1. In this suit in personam
under the Jones Act, 46
U.S.C. § 688, in a federal district court in New York, by a foreign
seaman against a foreign shipowner for an injury sustained in a
foreign port, process was served on defendant in New York and
defendant appeared generally and answered.
the court had jurisdiction to determine whether
the asserted cause of action was well founded. Pp. 345 U. S.
2. While temporarily in New York, a Danish seaman joined the
crew of a ship of Danish flag and registry owned by a Danish
citizen. The seaman signed ship's articles providing that the
rights of crew members would be governed by Danish law and by the
employer's contract with the Danish Seamen's Union, of which the
seaman was a member. He was negligently injured aboard the ship, in
the course of his employment, while in Havana harbor. He sued the
ship's owner in a federal district court in New York for damages
under the Jones Act.
the Jones Act was inapplicable. Pp. 345 U. S.
(a) Allowance of an additional remedy under the Jones Act would
conflict sharply with the policy and letter of Danish law. Pp.
345 U. S.
(b) By usage as old as the Nation, shipping laws of the United
States written in all-inclusive general terms have been construed
to apply only to areas and transactions in which American law would
be considered operative under prevalent doctrines of international
law. Pp. 345 U. S.
(c) The locality test affords no support for the application of
American law in this case, since the injury occurred on a Danish
ship in Cuban waters. Pp. 345 U. S.
(d) It is settled American doctrine that the law of the flag
governs all matters of discipline on a ship and all things done on
board which affect only the ship and those belonging to her, and
which do not involve the peace and dignity of the country or the
tranquillity of the port. Pp. 345 U. S.
(e) The seaman's presence in New York was transitory, and
created no such national interest in, or duty toward, him as to
justify application of the Jones Act. Pp. 345 U. S.
Page 345 U. S. 572
(f) The utmost liberality in disregarding the formality of a
ship's registration in a country other than that of the allegiance
of its owner does not support application of American law in this
case. Pp. 345 U. S.
(g) That the contract of employment was made in New York does
not require a different result, since the place of contract is not
a substantial influence in the choice between competing laws to
govern a maritime tort, and the contract itself validly provided
for application of Danish law. Pp. 345 U. S.
(h) Justice does not require adjudication of this case under
American law to save this seaman expense and loss of time in
returning to a foreign forum. Pp. 345 U. S.
(i) That an American forum has perfected its jurisdiction over
the parties and that the defendant does frequent and regular
business in the forum state does not justify application of the law
of the forum in this case. Pp. 345 U. S.
196 F.2d 220, reversed.
A federal district court awarded respondent a judgment against
petitioner for damages under the Jones Act, 46 U.S.C. § 688. The
Court of Appeals affirmed. 196 F.2d 220. This Court granted
certiorari. 344 U.S. 810. Reversed and remanded,
345 U. S.
Page 345 U. S. 573
MR. JUSTICE JACKSON delivered the opinion of the Court.
The key issue in this case is whether statutes of the United
States should be applied to this claim of maritime tort. Larsen, a
Danish seaman, while temporarily in New York joined the crew of the
a ship of Danish flag and registry, owned by
petitioner, a Danish citizen. Larsen signed ship's articles,
written in Danish, providing that the rights of crew members would
be governed by Danish law and by the employer's contract with the
Danish Seamen's Union, of which Larsen was a member. He was
negligently injured aboard the Randa
in the course of
employment, while in Havana harbor.
Respondent brought suit under the Jones Act [Footnote 1
] on the law side of the District Court
for the Southern District of New York, and demanded a jury.
Petitioner contended that Danish law was applicable, and that,
under it, respondent had received all of the compensation to which
he was entitled. He also contested the court's jurisdiction.
Entertaining the cause, the court ruled that American, rather than
Danish, law applied, and the jury rendered a verdict of $4,267.50.
The Court of Appeals, Second Circuit, affirmed. [Footnote 2
] Its decision, at least
superficially, is at variance with its own earlier ones. [Footnote 3
Page 345 U. S. 574
conflicts with one by the New York Court of Appeals. [Footnote 4
] We granted certiorari.
The question of jurisdiction is shortly answered. A suit to
recover damages under the Jones Act is in personam
the ship's owner, and not one in rem
against the ship
itself. [Footnote 6
defendant appeared generally, answered, and tendered no objection
to jurisdiction of
Page 345 U. S. 575
his person. 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. Cf. Montana-Dakota Utilities Co. v. Northwestern Public
Service Co., 341 U. S. 246
341 U. S.
Denmark has enacted a comprehensive code to govern the relations
of her shipowners to her seagoing labor which, by its terms, and
intentions controls this claim. Though it is not for us to decide,
it is plausibly contended that all obligations of the owner growing
out of Danish law have been performed or tendered to this seaman.
