lauritzen
                                   Choice-of-Law Analysis 13
         B.   Federal Question and Admiralty Jurisdiction 22
          1.   Federal Question Jurisdiction Under 28 U.S.C.
                                                   § 1331 22
          2.   Admiralty Jurisdiction Under 28 U.S.C. § 1333
                                                          24


2
III. Applicability of American Law Under the Lauritzen Triad
                                                           27
                                         A.   Introduction 27
            B.    Purposes of and Problems with the Lauritzen
                                                  Analysis 29
           C.    The Two Steps of the Lauritzen Choice of Law
                                                   Inquiry 32
          1.    Do the Contacts Show a Basis for Prescriptive
                                             Jurisdiction? 37
               2.   Are the Contacts Such That Application of
                         American Law Would Be Reasonable? 41
                   a.   Inaccessibility of a Foreign Forum 50
                                     b.   Law of the Forum 50
                            c.   Place of the Wrongful Act 51
                                    d.   Place of Contract 55
                                      e.   Law of the Flag 56
                        f.   Defendants' Allegiance, Bases of
                      Operations, and Other Contacts with the
                                             United States 59
                   g.   Domicile or Allegiance of the Injured
                                                    Seaman 62
                               h.   Summary and Conclusion 67

                             IV. The Molding of the Verdict 69
                  A.     Waiver of Comparative Causation on the
                                       Unseaworthiness Claim 71
                B.     Lack of Authority to Mold the Verdict 77
                            C.   Joint and Several Liability 82

                                             V.   Conclusion 83

                         _____________________

                          OPINION OF THE COURT
                         _____________________



BECKER, Circuit Judge.

INTRODUCTION

      Plaintiff Eileen Anne Neely, a young American employed at a

Club Med resort in St. Lucia, was seriously injured when she was

sucked into the propellers of a scuba diving vessel, the Long

John.    Plaintiff was a member of the crew of the vessel, which

was in St. Lucian coastal waters at the time of the accident.


3
She brought suit in the District Court for the Eastern District

of     Pennsylvania,       and    a     jury    there,     responding        to     special

interrogatories, found her employers negligent and the vessel

unseaworthy, and awarded plaintiff a large verdict on her Jones

Act,    general     maritime      law,    and    maintenance       and      cure    claims.

Molding the verdict in response to post-trial motions, the court

modified and substantially reduced the verdict by applying to the

unseaworthiness claim the percentage of contributory negligence

found by the jury with respect to the Jones Act claims.                            Then, on

cross-appeals,        a   panel    of    this    court,     invoking        Lauritzen    v.

Larsen, 345 U.S. 571, 73 S. Ct. 921 (1953), vacated the entire

judgment for the plaintiff on the ground that the district court

had    lacked    subject     matter      jurisdiction      over       the   action.      We

granted     rehearing      in    banc    and    vacated    the    panel      opinion    and

judgment.

       While the appeals present a large number of questions, we

address only the subject matter jurisdiction, choice of law, and

verdict      molding      issues.0        With     respect       to    subject       matter

jurisdiction,        we    conclude      that     the     multi-factored           analysis


0
We find without merit and without need for discussion the defendants’ contentions that there
was insufficient evidence to support the jury’s findings: (1) that defendant Club Med
Management employed plaintiff; (2) that defendant Holiday Village was the owner pro hac vice
of the Long John; and (3) that the unseaworthy condition of the
Long John was a proximate cause of plaintiff’s injuries.                                The
same is true of plaintiff’s contentions: (1) that the district
court erred in submitting the issue of her contributory
negligence to the jury (on the grounds of insufficient evidence);
(2) that the court erred in its charge with respect to the
defendants’ denial of certain maintenance payments; and (3) that
a new trial should have been granted because of the cumulative
effect of discovery rule violations, prejudicial conduct by
defense counsel, and “judicial misconduct.”

4
established       by    Lauritzen,    Romero       v.   International       Terminal

Operating Co., 358 U.S. 354, 79 S. Ct. 468 (1959), and Hellenic

Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731 (1970)

(together, the “Lauritzen triad”), governs choice of law, not

subject matter jurisdiction, in Jones Act and American general

maritime    law    claims.        Then,    applying     the   usual    analyses   for

federal question and admiralty jurisdiction, we conclude that the

district court had subject matter jurisdiction over this suit.

     Turning      our   attention     to    the    multi-factored      “substantial

contacts”    test      of   the   Lauritzen triad,       we    adopt   a   two-stage

interpretation of that test, subjecting the Lauritzen factors to

a relatively simple sufficiency test followed by a more involved

reasonableness inquiry.             We first find American maritime law

potentially applicable in this case because the plaintiff is an

American    citizen.         Accordingly,     we    consider    whether     applying

American law is reasonable under the circumstances.                     Because the

defendants did not inform the district court of the content of

St. Lucian law, any interests St. Lucia might have in this case

are undefined and, consequently, do little to render application

of American law unreasonable.              Additionally, in considering the

significance of the various Lauritzen factors, we pay heed to the
non-traditional context of this suit.                   By this we do not mean

that the vessel involved here was unlike those in traditional,

international shipping cases; rather, the activity here was non-

traditional, for the Long John did not take its crew from sea to

sea in pursuit of international commerce but rather only from

beach to reef in aid of scuba diving adventures.


5
     The accident occurred in St. Lucian waters, which as we

explain is an important consideration in non-shipping contexts.

And one of the defendants is a corporation organized under the

laws of St. Lucia, a factor that also reflects some interest on

the part of St. Lucia in applying its law.                  But these factors do

not mean that American law may not be reasonably applied under

the circumstances.       Even when we add to these some evidence that

the Long John, the vessel that injured plaintiff, was registered

in St. Lucia, we cannot conclude that St. Lucia’s interests,

whatever   they    may   be,    are    so    threatened      or    so    strong    that

America’s interests must be ignored.

     As our opinion explains, the United States has an overriding

interest   in     assuring     adequate      compensation         for    its    injured

seamen.     In     the   non-shipping             context   of    this    case,    the

significance of plaintiff’s American allegiance is an especially

important factor, and the relevance of the plaintiff’s having

entered into her employment contract in the United States is also

enhanced. Conversely, the law of the flag of the Long John is of

diminished importance in the non-traditional context, and, at all

events, the law of the flag would be entitled to virtually no

significance here both because there was no evidence that the

Long John actually flew the flag of St. Lucia (or any other
nation) and because the district court was presented with no

information as to the content of St. Lucian law.

     Additionally,       two      of        the     defendants      are        American

corporations, the Long John was built in America to American
specifications, and the St. Lucian defendant, whose operations


6
are in large measure run by one of its affiliated American co-

defendants, derives the majority of its income from American

tourists     booked     by    another      affiliated      American    co-defendant.

Because the connections between this incident and the United

States     implicate       significant       American   interests,      and    because

consideration         of      all      the     circumstances          confirms        the

reasonableness of applying United States law, we conclude that

the   contacts      with     the     United   States    are    “substantial,”         and

American laws, both the Jones Act and our general maritime law,

apply to this suit.

      We also conclude that the district court erred in molding

the verdict to apply the percentage of comparative negligence

found by the jury with respect to the Jones Act claim to the

unseaworthiness claim.              We so hold because the defendants waived

the issue, and because the court, which did not submit it to the

jury,    lacked      authority        to   later    make    the    omitted     factual

determinations sua sponte.             We will therefore affirm the order of

the district court holding two of the defendants liable under

American    law,     but     will    vacate   the   district      court's     order    of

January 26, 1993, and direct it, on remand, to enter judgment for

the plaintiff against Club Med Management and Holiday Village in

the full amount of damages found by the jury, as more fully

explained below.



I. FACTS   AND   PROCEDURAL HISTORY

      The defendants in this action are Club Med, Inc., Club Med

Sales, Inc., and Club Med Management Services, Inc., all of which


7
have offices in New York, and Club Med, Inc.’s wholly owned

subsidiary Holiday Village (St. Lucia) Ltd.                      Of the 10,000 to

15,000 people per year who vacation at the Club Med Holiday

Village resort, approximately seventy to eighty percent come from

the    United   States.          Seventy    to      eighty     percent     of   Holiday

Village’s annual income of approximately fifteen million dollars

is generated by Holiday Village’s American sales bureau, Club Med

Sales.

       Plaintiff     is     an   American      citizen       domiciled     in   Telford

(Montgomery County), Pennsylvania.                After vacationing at a Club

Med resort, she applied to Club Med for a position as a scuba

diving instructor.         Plaintiff was interviewed in New York by Club

Med Management, a New York corporation.                  Following the interview,

plaintiff received a letter of interest from the defendants,

followed several months later by a phone call, initiated in New

York by Club Med Management, offering her a position at Holiday

Village,     which    she     accepted.        In      early    May   of   1991,   the

defendants arranged and paid the travel expenses for her to go to

Holiday Village in St. Lucia.

       Plaintiff was hired to work as an “au pair” for a six-week

period.      She was not given a cash salary, but rather received

room   and   board    in    exchange     for     her    work.     Once     at   Holiday

Village,     she     served      as   either     Scuba    Diving      Instructor    or

Divemaster on approximately thirteen or fourteen voyages from May

13 to May 23, 1991.         She typically had trips twice in the morning

and once in the afternoon.             She was responsible for checking and

preparing all equipment (which was stored aboard scuba diving


8
boats)     for    each      voyage.      During   the     trips,    she   provided

instruction and warnings to the Club Med guests who would be

diving.

     The     scuba       expeditions     on   which     plaintiff    worked    were

conducted by a small fleet operated by Holiday Village.                         The

fleet consisted of the Blue Lagoon, owned by Club Med, and the

Long John, chartered by Holiday Village for use as a diving

vessel from its title owner Joseph LeMaire (who lives in Miami,

Florida but is not a United States citizen).                        A declaration

executed by LeMaire claimed that the Long John, which was built

in the United States, was “registered” in St. Lucia, but the

charter left blank the state of registry.

     On May 23, 1991, plaintiff served Club Med guests on a scuba

diving excursion on the Long John, which was captained by Philipe

Le Cann.         When the boat arrived at the dive site in coastal

waters off St. Lucia, the passengers and dive crew prepared to

enter the water.         The boat was put in neutral, and, after donning

her gear, plaintiff entered the water.

     It was disputed whether Stephane Gaudry, the Divemaster, had

given the signal to enter the water before plaintiff jumped in:

the uncontroverted testimony was that Gaudry made no entry of

plaintiff’s dive time on the dive log.                    Whatever the precise

sequence of events, after plaintiff had entered the water, the

captain    put    the     ship’s   engines    into    reverse.      The   churning

propellers       of   the   twin   350   horsepower     diesel     engines    sucked

plaintiff under the boat and into the ship’s propellers, which

were not shielded by propeller guards, and she emerged on the


9
starboard side with extremely serious injuries to various parts

of    her   body.        She   was    brought       on    board       the    ship,        taken

immediately to shore, and thereafter to a clinic and then a

hospital.

      After      being    treated,         plaintiff      was     out       of     work    for

approximately five and one half months. During this time, she

convalesced at her parents’ home in Telford, where they cared for

her on a daily basis.            Despite two surgeries for nerve damage,

her use of her right arm was permanently restricted; she also

will require plastic surgery for her numerous conspicuous scars.

      Plaintiff eventually brought suit in the District Court for

the    Eastern      District    of    Pennsylvania,         pleading         the     federal

question    and     admiralty    statutes,        28     U.S.C.    §§ 1331         and     1333

(1988), as bases for subject matter jurisdiction.                                She alleged

that her injuries were caused by negligence in violation of the

Jones Act, and by the unseaworthy condition of the vessel in

violation of the general maritime law.                   The defendants interposed

a    host   of    defenses,     including         contributory        negligence          and,

relying on Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921

(1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90
S. Ct. 1731 (1970), the claim that the district court lacked

subject matter jurisdiction to apply American law.                          Although they

argued that St. Lucia had a greater interest in having its law

applied,    the     defendants       did    not   present       the     court      with    any

information concerning the law of St. Lucia.

      The district court denied defendants’ motion to dismiss for

lack of subject matter jurisdiction and failure to state a claim,


10
and allowed the suit to go to trial.                        During trial, the court

ruled, without objection from the defendants, that contributory

negligence was not a defense to the unseaworthiness claim.                                   At

the close of trial, the court instructed the jury and provided it

with a special verdict form, the first draft of which had been

prepared by defense counsel.                    The form required the jury to

answer a number of specific questions, grouped and captioned as

we now describe.

