Comment by Barbara J. Clark
Despite controversial roots and a turbulent past history-especially the early 1980s-the maritime choice of law test for foreign seafarers has matured into a fairly stable test. However, the test, because of its fact-specific nature and a lenient standard of review, may yet fall victim to flaws in its past despite the currently thin veneer of uniform precedent which has developed in the 1990s. This Comment argues that the proper role of the two pertinent policies-special solicitude and international comity-can be inferred through a comparative survey of maritime legislation enacted at the time of the Jones Act and two more recent Congressional enactments regulating the welfare of seamen, both of which restrict access by foreign seamen aboard certain foreign vessels or structures. Drawing on these recent developments and on the proposition that international comity should be considered superior to special solicitude when determining whether a foreign seafarer should be tried under foreign or United States law, the Comment proposes that the shipowner's place of day-to-day operations, which operates as a highly restrictive standard, has properly emerged dominant in choice of law analysis. To most accurately and properly reflect the policies underlying modern choice of law, the Comment suggests a three-part choice of law test: (1) both seaman and shipowner must be foreign domiciliaries, (2) the vessel must fly a foreign flag, and (3) the defendant must maintain day-to-day vessel management operations from United States shores. This test preserves the current, stable state of maritime choice of law jurisprudence while eliminating the factor-weighing process employed under the current analysis, the deadweight factors under the Lauritzen-Romero-Rhoditis test (the place of injury, the place of contract, access to a foreign forum, and the law of the forum). The test proposed in this Comment also resolves the split in the circuits and forecloses judicial reliance on analytically troublesome precedent. Recognizing the dynamic state of maritime law and that Congress may alter its conception of special solicitude to foreign seamen in response to future social or economic conditions, the Comment proposes that courts carefully evaluate new factor proposals in light of the state of maritime law at the time the argument is presented to the court and the policy considerations that have historically animated this area of maritime law.
About the Author
Barbara J. Clark. B.S. 1992, California State University, Long Beach; J.D. 1995, Tulane Law School.
Citation
70 Tul. L. Rev. 745 (1995)