Navigating Maritime Torts in Georgia
| Publication year | 2015 |
| Pages | 0010 |
A Look at the Law
Steering Through the International Choice of Law Analysis
by David William Bobo Mullens III
Georgia's deepwater ports are its gateway to the world.[1] Combined, the Port of Savannah and Port of Brunswick rank second highest in the country in export tonnage.[2] The Port of Savannah, alone, is the fourth largest container port in the United States.[3] In 2014, it handled 11 percent of all U.S. containerized exports,[4] raised $66.9 billion dollars in sales and supported 352,000 jobs across the state of Georgia.[5] The container ships that pass through Savannah and Brunswick reach a size of more than 1,000 feet long, 100 feet wide and 40 feet deep, and are generally operated by a crew of 20 or so crewmen.[6] Each year, nearly 3,000 of these vessels visit Savannah,[7] and more than 600 of them visit Brunswick.[8]
International shipping has played a large role in fueling Georgia's deepwater port growth. Last fiscal year, in Savannah alone, imports and exports increased 5.8 percent to push total cargo volume at the port to 2.9 million containers.[9] The head of the Georgia Ports Authority, Chief Executive Curtis Foltz, largely credits recent growth to international trade with Asia.[10] Moreover, foreign trade should continue to rise as "[i]mprovements in transportation linkages, technology, new service, strategic marketing and—most significant "” the green light to deepen the Savannah Harbor, will play a role in maintaining [the Georgia Ports Authority]'s position as a premier East Coast hub for containerized cargo."[11]
Processing a growing level of foreign trade, particularly through Savannah, means Georgia runs an increased risk of bearing maritime industrial accidents. On any given ship, personnel risk injury from improperly maintained equipment, inadequate training, unsafe work methods, oil spills, negligence or assault by co-workers, ship collision and general vessel unseaworthiness. Studies show that the notified accident rate in merchant shipping is 3.1 accidents per 100 seafarers a year.[12] Moreover, the notified accident rate for injuries that cause permanent disability is estimated to be .34 incidents per 100 seafarers a year.[13] Applying these accident rates to the increased amount of international shipping in Georgia, it seems likely that Georgia will witness a rise in personnel injuries on foreign vessels.
A rise in injuries should lead to a corresponding surge in maritime tort litigation. Under the relevant American statute for maritime tort, the Jones Act, plaintiffs enjoy one of the most liberal theories of recovery for maritime personal injury in the world. Thus, seamen injured on ships trading with either Savannah or Brunswick will have a tantalizing financial incentive to have their cases handled in Georgia's federal and state courts. Conversely, foreign companies will want to move litigation to their home country and try cases under their own law rather than being subject to American discovery and any ensuing settlement pressures, as well as potentially large jury awards.[14]Therefore, the key in a maritime tort dispute involving a foreign company is to determine whether American or foreign law governs.
Fortunately, sufficient case law exists to provide a lodestar from which interested parties may confidently steer their litigation in Georgia's courts. Lawsuits proceeding under the Jones Act require an international choice of law analysis when the defendant claims foreign law controls. The international choice of law analysis has developed into an eight-factor test that either party can win. Ultimately, foreign companies can limit exposure to American maritime tort law by implementing four guidelines, recommended infra, as company policies. The implementation of these policies will allow companies to focus on strengthening a mutually beneficial trade relationship with Savannah and Brunswick, rather than losing millions of dollars in litigation.
Background
Mapping Maritime Tort Law
American maritime personal injury law is relatively new. The Jones Act is the governing statute for this area of law, and was passed in 1920 to recognize the legal rights of seamen who had suffered personal injury or death in the course of their maritime service.[15] Initially found at 46 U.S.C. § 688 (2012), the Jones Act was recodified in 2006 at 46 U.S.C. §§ 30104 and 30105.[16] The relevant portion of § 30104 reads:
"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."
The goal is to give seamen injured by a shipowner's negligence the right to recover damages for injuries, so as to make themselves whole.[17] The Jones Act is unusual in that it represents an exception to the usual idea that an injured employee can only pursue a workers' compensation claim against his or her employer.[18]Instead, the Jones Act formally gives each seaman the right to a jury trial, as well as the "right to recover damages against his employer for negligence resulting in injury or death."[19]As an added bonus to plaintiffs, punitive damages are also recoverable in maritime tort litigation, as the U.S. Supreme Court affirmed in 2009 when it held that the Jones Act does not preempt punitive damages recoverable under general maritime law.[20]
Assuming a plaintiff meets the requirements of 46 U.S.C. § 30104 and files within the three-year statute of limitation,[21] the plaintiff must then meet three hurdles before getting to the merits of his ; or her Jones Act claim: file in the correct court, establish personal jurisdiction and, lastly, survive an international choice of law defense. Assuming the plaintiff establishes subject matter jurisdiction and personal jurisdiction, the foreign company is left defending the case on choice of law grounds.
Raising the Issue of International Choice of Law
To raise the international choice of law issue, a foreign defendant must raise the defense that foreign law governs the dispute. The proper way to raise this defense is to assert so in the answer to a complaint, or in a subsequent rule 12(b) or equivalent motion to dismiss, arguing that the complaint fails to state a claim upon which relief can be granted.[22] If the court decides that American state or federal law is not...
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