     The first set of questions were presented under the heading

“Jones    Act    Claim.”       In     these,      the       jury   was    asked       whether

plaintiff was employed by one or more of the defendants; if so,

which defendant or defendants were her employer; whether her

employer or employers were negligent; whether any such negligence

was a substantial factor in bringing about plaintiff’s injuries;

whether plaintiff was contributorily negligent; whether any such

contributory      negligence        was    a    substantial        factor      in    bringing

about    her    injuries;     and    how       the causal      negligence           should   be

allocated (totalling 100%) among the employer or employers and,

if appropriate, the plaintiff.

     The second set of questions were grouped under the caption

“General Maritime Claim.” In this section of the form the jury

was required to answer whether any of the defendants owned or

sufficiently controlled the Long John to qualify as owner or

owner pro hac vice; if so, which defendant(s) controlled the

vessel;    whether      the   plaintiff         had   shown    that      the    vessel was

unseaworthy;      and    if    so,    whether         the    unseaworthiness           was    a




11
substantial factor contributing to plaintiff’s injuries.                             This

section asked no questions about contributory responsibility.

       The third section of the special verdict sheet was labeled

“Damages.”      The jury was there directed to “[s]tate the amount of

damages, if any, sustained by the Plaintiff as a result of the

accident,      without    regard      to    and     without      reduction      by    the

percentage of causal negligence, if any, that you have attributed

to the plaintiff.”

       The    fourth    and   final      portion    of   the    verdict      sheet    was

captioned “Maintenance.”            There, the jury was asked whether it

found the plaintiff entitled to maintenance, and whether any of

the defendants (and, if so, which) acted unreasonably in denying

maintenance to her.

       On the Jones Act questions, the jury found that plaintiff

was employed by Club Med Management and by Holiday Village, that

those defendants had been negligent, and that their negligence

was a substantial factor in causing the plaintiff’s injuries.

The    jury     also     found,       however,      that       the    plaintiff      was

contributorily         negligent.          It     allocated     the     total    causal

negligence thirty percent to Club Med Management, ten percent to

Holiday Village, and sixty percent to the plaintiff.                         In answer

to    the    General    Maritime    Law     questions,     the       jury   found    that

Holiday Village exercised sufficient control over the Long John

to be its owner pro hac vice.                   It also found the Long John to

have    been    unseaworthy,       and     that    the   unseaworthiness         was    a

substantial factor causing plaintiff’s injuries.




12
     On the remaining questions, the jury found the plaintiff’s

total damages sustained from the accident, without regard to any

causal negligence on her own part, to be $545,000.                It also found

that the plaintiff was entitled to maintenance, but that none of

the defendants had acted unreasonably in withholding payment.

Thereupon,    the   district    court     molded    the    verdict    to   reflect

plaintiff’s comparative negligence:             On the Jones Act claim, the

court entered judgment against Club Med Management and Holiday

Village in the amount of forty percent of $545,000, that is,

$218,000.    On the maintenance claim, the court entered judgment

against the same defendants for $11,700, but denied attorney’s

fees to plaintiff because the jury had found that the denial of

maintenance was not unreasonable.           On the unseaworthiness claim,

the court entered judgment in plaintiff’s favor against Holiday

Village in the full amount of $545,000.

     A week later the defendants moved the district court to mold

the verdict on the unseaworthiness claim.              Relying upon case law

holding that comparative fault is a partial defense to general

maritime law unseaworthiness claims, the defendants urged the

district court to reduce the unseaworthiness verdict by sixty

percent,     the    percentage       of   the      plaintiff’s       contributory

negligence on the Jones Act claim.              Over plaintiff’s objection,

the district court entered an order so modifying the judgment.

     Plaintiff      filed   a   timely    appeal,    and    defendants      cross-

appealed.     Under    28   U.S.C.    § 1291    (1988),     we   have   appellate

jurisdiction over the final orders of the district court.




13
II. THE LAURITZEN TRIAD   AND   SUBJECT MATTER JURISDICTION

     Beginning with their initial answer in the district court,

the defendants have argued that, pursuant to the multi-factored

analysis   developed      in    Lauritzen         v.    Larsen,    345      U.S.   571,   73

S. Ct. 921 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S.

306, 90 S. Ct. 1731 (1970), the district court lacked subject

matter    jurisdiction     over       plaintiff’s         Jones       Act    and   general

maritime   law    unseaworthiness          claims.         Because       subject     matter

jurisdiction restrictions impose a limit on the power of the

federal courts to entertain an action, we must first consider

whether the district court had subject matter jurisdiction over

plaintiff’s       suit.         If     the     district         court       lacked     such

jurisdiction, it would be our duty to vacate the judgments in

plaintiff’s favor and direct the district court to dismiss her

action.

     We    hold    that    the       district          court    had    subject       matter

jurisdiction over this suit.                 This ruling primarily reflects a

disagreement with defendants’ premise that the Lauritzen triad

(composed of Lauritzen, Rhoditis, and Romero v. International
Terminal   Operating      Co.,       358   U.S.    354,    79     S. Ct.     468   (1959))

provides the framework for determining whether a district court

has subject matter jurisdiction in Jones Act or general maritime

law cases.
              A.    The Non-Jurisdictional Nature of the

                    Lauritzen Choice-of-Law Analysis

     In Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921 (1953),

the Supreme Court enunciated a number of factors to be considered


14
by courts evaluating whether a plaintiff may sue under the Jones

Act.    These factors include:
       (1) the place of the wrongful act,
       (2) the law of the flag,
       (3) the allegiance or domicile of the injured plaintiff,
       (4) the allegiance of the defendant,
       (5) the place of contract,
       (6) the inaccessibility of a foreign forum, and
       (7) the law of the forum.

See Lauritzen, 345 U.S. at 583-92, 73 S. Ct. at 928-33.                                 The

Court reiterated the relevance of these factors in Romero, see

358 U.S. at 383, 79 S. Ct. at 486, and in Hellenic Lines, Ltd. v.
Rhoditis, 398 U.S. 306, 90 S. Ct. 1731 (1970), it added the

defendant’s base of operations to this list, id. at 309, 90

S. Ct. at 1734.

       Defendants believe that this inquiry determines whether the

district court has subject matter jurisdiction.                         This view was

not    challenged    in    the     district   court,       which       considered       the

factors and found subject matter jurisdiction, or before the

panel,    which     reconsidered       them   but       found     no     jurisdiction.

Moreover, a number of cases in various jurisdictions so hold.

However, after granting rehearing in banc, we sua sponte directed

the parties to prepare supplemental briefing on the question

whether     the     Lauritzen-Romero-Rhoditis              factors         (henceforth

referred to as the “Lauritzen factors” for simplicity) in fact go

to subject matter jurisdiction.               With the benefit of counsel’s

briefing and argument, and after studying the Supreme Court’s

opinions and numerous cases interpreting them, we conclude that

the    Lauritzen    factors      are    not   a     test    for        subject    matter

jurisdiction,      but    rather    constitute      a   non-exhaustive           list    of


15
contacts    for   choice   of   law   analysis   in   suits   for   maritime

injuries with foreign connections.

     In Lauritzen, the Supreme Court was called on to answer a

question of the extraterritorial applicability of the Jones Act.

While in New York, Larsen, a Danish seaman, had signed onto a

ship of Danish flag and registry owned by Lauritzen, another

Danish citizen.      The ship’s articles that Larsen signed were

written in Danish and specified that Danish law would govern the

crewmembers’ rights.       After being injured in the course of his

employment while in Havana harbor, Larsen brought suit against

Lauritzen in the District Court for the Southern District of New

York, seeking to recover damages under the Jones Act.                  Over

Lauritzen’s objection that Danish law rather than American law

governed, the district court allowed the case to go to the jury

under the Jones Act, which rendered a verdict in Larsen’s favor.

The Court of Appeals for the Second Circuit affirmed, and the

Supreme Court granted certiorari.

     The Court formulated the “key issue” as “whether statutes of

the United States should be applied to this claim of maritime

tort.”     Lauritzen, 345 U.S. at 573, 73 S. Ct. at 923.        As did the

defendants herein, Lauritzen had framed his objection in terms of

subject matter jurisdiction, but the Court quickly disposed of

this argument:
     The question of jurisdiction is shortly answered. . . . As
     frequently happens, a contention that there is some barrier
     to granting plaintiff’s claim is cast in terms of an
     exception to jurisdiction of subject matter.     A cause of
     action under our law was asserted here, and the court had
     power to determine whether it was or was not well founded in
     law and in fact.


16
Id. at 574, 73 S. Ct. at 924.            Thus, the Court’s later analysis

introducing    the   now-famous     Lauritzen    factors   was    directed    to

choice of law, see id. at 583, 73 S. Ct. at 928, not subject

matter jurisdiction, which the Court had already determined was

present.

     Similarly,      in Romero    v.    International    Terminal   Operating

Co., 358 U.S. 354, 79 S. Ct. 468 (1959), the Court faced suit

brought    under   American   law   by    a   foreign   sailor.     Romero,   a

Spanish seaman, had signed onto the crew of a vessel of Spanish

registry that sailed under the Spanish flag and was owned by a

Spanish corporation.       After departing from a Spanish port, the

ship made numerous stops, including one in Hoboken, where Romero

was injured when struck by a cable on the ship’s deck.               He filed

suit in the District Court for the Southern District of New York,

contending inter alia that the shipowner (“Compania”) was liable

to him under the Jones Act and under the general maritime law of

the United States for unseaworthiness of the ship, maintenance

and cure, and maritime tort.           The alleged bases for jurisdiction

were the Jones Act, federal question jurisdiction, and diversity

jurisdiction.

     The district court dismissed the complaint after a pre-trial

hearing.    It concluded that the Jones Act provided no right of

action to an alien seaman under the circumstances involved, and

thus that the court lacked jurisdiction over the Jones Act claim

against Compania.      The court dismissed the general maritime claim

against the corporation because the company was not of diverse

citizenship from Romero and because of its conclusion that the


17
federal question statute did not embrace general maritime law

claims.

       The     Court      of     Appeals       affirmed        the     dismissal        of     the

complaint, and the Supreme Court granted certiorari.                                 In Part I

of its opinion, entitled “Jurisdiction,” id. at 359, 79 S. Ct. at

473,     the    Court      concluded       that     the     district         court    possessed

subject matter jurisdiction of the claims. With respect to the

Jones Act claims, it noted:
     [T]he question whether jurisdiction exists has been confused
     with the question whether the complaint states a cause of
     action.   Petitioner asserts a substantial claim that the
     Jones Act affords him a right of recovery for the negligence
     of his employer.    Such assertion alone is sufficient to
     empower the District Court to assume jurisdiction over the
     case and determine whether, in fact, the Act does provide
     the claimed rights.

Id. (internal quotation marks and citation omitted).                                 The Court

then affirmed Lauritzen’s holding that the usual federal question

approach to subject matter jurisdiction governs Jones Act suits.

See id.0

       Importantly,          the    Romero       Court     turned       to    the     Lauritzen

factors (in Part II of its opinion, entitled “The Claims Against

Compania Transatlantica--The Choice-of-Law Problem,” id. at 381,

79 S. Ct. at 485) only after concluding that the district court

had erred in dismissing Romero’s suit for lack of subject matter

jurisdiction.          Thus, the Court’s decision in Romero confirms that
0
The issue of subject matter jurisdiction over the unseaworthiness and general maritime law tort
claims was more complicated due to the procedural posture of the case, which preceded the 1966
procedural unification of the civil and admiralty “sides” of federal district court. We note here
only that the Supreme Court held that where plaintiffs properly alleged a Jones Act claim, the
district court might exercise “pendent jurisdiction” to determine whether they also properly stated
a general maritime law cause of action, even if the complaint was not filed as a libel in admiralty.
For further discussion, see GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY
§ 6-62 (2d ed. 1975).

