*1 Before HIGGINBOTHAM and SMITH, Honduras, was employed as a seaman by
Circuit Judges, and FALLON, District North Bank Towing Corporation, a Louisiana Judge. [*] corporation, aboard M/V MARTHA E
UGENIA, owned and operated by J. Ray PER CURIAM: McDermott, Inc. (with North Bank, collectively “defendants”). Jackson was injured when he fell aboard the vessel while it was engaged in offshore oil and gas exploration off the coast of Mexico.
Warren Jackson appeals the dismissal of his
foreign law tort claims for negligence and maintenance and cure. Concluding that the Jones Act, 46 U.S.C. § 688, does not prohibit maritime claims brought pursuant to foreign laws, we reverse and remand.
Jackson asserted negligence claims pursuant to the Jones Act and, alternatively, the tort laws of Mexico and Honduras and the i n t e r n a t i o n a l I. l e x m a r i t i m e , and Jackson, a non-resident alien and citizen of unseaworthiness claims pursuant to the
maritime law of the United States, the laws of Louisiana, sitting by designation. District Judge of the Eastern District of [*] ; additionally, he asserted a claim Mexico and Honduras, and the international for maintenance and cure under the general *2 maritime law of the United States. The district person for whose injury or death a court dismissed on the ground that the Jones remedy is sought maintained citizenship Act bars foreign law claims by foreign seamen. or residency.
II. 46 U.S.C. § 688(b) (emphasis added). The issue is whether 46 U.S.C. § 688(b)
bars not only claims made pursuant to the Jackson does not challenge the district Jones Act or other maritime laws of the United court’s determination that his American law States, but also foreign law claims. Jackson claims are prohibited by the plain language of asserts that we should interpret the “clear and § 688(b)(1). Instead, he argues that because unambiguous” terms of § 688(b)(1) so as to the subsection makes no mention of foreign bar only an “action . . . under subsection (a) of law claims by foreign citizens, those claims are this section or under any other maritime law of not barred by the plain text of the Jones Act. the United States ,” and he contends that the Accordingly, he asserts that the courts should district court erred by going beyond this clear not inquire into congressional intent. text and by considering legislative intent to the
contrary. The defendants reply that § 688(b)(1)
should be read in light of § 688(b)(2), which Section 688 provides, in pertinent part: provides that § 688(b)(1) “shall not be
applicable if the plaintiff can prove that his (b)(1) No Action may be maintained under remedies would be unavailable in either “the subsection (a) of this section or under any nation asserting jurisdiction over the area” or other maritime law of the United States for “the nation in which . . . [the injured] maintenance and cure or for damages for maintained citizenship or residency.” the injury or death of a person who was not § 688(b)(2)(A), (B). And the defendants a citizen or permanent resident alien of the correctly observe that there is no indication United States at the time of the incident that Mexican or Honduran courts would be giving rise t o the action if the incident unavailable to Jackson.
occurred SS
Thus, defendants argue that to read (A) while that person was in the employ § 688(b)(1) in isolation, as Jackson suggests, of an enterprise engaged in the would effectively read § 688(b)(2)(A) and (B) exploration, development, or production out of the statute. They assert that if the of off-shore mineral or energy resources “plain meaning” of § 688(b)(1) never bars . . .; and foreign law claims by foreign seamen, then
such seamen will never have to establish that (B) in the territorial waters or waters no remedy was available to them under foreign overlaying the continental shelf of a laws.
nation other than the United States, its territories, or possessions . . . .
The defendants are half right. That is, the plain meaning of § 688(b) provides that foreign seaman will never be barred from bringing foreign law claims in U.S. courts. That does not rob § 688(b)(2) of any meaning, however, because the exceptions set forth in that subsection will still apply to United States maritime claims brought by foreign seaman. Thus, for a foreign seaman to bring an action under any maritime law of the United States, (2) The provisions in paragraph (1) of this subsection shall not be applicable if the person bringing the action establishes that
no remedy was available to that person SS
(A) under the laws of the nation asserting jurisdiction over the area in which the incident occurred; or
he first must establish that foreign law (B) under the laws of the nation in remedies are not available to him in other fora. which, at the time of the incident, the
It is true that this result arguably creates an Nonetheless, the plain text of the statute anomaly whereby it will be easier for foreign dictates this result. There is no ambiguity in seaman to get foreign law claims into U.S. § 688(b)(1); it simply does not refer to foreign courts than for them to get in maritime claims law claims. Accordingly, federal courts are brought under United States law. The result not barred from hearing them.
also seems contrary to the legislative history of
the Jones Act, which suggests that Congress III.
did not intend for foreign seamen to be able to In sum, § 688(b)(1) bars only actions sue in American courts except where they brought under the maritime law of the United would have no other available forum. [1] States, and § 688(b)(2) does nothing to change
that. It follows that the district erred in [1] the comments of the co-sponsor of See, e.g., the 1982 amendment, Congressman Livingston: laws of Mexico and Honduras and the international dismissing Jackson’s claims brought under the . REVERSED and REMANDED. The clarification is that a foreign offshore oil and gas worker may not obtain a U.S.
remedy for a work-related incident occurring
over the Continental Shelf of a foreign
nation if a remedy is available to the foreign
worker in his home nation, or in the nation with jurisdiction over the accident site, if
different. If there is no remedy available in
either of the nations , then the foreign worker may seek a remedy in the United
States.
128 Cong. Rec. 25,426 (1982) (emphasis added).
Similarly, Congressman Breaux advocated the (...continued) enactment of § 688(b) by arguing:
work-related injury claims which arose in It is quite simple. We are saying to foreign foreign waters. Since no other country allows its judicial system to be used by seamen who work for U.S. companies that if
they are injured, that if they have remedy in their own country, if they have a court foreign citizens for incidents occurring
within the jurisdiction of foreign nations, U.S. offshore service companies and their remedy in their own country for the injury
that they have received, that they have to first pursue that remedy in their own foreign subsidiaries are at a competitive
disadvantage with their many foreign competitors. country. T hat is not a novel, unusual approach. It makes sense. It is logical. We
are not telling them that they cannot have A reasonable solution is to clarify U.S. access to U.S. courts. They can have access maritime tort laws to provide that a foreign to our courts if they have no remedy worker engaged in mineral extraction available in their own country . activities in waters over the continental shelf
of a foreign nation may not seek a remedy 128 Cong. Rec. 25,423 (1982) (emphasis added). for his work-related injury in U.S. courts if
he has remedy in his home country, or in the The comments of Senator Long during the country with jurisdiction over the accident Senate debate concerning the enactment of site, if different. Should there be no remedy § 688(b) demonstrate the same view: overseas, the foreign worker would then,
and only then , be able to adjudicate his The United States should not continue to claims in U.S. courts.
export its remedies for foreign workers’
(continued...) 128 Cong. Rec. 29,924 (1982) (emphasis added).