The shipowner, supported here by the Danish Government, asserts
that the Danish law supplies the full measure of his obligation,
and that maritime usage and international law as accepted by the
United States exclude the application of our incompatible
That allowance of an additional remedy under our Jones Act would
sharply conflict with the policy and letter of Danish law is plain
from a general comparison of the two systems of dealing with
shipboard accidents. Both assure the ill or injured seafaring
worker the conventional maintenance and cure at the shipowner's
cost, regardless of fault or negligence on the part of anyone. But,
while we limit this to the period within which maximum possible
cure can be effected, Farrell v. United States,
336 U. S. 511
Danish law limits it to a fixed period of twelve weeks, and the
monetary measurement is different. The two systems are in sharpest
conflict as to treatment of claims for disability, partial or
complete, which are permanent, or which outlast the liability for
maintenance and cure, to which class this claim belongs. Such
injuries Danish law relieves under a state-operated plan similar to
our workmen's compensation
Page 345 U. S. 576
systems. Claims for such disability are not made against the
owner, but against the state's Directorate of Insurance Against the
Consequences of Accidents. They may be presented directly or
through any Danish Consulate. They are allowed by administrative
action, not by litigation, and depend not upon fault or negligence,
but only on the fact of injury and the extent of disability. Our
own law, apart from indemnity for injury caused by the ship's
unseaworthiness, makes no such compensation for such disability in
the absence of fault or negligence. But, when such fault or
negligence is established by litigation, it allows recovery for
elements such as pain and suffering not compensated under Danish
law, and lets the damages be fixed by jury. In this case, since
negligence was found, United States law permits a larger recovery
than Danish law. If the same injury were sustained but negligence
was absent or not provable, the Danish law would appear to provide
compensation where ours would not.
Respondent does not deny that Danish law is applicable to his
case. The contention as stated in his brief is, rather, that "A
claimant may select whatever forum he desires, and receive the
benefits resulting from such choice," and "[a] ship owner is liable
under the laws of the forum where he does business as well as in
his own country." This contention that the Jones Act provides an
optional cumulative remedy is not based on any explicit terms of
the Act, which makes no provision for cases in which remedies have
been obtained or are obtainable under foreign law. Rather, he
relies upon the literal catholicity of its terminology. If read
literally, Congress has conferred an American right of action which
requires nothing more than that plaintiff be "any seaman who shall
suffer personal injury in the course of his employment." It makes
no explicit requirement that either
Page 345 U. S. 577
the seaman, the employment or the injury have the slightest
connection with the United States. Unless some relationship of one
or more of these to our national interest is implied, Congress has
extended our law and opened our courts to all alien seafaring men
injured anywhere in the world in service of watercraft of every
foreign nation -- a hand on a Chinese junk, never outside Chinese
waters, would not be beyond its literal wording.
But Congress, in 1920, wrote these all-comprehending words not
on a clean slate, but as a postscript to a long series of
enactments governing shipping. All were 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.
The shipping laws of the United States, set forth in Title 46 of
the United States Code, comprise a patchwork of separate
enactments, some tracing far back in our history and many designed
for particular emergencies. While some have been specific in
application to foreign shipping and others in being confined to
American shipping, many give no evidence that Congress addressed
itself to their foreign application, and are in general terms which
leave their application to be judicially determined from context
and circumstance. By usage as old as the Nation, such statutes have
been construed to apply only to areas and transactions in which
American law would be considered operative under prevalent
doctrines of international law. Thus, in United
States v. Palmer,
3 Wheat. 610, this Court was
called upon to interpret a statute of 1790, 1 Stat. 115, punishing
certain acts when committed on the high seas by "any person or
persons," terms which, as Mr. Chief Justice Marshall observed,
Page 345 U. S. 578
"broad enough to comprehend every human being." But the Court
determined that the literal universality of the prohibition
"must not only be limited to cases within the jurisdiction of
the state, but also to those objects to which the legislature
intended to apply them,"
3 Wheat. at 16 U. S. 631
and therefore would not reach a person performing the proscribed
acts aboard the ship of a foreign state on the high seas.
This doctrine of construction is in accord with the long-heeded
admonition of Mr. Chief Justice Marshall that "an Act of Congress
ought never to be construed to violate the law of nations if any
other possible construction remains. . . ." The Charming
2 Cranch 64, 6 U. S. 118
See The Nereide,
Cranch 388, 13 U. S. 389
13 U. S. 423
MacLeod v. United States, 229 U.
, 229 U. S. 434
Sandberg v. McDonald, 248 U. S. 185
248 U. S. 195
And it has long been accepted in maritime jurisprudence that,
". . . if any construction otherwise be possible, an Act will
not be construed as applying to foreigners in respect to acts done
by them outside the dominions of the sovereign power enacting. That
is a rule based on international law, by which one sovereign power
is bound to respect the subjects and the rights of all other
sovereign powers outside its own territory."