18
the    Lauritzen        factors       are     not     a    test     for     subject      matter

jurisdiction but rather govern choice of law.                             The innovation in

Romero was its pronouncement that the Lauritzen analysis should

govern     not    only      Jones    Act    claims        but   also    claims      under     the

general maritime law for personal injury damages.                            Id. at 382, 79

S. Ct. at 485.

       Our understanding of these precedents is confirmed by a

leading admiralty treatise.                   See GRANT GILMORE & CHARLES L. BLACK,

JR., THE LAW      OF   ADMIRALTY § 6-63 (2d ed. 1975) [hereinafter LAW                          OF

ADMIRALTY].       Discussing “Choice of Law in Actions Brought in the

United     States      by    Seamen      Injured      on    Foreign-Flag         Ships,”      the

authors explain that when “a seaman brings an action to recover

for personal injuries, the court must initially decide whether it

has jurisdiction and, if it has, whether United States law or the

law of a foreign nation is applicable.”                         Id. at 471.        They go on

to discuss Lauritzen and Romero as follows:
     The majority of the Court concluded that neither the situs
     of the injury nor Romero’s treatment in this country made a
     case, under the Lauritzen criteria, for application of
     American law in Romero’s action against his employer, the
     Spanish Line. Justice Frankfurter’s opinion emphasized that
     the issue was one of choice of law and not of subject matter
     jurisdiction.  That is, the District Court, having decided
     that Romero’s action against his employer was not governed
     by American law, could have retained jurisdiction of the
     action and decided it under Spanish law.

Id. at 473 (emphasis supplied).0
       The Supreme Court’s third and latest pronouncement on the

role of the Lauritzen factors came in 1970.                             While the Court’s


0
The district court had chosen as a matter of discretion not to exercise admiralty jurisdiction over
any claims that Romero might have under Spanish law. See id. at 358, 79 S. Ct.
at 472. See also infra note 30.

19
opinion in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90

S. Ct. 1731 (1970), is partially opaque, it does not signal a

change      in    the     purpose      and        use   of    the    Lauritzen      analysis.

Rhoditis concerned a suit under the Jones Act by a Greek seaman

for   injuries       he       suffered      aboard      a    ship   in    the    Port    of    New

Orleans.         Because the Supreme Court agreed with the trial and

appellate courts that the Jones Act applied, the Court did not

need to differentiate between subject matter jurisdiction and the

plaintiff’s entitlement to proceed under the Jones Act--both were

present.         But the opinion’s description of the Lauritzen analysis

makes clear that the Court viewed the factors as bearing on

applicability            of     the        Act,     rather         than    subject       matter

jurisdiction.

      The        Court    explicitly         endorsed         the    description        of    the

Lauritzen analysis offered by Judge Medina, who in Bartholomew v.

Universe     Tankships,            Inc.,    263     F.2d     437    (2d   Cir.    1959),      had

written:
     [T]he decisional process of arriving at a conclusion on the
     subject of the application of the Jones Act involves the
     ascertainment of the facts or groups of facts which
     constitute contacts between the transaction involved in the
     case and the United States, and then deciding whether or not
     they are substantial.

Id. at 441 (quoted in Rhoditis, 398 U.S. at 309 n.4, 90 S. Ct. at

1734 n.4) (emphasis supplied here).                          Furthermore, in adding the

shipowner’s        base       of    operations          to   the    analysis,      the       Court

characterized it as “another factor of importance in determining

whether the Jones Act is applicable.”                        Rhoditis, 398 U.S. at 309,

90 S. Ct. at 1734 (emphases supplied).



20
      It is true that the Court’s opinion in Rhoditis twice used

the    word      “jurisdiction.”0         However,      the       presence     of    two

occurrences      of    the   word     “jurisdiction”        is    too   ambiguous      to

mandate a change in the jurisprudence,0 particularly since the

Court likely meant to refer to “legislative jurisdiction,” see

id.   at   314    &   n.2,   90   S. Ct.     at   1736-37     &   n.2   (Harlan,     J.,

dissenting) (which is also known as prescriptive jurisdiction,

0
 “Of these seven factors, it is urged that four are in favor of the shipowner and against
jurisdiction.” Id. at 308, 90 S. Ct. at 1733. See also id. at 309, 90
S. Ct. at 1734 (referring to “the national interest served by the
assertion of Jones Act jurisdiction”).
0
 One district court has suggested that perhaps the Supreme Court’s reference to “Jones Act
jurisdiction” was not “intended to overrule Lauritzen and Romero,” but rather was
“merely an unguarded and passing dictum.”                                 Karvelis v.
Constellation Lines SA, 608 F. Supp. 966, 968 n.2, aff’d, 806
F.2d 49 (2d Cir. 1986). In this regard, we take special note of
Rodriguez v. Flota Mercante Grancolombiana, S.A., 703 F.2d 1069
(9th Cir. 1983), which is one of very few reported cases to
attempt a careful analysis of the nature of the Lauritzen
inquiry. In Rodriguez, the court of appeals rejected a Colombian
seaman’s attempt to sue his employer (a Colombian corporation
based in Colombia) under the Jones Act.                         But, as then-Judge
Kennedy recognized in a separate concurrence, the majority went
astray when it read Rhoditis as authorizing a district court to
dismiss a Jones Act case for lack of subject matter jurisdiction
when the Lauritzen factors do not support application of American
law. See id. at 1072. Judge Kennedy agreed that the plaintiff
failed to state a claim under the Jones Act but wrote separately
“to call attention to a conceptual problem in these cases,
namely, whether to characterize an unsuccessful Jones Act claim
as lacking in subject matter jurisdiction or as failing to state
a cause of action.” Id. at 1075. Judge Kennedy believed that
the Supreme Court’s reference in Rhoditis to “jurisdiction” was
“only a passing and unguarded remark.”                       Id. at 1076.          After
reviewing Lauritzen, Romero, and several Court of Appeals cases,
Judge Kennedy concluded that Lauritzen analysis does not go to
subject matter jurisdiction, for “the issue is whether or not
there is a failure to state a claim, and we resort to choice of
law principles to answer the question.” Id. See also Dracos v.
Hellenic Lines Ltd., 705 F.2d 1392, 1397-98 & n.1 (4th Cir. 1983)
(Murnaghan, J., dissenting) (properly analyzing Lauritzen factors
as choice of law contacts, not subject matter jurisdiction
factors), on reh’g, 762 F.2d 348 (1985) (en banc).

21
see RESTATEMENT (THIRD)       OF   FOREIGN RELATIONS LAW Pt. IV, at 230 (1987)).

Moreover, subject matter jurisdiction was not presented in the

Questions    for       Review      in    the    petition          for    certiorari.              See

Petition    for       Writ    of    Cert.      at    2-3,     Hellenic        Lines        Ltd.    v.

Rhoditis, 412 F.2d 919 (5th Cir. 1969) (No. 661), cert. granted,

396 U.S. 100, 90 S. Ct. 554 (1970).                     Rather, the first Question,

which is characteristic, was:
     Were the lower courts correct in applying the Jones Act to
     an action by a Greek seaman, himself a resident of Greece,
     against a Greek corporate owner for injury occurring aboard
     a Greek flag vessel, solely on the ground that the majority
     stock holder of the corporate ship owner, although himself a
     Greek   citizen,  resided   in  the   United  States  as   a
     representative of Greece to the United Nations.

Id. (emphasis supplied).

     Moreover,         treating         the    Lauritzen          analysis       as    going       to

subject matter jurisdiction would be out of keeping with the

approach    of    most       jurisdictional           inquiries,         which    tend       to    be

straightforward threshold questions.                    “The dangers of a totality-

of-the-circumstances approach to jurisdiction would be obvious.

An   undefined        test    requires         courts       and    litigants          to    devote

substantial resources to determine whether a federal court may

hear a specific case.”               Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 115 S. Ct. 1043, 1057 (1995) (Thomas, J.,

concurring in the judgment).                        The federal judiciary “pursues

clarity and efficiency in other areas of federal subject-matter

jurisdiction,         and    it    should      demand    no       less   in   admiralty and

maritime law.”         Id. at 1059.

     Thus,       we    conclude         that    the     multi-factored            analysis         of

Lauritzen, Romero, and Rhoditis is not to be used to determine


22
whether a district court has subject matter jurisdiction over

suits brought under the Jones Act or the general maritime law.

Insofar as Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d

Cir.   1991),    holds   that    the    Lauritzen        factors   govern    subject

matter    jurisdiction    over    Jones       Act   or    general   maritime      law

claims, it is overruled.         In so ruling, we agree with the cases

from other circuits that have used the Lauritzen analysis to

determine choice of law, not subject matter jurisdiction.                        See,

e.g., Schexnider v. McDermott Int’l, Inc., 817 F.2d 1159 (5th

Cir.     1987)   (affirming      district       court’s      determination       that

Lauritzen dictated applicability of Australian law but requiring

that district court retain jurisdiction and try the case); cf.

also supra note 21 (citing concurring and dissenting opinions

that     correctly    apprehend        the    issue).         Concomitantly,       we

necessarily disagree with those cases from other circuits holding

(without addressing the clear force of Romero) that the Lauritzen

analysis may be used to dismiss a Jones Act claim for lack of

subject    matter    jurisdiction.           See,   e.g.,    Gutierrez      v.   Diana

Investments Corp., 946 F.2d             455, 456-57 (6th Cir. 1991) (per

curiam) (affirming dismissal of suit for lack of subject matter

jurisdiction flowing from non-applicability of American law under

Lauritzen analysis); Dracos v. Hellenic Lines, Ltd., 762 F.2d
348, 349-50 (4th Cir. 1985) (en banc) (same);0 Rodriguez v. Flota



0
While Dracos did cite Romero, the en banc majority read it as
merely holding that federal courts have jurisdiction to consider
their own jurisdiction.    See Dracos, 762 F.2d at 350 (citing
Romero, 358 U.S. at 359, 79 S. Ct. at 473).      As our foregoing
discussion shows, this is not what Romero holds.

23
Mercante Grancolombiana, S.A., 703 F.2d 1069, 1071-72 (9th Cir.

1983) (same).

B.     Federal Question and Admiralty Jurisdiction

       Although we have demonstrated that the Lauritzen inquiry is

non-jurisdictional in nature, there remains the question whether

the     district     court     had       subject       matter     jurisdiction       over

plaintiff’s        claims,     which       the      defendants         have    contested

throughout this litigation.              We conclude that it did, under both

the federal question and the admiralty jurisdiction statutes.

1.     Federal Question Jurisdiction Under 28 U.S.C. § 1331

       In its first Jones Act case, the Supreme Court held that the

Jones Act, as a federal statute providing remedies for injured

seamen,     is    subject     to     the    usual      rule     for     “arising-under”

jurisdiction.       See Panama R.R. Co. v. Johnson, 264 U.S. 375, 383-

84, 44 S. Ct. 391, 392 (1924) (“This case arose under a law of

the    United     States     [i.e.,      the    Jones    Act]     and     involved   the

requisite amount, if any was requisite; so there can be no doubt

that the case was within the general jurisdiction conferred on

the district courts by [the federal question statute] . . . .”);

see also Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891,
2917     (1993)    (Scalia,        J.,     dissenting      in     part)       (discussing

Lauritzen    and    distinguishing         subject      matter    jurisdiction       from

applicability of American law).

       Section     1331    provides      that    the    federal       “district    courts

shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.”

28 U.S.C. § 1331 (1988).              “The question of whether the district


24
court had subject matter jurisdiction pursuant to [the Jones Act]

is not whether [plaintiff] had a valid cause of action against

the [defendants] under federal . . . law.                           Rather, the subject

matter jurisdiction analysis is one of whether the determination

of the existence vel non of that cause of action is a question

‘arising      under       the    . . .   laws    . . .       of    the   United    States.’”

Airco Indus. Gases, Inc. v. Teamsters Health & Welfare Pension

Fund, 850 F.2d 1028, 1032 (3d Cir. 1988).                                Plaintiff clearly

meets that standard, for whether she could assert claims under

the Jones Act and general maritime law is a question of federal

law.         The        district     court      clearly       had    jurisdiction          over

plaintiff’s Jones Act claims.0

2.     Admiralty Jurisdiction Under 28 U.S.C. § 1333

       Plaintiff’s remaining claims against the defendants allege

violations         of    the     general     maritime        law    duty    to    provide      a

seaworthy vessel.               Again, although the Lauritzen factors are to

be used in determining the applicability of substantive American

maritime law, they do not go to subject matter jurisdiction.

Rather,      for        non-statutory      causes       of    action,       we    apply     the

customary       admiralty          jurisdiction       analysis       of     Executive       Jet
Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S. Ct. 493

(1972), Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S. Ct.

