1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-26-1995

Neely v Club Med

Precedential or Non-Precedential:

Docket 93-2069

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Recommended Citation

"Neely v Club Med" (1995). 1995 Decisions. Paper 198.

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1 

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, 
2

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 
3

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. 
4

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 

 

0We 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.” 
5

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 nontraditional, 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. 
6

 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 
7

are in large measure run by one of its affiliated American codefendants, 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 
8

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 
9

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 
10

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, 
11

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 
12

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. 
13

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

jurisdiction over the final orders of the district court. 
14

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 
15

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 
16

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. 
17

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 
18

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 

 

0The 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). 
19

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 

 

0The 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. 
20

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). 
21

 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”). 

0One 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). 
22

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 totalityof-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 
23

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 

 

0While 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. 
24

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 
25

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 

 

0Defendants 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). 
26

(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 

 

0On 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). 
27

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 
28

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 
29

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 
30

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. 

0The 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. 
31

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 

 

0The 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. 
32

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 

 

0Courts 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). 
33

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 
34

‘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 
35

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. 

 

0The 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. 
36

 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 choiceof-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 
37

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

 

0While 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 
38

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. 

0Cf. 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 
39

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). 
40

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
41

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 QuasiAmerican 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.”). 
42

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. 
43

 (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. 
44

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; 
45

 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. 
46

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

 

0The 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 
47

 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. 
48

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 

 

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

text. 
49

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 
50

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

 

0But 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). 
51

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). 

0This 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 
52

 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 choiceof-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). 
53

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 
54

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 

 

0While 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.” 
55

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

 

0The 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-
56

 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. 
57

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 
58

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 

 

0The 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. 
59

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_!