Lord Russell of Killowen in The Queen v. Jameson
, 2 Q.B. 425, 430. This is not, as sometimes is implied, any
impairment of our own sovereignty, or limitation of the power of
Congress. "The law of the sea," we have had occasion to observe,
"is, in a peculiar sense, an international law, but application of
its specific rules depends upon acceptance by the United States."
Farrell v. United States, 336 U.
, 336 U. S. 517
On the contrary, we are simply dealing with a problem of statutory
construction, rather commonplace in a federal system by which
courts often have to decide whether "any" or "every" reaches to the
limits of the enacting
Page 345 U. S. 579
authority's usual scope or is to be applied to foreign events or
transactions. [Footnote 7
The history of the statute before us begins with the 1915
enactment of the comprehensive LaFollette Act, entitled,
"An Act To promote the welfare of American seamen in the
merchant marine of the United States; to abolish arrest and
imprisonment as a penalty for desertion and to secure the
abrogation of treaty provisions in relation thereto, and to promote
safety at sea."
38 Stat. 1164. Many sections of this Act were, in terms or by
obvious implication, restricted to American ships. [Footnote 8
Page 345 U. S. 580
sections were made specifically applicable to foreign vessels,
] and these provoked
considerable doubt and debate. [Footnote 10
] Others were phrased in terms which, on their
face, might apply to the world or to anything less. In this
category fell § 20, a cryptic paragraph dealing with the fellow
servant doctrine, to which this Court ascribed little, if any, of
its intended effect. Chelentis v. Luckenbach S.S. Co.,
247 U. S. 372
1920, Congress, under the title "An Act To provide for the
promotion and maintenance of the American merchant marine . . . "
and other subjects not relevant, provided a plan to aid our
Page 345 U. S. 581
fleet and included the revised provision for injured seamen now
before us for construction. 41 Stat. 988, 1007. It did so by
reference to the Federal Employers' Liability Act, which we have
held not applicable to an American citizen's injury sustained in
Canada while in service of an American employer. New York
Central R. Co. v. Chisholm, 268 U. S. 29
it did not give the seaman the one really effective security for a
claim against a foreign owner, a maritime lien. [Footnote 11
Congress could not have been unaware of the necessity of
construction imposed upon courts by such generality of language,
and was well warned that, in the absence of more definite
directions than are contained in the Jones Act, it would be applied
by the courts to foreign events, foreign ships, and foreign seamen
only in accordance with the usual doctrine and practices of
Respondent places great stress upon the assertion that
petitioner's commerce and contacts with the ports of the United
States are frequent and regular as the basis for applying our
statutes to incidents aboard his ships. But the virtue and utility
of sea-borne commerce lies in its frequent and important contacts
with more than one country. If, to serve some immediate interest,
the courts of each were to exploit every such contact to the limit
of its power, it is not difficult to see that a multiplicity of
conflicting and overlapping burdens would blight international
carriage by sea. Hence, courts of this and other commercial nations
have generally deferred to a non-national or international maritime
law of impressive maturity and universality. [Footnote 12
] It has the force of law not
Page 345 U. S. 582
from extraterritorial reach of national laws, nor from
abdication of its sovereign powers by any nation, but from
acceptance by common consent of civilized communities of rules
designed to foster amicable and workable commercial relations.
International or maritime law in such matters as this does not
seek uniformity, and does not purport to restrict any nation from
making and altering its laws to govern its own shipping and
territory. However, it aims at stability and order through usages
which considerations of comity, reciprocity and long-range interest
have developed to define the domain which each nation will claim as
its own. Maritime law, like our municipal law, has attempted to
avoid or resolve conflicts between competing laws by ascertaining
and valuing points of contact between the transaction and the
states or governments whose competing laws are involved. 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. It would not be candid to claim that our
courts have arrived at satisfactory standards or apply those that
they profess with perfect consistency. But, in dealing with
international commerce, we cannot be unmindful of the necessity for
mutual forbearance if retaliations are to be avoided; nor should we
forget that any contact which we hold sufficient to warrant
application of our law to a foreign transaction will logically be
as strong a warrant for a foreign country to apply its law to an
In the case before us, two foreign nations can claim some
connecting factor with this tort -- Denmark, because, among other
reasons, the ship and the seaman were Danish nationals; Cuba,
because the tortious conduct occurred and caused injury in Cuban
waters. The United States may also claim contacts because the
Page 345 U. S. 583
been hired in and was returned to the United States, which also
is the state of the forum. We therefore review the several factors
which, alone or in combination, are generally conceded to influence
choice of law to govern a tort claim, particularly a maritime tort
claim, and the weight and significance accorded them.
1. Place of the Wrongful Act.
-- The solution most
commonly accepted as to torts in our municipal and in international
law is to apply the law of the place where the acts giving rise to
the liability occurred, the lex loci delicti commissi.