2654 (1982), and Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892


0
 Defendants do not contend, nor could they, that the district court lacked subject matter
jurisdiction on the ground that plaintiff’s Jones Act claim “clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or [that her] claim is wholly insubstantial
and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83, 66 S. Ct. 773, 776
(1946).

25
(1990), as recently reaffirmed in Jerome B. Grubart, Inc. v.

Great Lakes Dredge & Dock Co., 115 S. Ct. 1043 (1995).

         “[A] party seeking to invoke federal admiralty jurisdiction

pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy

conditions      both     of    location    and    of    connection      with    maritime

activity.”         Id. at 1048.         For tort claims, the locality test

requires that “the tort occurred on navigable water or . . .

injury suffered on land was caused by a vessel on navigable

water.” Id.        Here, the locality test is “readily satisfied,” id.

at 1049, for plaintiff’s injuries occurred in navigable waters

and were caused there by a vessel, see id. at 1048.

         The maritime connection inquiry is two-fold.                          First, we

“assess the general features of the type of incident involved to

determine       whether       the   incident     has    a    potentially     disrupting

impact     on   maritime       commerce.”         Id.    (internal      citations      and

quotation marks omitted).                 Second, we “determine whether the

general character of the activity giving rise to the incident

shows      a    substantial         relationship        to    traditional       maritime

activity.”       Id. (internal citations and quotation marks omitted).

         With respect to the potential disruption prong, we describe

the incident “at an intermediate level of possible generality.”

Id. at 1051.         Following the Supreme Court’s lead, the “general

features of the incident at issue here may be described as damage

by   a    vessel    in    navigable     water     to    [a   seaman].”        Id.0     “So


0
On appeal, the defendants did not challenge plaintiff’s seaman status, which flowed from her
being a crewmember of the vessels in the Club Med fleet, and which we accordingly take as
given for purposes of this case. Cf. Chirinos de Alvarez v. Creole Petroleum
Corp., 613 F.2d 1240, 1245 n.5 (3d Cir. 1980).

26
characterized, . . . this is the kind of incident that has a

potentially disruptive impact on maritime commerce.”                       Id.   Injury

to a seaman in navigable waters “could lead to restrictions on

the navigational use of the waterway,” id., during necessary

investigations       into     the    accident,    which       could   be   especially

lengthy    in   a   case     where    the seaman’s       injuries     proved     fatal.

Additionally, a vessel’s need to replace an incapacitated seaman

could lead to delays in commercial shipping.                    Although this case

involves    a   pleasure       boat    rather    than     a    vessel      engaged   in

commercial shipping, that fact does not affect the jurisdictional

result.     In Sisson v. Ruby, the features of the incident were

described as “a fire on a vessel docked at a marina on navigable

waters,” 497 U.S. at 363, 110 S. Ct. at 2896, even though the

“vessel” was a pleasure boat.

     The second prong of the maritime connection test is also

easily met here.             “In the second Sisson enquiry, we look to

whether the general character of the activity giving rise to the

incident shows a substantial relationship to traditional maritime

activity.”          Jerome    B.     Grubart,    Inc.,    115    S. Ct.     at    1051.

“Navigation of boats in navigable waters clearly falls within the

substantial relationship . . . .”               Id.   Thus, the travels of the

Long John qualify despite the short distances involved in its

voyages.     Cf. Sinclair v. Soniform, Inc., 935 F.2d 599, 600 (3d

Cir. 1991) (upholding admiralty jurisdiction over claim arising

from failure of crew of vessel that transported plaintiff to

detect symptoms of and administer proper care for decompression

sickness suffered during scuba diving investigation in navigable


27
waters); see also 1 STEVEN F. FREIDELL, BENEDICT                ON   ADMIRALTY § 171, at

11-22 to -23 nn.54-56 (7th ed. rev. 1995) (citing cases finding

admiralty       jurisdiction        over    claims    that    navigation       errors     or

negligent         operation    of      vessel     injured     others)      [hereinafter

BENEDICT   ON   ADMIRALTY].    Since the locality and maritime connection

tests      were     clearly     met,       the   district     court     had     admiralty

jurisdiction over plaintiff’s claims.0

0
 In so holding we note that the Supreme Court has not been receptive to defendants’ arguments
that “virtually every activity involving a vessel on navigable waters would be a traditional
maritime activity sufficient to invoke maritime navigation.” Jerome B. Grubart, Inc., 115
S. Ct. at 1052 (internal quotation marks omitted). Nor has the
Court       departed       far      from     the    situs      test      for    admiralty
jurisdiction, see id. at 1052-53, but rather has “simply . . .
reject[ed] a location rule so rigid as to extend admiralty to a
case involving an airplane, not a vessel, engaged in an activity
far removed from anything traditionally maritime.” Id. at 1053.
Although not “every tort involving a vessel on navigable waters
falls within the scope of admiralty jurisdiction no matter what,
. . . ordinarily that will be so.”                      Id.     This case lacks any
exceptional circumstances that could take it out of the ordinary
run.      Accordingly, plaintiff’s general maritime law claims come
within the federal courts’ admiralty jurisdiction.
        Additionally, although diversity or alienage were not pled
as bases for the district court’s jurisdiction over Neely’s
claims against Club Med Management and Holiday Village, the
amount in controversy has at all times easily exceeded $50,000,
and so the facts show that the district court had diversity
jurisdiction, 28 U.S.C. § 1332(a)(1) (1988), over the claims of
Neely (a Pennsylvania citizen) against Club Med Management (a New
York corporation), and Club Med Sales (a Delaware corporation),
and alienage jurisdiction, 28 U.S.C. § 1332(a)(2) (1988), over
the claims against Club Med, Inc. (a Cayman Islands corporation)
and Holiday Village (a St. Lucian corporation).                          By statute, we
are authorized to permit amendment to the complaint to correct
defective allegations. See 28 U.S.C. § 1653 (1988) (“Defective
allegations of subject matter jurisdiction may be amended, upon
terms, in the trial or appellate courts.”).                           Thus, if we had
doubts whether the plaintiff’s general maritime law claims fell
within the district court’s admiralty jurisdiction, we could
permit amendment (as plaintiff has requested) to avoid the great
waste of judicial resources that would otherwise attend the
plaintiff’s having alleged only two bases for jurisdiction
(federal question and admiralty), rather than three (those plus

28
III. APPLICABILITY   OF   AMERICAN LAW UNDER   THE   LAURITZEN TRIAD

A.   Introduction

      The questions whether American law actually applies under

the Lauritzen triad, and if so whether the facts entitle the

plaintiff to recover, arise only when, as here, a district court

has subject matter jurisdiction over a Jones Act or American

general maritime law claim. Moreover, Lauritzen analysis is a

choice of law methodology, and, like a plaintiff’s need to prove

one or more of the specific statutory elements of his or her

claims, choice of law issues may be waived.0                   Thus, if defendants

diversity). Cf. Local No. 1 (ACA) Broadcast Employees of Int’l
Bhd. of Teamsters v. International Bhd. of Teamsters, 614 F.2d
846 (3d Cir. 1980) (allowing plaintiff to amend complaint to cure
defective jurisdictional allegations).        We therefore need not
rely on the doctrine that where plaintiffs invoke federal
question jurisdiction to bring a Jones Act suit, federal district
courts have “pendent” jurisdiction over parallel unseaworthiness
claims. See, e.g., Romero, 358 U.S. at 380-81, 79 S. Ct. at 484-
85; Hagans v. Lavine, 415 U.S. 528, 548 n.14, 94 S. Ct. 1372,
1385 n.14 (1974) (recognizing existence of this doctrine); 28
U.S.C. § 1367 (Supp. V 1993) (generally granting district courts
“supplemental jurisdiction over all other claims that are so
related to claim in the action within [the district courts’]
original jurisdiction that they form part of the same case or
controversy       under   Article   III    of  the    United    States
Constitution”).
0
 See, e.g., Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619
F.2d       1001,    1005   n.1    (3d   Cir.    1980);    Bagdon    v.
Bridgestone/Firestone, Inc., 916 F.2d 379, 383 (7th Cir. 1990);
Corrugated Paper Prods., Inc. v. Longview Fibre Co., 868 F.2d
908, 910 n.2 (7th Cir. 1989); R.L. Clark Drilling Contractors,
Inc. v. Schramm, Inc., 835 F.2d 1306, 1308 (10th Cir. 1987);
Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th
Cir. 1986); Bilancia v. General Motors Corp., 538 F.2d 621, 622-
23 (4th Cir. 1976). See also Larry Kramer, Rethinking Choice of
Law, 90 COLUM. L. REV. 277, 284 (1990) (“It is the parties’
responsibility to call a choice of law issue to the court’s
attention.       If plaintiff bases his claim on inapplicable law
(i.e., a law that does not give plaintiff a right to relief), the
defendant must notify the court in a motion to dismiss or a
motion for directed verdict.        Failure to make a timely motion

29
do not argue that American law is inapplicable as a matter of

choice of law, the court will not analyze the Lauritzen factors.

The plaintiff would need only to prove the particular elements of

the cause of action, such as seaman status, employer status,

negligence, causation, and damages (for a Jones Act case).

       When a defendant does raise the Lauritzen issue, a plaintiff

suing for personal injury damages under American maritime law

must, as with any other cause of action, both establish the

applicability of the law under which the case was brought and

prove the elements of the other nations.0ary course, fail on the

merits.0

B.    Purposes of and Problems with the Lauritzen Analysis

       Determining whether or not American maritime law (statutory

or general) applies with respect to a given incident entails a

choice of law analysis, mandated by the Supreme Court as a matter


waives any claim--however meritorious--that plaintiff is not
entitled to recover as a matter of law.”); id. at 291.
0
  The two identified purposes are not unrelated, for if American law were held to apply in
situations where the United States has no appreciable interest, it would invi. 1962) (“Generally a
party must establish a fact which is essential to his claim or defense . . . .”). If American law is
not applicable, or if the plaintiff fails to prove one of the specific elements of the cause of action,
the suit would, in the o
0
 If the plaintiff has also pled in the alternative the applicability of foreign law (which Neely has
not done here), the court may of course adjudicate any such claims over which there is a basis for
subject matter jurisdiction. Where the locality and maritime connection tests are met, see
supra at 25-28 (discussing admiralty jurisdiction tests), 28
U.S.C. § 1333 will provide such a basis. We note also that some
courts have not required a plaintiff affirmatively to plead the
applicability of foreign law at the outset, but instead have
applied foreign law after concluding that American law does not
apply. See, e.g., Schexnider v. McDermott Int’l, Inc., 817 F.2d
1159, 1160-61, 1164 (5th Cir. 1987). Where American law does not
apply and the plaintiff and defendant are both foreign, however,
admiralty courts sometimes decline to exercise jurisdiction. See
1 BENEDICT ON ADMIRALTY § 128, at 8-40 to -41 & n.9.

30
of statutory construction.                The Court adverted to choice of law

principles because of the facial universality of the Jones Act,

whose terms offer a remedy to “any seaman.”                         46 U.S.C. § 688(a)

(1988).        In   Lauritzen--which          involved       a   lawsuit     by     a   Danish

sailor (for injuries suffered in the coastal waters off Cuba)

against      his    employer,       a   Danish      shipowner       with     whom       he   had

contracted (in Danish)--the Court was concerned with restricting

the “literal catholicity,” Lauritzen, 345 U.S. at 576, 73 S. Ct.

at 925, of the Jones Act’s language to ensure that it would not

apply to situations where “the seaman, the employment [and] the

injury [lack] the slightest connection with the United States.”

Id. at 577, 73 S. Ct. at 925.                  Thus, the first aim of Lauritzen

analysis is to assure that American maritime law is not applied

to incidents that lack any significant American connection.

       The second, related purpose of the analysis is to resolve

and avoid conflicts with the maritime laws of other nations.0

See Lauritzen, 345 U.S. at 582, 73 S. Ct. at 928.                              To this end

the Court invoked a presumption that in the absence of specific

direction to the contrary, statutes of Congress would not be

interpreted to violate international law.                        See 345 U.S. at 577,
581, 73 S. Ct. at 926, 927-28.                  Applying this presumption to the

Jones Act, the Court in Lauritzen adopted a form of interest

analysis to cabin the sweep of the Jones Act.                        See id. at 582, 73

0
 The two identified purposes are not unrelated, for if American law were held to apply in
situations where the United States has no appreciable interest, it would invite other nations to
construe their laws in a similar fashion, cf. Lauritzen, 345 U.S. at 582, 73 S.
Ct.      at    928     (discussing         reciprocity        concerns),         inevitably
escalating the number of true conflicts in international maritime
contexts to an unacceptably high level.

