Jackson v. N Bank Towing Corp, et al

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.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
January 31, 2000
Before HIGGINBOTHAM and SMITH,
Circuit Judges, and FALLON, District
Judge.*
PER CURIAM:
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.
I.
Jackson, a non-resident alien and citizen of
Honduras, was employed as a seaman by
North Bank Towing Corporation, a Louisiana
corporation, aboard M/V MARTHA E
UGENIA, owned and operated by J. Ray
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.
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 l e x m a r i t i m e, and
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
for maintenance and cure under the general
* District Judge of the Eastern District of
Louisiana, sitting by designation.

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maritime law of the United States. The district
court dismissed on the ground that the Jones
Act bars foreign law claims by foreign seamen.
II.
The issue is whether 46 U.S.C. § 688(b)
bars not only claims made pursuant to the
Jones Act or other maritime laws of the United
States, but also foreign law claims. Jackson
asserts that we should interpret the “clear and
unambiguous” terms of § 688(b)(1) so as to
bar only an “action . . . under subsection (a) of
this section or under any other maritime law of
the United States,” and he contends that the
district court erred by going beyond this clear
text and by considering legislative intent to the
contrary.
Section 688 provides, in pertinent part:
(b)(1) No Action may be maintained under
subsection (a) of this section or under any
other maritime law of the United States for
maintenance and cure or for damages for
the injury or death of a person who was not
a citizen or permanent resident alien of the
United States at the time of the incident
giving rise t o the action if the incident
occurredSS
(A) while that person was in the employ
of an enterprise engaged in the
exploration, development, or production
of off-shore mineral or energy resources
. . .; and
(B) in the territorial waters or waters
overlaying the continental shelf of a
nation other than the United States, its
territories, or possessions . . . .
(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 personSS
(A) under the laws of the nation
asserting jurisdiction over the area in
which the incident occurred; or
(B) under the laws of the nation in
which, at the time of the incident, the
person for whose injury or death a
remedy is sought maintained citizenship
or residency.
46 U.S.C. § 688(b) (emphasis added).
Jackson does not challenge the district
court’s determination that his American law
claims are prohibited by the plain language of
§ 688(b)(1). Instead, he argues that because
the subsection makes no mention of foreign
law claims by foreign citizens, those claims are
not barred by the plain text of the Jones Act.
Accordingly, he asserts that the courts should
not inquire into congressional intent.
The defendants reply that § 688(b)(1)
should be read in light of § 688(b)(2), which
provides that § 688(b)(1) “shall not be
applicable if the plaintiff can prove that his
remedies would be unavailable in either “the
nation asserting jurisdiction over the area” or
“the nation in which . . . [the injured]
maintained citizenship or residency.”
§ 688(b)(2)(A), (B). And the defendants
correctly observe that there is no indication
that Mexican or Honduran courts would be
unavailable to Jackson.
Thus, defendants argue that to read
§ 688(b)(1) in isolation, as Jackson suggests,
would effectively read § 688(b)(2)(A) and (B)
out of the statute. They assert that if the
“plain meaning” of § 688(b)(1) never bars
foreign law claims by foreign seamen, then
such seamen will never have to establish that
no remedy was available to them under foreign
laws.
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,
he first must establish that foreign law
remedies are not available to him in other fora.

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It is true that this result arguably creates an
anomaly whereby it will be easier for foreign
seaman to get foreign law claims into U.S.
courts than for them to get in maritime claims
brought under United States law. The result
also seems contrary to the legislative history of
the Jones Act, which suggests that Congress
did not intend for foreign seamen to be able to
sue in American courts except where they
would have no other available forum.1
Nonetheless, the plain text of the statute
dictates this result. There is no ambiguity in
§ 688(b)(1); it simply does not refer to foreign
law claims. Accordingly, federal courts are
not barred from hearing them.
III.
In sum, § 688(b)(1) bars only actions
brought under the maritime law of the United
States, and § 688(b)(2) does nothing to change
that. It follows that the district erred in
dismissing Jackson’s claims brought under the
laws of Mexico and Honduras and the
international lex maritime.
REVERSED and REMANDED.
1 See, e.g., the comments of the co-sponsor of
the 1982 amendment, Congressman Livingston:
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
enactment of § 688(b) by arguing:
It is quite simple. We are saying to foreign
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
remedy in their own country for the injury
that they have received, that they have to
first pursue that remedy in their own
country. T hat is not a novel, unusual
approach. It makes sense. It is logical. We
are not telling them that they cannot have
access to U.S. courts. They can have access
to our courts if they have no remedy
available in their own country.
128 Cong. Rec. 25,423 (1982) (emphasis added).
The comments of Senator Long during the
Senate debate concerning the enactment of
§ 688(b) demonstrate the same view:
The United States should not continue to
export its remedies for foreign workers’
(continued...)
(...continued)
work-related injury claims which arose in
foreign waters. Since no other country
allows its judicial system to be used by
foreign citizens for incidents occurring
within the jurisdiction of foreign nations,
U.S. offshore service companies and their
foreign subsidiaries are at a competitive
disadvantage with their many foreign
competitors.
A reasonable solution is to clarify U.S.
maritime tort laws to provide that a foreign
worker engaged in mineral extraction
activities in waters over the continental shelf
of a foreign nation may not seek a remedy
for his work-related injury in U.S. courts if
he has remedy in his home country, or in the
country with jurisdiction over the accident
site, if different. Should there be no remedy
overseas, the foreign worker would then,
and only then, be able to adjudicate his
claims in U.S. courts.
128 Cong. Rec. 29,924 (1982) (emphasis added).

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