] This rule of
locality, often applied to maritime torts, [Footnote 14
] would indicate application of the
law of Cuba, in whose domain the actionable wrong took place. The
test of location of the wrongful act or omission, however
sufficient for torts ashore, is of limited application to shipboard
torts, because of the varieties of legal authority over waters she
may navigate. These range from ports, harbors, roadsteads, straits,
rivers, and canals which form part of the domain of various states,
through bays and gulfs, and that band of the littoral sea known as
territorial waters, over which control in a large, but not
unlimited, degree is conceded to the adjacent state. It includes,
of course, the high seas as to which the law was probably settled
and old when Grotius wrote that it cannot be anyone's property and
cannot be monopolized by virtue of discovery, occupation, papal
grant, prescription or custom. [Footnote 15
Page 345 U. S. 584
We have sometimes uncompromisingly asserted territorial rights,
as when we held that foreign ships voluntarily entering our waters
become subject to our prohibition laws and other laws as well,
except as we may in pursuance of our own policy forego or limit
exertion of our power. Cunard Steamship Co. v. Mellon,
262 U. S. 100
262 U. S. 124
This doctrine would seem to indicate Cuban law for this case. But
the territorial standard is so unfitted to an enterprise conducted
under many territorial rules and under none that it usually is
modified by the more constant law of the flag. This would appear to
be consistent with the practice of Cuba, which applies a workmen's
compensation system in principle not unlike that of Denmark to all
accidents occurring aboard ships of Cuban registry. [Footnote 16
] The locality test, for what it
is worth, affords no support for the application of American law in
this case, and probably refers us to Danish, in preference to
Cuban, law, though this point we need not decide, for neither party
urges Cuban law as controlling.
2. Law of the Flag.
-- Perhaps the most venerable and
universal rule of maritime law relevant to our problem is that
which gives cardinal importance to the law of the flag. Each state
under international law may determine for itself the conditions on
which it will grant its nationality to a merchant ship, thereby
accepting responsibility for it and acquiring authority over it.
Nationality is evidenced to the world by the ship's papers and its
flag. The United States has firmly and successfully maintained that
the regularity and validity of a registration can be questioned
only by the registering state. [Footnote 17
Page 345 U. S. 585
This Court has said that the law of the flag supersedes the
territorial principle, even for purposes of criminal jurisdiction
of personnel of a merchant ship, because it
"is deemed to be a part of the territory of that sovereignty
[whose flag it flies], and not to lose that character when in
navigable waters within the territorial limits of another
On this principle, we concede a territorial government involved
only concurrent jurisdiction of offenses aboard our ships.
United States v. Flores, 289 U. S. 137
289 U. S.
-159, and cases cited. Some authorities reject, as a
rather mischievous fiction, the doctrine that a ship is
constructively a floating part of the flag state, [Footnote 18
] but apply the law of the flag
on the pragmatic basis that there must be some law on shipboard,
that it cannot change at every change of waters, and no experience
shows a better rule than that of the state that owns her.
It is significant to us here that the weight given to the ensign
overbears most other connecting events in determining applicable
law. As this Court held in United States v. Flores, supra,
at 289 U. S. 158
and iterated in Cunard S.S. Co. v. Mellon, supra,
262 U. S.
"And so, by comity, it came to be generally understood among
civilized nations that all matters of discipline, and all things
done on board, which affected only the vessel or those belonging to
her and did not involve the peace or dignity of the country or
Page 345 U. S. 586
tranquillity of the port, should be left by the local government
to be dealt with by the authorities of the nation to which the
vessel belonged as the laws of that nation, or the interests of its
commerce should require. . . ."
This was but a repetition of settled American doctrine.
These considerations are of such weight in favor of Danish and
against American law in this case that it must prevail unless some
heavy counterweight appears.
3. Allegiance or Domicile of the Injured.
recent times, there was little occasion for conflict between the
law of the flag and the law of the state of which the seafarer was
a subject, for the longstanding rule, as pronounced by this Court
after exhaustive review of authority, was that the nationality of
the vessel for jurisdictional purposes was attributed to all her
crew. In re Ross, 140 U. S. 453
140 U. S. 472
] Surely, during
service under a foreign flag, some duty of allegiance is due. But,
also, each nation has a legitimate interest that its nationals and
permanent inhabitants be not maimed or disabled from self-support.
In some later American cases, courts have been prompted to apply
the Jones Act by the fact that the wrongful act or omission alleged
caused injury to an American citizen or domiciliary. [Footnote 21
] We need not, however,
weigh the seaman's nationality against that of the ship, for here
the two coincide without resort to fiction. Admittedly,
Page 345 U. S. 587
respondent is neither citizen nor resident of the United States.
While, on direct examination, he answered leading questions that he
was living in New York when he joined the Randa,
articles which he signed recited, and on cross-examination he
admitted, that his home was Silkeburg, Denmark. His presence in New
York was transitory, and created no such national interest in, or
duty toward, him as to justify intervention of the law of one state
on the shipboard of another.
