BY BRETT ROGERS — Introduced in the United States House of Representatives by Congressmen Duncan Hunter (R-CA), Bill Shuster (R-PA), and Nick J. Rahall, II (D-WV)1, the Coast Guard and Maritime Transportation Act of 2014– alternatively known as H.R. 4005 – will have a profound effect on the recovery efforts of nonresident aliens employed on foreign passenger vessels.2
If passed, H.R. 4005 will amend the Jones Act, a law relating to seamen’s rights. Formerly codified as 46 U.S.C. § 688, the Jones Act was re-codified to 46 U.S.C. § 30104 in October 2006.3 Currently, the Jones Act provides that “a seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer.“4
The Jones Act allows for a unique legal situation. Traditionally, employees cannot sue their employer if they have been injured in accident, leaving workers’ compensation as the only avenue for a remedy.5 The Jones Act, on the other hand, allows a seaman who has suffered an injury while working to sue their employer for negligence that contributed to the injury.6
H.R. proposes a new subsection to 46 U.S.C. § 30104.7 The subsection – Title III – Shipping and Navigation, Sec. 307. Recourse for noncitizens – places a restriction on recovery for nonresident aliens employed on foreign vessels.8 The subsection states that “a claim for damages or expenses relating to personal injury, illness, or death of a seaman who is a citizen of a foreign nation, arising during or from the engagement of the seaman by or for a passenger vessel duly registered under the laws of a foreign nation, may not be brought under the laws of the United States . . . .”9
Specifically, the claim cannot be brought if: (1) the seaman is not a permanent resident alien of the United States at the time of the accident; (2) the injury, illness, or death occurred outside the territorial waters of the United States; and (3) “the seaman or the seaman’s personal representative has or had a right to seek compensation for the injury, illness, or death in, or under the laws of the nation in which the vessel was registered at the time the claim arose or the nation in which the seaman maintained citizenship or residency at the time the claim arose.”10
While H.R. 4005 affects all nonresident aliens employed on foreign vessels (90 percent of commercial vessels calling on United States ports fly foreign flags), the proposal will have a profound effect on the cruise ship industry.11 At present, there is only one major cruise ship that is registered in the United States – NCL America’s Pride of America.12
Yet, three goliaths of the cruise ship industry – Carnival Cruise Lines, Norwegian Cruise Line, and Royal Caribbean International – are headquartered in Miami, Florida.13 Additionally, “three-quarters of the nearly 16 million cruise bookings worldwide were made from the United States.”14 Although foreign flag cruise ships may be the result of burdensome United States regulations, many believe that cruise ship corporations are “seeking to attract American dollars while skirting American safety and consumer protection law.”15
Typically, there are two categories of ship workers: crew members and staff.16 Crewmembers are cooks, waiters, busboys, bartenders, housekeeping, and maintenance that live on the crew-only decks when they are off-duty.17 Crewmembers, often from impoverished countries such as India, Honduras and Jamaica, have a difficult life on board;18 crewmembers may work 12 hours a day, 7 days a week for a period of many months.19
H.R. 4005 will create added hardship to crewmembers. Maritime attorney Jim Walker suggests that there are a multitude of reasons why H.R. 4005 should not be passed.20 First, H.R. 4005 will disincentivize cruise ship companies from hiring American workers.21 Why would foreign flag cruise ships hire American workers who could sue them for negligence in United States courts when they could hire nonresident aliens who could not?22
Second, the restriction of a seaman’s right to sue in United States courts goes against hundreds of years of maritime law precedent.23 The Jones Act has provided a reliable avenue to a remedy for seamen of all nations. Cruise ships depend on the human capital of the foreign-born worker.24 Despite being incorporated in a variety of countries, cruise ship companies have significant ties to the United States either through a United States headquarters or the substantial percentage of American cruise passengers – certainly meeting the minimum contacts test put forth by International Shoe v. Washington. By foreclosing foreign workers right to sue, H.R. 4005 deals a major blow to the cruise ship foreign labor force.
Finally, H.R. 4005 will allow cruise ship companies to abandon their employees in countries such as India, Jamaica, and Honduras when they are injured and in need of medical treatment.25 As mentioned above, crewmembers are often overworked, leading to an increased probability of injury. Leaving a crewmember without a viable route to a remedy places an even greater hardship on them.
Although H.R. 4005 proposes many changes relating to the Coast Guard, the new addition to the Jones Act is troublesome. With any luck, the provision relating to the Jones Act will not be enacted, ensuring the right of the foreign-born worker to sue in the United States.