31
S. Ct. at 928 (“The criteria, in general, appear to be arrived at

from   weighing       of    the   significance      of    one     or   more    connecting

factors     between        the    shipping     transaction        regulated        and   the

national       interest      served     by    the   assertion          of    authority.”)

(emphasis supplied); id. at 577, 73 S. Ct. at 925 (extolling

expertise of “courts long accustomed to dealing with admiralty

problems in reconciling our own with foreign interests”).                            Courts

ruling    on    the    reach      of   American     law    were    thus      directed     to

consider seven factors that were, in part for pragmatic reasons,

accorded various degrees of importance.

       In Romero v. International Terminal Operating Co., 358 U.S.

at 354, 79 S. Ct. at 468, the Supreme Court emphasized that the

Lauritzen factors were gleaned not from the terms of the Jones

Act but rather from more general maritime law choice of law

principles, and that they were intended to guide courts generally

in applying maritime law regarding personal injury claims to

incidents with foreign connections.                      See 358 U.S. at 382, 79

S. Ct. at 485.0        Finally, in Hellenic Lines Ltd. v. Rhoditis, the

Supreme      Court     elaborated       upon      the     Lauritzen         analysis.     In

particular, the Court added an eighth factor for consideration,

see 398 U.S. at 309, 90 S. Ct. at 1734, and attached a label to
the types of contacts with the United States necessary to sustain

applicability         of   American     law    in   light    of    the      aims    of   the



0
Courts are of course, subject to explicit congressional directives as to choice of law, see
Lauritzen, 345 U.S. at 579 n.7, 73 S. Ct. at 926 n.7, where they
are constitutional, see Cruz v. Chesapeake Shipping, Inc., 932
F.2d 218, 234 (3d Cir. 1991) (Cowen, J., concurring in the
judgment).

32
Lauritzen analysis:        “substantial” contacts.      Id. at 309 n.4, 90

S. Ct. at 1734 n.4.

     In adopting this terminology, the Court placed its focus

primarily, though not myopically, on whatever American contacts

the transaction may have.       See id. (“The decisional process . . .

involves the ascertainment of the factors or groups of facts

which constitute contacts between the transaction involved in the

case and the United States, and then deciding whether or not they

are substantial.”) (quoting Bartholomew v. Universe Tankships,

Inc., 263 F.2d 437, 441 (2d Cir. 1959)); id. at 310, 73 S. Ct. at

1734 (“The [foreign contacts present] are in the totality of the

circumstances of this case minor weights in the scales compared

with the substantial and continuing contacts that this alien

owner has with this country.”).

     Despite     these     developments,    Lauritzen    interest    analysis

remained    a   somewhat    amorphous     process.      The   Supreme    Court

stressed in Rhoditis that Lauritzen’s choice of law interest

analysis is not mechanical, that the significance of each factor

is variable, and that the enumerated factors are not exhaustive

of potentially relevant considerations.          See 398 U.S. at 308, 90
S. Ct. at 1734.          The analysis is consequently imbued with a

flexibility that permits courts to take account of the context of

any incident that American law is alleged to govern, but this

malleability has not always proven the surest guide.             Indeed, one

troubled trial court remarked that the case law applying the

Lauritzen   triad   had     “made   the   relative   significances      of   the

‘factors’ almost infinitely variable,” and it feared “that each


33
‘factor’s’ significance is sufficiently obscure or variable to

justify       any    judicial         conclusion.”          Munusamy    v.    McClelland

Engineers, Inc., 579 F. Supp. 149, 153 (E.D. Tex.), mandamus

denied (with request for certification), 742 F.2d 837 (5th Cir.

1984), order vacated, 784 F.2d 1313 (1986).                       Academic commentary

has been similarly critical. See, e.g., Michael Boydston, Cruz v.

Chesapeake Shipping and the Choice-of-Law Problem in Admiralty

Actions, 27 TEX. INT’L L.J. 419, 434 (1992); Symeon Symeonides,

Maritime Conflicts of Law from the Perspective of Modern Choice

of Law Methodology, 7 MAR. LAW. 223, 242-43 (1982) [hereinafter

Symeonides, Maritime Conflicts].

C.    The Two Steps of the Laurit_!oice of Law Inquiry

      The solution to the lack of guidance lies in approaching the

Lauritzen analysis in a way that is faithful to its nature as a

specialized form of interest analysis designed to ensure that

American maritime law of personal injuries applies only where

significant         American      interests       are      implicated   and    only     in

conformity with international law.                      Specifically, we interpret

the    notion       of    “substantial      contacts”        to   embody     these    twin

concerns in a two-step inquiry derived from international law.

We conclude below that, in a Jones Act or general maritime law

case,     a     court          deciding     whether        American     contacts       are

“substantial”            (so   that    American      law     applies)   must    at    the

threshold ask whether one of the following factors is involved in

the incident, in which case there is a basis for prescriptive

jurisdiction (which, we explain infra subsection 1, means that
significant American interests are implicated):                          injury to an


34
American seaman or a seaman with American dependents, injury in

American    territory,       American    defendants,    an       American         flagged

ship, or a contractual choice-of-law clause specifying American

law.     If so, the second step in the substantial contacts inquiry

is for the court to ascertain whether application of American law

is     reasonable    under      the   circumstances,        in    which     case     (as

subsection 2 describes) international law is satisfied.0

       In this case, as we explain below, the plaintiff succeeds on

both steps of the inquiry.              Her American citizenship satisfies

the     threshold     requirement        of   a     basis        for    prescriptive

jurisdiction, and consideration of the Lauritzen factors reveals

that the American interests at stake here are such that American

law may be reasonably applied.            Hence, the American contacts are

“substantial”       and   the    plaintiff    was    entitled          to   sue     under

American law.




0
The dissent rejects our analysis, suggesting that “under the Lauritzen test, the
plaintiff must prove that a simple majority or preponderance of
the factors weighs in favor of United States law.”                     Dissenting
op. infra at 7-8 (emphasis supplied). While the meaning of this
is somewhat unclear (for it seems a hybrid of a counting test and
a balancing test), it does not constitute an accurate rendering
of the “substantial contacts” formulation adopted in Rhoditis.
The “substantial contacts” concept was borrowed from Judge
Medina, who explained that “something between minimal and
preponderant contacts is necessary if the Jones Act is to be
applied.” Bartholomew, 263 F.2d at 440 (emphases supplied). This
articulation of the “substantial contacts” standard occurs in the
paragraph of Judge Medina’s opinion immediately preceding the
paragraph that the Supreme Court quoted.                         Judge Medina’s
explanation of “substantial contacts” is thus crucial to
understanding the approach adopted by the Court in Rhoditis, and
it shows that the American contacts must be more than minimal but
need not be preponderant. Hence, the dissent’s proposed standard
is too stringent.

35
     In    the    following      analysis,    we    “rely   on    the    Restatement

(Third) of Foreign Relations Law for the relevant principles of

international law.          Its standards appear fairly supported in the

decisions of [the Supreme] Court construing international choice-

of-law principles ([e.g.,] Lauritzen, Romero, and McCulloch [v.

Sociedad    Nacional       de   Marineros    de    Honduras,     372    U.S.   10,   83

S. Ct.     671    (1963)])      . . . .”      Hartford      Fire       Ins.    Co.   v.

California, 113 S. Ct. 2891, 2920 (Scalia, J., dissenting in

part).      A    primary    reason   for    relying    on   the    Restatement       of

Foreign Relation Law is that one of the Court’s chief motives for

cabining the potentially unlimited scope of the Jones Act in

Lauritzen was a concern that the legislation not violate norms of

international law.         While the dissent argues that the sections we

rely on “were not meant to apply in a tort case such as this,”

dissenting op. infra at 4 (quoting RESTATEMENT Pt. IV, Ch. 1,

Introd. Note, at 237), the passage it quotes reveals that the

Restatement’s rules are not unconditionally irrelevant to tort

cases: they only “do not necessarily apply.”                Id. at 5 (different

emphasis supplied).         However, “[i]n some circumstances, issues of

private international law may also implicate issues of public

international law, and many matters of private international law
have substantial international significance and therefore may be

considered foreign relations law[.]” RESTATEMENT § 101, cmt. c, at

23 (emphasis supplied).           The Jones Act and American maritime law

more generally are examples of just such matters, as is reflected

by the Supreme Court’s concern in Lauritzen about the prospect of




36
violating international law.0              See also infra note 40(discussing

0
While the Restatement of Conflict of Laws is by its terms applicable to cases with foreign
elements, see RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 10 (1971)
[hereinafter RESTATEMENT OF CONFLICTS], this is only “usually” the
case, see id. § 10, cmt. c, and “[t]here are significant
differences between interstate and international cases,” see id.
§ 10, cmt. d.
      Additionally, to the extent that the Restatement of Foreign
Relations Law might seem inapplicable, and the Restatement of
Conflicts applicable, we note that these two Restatements in many
respects do not fundamentally differ. The Restatement of Foreign
Relations Law explains that “[t]he concepts, doctrines, and
considerations that inform private international law also guide
the development of some areas of public international law,
notably the principles limiting the jurisdiction of states to
prescribe, adjudicate and enforce law.” RESTATEMENT § 101, cmt. c,
at 23. The Restatement of Conflicts provides that “[a] court may
not apply the local law of its own state to determine a
particular issue unless [that] would be reasonable in the light
of the relationship of the state and of other states to the
person, thing or occurrence involved.” RESTATEMENT OF CONFLICTS § 9,
at 31.       This is the same sort of analysis employed in our
opinion.      Indeed, the reasonableness factors of § 403 of the
Restatement of Foreign Relations Law, see infra note 44 and
accompanying text, incorporate the general choice of law factors
of § 6 of the Restatement of Conflicts, see RESTATEMENT § 403,
reporters’ note 10, at 254; the latter are used to determine the
state with the most significant relationship to the occurrence
and the parties, the law of which state governs (under the
Restatement of Conflicts) the rights and liabilities of the
parties with respect to tort issues, see RESTATEMENT OF CONFLICTS
§ 145, at 414.         Additionally, although “[]public international
law is dealt with only incidentally” in the Restatement of
Conflicts, the rules of the Restatement of Conflicts “do conform
. . . to the requirements of public international law.” Id. § 2,
cmt. d, at 6.         There is thus important congruence between the
Restatement of Foreign Relations Law and the Restatement of
Conflicts with respect to the issues before this court.
      However, the Restatement of Conflicts rule for personal
injury actions specifies that “the local law of the state where
the injury occurred determines the rights and liabilities of the
parties, unless . . . some other state has a more significant
relationship . . . to the occurrence and the parties . . . .”
Id. § 146, at 430.              This rule gives far too much general
significance to the place of the wrongful act to constitute a
satisfactory interpretation of Lauritzen.                     See infra at 57-57
(discussing the variable significance of this factor).                           Indeed
its very formulation seems alien to Lauritzen-type analysis,
which is the touchstone of Part III of our opinion; this suggests

37
difference    between          maritime      laws      and    conventional       tort       law).

Furthermore,      the     views       of    Lea     Brilmayer,       one    of   the   leading

authorities       in    the     area,      support      use    of    the    Restatement        of

Foreign Relations Law here.                      Professor Brilmayer has analyzed

conflict     of        laws     as      “the        domestic        counterpart        of     the

international law issue of the extraterritorial application of

American law.”          Lea Brilmayer, The Extraterritorial Application

of American Law:          A Methodological and Constitutional Appraisal,

50 L. & Contemp. Probs. 11, 11 (Summer 1987). Of particular

relevance     here,       she        has    noted       the    unhelpfulness           of     the

public/private          distinction            as      regards       international           law:

“Whether or not that distinction is viable, it does not describe

the different roles of the two Restatements.                               Some private law

cases, such as Lauritzen v. Larsen, fall under the Restatement of

Foreign    Relations          Law.”        Id.    at   12    (footnote      observing        that

Lauritzen is mentioned in the Restatement of Foreign Relations

Law § 403, reporters’ note 2 omitted; emphasis supplied).0

the inappropriateness of the Restatement of Conflicts to this
case, whatever the declarations of the drafters. Thus, despite
the dissent’s comments, we are convinced that our reliance on the
Restatement of Foreign Relations Law is proper.
0
 Cf. also Mary B. McCord, Responding to the Space Station Agreement:
The Extension of U.S. Law into Space, 77 GEO. L.J. 1933, 1945
(1989) (suggesting combining the Lauritzen and Restatement of
Foreign Relations Law factors to determine propriety of applying
American law to incidents aboard hypothetical multinational space
station).       Additionally, we believe that relying on current
versions of the Restatement to interpret both general maritime
law and the Jones Act--even though it was adopted long after the
Supreme Court announced the Lauritzen factors--is permissible
because the Jones Act was not locked rigidly into place when
adopted, see, e.g., McAllister v. Magnolia Petroleum Co., 357
U.S. 221, 225 n.6, 78 S. Ct. 1201, 1204 n.6 (1958) (discussing
change in Jones Act statute of limitations upon amendment of FELA
after enactment of Jones Act); the Act was relatively recently

38
1.       Do the Contacts Show a Basis for Prescriptive Jurisdiction?