4. Allegiance of the Defendant Shipowner.
"is not debarred by any rule of international law from governing
the conduct of its own citizens upon the high seas or even in
foreign countries when the rights of other nations or their
nationals are not infringed."
Skiriotes v. Florida, 313 U. S. 69
313 U. S. 73
Steele v. Bulova Watch Co., 344 U.
, 344 U. S. 282
Until recent times, this factor was not a frequent occasion of
conflict, for the nationality of the ship was that of its owners.
] But it is
common knowledge that, in recent years, a practice has grown,
particularly among American shipowners, to avoid stringent shipping
laws by seeking foreign registration eagerly offered by some
countries. [Footnote 23
Confronted with such operations, our courts on occasion have
pressed beyond the formalities of more or less nominal foreign
registration to enforce against American shipowners the obligations
which our law places upon them. [Footnote 24
] But here again, the
Page 345 U. S. 588
utmost liberality in disregard of formality does not support the
application of American law in this case, for it appears beyond
doubt that this owner is a Dane by nationality and domicile.
5. Place of Contract.
-- Place of contract, which was
New York, is the factor on which respondent chiefly relies to
invoke American law. It is one which often has significance in
choice of law in a contract action. But a Jones Act suit is for
tort, in which respect it differs from one to enforce liability for
maintenance and cure. As we have said of the latter,
"In the United States, this obligation has been recognized
consistently as an implied provision in contracts of marine
employment. Created thus with the contract of employment, the
liability, unlike that for indemnity or that later created by the
Jones Act, in no sense is predicated on the fault or negligence of
Aguilar v. Standard Oil Co., 318 U.
, 318 U. S. 730
DeZon v. American President Lines, 318 U.
, 318 U. S. 667
Calmar S.S. Corp. v. Taylor, 303 U.
, 303 U. S. 527
But this action does not seek to recover anything due under the
contract or damages for its breach.
The place of contracting in this instance, as is usual to such
contracts, was fortuitous. A seaman takes his employment, like his
fun, where he finds it; a ship takes on crew in any port where it
needs them. The practical effect of making the lex loci
govern all tort claims during the service would be
to subject a ship to a multitude of systems of law, to put some of
the crew in a more advantageous position than others, and not
unlikely, in the long run, to diminish hirings in ports of
countries that take best care of their seamen.
But if contract law is nonetheless to be considered, we face the
fact that this contract was explicit that the Danish law and the
contract with the Danish union were to control. Except as forbidden
by some public policy,
Page 345 U. S. 589
the tendency of the law is to apply in contract matters the law
which the parties intended to apply. [Footnote 25
] We are aware of no public policy that would
prevent the parties to this contract, which contemplates
performance in a multitude of territorial jurisdictions and on the
high seas, from so settling upon the law of the flag state as their
governing code. This arrangement is so natural and compatible with
the policy of the law that, even in the absence of an express
provision, it would probably have been implied. The
Belgenland, 114 U. S. 355
114 U. S. 367
The Hanna Nielsen,
273 F. 171. We think a quite different
result would follow if the contract attempted to avoid applicable
law, for example, so as to apply foreign law to an American
However, at the same time that he is relying on the place of the
contract, respondent attacks the whole contract as void because the
articles do not describe the voyage with sufficient definiteness
within the rule applied in The Quoque,
261 F. 414,
aff'd, United States v. Westwood,
266 F. 696. This case
dealt with an American ship, and its holding was founded upon a
statute originally enacted in 1873 and held by those courts that
have dealt with the problem applicable only to American ships.
14 F. 427; The Elswick Tower,
F. 706. The contention is without merit.
We do not think the place of contract is a substantial influence
in the choice between competing laws to govern a maritime tort.
6. Inaccessibility of Foreign Forum.
-- It is argued,
and particularly stressed by an amicus
brief, that justice
requires adjudication under American law to save seamen expense and
loss of time in returning to a foreign forum. This might be a
persuasive argument for exercising a discretionary
Page 345 U. S. 590
jurisdiction to adjudge a controversy; but it is not persuasive
as to the law by which it shall be judged. It is pointed out,
however, that the statutes of at least one maritime country
(Panama) allow suit under its law by injured seamen only in its own
courts. The effect of such a provision is doubtful in view of our
holding that such venue restrictions by one of the states of the
Union will not preclude action in a sister state, Tennessee
Coal, Iron & R. Co. v. George, 233 U.
