IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-30030
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WARREN ROY JACKSON,
Plaintiff-Appellant,
VERSUS
NORTH BANK TOWING CORPORATION; ET AL,
Defendants,
NORTH BANK TOWING CORPORATION and J. RAY MCDERMOTT, INC.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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January 31, 2000
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
Warren Jackson appeals the dismissal of his injured when he fell aboard the vessel while it
foreign law tort claims for negligence and was engaged in offshore oil and gas
maintenance and cure. Concluding that the exploration off the coast of Mexico.
Jones Act, 46 U.S.C. § 688, does not prohibit
maritime claims brought pursuant to foreign Jackson asserted negligence claims
laws, we reverse and remand. pursuant to the Jones Act and, alternatively,
the tort laws of Mexico and Honduras and the
I. i n t e r n a t i o n a l 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
Mexico and Honduras, and the international
*
lex maritime; additionally, he asserted a claim
District Judge of the Eastern District of for maintenance and cure under the general
Louisiana, sitting by designation.
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.
occurredSS
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
(2) The provisions in paragraph (1) of this foreign seaman will never be barred from
subsection shall not be applicable if the bringing foreign law claims in U.S. courts.
person bringing the action establishes that That does not rob § 688(b)(2) of any meaning,
no remedy was available to that personSS however, because the exceptions set forth in
that subsection will still apply to United States
(A) under the laws of the nation maritime claims brought by foreign seaman.
asserting jurisdiction over the area in Thus, for a foreign seaman to bring an action
which the incident occurred; or under any maritime law of the United States,
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
2
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
dismissing Jackson’s claims brought under the
1
See, e.g., the comments of the co-sponsor of laws of Mexico and Honduras and the
the 1982 amendment, Congressman Livingston: international lex maritime.
The clarification is that a foreign offshore REVERSED and REMANDED.
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
enactment of § 688(b) by arguing: (...continued)
work-related injury claims which arose in
It is quite simple. We are saying to foreign foreign waters. Since no other country
seamen who work for U.S. companies that if allows its judicial system to be used by
they are injured, that if they have remedy in foreign citizens for incidents occurring
their own country, if they have a court within the jurisdiction of foreign nations,
remedy in their own country for the injury U.S. offshore service companies and their
that they have received, that they have to foreign subsidiaries are at a competitive
first pursue that remedy in their own disadvantage with their many foreign
country. T hat is not a novel, unusual competitors.
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).
3