         The    first     essential     question        in    Lauritzen      analysis    is

whether the suit implicates significant interests of the United

States.         In accordance with Lauritzen’s direction to construe

American maritime law so as not to violate international law, we

identify this preliminary inquiry with the question whether there

is   a    basis     for      the   United     States     to    exercise      prescriptive

jurisdiction over the incident at issue.

         “International law has long recognized limitations on the

authority of states to exercise jurisdiction to prescribe in

circumstances           affecting       the    interests        of        other   states.”

RESTATEMENT (THIRD)     OF   FOREIGN RELATIONS LAW Pt. IV, Introd. Note, at 230

(1987)         [hereinafter        RESTATEMENT].        The     Restatement       defines

prescriptive        jurisdiction--which            is   not    to    be    confused     with

subject matter jurisdiction--as the authority of a state “to make

its law applicable to the activities, relations, or status of

persons, or the interests of person in things . . . .” RESTATEMENT

§ 401(a).         It lists several alternative bases for prescriptive



amended, see Pub. L. 97-389, Title V, § 503(a), 96 Stat. 1955
(Dec. 29, 1982); when the Court in Rhoditis adopted the concept
of “substantial contacts” in 1970, it did not specify how to
determine whether a case in fact involves such contacts with the
United States; as we have stated, see supra note 37, the
Restatement of Foreign Relations Law factors on which we rely
below derive from the general choice of law factors of the
Restatement (Second) of Conflicts of Law, which was adopted and
promulgated by the American Law Institute in 1969; and “United
States courts have considered [rules of international law as to
prescriptive jurisdiction], and interpreted the known or presumed
intent of Congress, in the light of changing understandings,”
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW Pt. IV, Ch. 1, at 236-37
(1987) (emphasis supplied).

39
jurisdiction.         As a general matter (subject to restrictions we

discuss below), nations may prescribe law

       with respect to
            (1) (a) conduct that, wholly or in substantial part,
                       takes place within its territory;

                      *        *     *

                      (c)      conduct outside its territory that has or is
                               intended to have substantial effect within
                               its territory; [and]

              (2)     the activities, interests, status, or relations of
                      its nationals outside as well as within its
                      territory[.]

RESTATEMENT § 402.           Additionally, the Restatement recognizes the

authority of a state to apply its law to activities connected

with vessels flying its flag.                 See id. § 502.

       The Lauritzen factors directly provide the answer to the

first     question        in       the     Lauritzen        choice   of    law    interest

analysis--whether (in the terminology of the Restatement) the

United States has a basis for prescriptive jurisdiction with

respect to the incident.                   When an American worker or a worker

with American dependents is injured, application of United States
law will affect the interests and relations of Americans, and

there are likely to be substantial effects within the United

States.      Hence, application of American maritime law in suits for

personal injuries to American seamen or seamen with American

dependents         affects     the       interests    of    nationals     of    the   United

States,     thus     providing       a     basis     for    prescriptive       jurisdiction

pursuant      to    Restatement          § 402(2)     and    § 402(1)(c).0        Next,    by

0
Since Neely is undisputedly an American domiciliary and citizen, we do not need to decide here
what is necessary for a seaman to be treated as an American for purposes of Lauritzen

40
definition, injuries occurring in American territory (including

waters) fall within § 402(1)(a), which thus recognizes that the

United States has a basis for prescriptive jurisdiction over such

incidents.     Where   the   defendants     are   American,    a    basis   for

prescriptive   jurisdiction    to   apply    United   States       law   exists

analysis.   Cf. Brian Jay Corrigan, The Status of the Quasi-
American Bluewater Seaman in the American Courts, 10 MAR. LAW. 269
(1987). But cf. 46 U.S.C. § 688(b)(2) (1988) (placing conditions
on availability of Jones Act to brownwater seamen not citizens or
permanent resident aliens of the United States). Additionally,
we acknowledge that the “passive personality principle,” which
“asserts that a state may apply law--particularly criminal
law--to an act committed outside its territory by a person not
its national where the victim of the act was its national[,]
. . . . has not been generally accepted for ordinary torts or
crimes . . . .” RESTATEMENT § 402 cmt. g. However, the Jones Act
and the general maritime law unseaworthiness cause of action are
primarily “concerned with prescribing particular remedies, rather
than . . . regulating commerce or creating a standard for
conduct.” Rhoditis, 398 U.S. at 313, 90 S. Ct. at 1736 (Harlan,
J., dissenting). Moreover, these causes of action are civil, not
criminal, and thus represent a lesser potential intrusion on the
prescriptive jurisdiction of other sovereigns.      See RESTATEMENT
§ 403 Reporter’s Note 8 (“In applying the principle of
reasonableness, the exercise of criminal (as distinguished from
civil) jurisdiction in relation to acts committed in another
state may be perceived as particularly intrusive. . . .      It is
generally accepted by enforcement agencies of the United States
government   that  criminal    jurisdiction  over  activity   with
substantial foreign elements should be exercised more sparingly
than civil jurisdiction over the same activity, and only with
strong justification.”).     Finally, where seamen are injured in
the course of their employment, torts are not “ordinary,” for
seamen have long been considered wards of admiralty entitled to
special protection different from that afforded by conventional
tort law. See, e.g., Seas Shipping Co. v. Sieracki, 328 U.S. 85,
104, 66 S. Ct. 872, 882 (1946) (Stone, C.J., dissenting) (“[T]he
seaman has been given a special status in the maritime law as the
ward of the admiralty, entitled to special protection of the law
not extended to land employees.”); Socony-Vacuum Oil Co. v.
Smith, 305 U.S. 424, 430-31, 59 S. Ct. 262, 266 (1939) (citing
cases); id. at 431, 59 S. Ct. at 266 (“[S]eamen are the wards of
the admiralty, whose traditional policy it has been to avoid,
within reasonable limits, the application of rules of the common
law which would affect them harshly because of the special
circumstances attending their calling.”).

41
pursuant to § 402(2).              Where the ship involved flies the American

flag,       § 502     of     the        Restatement        recognizes           prescriptive

jurisdiction on the part of the United States.

       Finally, parties may generally consent to application of

American law to govern their relations, as evidenced by a choice

of law clause.         Cf. National Ass’n of Sporting Goods Wholesalers,

Inc. v. F.T.L. Mktg. Corp., 779 F.2d 1281, 1285 (7th Cir. 1985)

(citing Casio, Inc. v. S.M. & R., Co., 755 F.2d 528, 531 (7th

Cir. 1985)).         In such cases it may be technically imprecise to

speak of prescriptive jurisdiction, for American law applies not

by virtue of the sovereign power of the United States but rather

by   the     choice     of    the       parties.         However      it   is     styled,    a

reasonable, mutual, ex ante choice of American law would create

an   American       interest       in    applying    the      Jones    Act       or   American

general       maritime       law        sufficient       to    meet        the        threshold

requirement.0

       In   sum,     then,    we     hold   that     a    plaintiff        generally      must

establish      one    of     the    following       to    demonstrate        a    basis    for

prescriptive jurisdiction, which under the Lauritzen analysis is

a threshold requirement for American maritime law to apply:


0
 In contrast, however, the mere making of a contract in the United States, without a provision
agreeing to American law and without other American contacts, would generally be insufficient
by itself to meet the threshold requirement of a significant American interest in applying
American law. Since international commercial shippers customarily have taken on help where
they have needed it, see Lauritzen, 345 U.S. at 588, 73 S. Ct. at 931,
the happenstance of a contract’s being made in an American port
cannot reasonably be presumed to reflect consent to application
of American law to any injuries to the bluewater seaman, nor
would it (without more) ground prescriptive jurisdiction over an
injury abroad pursuant to § 402(1)(a), for it would not in our
view constitute a “substantial part” of the relevant conduct.

42
       (a)    injury to an American seaman or a seaman with American
              dependents,
       (b)    injury in American territory,
       (c)    American defendants,
       (d)    an American flagged ship, or
       (e)    a contractual choice-of-law clause specifying American
              law.

See also Bailey v. Dolphin Int’l, Inc., 697 F.2d 1268, 1278 n.25

(5th    Cir.       1983)     (“[A]   sufficient         American    interest        in    a

particular        transaction    can    rest      on   the   presence     of     even one

substantial        contact    between       the   transaction      and    this    country

. . . .”), overruled on other grounds by In re Air Crash Disaster
Near New Orleans, 821 F.2d 1147 (5th Cir. 1987) (en banc).

       The plaintiff’s threshold burden of proving one of these

contacts with the United States arises when a defendant alleges

that American law is inapplicable under the Lauritzen triad.                             The

plaintiff must proffer evidence from which a jury might conclude

that    one       of   the   specified       factors      supporting      prescriptive

jurisdiction exists, and if the evidence introduced by either

side (as to the existence vel non of one of the pertinent United

States contacts) as a whole does not establish by a preponderance

that such a factor exists, the court must hold American law

inapplicable.

       In the present case, the Lauritzen factors clearly exhibit a

basis for prescriptive jurisdiction.                      It is uncontested that

Neely, the injured seaman, is an American citizen.                        This American

contact      is    among     those     we    have      identified    as     implicating

significant American interests, and we turn therefore to the

second step of the inquiry.




43
2.     Are the Contacts Such That Application of American Law Would

Be Reasonable?

       Where      plaintiffs           have    shown       that    there        is    a   basis     for

prescriptive         jurisdiction,            significant          American          interests      are

implicated,         and      courts     must    consider          the    second       goal    of the

Lauritzen        analysis         in    determining             whether        American      law      is

applicable.            The second step in the Lauritzen choice of law

inquiry is concerned with resolving or avoiding conflicts with

foreign       law      by       construing       American          law         in    harmony        with

international law.               We identify the pertinent inquiry primarily

with the restriction on prescriptive jurisdiction described by

§ 403(1)       of      the      Restatement.               Section       403(1)       expresses       a

limitation        on      the    exercise       of    prescriptive             jurisdiction.          It

specifies that “[e]ven when one of the bases for jurisdiction

under § 402 is present, a state may not exercise jurisdiction to

prescribe       law       with    respect       to     a    person        or    activity          having

connections         with        another       state        when    the     exercise          of     such

jurisdiction is unreasonable,” RESTATEMENT § 403(1); in determining

whether it is reasonable to apply American law, courts are to

consider “all relevant factors,” id. § 403(2), which includes the
American        contact          that     provided          a     basis        for    prescriptive

jurisdiction.0


0
For determining whether application of American law is reasonable, the Restatement directs
courts to evaluate
        all relevant factors, including where appropriate:
        (a)      the link of the activity to the territory of the regulating state, i.e., the extent
                 to which the activity takes place within the territory,
                 or has substantial, direct, and foreseeable effect upon
                 or in the territory;

44
     Thus, the plaintiff’s burden of proving the applicability of

American law translates at this step to a burden of proving

reasonableness.   This burden does not require the plaintiff to

show the absence of foreign contacts, or to bear a burden of

proof with respect to each of the Lauritzen factors, as the

     (b)   the connections, such as nationality, residence, or
           economic activity, between the regulating state and the
           person principally responsible for the activity to be
           regulated, or between that state and those whom the
           regulation is designed to protect;
      (c) the character of the activity to be regulated, the
           importance of regulation to the regulating state, the
           extent to which other states regulate such activities,
           and the degree to which the desirability of such
           regulation is generally accepted;
      (d) the existence of justified expectations that might be
           protected or hurt by the regulation;
      (e) the importance of the regulation to the international
           political, legal, or economic system;
      (f) the extent to which the regulation is consistent with
           the traditions of the international system;
      (g) the extent to which another state may have an interest
           in regulating the activity; and
      (h) the likelihood of conflict with regulation by another
           state.
RESTATEMENT § 403(2); see also Republic of Philippines v.
Westinghouse Elec. Corp., 43 F.3d 65, 76 n.1 (3d Cir. 1994)
(noting usefulness of these factors).
      Romero and Rhoditis provide benchmarks by which to gauge
this reasonableness.    In both of these cases there was a basis
for prescriptive jurisdiction, for the injuries occurred in
American waters.      In Romero, where the injured seaman was
Spanish, the ship was of Spanish registry and sailed under the
Spanish flag, the shipowner was a Spanish corporation, and the
seaman’s employment contract was entered into in Spain, the
Supreme Court held that the contacts with the United States (the
place of the seaman’s injury and treatment and the largely
immaterial law of the forum) were not sufficient to justify
application of American law, 358 U.S. at 383-84, 79 S. Ct. at
486; we take this to mean that the application of American law
would not have been reasonable in those circumstances.          In
Rhoditis, in contrast, the Court determined that the American
contacts--the place of the wrongful act, law of the forum, and
defendant’s base of operations--were in combination substantial,
398 U.S. at 310, 90 S. Ct. at 1734; application of American law
was reasonable.