Confining ourselves to the case in hand, we do not find this
seaman disadvantaged in obtaining his remedy under Danish law from
being in New York, instead of Denmark. The Danish compensation
system does not necessitate delayed, prolonged, expensive, and
uncertain litigation. It is stipulated in this case that claims may
be made through the Danish Consulate. There is not the slightest
showing that to obtain any relief to which he is entitled under
Danish law would require his presence in Denmark or necessitate his
leaving New York. And, even if it were so, the record indicates
that he was offered and declined free transportation to Denmark by
7. The Law of the Forum.
-- It is urged that, since an
American forum has perfected its jurisdiction over the parties and
defendant does more or less frequent and regular business within
the forum state, it should apply its own law to the controversy
between them. The "doing business" which is enough to warrant
service of process may fall quite short of the considerations
necessary to bring extraterritorial torts to judgment under our
law. Under respondent's contention, all that is necessary to bring
a foreign transaction between foreigners in foreign ports under
American law is to be able to serve American process on the
defendant. We have held it a denial of due process of law when a
state of the Union attempts to draw into control of its law
otherwise foreign controversies, on slight connections, because it
is a forum
Page 345 U. S. 591
state. Hartford Accident & Indemnity Co. v. Delta &
Pine Land Co., 292 U. S. 143
Home Insurance Co. v. Dick, 281 U.
. The purpose of a conflict 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
It is pointed out that our statute on limitation of shipowner's
liability, which formerly applied in terms to "any vessel," was
applied by our courts to foreign causes. [Footnote 26
] Hence, it is argued by analogy that "any
seaman" should be construed so to apply. But the situation is
inverted. The limitation of liability statute was construed to thus
apply only against those who had chosen to sue in our courts on
foreign transactions. [Footnote
] Because a
Page 345 U. S. 592
law of the forum is applied to plaintiffs who voluntarily submit
themselves to it is no argument for imposing the law of the forum
upon those who do not. Furthermore, this application of the
limitation on liability brought our practice into harmony with that
of all other maritime nations, [Footnote 28
] while the application of the Jones Act here
advocated would bring us into conflict with the maritime world.
This review of the connecting factors which either maritime law
or our municipal law of conflicts regards as significant in
determining the law applicable to a claim of actionable wrong shows
an overwhelming preponderance in favor of Danish law. The parties
are both Danish subjects, the events took place on a Danish ship,
not within our territorial waters. Against these considerations is
only the fact that the defendant was served here with process, and
that the plaintiff signed on, in New York, where the defendant was
engaged in our foreign commerce. The latter event is offset by
provision of his contract that the law of Denmark should govern. We
do not question the power of Congress to condition access to our
ports by foreign-owned vessels upon submission to any liabilities
it may consider good American policy to
Page 345 U. S. 593
exact. But we can find no justification for interpreting the
Jones Act to intervene between foreigners and their own law because
of acts on a foreign ship not in our waters.
In apparent recognition of the weakness of the legal argument, a
candid and brash appeal is made by respondent and by
briefs to extend the law to this situation as a
means of benefiting seamen and enhancing the costs of foreign ship
operation for the competitive advantage of our own. We are not sure
that the interest of this foreign seaman, who is able to prove
negligence, is the interest of all seamen, or that his interest is
that of the United States. Nor do we stop to inquire which law does
whom the greater or the lesser good. The argument is misaddressed.
It would be within the proprieties if addressed to Congress.
Counsel familiar with the traditional attitude of this Court in
maritime matters could not have intended it for us. [Footnote 29
The judgment below is reversed, and the cause remanded to
District Court for proceedings consistent herewith.
Reversed and remanded.
MR. JUSTICE BLACK agrees with the Court of Appeals, and would
affirm its judgment.
MR. JUSTICE CLARK, not having heard oral argument, took no part
in the consideration or decision of this case.
"Any seaman who shall suffer personal injury in the course of
his employment may at his election, maintain an action for damages
at law, with the right of trial by jury, and in such action all
statutes of the United States modifying or extending the common law
right or remedy in cases of personal injury to railway employees
shall apply. . . ."
46 U.S.C. § 688.
196 F.2d 220.
In The Paula,
91 F.2d 1001, 1003, the then Circuit
Court of Appeals, Second Circuit, held the Jones Act inapplicable
to a suit by an alien seaman against this same petitioner, and
expressly refused to follow dicta by the Fifth Circuit Court of
Appeals in Arthur v. Compagnie Generale Transatlantique,
72 F.2d 662, to the effect that the Act gave a right of action to
"all seamen regardless of nationality." The Paula
is generally consistent with prior decisions of the court rendering
it. See The Hanna Nielsen,
273 F. 171; The Pinar Del
16 F.2d 984, aff'd, 277 U. S. 277
151. A few years later, in Gambera v. Bergoty,
414, that same court granted relief under the Jones Act to a
plaintiff who was a long-time resident, though not a citizen, of
this country, and who suffered injury in American territorial
waters while serving on a Greek ship. In Kyriakos v.
