Only in America: When Foreign Parties End Up in US Courts

It has become common knowledge around the world that if you want to increase the value of your case as a bodily injury plaintiff, you should look to have your case brought in the US. People see large judgments reported in the US and then become interested in how they might have similar success.

There are a variety of ways that Members can find themselves embroiled in US litigation even when they may think they are safely beyond the reach of US jurisdictions. In this article, we will go through some of the common ways that Members may be brought into suit in the US and then discuss ways to manage this heightened exposure.

Common scenarios potentially subjecting members to US jurisdictions

US forum selection clause in an applicable contract – For example, a cruise Member may have a choice of law provision for the Southern District of Florida such that suits by foreign passengers aboard foreign ships by may be pursued in the US.

Incident occurs abroad but involves company with contacts in the US – Entities with some US presence (i.e., American employees, local office, consistent trade, etc.) will always be exposed to the threat of US litigation. For example, a global shipping company with an office in the US is involved in an injury to a third-party visitor on board a vessel in Europe or a piece of cargo or equipment which is manufactured in the US injures a plaintiff aboard.

Company has a subsidiary or related entity in the US – Plaintiffs will often try to muddy the waters and pull the appropriate foreign defendant into US litigation by suing and serving a related US.-based entity. For example, a foreign cruise Member has a related US-based travel agency subsidiary that sells its cruise tickets or a plaintiff was injured on board a vessel and a vendor or contractor involved was located in the US.

Incident occurs in the US – If any part of the incident or subsequent remedial measures such as repairs, medical care etc., occur in the US, Members that do not have regular US contacts could still find themselves exposed to US litigation due to the activities and/or harm that occurred within the US. For example, a foreign crewmember is injured on a foreign ship in international waters but then is medivacked to the US for medical treatment. This likelihood of a case being brought into the US would only increase if the injury occurred in US territorial waters.

 

Ways to combat overreach of US jurisdiction and discovery efforts

One of the first things that should be done in any of the above situations is to determine whether the suit can be properly brought in the US and if the Member is subject to the court’s jurisdiction. One of the first places to look is whether there is an applicable choice of law provision that allows the plaintiff to bring their case in the US. Moreover, even if the contract contains a foreign choice of law provision requiring suit to be brought in a different country, plaintiffs have been able to successfully argue that they are not bound by the terms and conditions of a contract, often based on how terms were presented to plaintiff, and therefore those plaintiffs may be allowed to pursue Members in the US regardless. Thus, when it comes to choices of law and jurisdiction, it will be critical for the defense to understand whether there are applicable contractual provisions and the strength of those provisions.

Even if a passenger contract contains a foreign law and jurisdiction clause, a plaintiff may still argue that it was not brought to their attention when they purchased their ticket and so does not apply. For this reason, any overseas cruise line that is marketing foreign cruises to US passengers should ensure that the passenger has to acknowledge their terms and conditions when purchasing their ticket.

If plaintiffs want to pursue their claim in the US against a foreign vessel or company, they will need to serve them abroad in order to bring them into the US courts[SG7] . This takes some effort and often plaintiffs’ lawyers will look for ways to avoid having to do this work. They may try to find responsible parties that are easier to serve and then let that defendant worry about bringing in the foreign party. From the Member’s perspective, the decision will be whether to lay low and force plaintiffs or another party to properly serve them or accept service. Such decision will need to be reviewed on a case-by-case with counsel.

By not accepting service and not cooperating, the vessel risks plaintiffs enforcing a maritime lien by arrest if the vessel does come within US jurisdiction, thereby potentially limiting trade. Another issue is that not cooperating could create uncertainty and lengthen the time to resolution. If these are not concerns, we would typically recommend that the plaintiff be forced to serve the Member abroad (often perfected through the Hague Convention or by publication) as some plaintiffs may be discouraged because such efforts can be time-consuming, expensive and complicated.  

That said, if a plaintiff ultimately decides against pursuing a Member outside of the US and the case is resolved, this does not necessarily mean that the Member is off the hook, particularly if the plaintiff instead targeted the charterer and the charterparty allows for recourse against the owners. Often, in this case, the parties would find themselves in London Arbitration to determine responsibility between the parties.

Should it be decided that the Member does cooperate with the plaintiff and accept service, or service is perfected through the Hague Convention, another issue that will need to be addressed is how discovery (disclosure) will be conducted. In the maritime world, this can become complicated by the fact that if the incident occurred on a vessel, the vessel and witnesses may no longer be in the US. Among the parties, this may not be so difficult, but if the parties need third-party documents or witness depositions, the parties will need to plan accordingly, including consulting local rules for the particular jurisdiction where the document production and/or depositions are being taken and perhaps also consulting with local counsel. The parties must again be mindful of any applicable discovery treaty as well, which is often the Hague Convention. Foreign witnesses will also need to be given special attention regarding depositions and if necessary their presence at trial, as they are often unfamiliar with the concept of depositions or jury trials as their legal system may be very different. Again, this can be costly and complex, but could also be used as leverage towards resolution.

Conclusion

While it is common knowledge that the US legal system can produce extreme results for plaintiffs, it should be equally common knowledge that there are strategies and defenses to prevent or control these extreme results, particularly when it comes to foreign entities. The first step when a new claim comes in is to closely exam whether there is any potential US exposure and advise the Club as soon as possible so that the US Bodily Injury team can be properly informed and a strategy can be developed that will put the Member in the best position possible.