45
defendants urge, see Reply Br. of Appellees/Cross-Appellants, at

3. While there is a dearth of precedent concerning the scope of

the plaintiff’s burdens when the defendant invokes the Lauritzen

triad, logic dictates that the plaintiff need adduce evidence

concerning only those factors that he or she believes support the

reasonableness of applying American law.                  The individual factors

are not required elements of a Jones Act or general maritime law

claim--the Supreme Court has made clear that no particular factor

need reflect a contact with the United States for a plaintiff to

have a claim under American law, see, e.g., Rhoditis, 398 U.S.

306,    90   S. Ct.     1731    (applying      American     law    despite     foreign

employer, foreign-flag ship, foreign plaintiff, and contract in

foreign      language      specifying       foreign       law)--but        rather     are

subsidiary indicia of the reasonableness of applying American

law.     Moreover, general choice of law analyses do not deem a

plaintiff     responsible       for    bringing     forth     information      on     all

circumstances--whether          helpful     or   harmful      to   the     plaintiff’s

case--that      might    inform     the   choice     of   law.       For    all     these

reasons, we decline to impose such a requirement here.0

0
The dissent misapprehends the nature of our analysis, believing that our opinion requires
“defendants to show that United States law does not apply.” Dissenting op. infra
at 6. This inference is unsupported by the quoted passage, which
only requires defendants to prove the existence of foreign
contacts to avoid an adverse judgment once plaintiffs have proven
that there are significant American interests implicated, and
which does not relieve plaintiff of the ultimate burden of
showing the applicability of American law.                          Similarly, the
dissent’s bald assertion that under our analysis, defendants who
show that “more of the factors weigh in favor of the application
of foreign law” still must “show that the application of United
States law is unreasonable,” dissenting op. infra at 8, divorces
the statement on which it relies (“[U]nless virtually all of the
Lauritzen factors point away from the United States, application

46
       Instead, once the plaintiff has established the existence of

a    basis   for   prescriptive   jurisdiction,   it   is   incumbent   upon

of American law will be reasonable . . . .”) from the actual
framework of the analysis.     Unlike the dissent, our opinion
clearly states that the quoted proposition is limited to cases
where there appear no foreign contacts.    In such a case, where
significant American interests are implicated and no foreign
interests (so far as the court can tell) are threatened, the
plaintiff has met his or her burden of showing that application
of American law is reasonable because only American interests
have been shown to be at risk.
     Moreover, the dissent apparently believes that a plaintiff’s
burden of proving that the American contacts are “substantial”
implies that individual Lauritzen factors count against the
plaintiff until she or he proves otherwise.           See, e.g.,
dissenting op. infra at 21 (“Because plaintiff bears the burden
of proof, this factor [inaccessibility of a foreign forum, which
the majority opinion treats as neutral] weighs against applying
United States law to this dispute.”). For this reason the
dissent’s approach and ours are fundamentally at odds.         In
metaphorical terms, the majority opinion starts with a normal
scale, one in balance, and requires the plaintiffs to bring it
down onto the American side; we compare whatever weights the
defendants put in the scale against whatever weights the
plaintiffs put in the scale; and if the scale remains down on the
foreign side or if it remains in balance at the end of all this,
the plaintiffs have not made out their burden of proof as to the
substantiality of American contacts and thus have not prevailed.
The dissent, in contrast, apparently would start with a skewed
scale, one pre-positioned down on the foreign side, and require
plaintiffs first to bring the scales back to equipoise and then
further to move the American pan beyond that point.     This goes
beyond placing the burden of proof on the plaintiffs by building
in a presumption (albeit in theory rebuttable) that in each case
the Lauritzen factors come stacked against application of
American law. That approach is itself unsupported by case law.
     In rejecting the dissent’s position, we do not suggest that
the significance of foreign contacts is irrelevant to the
question whether American contacts are “substantial” enough for
American law to apply; nevertheless, courts should not uniformly
presume from the outset that every Jones Act or general maritime
law suit implicates important foreign interests that will be
compromised by application of American law. If the defendant in
a case does not urge that American law is inapplicable under the
Lauritzen triad, the court need not even engage in the analysis,
regardless of what foreign interests could be implicated. If the
defendant does not put on evidence that foreign interests are
indeed implicated, courts should not presume otherwise.

47
defendants to prove the existence of foreign contacts’.                                          This

allocation of burdens comports with the remedial policies behind

the Jones Act (and the unseaworthiness cause of action), which is

designed for the protection of seamen.                         Information relevant to a

great   variety          of   the    circumstances            that     could       figure    in    a

Lauritzen         analysis     may    be       in   the     hands     of    defendants.           We

therefore         believe     that    it       would   be      at    odds    with       Congress’s

solicitous intent for courts to require seamen to make a negative

showing with respect to factors on which they do not rely in

establishing the reasonableness of applying American law.0

       If the court concludes that the evidence as a whole does not

establish         the    existence        of    any    foreign       contacts       that     would

provide       a    foreign       nation         with      a    basis        for    prescriptive

jurisdiction, the plaintiff immediately prevails on the choice of

law issue:         a preponderance of--indeed, all--the evidence shows

that    the       application        of    American           law    in     such    a     case    is

reasonable.             As long as the plaintiff has shown a basis for

prescriptive jurisdiction, cf. DeMateos v. Texaco, Inc., 562 F.2d

895,    900       (3d     Cir.      1977)       (“[D]ue        process       require[s]          the

identification           of   significant           American         interests          before    an

American      sovereignty        . . .         [may]    export       its    laws     to    foreign

transactions . . . .”), American interests are implicated, and

maritime law may apply unless concerns about conflicts with the

law of other interested nations compel the conclusion that this

would not be reasonable.                  Where there are no significant foreign


0
Cf. infra         note    Error!     Bookmark         not     defined.      and    accompanying
text.

48
contacts, the court cannot conclude that any other nation is

interested in the relevant sense.                And since the plaintiff has by

this step of the inquiry established an American contact that

implicates       significant         American      interests,       this    in      turn

establishes that application of American law is reasonable and

proper.

     Foreign contacts standing alone, however, are of extremely

limited value, for “the actual conflict before the court is a

conflict between competing laws, not between physical contacts.

Such conflicts can be resolved intelligently and rationally only

by   ascertaining       and    evaluating        the     policies   underlying      the

competing laws.”        Symeonides, Maritime Conflicts, 7 MAR. LAW. at

245; see also Romero, 358 U.S. at 383, 79 S. Ct. at 486 (“The

controlling considerations are the interacting interests of the

United     States     and     of    foreign    countries      . . . .”)     (emphasis

supplied).          Indeed,        Lauritzen     analysis    generally      seems     to

presuppose       that   the        court   has    information       concerning      the

substantive content of foreign law.                    See, e.g., Lauritzen, 345

U.S. at 575-76, 73 S. Ct. at 924-25 (developing at outset the

conflict between American and Danish law); id. at 582, 73 S. Ct.
at 928 (“The criteria, in general, appear to be arrived at from

weighing of the significance of one or more connecting factors

between    the    shipping         transaction    regulated     and   the    national

interest     served     by    the     assertion     of    authority.”)      (emphasis

supplied).

     Consequently, where the substance of foreign law is unknown,

the Lauritzen inquiry could at most be used prophylactically, to


49
steer clear of potential but unknown conflicts. Because holding

American law inapplicable at this point would do so without a

textual      mandate--and    with      significant     American        interests

present--such     judicially    imposed    restraint       should    not   be   de

rigueur.      A court typically should not hold that the United

States’ exercise of prescriptive jurisdiction is unreasonable in

a case where the substance of relevant foreign law is unknown,

unless it concludes that the basis for prescriptive jurisdiction

is exceedingly weak and that virtually all other contacts likely

implicate policies of the foreign nation.

       Moreover, the plaintiff generally has no responsibility to

demonstrate the content of potentially applicable foreign law.0

At this step of the inquiry, a defendant’s continued insistence

that   the   established    American    contacts     are   not   “substantial”

amounts to the argument that American law should be interpreted

not to apply in order to accommodate the policies served by some

foreign law.0     In effect, then, the defendant seeks to rely on

foreign law to set up an obstacle to American law.                  For the same

or similar reasons that plaintiffs need not establish Lauritzen




0
 But see infra note Error! Bookmark not defined. and accompanying
text (discussing burden on foreign plaintiffs in Jones Act
cases).
0
 In construing the Jones Act in Lauritzen, the Supreme Court observed that the
Act was
        enacted with regard to a seasoned body of maritime law
        developed by the experience of American courts long
        accustomed to dealing with admiralty problems in reconciling
        our own with foreign interests and in accommodating the
        reach of our own laws to those of other maritime nations.
345 U.S. at 577, 73 S. Ct. at 925 (emphasis supplied).

50
factors that do not support their case,0 the responsibility for

demonstrating     the     content    of    foreign   law    rests    with   the

defendants who wish to use it to defeat a claim under American

law.0     To hold otherwise would be at odds with congressional

intent, for where Congress does want to impose upon a seaman the

onus of establishing the content of foreign law in order to

proceed under American law, it knows how to draft an appropriate

provision:      In the 1982 amendments to the Jones Act, Congress

denied    the   benefit   of   the   Act   to   foreign    seamen   in   certain

circumstances unless they show that foreign law offers them no

remedy.    See 46 U.S.C.A. § 688(b)(2).0

0
 See also Lauritzen, 345 U.S. at 584, 73 S. Ct. at 929 (referring to
the many “varieties of legal authority” through whose territorial
jurisdiction a seaman might pass).
0
 This holding also accords with Federal Rule of Civil Procedure
44.1, which provides that “[a] party who intends to raise an
issue concerning the law of a foreign country shall give notice
by pleadings or other reasonable notice.” Cf. 9 CHARLES A. WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2443, at 642
(2d ed. 1994) (“Notice normally will be given by the party whose
claim or defense is based on foreign law. It would be contrary
to the purpose of the rule, however, to allow the other party to
remain silent if no notice has been given and claim at the last
moment that the opposing party, who has relied irretrievably on
domestic law, is required to look to foreign law.”) (emphasis
supplied).
0
 See also Symeonides, Maritime Conflicts, 7 MAR. LAW. at 225-26
(“[C]ongressional delineation of the transnational reach of
American maritime legislation should be very useful in resolving
conflicts problems in those areas of admiralty law where Congress
has not spoken or has spoken with insufficient clarity, such as
in the area of the general maritime law or the Jones Act.”). As
Symeonides notes, the explicit reach of those Congressional
statutes affecting seamen that do address the choice of law issue
may suggest that the Jones Act and general maritime law
unseaworthiness causes of action should be given broad sweep:
        In all of the above cases where Congress has specifically
        addressed the choice-of-law problem, it has delineated the
        reach of American legislative jurisdiction in such an
        expansive way as to include many essentially foreign cases

51
      In this case, the evidence presented at trial establishes

the   existence   of   foreign   contacts,   but   the   defendants   have

presented no information concerning what potentially applicable

St. Lucian law might provide.      Indeed, even at in banc reargument

before this court they were unable to state what the law of St.

Lucia provided (and they have made no post-argument submissions).