151 F.2d 132, the court (over the dissent of Judge
Learned Hand) held that the Act applied to injuries sustained while
ashore in the United States by a Greek seaman employed by a Greek
shipowner. In O'Neill v. Cunard White Star Line,
446, that court held that a British seaman injured on a British
vessel on the high seas could not sue under the Jones Act. In
Taylor v. Atlantic Maritime Co.,
179 F.2d 597, 600, it
reversed a district court judgment dismissing a Jones Act suit by a
Panamanian citizen, allegedly residing in New York, against a ship
of Panamanian registry for injuries apparently received on the high
seas. Judge Learned Hand, writing for the court, indicated that a
majority of the panel thought that the Jones Act was not applicable
to alien seamen, but that, "in spite of what we should hold, were
we free," they were bound by the decision in Kyriakos.
the case now before us, the court affirmed per curiam on the
authority of Kyriakos
. No two of
these cases present exactly the same basis for application of
American law, and their contrary results do not necessarily mean
inconsistency. But they illustrate different considerations which
influence choice of law in maritime tort cases.
Sonnesen v. Panama Transport Co.,
298 N.Y. 262, 82
N.E.2d 569. Such a conflict can arise because Jones Act suits may
be brought in state, as well as federal, courts. Engel v.
Davenport, 271 U. S. 33
344 U.S. 810.
See Plamals v. Pinar del Rio, 277 U.
Cheatham and Reese, Choice of the Applicable Law, 52 Col.L.Rev.
959, 961, dealing with state statutes, puts the problem in this
"There is one rule or policy which, wherever applicable, takes
precedence over others and, to a large extent, saves the courts
from further pain of decision. That controlling policy, obvious as
it may be, is that a court must follow the dictates of its own
legislature to the extent that these are constitutional. But,
although choice of law constitutes no exception to this fundamental
rule, rarely can the principle be applied in practice. The vast run
of statutes are enacted with only the intrastate situation in mind.
The application of a statute to out-of-state occurrences,
therefore, must generally be determined in accordance with ordinary
conflict of laws rules. And this is so even if, as is frequently
the case, the statute employs such sweeping terms as 'every
contract' or 'every decedent.' Unless it appears that the draftsmen
so intended, language of this sort is not to be taken literally to
mean that the statute is applicable to every transaction wherever
occurring or to every case brought in the forum. Where, on the
other hand, it is clear that the legislature has actually addressed
itself to the choice of law problem, the courts, subject to the
limitation of constitutionality, must give effect to its
Section 1, requiring lost seamen to be replaced, directed the
master to report such replacement to the United States consul at
the first port at which he shall arrive thereafter. Section 2
provided certain regulations affecting the duties of crew members
aboard "all merchant vessels of the United States." Section 5
provided that, on complaint of the officers or crew of "any vessel"
in a foreign port that the vessel is unseaworthy or inadequately
provisioned, "the consul" may appoint someone to make inquiry.
Section 6 set forth certain sanitation requirements for "merchant
vessels of the United States." Section 13 required every vessel to
have in its complement a minimum percentage of able-bodied seamen
certified by the Secretary of Commerce. Section 19 was concerned
with the procedure to be followed before American consuls abroad in
certain matters involving American seamen.
§§ 4, 11, and 14. Section 4 gave seamen the right to demand
certain wage payments on coming into port. Its closing portion
". . . this section shall apply to seamen on foreign vessels
while in harbors of the United States, and the courts of the United
States shall be open to such seamen for its enforcement."
Section 11 reenacted, with some changes, an 1898 statute
prohibiting payment of advance wages to seamen; one subsection
"This section shall apply as well to foreign vessels while in
waters of the United States, as to vessels of the United States,
and any master, owner, consignee, or agent of any foreign vessel
who has violated its provisions shall be liable to the same penalty
that the master, owner, or agent of a vessel of the United States
would be for similar violation."
For construction of these two sections see Patterson v. Bark
Eudora, 190 U. S. 169
Sandberg v. McDonald, 248 U. S. 185
Strathearn S.S. Co. v. Dillon, 252 U.
Section 14 directed that certain requirements concerning
lifeboats should also be applicable to foreign vessels leaving
United States ports.
Report of the House Committee on Merchant Marine
and Fisheries, H.R.Rep.No.852, 63d Cong., 2d Sess., pp. 18, 20; 50
Plamals v. Pinar del Rio, supra, n
the famous opinion of Mr. Justice Story in De
Lovio v. Boit,
Fed.Cas. No. 3776, 2 Gall. 398;
Cranch 382, and 2 Cranch 406 [omitted]; The
14 Wall. 170; Dickenson, The Law of Nations
as Part of the National Law of the United States, 101 U. of
Pa.L.Rev. 26, 28-29, 792, 803-816.
See Slater v. Mexican National R. Co., 194 U.
; New York Central R. Co. v. Chisholm,
268 U. S. 29
Rheinstein, The Place of Wrong, 19 Tul.L.rev. 4, 165; cf.
