Maritime employers hire a good range of workers who come from everywhere the planet and who have different immigration statuses. Employees could also be citizens, permanent residents or here on a short lived worker visa. Some workers might not currently have status .
Foreign seamen injured on U.S. flagged vessels or vessels operating extensively out of U.S. ports are too often dissuaded from pursuing an action in U.S. courts, when in such cases, the actual foreign seaman is usually protected under the Jones Act and U.S. admiralty law .
The U.S. Supreme Court has articulated a two-prong test to work out seaman status under the Jones Act: (1) An employee’s duties must contribute to the function of the vessel or the accomplishment of its mission; and (2) A seaman must have a connection to a vessel in navigation that’s substantial in terms of both its duration and its nature. Noticeably absent during this test is any requirement of U.S. citizenship or residency. because the Second Circuit described in Kyriakos v. Goulandris, “when Congress used the word ‘seamen’ within the Jones Act it employed a word of general application, embracing men of any nation who sail the seas. Had it wished to limit the appliance of the statute to seamen of american citizenship or residence, the words to effectuate the limitation were at hand.”
Despite its irrelevancy for seaman status under the Jones Act, injured foreign seamen bringing suit in U.S. courts are still often subject to motions by defendant vessel owners for dismissal on forum non conveniens grounds, which may be a discretionary power that permits U.S. courts to dismiss a case when the plaintiff’s chosen forum would impose an important burden on the defendant or the court, and an adequate alternative forum is out there (such as within the foreign plaintiff’s country of citizenship). the primary step in determining whether an action should be dismissed on forum non conveniens grounds is to work out whether U. S. law should be applied to the case.
Focusing on this threshold question, whether u. s. or foreign law should apply to a maritime injury case is governed by the Supreme Court trilogy of Lauritzen v. Larsen, 345 U.S. 571 (1953); Romero v. International Terminal Operating Co., 358 U.S. 354 (1959); and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970). Under these cases, the subsequent eight factors determine the selection of law:
The allegiance or domicile of the plaintiff;
The place of the contract;
The allegiance of the defendant shipowner;
The law of the flag;
The accessibility of the foreign forum;
The place of the wrongful act;
The law of the forum; and
The defendant shipowner’s base of operations.
The above factors aren’t of equal or maybe comparable significance. Generally the law of the flag and therefore the defendant shipowner’s base of operations weigh most heavily within the determination. In Lauritzen, the Supreme Court described the law of the flag as of “cardinal importance” in determining applicable law. In Rhoditis, the Supreme Court held that the defendant’s ny base of operations favored U.S. law despite the ship’s Greek flag. On the opposite hand, the place of the alleged wrongful act, the inaccessibility of a far off forum, and therefore the law of the forum are seldom relevant to the selection of law analysis.
While the vessel’s flag is usually of “cardinal importance,” the very fact that U.S. shipowners often forum shop and register their vessels outside of the U. S. must even be taken under consideration . because the Supreme Court in Rhoditis explained, “the façade of the operation must be considered as minor, compared with the important nature of the operation and a chilly objective check out the particular operational contacts that this ship and this owner have with the U. S..”
In sum, when the topic vessel flies the U.S. flag or operates extensively out of the U. S., there’s often a robust basis for asserting that U.S. law applies which an U.S. court should retain jurisdiction, regardless of whether the seaman is an U.S. citizen or a citizen of another nation. Despite limited exceptions to the restriction on recovery by non-U.S. citizens and non-resident aliens for incidents in waters outside of the U.S. involving the exploration, development, or production of offshore mineral or energy resources set forth in 46 U.S.C.A. section 30105, foreign seamen injured on U.S. flagged vessels or vessels operating out of U.S. ports, in many instances, have an equivalent rights under U.S. admiralty law as an U.S. citizen and will often consider pursuing an action in an U.S. court.
Most importantly, foreign seamen and their families shouldn’t be dissuaded against filing suit within the U. S. without first consulting with an experienced maritime attorney.
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Maritime Injuries for Permanent Residents and people With Temporary Visas
Legal permanent residents have most of an equivalent rights and privileges as U.S. citizens. This includes the proper to file a lawsuit if injured at the workplace. an individual who may be a lawful permanent resident may be a one that possesses a “green card.” you’ll be a permanent resident if you possess any of those visas:
A person with a short lived worker visa, or nonimmigrant visa, features a permit to figure within the us for a particular period of your time . These include:
If you’re within the us on a nonimmigrant visa supported employment, you’ll worry that if you file suit you’ll lose your job and thus your status . However, it’s illegal for an employer to retaliate against an employee who files a lawsuit for an injury incurred on the work . If you’re within the us on a short lived worker visa, you’ve got a right to file suit do you have to suffer injury on the work .
Lawsuits for Maritime Workers Without Legal Immigration Status
If you entered the country without legal permission, you had a visa but it’s expired, otherwise you had a visa for something aside from work, then you are doing not have status to figure within the us . However, that doesn’t mean you are doing not have rights.
If you’re within the us as an undocumented immigrant, you continue to have the proper to file a lawsuit and recover if you were injured on the work thanks to the negligence or wrongful acts of your employer or the vessel owner.
You may worry that filing suit will trigger removal actions. there’s no guarantee that you simply won’t be deported after filing a lawsuit. However, a University of Illinois study over a 10-year period found that few courts acted on immigration matters when the plaintiff didn’t have status . If you’ve got questions, your best strategy is to debate these matters with an experienced attorney.
Maritime Attorneys for New Orleans Immigrants
Here to serve maritime workers injured on the job, regardless of their immigration status. If you have any questions about your right to file a lawsuit or the consequences a lawsuit might have, talk to a maritime lawyer New Orleans before you make any decisions by filling out a Free Contact Form.