Accordingly, we cannot calibrate the extent of foreign interests

at stake, and unless virtually all of the Lauritzen factors point

away from the United States, application of American law will be

reasonable in light of the American interests that the plaintiff

has shown to be implicated.       With this in mind, we now consider

the various factors.

      a.   Inaccessibility of a Foreign Forum

      We regard the potential inaccessibility of a foreign forum

as a relatively insignificant factor in favor of the law of any


     which would normally fall outside the reach of American law.
     Thus, although all other factors may be foreign, the
     temporary physical presence of the seaman in American waters
     at the time of the filing of the suit suffices for the
     application of the Seamen’s Act. Similarly, the beginning
     or the termination of the voyage at an American port,
     without any other American connection, suffices for the
     application of the Limitation of Liability Act and COGSA.
     American law is thus made applicable on the showing of only
     a minimum connection with the American legal order. . . .
     [T]his overreach of American legislative jurisdiction is
     less than commendable from an internationalist view point;
     nevertheless, it is the only congressional directive we have
     to delineate the transnational reach of American maritime
     law in general.   Nationalistic or not, the spirit of this
     legislation should provide a guideline in resolving choice-
     of-law problems in those areas where Congress has not
     spoken, or has spoken with insufficient clarity as in the
     area of general maritime law, the Jones Act and the Death on
     the High Seas Act (DOHSA).
Id. at 234-35 (footnotes omitted).

52
jurisdiction,   American   or   St.   Lucian.   As   the   Supreme   Court

explained in Lauritzen, inaccessibility of a foreign forum is a

consideration more appropriate to a forum non conveniens-type

analysis than to the question of the extraterritorial reach of a

statute.   See Lauritzen, 345 U.S. at 589-90, 73 S. Ct. at 932.

Accordingly, we do not think that the degree to which a forum in

St. Lucia might be inaccessible to Neely particularly supports

application of American law in this case.       Nor, however, does it

count against the reasonableness of applying American law, and

especially so because the defendants have presented the court

with no information about what remedies St. Lucian law might or

might not offer the plaintiff.

     b.    Law of the Forum

     We do know what American law provides, but the law of the

forum (the seventh factor) was considered by the Supreme Court in

Lauritzen to be a very weak consideration in favor of application

of American law:
     The purpose of a conflicts-of-laws doctrine is to assure
     that a case will be treated in the same way under the
     appropriate law regardless of the fortuitous circumstances
     which often determine the forum. Jurisdiction of maritime
     cases in all countries is so wide and the nature of its
     subject matter so far-flung that there would be no
     justification for altering the law of a controversy just
     because local jurisdiction of the parties is available.

Lauritzen, 345 U.S. at 591, 73 S. Ct. at 932.               Despite this

disparagement of the law of the forum, the Court treated it as a

relevant factor in Rhoditis.      See Rhoditis, 398 U.S. at 308, 90




53
S. Ct. at 1733.             Thus, albeit weakly, the law of the forum

supports application of American law.0

      c.     Place of the Wrongful Act

       In conducting the Lauritzen reasonableness inquiry, courts

must attend to the context of the incident at the heart of the

suit.        Where    seamen       are    not   plying   the    world’s     seas    in

traditional international shipping activity, some contacts take

on heightened significance and others diminished significance,

for some of the rationales concerning the significance of the

factors articulated in the Lauritzen opinion do not apply with

the   same    force    in    all    circumstances.       See,    e.g.,     Zipfel   v.

Halliburton Co., 832 F.2d 1477, 1482-83 (9th Cir. 1987); Chiazor

v. Transworld Drilling Co., 648 F.2d 1015, 1019 (5th Cir. 1981),

overruled on other grounds by In re Air Crash Disaster Near New

Orleans, 821 F.2d 1147 (5th Cir. 1987) (en banc).                    Although some

of    the    cases    recognizing        the    variability     of   the   Lauritzen

factors’ significance refer to the type of vessel at issue, see,

e.g.,   Zipfel,       832    F.2d    at    1482    (“cases     involving    atypical

vessels”), the basis for the distinctions is not the nature of

the vessel but rather, as our discussion below illustrates, the
nature of the activity, see, e.g., Fogleman v. ARAMCO, 920 F.2d

278, 282 (5th Cir. 1991) (“[T]he significance of each factor in a

0
While the dissent correctly characterizes the passage we quote from Lauritzen as
signifying that the law of the forum factor “should not dictate
the substantive law to be applied,” dissenting op. infra at 27
(emphasis supplied), it is incorrect in suggesting that the law
of the forum is irrelevant: there is a difference between being
irrelevant and being non-dispositive.                Hence our conclusion is
that the law of the forum factor favors the plaintiff here only
“weakly.”

54
nontraditional maritime context like offshore oil production may

vary from that in the traditional shipping context in which the

Lauritzen-Rhoditis test arose.”) (emphases supplied); Phillips v.

Amoco     Trinidad       Oil     Co.,     632    F.2d     82,       86    (9th      Cir.    1980)

(distinguishing          the     case     before       the    court       from      “a     typical

maritime       case     involving        a     vessel     sailing         in    international

commerce”) (emphasis supplied).                   Common sense confirms that this

is a non-traditional Jones Act case.                      The activity here took the

Long    John     and    its    crew     not     from    sea    to    sea       in   pursuit    of

international commerce but rather from beach to reef in aid of

scuba diving adventures.                This case is thus the antithesis of a

traditional         international            shipping     case,          and   we    treat     it

accordingly.0

0
 The dissent believes that the majority opinion “adopts inconsistent positions when discussing the
traditional or nontraditional character of the activity in which the Long John was engaged
. . . .”         Dissenting op. infra at 15.                      However, there is no
inconsistency.            Our jurisdictional conclusion in Part II supra
was that the activity of the Long John was “substantial[ly]
relat[ed] to traditional maritime activity.” Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 115 S. Ct. 1043, 1051
(1995) (quoted without alteration or emphasis supra at 25). The
Supreme Court itself has distinguished between vessels actually
“engaged in commercial maritime activity”, Foremost Ins. Co. v.
Richardson, 457 U.S. 668, 674, 102 S. Ct. 2654, 2658 (1982), and
ones whose activity “bears a substantial relationship to
traditional maritime activity,” id. at 675 n.5, 102 S. Ct. at
2658 n.5.              Only the latter is necessary for admiralty
jurisdiction, but more than that is presupposed at some points in
the reasoning of Lauritzen.
        In this case, the Long John’s expeditions, involving
navigation of a vessel in navigable waters, bore a substantial
relationship to traditional maritime activity, but the vessel was
not engaged in commercial maritime activity. Here, the salient
fact, that to which we refer by the designation “non-traditional
activity,” is that the Long John did not travel the world’s seas
engaged in commercial shipping. As our opinion explains, it is
this substantive factor of traveling or lack thereof -- and not
any purported formal similarity of the Long John to various oil-

55
      In traditional international shipping contexts, the place of

the wrongful act is accorded little importance in the choice of

law inquiry.       International shipping vessels journey through the

waters   of    many   different     nations,      and      the    local    law     might

therefore change frequently, see Lauritzen, 345 U.S. at 585, 73

S. Ct. at 930, rendering difficult the protection or even the

formation     of   justified     expectations     about      the     law    governing

seamen’s employment relations if the place of the injury were a

significant factor.       Cf. Romero, 358 U.S. at 384, 79 S. Ct. at

486 (“an unduly speculative burden”).                Moreover, the site of the

injury will largely be fortuitous when the seaman is exposed to

the   same    risks   throughout    the     course    of    the    journey        and   an

accident happens to occur in a particular locale.                          See, e.g.,

id.; Fogleman, 920 F.2d at 282 (“The place of the wrongful act is

accorded little weight in traditional maritime cases, in which

the locality of the ship changes constantly.”).

      In non-traditional contexts, however, the vessels at issue

do not ply the waters of multiple seas.                 It may be predicted at

the outset that any injuries will likely occur, non-fortuitously,

in the locale where the vessel is stationed.                 Thus, the justified

expectations would not be thwarted if the place of the act were

considered     a   significant     choice    of   law      factor.         See,    e.g.,
Fogleman, 920 F.2d at 282 (“When the injury stems from work on a




drilling rigs or supposed resemblance of the Long John’s scuba
diving missions to oil-drilling operations -- that bears upon
some of the rationales in Lauritzen and thus upon the
significance of some of the Lauritzen factors.

56
permanently situated offshore oil rig or work platform, however,

the place of the wrong assumes greater importance.”).

      This “shift” is relevant in this case, which did not arise

in a traditional international shipping context.                  Admittedly, the

Long John, the ship that injured plaintiff, was a sixteen metric

ton vessel capable of plying the high seas, unlike the drilling

platforms that have been involved in many non-traditional cases.

But   as   we    have   already     explained,    it   is   the     nature    of    the

activity, not of the vessel, that matters.                   The Long John was

used at the time of plaintiff’s accident solely for Club Med

scuba diving expeditions in the waters off St. Lucia.                   Similarly,

plaintiff, an American citizen, contracted in the United States

to serve as a scuba instructor, specifically to take Club Med

guests on scuba diving expeditions off the coast of St. Lucia.

She was a crewmember of a fleet (which included the Long John)

used solely for this purpose. Thus, the location of this accident

was not “fortuitous” in the same way as that of a shipboard tort

against a traditional seaman.           Due to the non-traditional context

of this suit, the place of the wrongful act would normally take

on greater significance.

      All parties now agree that the injury occurred in St. Lucian

waters, and there is no suggestion that the allegedly improper

training complained of by the plaintiff in her Jones Act count

occurred in the United States.             The location of this accident

presumably implicates, with more force than it might in cases

involving       traditional    sea-going    vessels,        whatever    regulatory

interests       St.   Lucia   may   have   in    applying     its    law     to    this


57
accident.         But because St. Lucia’s interests are undefined in

this case, this factor does not strongly suggest that application

of American law would not be reasonable.0

       d.      Place of Contract

       Another factor whose significance shifts in non-traditional

contexts is the place of contract.                           In Lauritzen, the Supreme

Court discounted the importance of the place of contract for

choice      of     law.         It    reasoned        that     “[a]      seaman       takes      his

employment, like his fun, where he finds it; a ship takes on crew

in any port where it needs them.”                      345 U.S. at 588, 73 S. Ct. at

931.      However, although the place of contracting is “of little

import due to its ‘fortuitous’ occurrence for the traditional

seaman,      [it]      becomes       a   substantial         factor      in     nontraditional

maritime employment aboard a vessel more or less permanently

located off the coast of a particular country.”                                  Fogleman, 920

F.2d at 283 (footnotes omitted).                       See also Chiazor, 648 F.2d at

1019.

       The relatively stationary nature of the employment setting

allows the ex ante formation of reasonable beliefs about the

locale of likely work-related injuries, and there are therefore

0
 The dissent asserts that this conclusion contradicts our earlier conclusion that the accident here is
the sort with a potential for disrupting maritime commerce. See dissenting op. infra
at 23.          There is no contradiction.                         We do not doubt the
possibility that St. Lucia could have interests in investigating
incidents such as this one or in preventing unseaworthy
conditions such as those involved here. However, without knowing
the content of St. Lucian law, we have no basis for concluding
that application of American law threatens whatever St. Lucia’s
interests may be, and thus the place of the wrongful act in this
case presents little reason to “accommodate the reach” of
American maritime laws to those of St. Lucia.                                  See supra note
50and accompanying text.

58
fewer unforeseen contingencies to detract from the importance of

the site of contracting.              The Court downplayed this factor in

Lauritzen      largely      because   of    the   fortuity     of    the   place    of

contracting, when international shippers took on crew as needed

in   various       nations’    ports.      However,    with    a    non-traditional

operation such as the one here, employers need not (and do not)

take on crewmembers at random ports as hiring needs dictate;

rather, they may (and do) select employees in advance, wherever

they choose.

       In   this    case,     the   place   of    contracting       was   the   United

States.      After     interviewing        in   the   United   States,     plaintiff

received a letter of interest from the defendants before their

need for another scuba instructor at Holiday Village even arose.

Several months later she formed an oral contract to work for Club

Med Management and Holiday Village in St. Lucia for six weeks,

with   offer    and    acceptance       occurring     during   a    telephone    call

between New York and either Washington, D.C. or Pennsylvania.

Thus, since the parties contracted in America for employment in a

determinate, fix_!




59