Sandberg v. McDonald, 248 U. S. 185
248 U. S.
Carr v. Fracis Times & Co.,
 A.C. 176;
cf. Uravic v. F. Jarka Co., 282 U.
Restatement, Conflict of Laws, §
Grotius, De Jure Praedae, Carnegie Endowment publication 1950,
207, 220, 222, 223, 231-233, 234, 237. See
Grotius on the Law of Prize, 1 J.Pub.L. 370, 372, 387.
Cuba Workmen's Compensation Law, Decree No. 2687,
November 15, 1933, Art. XI, Art. XL.
The leading case is The Virginius,
seized in 1873 by
the Spanish when en route to Cuba. President Grant took the
"if the ship's papers were irregular or fraudulent, the crime
was committed against the American laws, and only its tribunals
were competent to decide the question."
The Attorney General took the same position. The ship was
restored. 2 Moore's Digest 895-903. Higgins and Colombos,
International Law of the Sea (2d ed.), 201.
The theoretical basis used by this Court apparently prevailed in
1928 with the Permanent Court of International Justice, in the case
of The Lotus,
P.C.I.J., Series A, No. 10. For criticism of
Higgins and Colombos, International Law of the Sea
(2d ed.) 193-195. We leave the controversy where we find it, for
either basis leads to the same result in this case, though this
might not be so with some other problems of shipping.
Wildenhus' Case, 120 U. S. 1
19 How. 183. For application of this
doctrine in tort cases, see Bonsalem v. Byron S.S. Co.,
F.2d 114; Cain v. Alpha S.S. Corp.,
35 F.2d 717; Grand
Trunk R. Co. v. Wright,
21 F.2d 814; Restatement, Conflict of
Laws, § 405.
See also Rainey v. New York & P. S.S. Co.,
See Uravic v. Jarka, supra; Shorter v. Bermuda & West
Indies S.S. Co.,
57 F.2d 313; Gambera v. Bergoty,
supra. But see The Oriskany, 3 F. Supp.
; Clark v. Montezuma Transport Co.,
172, 216, N.Y.S. 295.
Many nations (including both the United States and Denmark)
still allow only those ships wholly or predominantly owned by its
nationals to register under its flag. See
46 U.S.C. §§ 11,
808; Denmark, Maritime Law of May 7, 1937, § 1.
McFee, The Law of the Sea, 152-154. See
Study and Investigation (Transfer of American Ships to Foreign
Registry), Hearings before the Senate Interstate and Foreign
Commerce Committee, S.Doc. No. 6857, 81st Cong., 1st Sess.
See Gerradin v. United Fruit Co.,
60 F.2d 927; cf.
Central Vermont Transp. Co. v. Durning, 294 U. S.
Yntema, "Autonomy" in Choice of Law, 1 Am.J.Comp.L.
The Scotland, 105 U. S. 24
The Titanic, 233 U. S. 718
the time these cases were decided, the statute purported to apply
to "any vessel." In 1936 it was amended so as expressly to apply to
foreign, as well as domestic, vessels. 49 Stat. 1479.
"It is true that the act of Congress does not control or profess
to control the conduct of a British ship on the high seas. See
American Banana Co. v. United Fruit Co., 213 U. S.
, 213 U. S. 356
. It is true
that the foundation for a recovery upon a British tort is an
obligation created by British law. But it also is true that the
laws of the forum may decline altogether to enforce that obligation
on the ground that it is contrary to the domestic policy, or may
decline to enforce it except within such limits as it may impose.
Cuba Railroad Co. v. Crosby, 222 U. S.
, 222 U. S. 478
, 222 U. S.
; Dicey, Confl.L.2d ed. 647. It is competent,
therefore, for Congress to enact that, in certain matters belonging
to admiralty jurisdiction, parties resorting to our courts shall
recover only to such extent or in such way as it may mark out.
Butler v. Boston & Savannah S.S. Co., 130 U. S.
. The question is not whether the owner of the
by this proceeding, can require all claimants to
come in, and can cut down rights vested under English law, as
against, for instance, Englishmen living in England who do not
appear. It is only whether those who do see fit to sue in this
country are limited in their recovery irrespective of the English
law. That they are so limited results, in our opinion, from the
decisions of this court. For on what ground was the limitation of
liability allowed in The Scotland
. . . The essential point was that the limitation
might be applied to foreign ships if sued in this country, although
they were not subject to our substantive law."
The Titanic, supra,
233 U.S. at 233 U. S.
-733 (per Holmes, J.).
Limitation of liability has been an essential part of the
maritime law of every maritime nation since the Grand Ordonnance of
Louis XIV in 1681. See
discussion in the opinion of Mr.
Justice Brown in The Main v. Williams, 152 U.
Cf. 72 U. S.
Wall. 28, 72 U. S. 57
"In cases such as that now in judgment, we administer the public
law of nations, and are not at liberty to inquire what is for the
particular advantage or disadvantage of our own or another