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- Title
Fifth Amendment Due Process, Foreign Shipowners, and International Law.
- Authors
Swanson, Steven R.
- Abstract
The international shipping industry relies on national court systems to provide predictable, uniform, and simple rules in order to keep trade flowing throughout the world. In the United States, one impediment to this necessary access has been the application of the Fourteenth Amendment's due process standards in cases involving foreign shipowners. Particularly when the shipowner charters the vessel to another actor, U.S. courts have often refused to find jurisdiction over the shipowner merely because the charterer has directed the ship into an American port, reasoning that the owner has not purposefully availed itself of the benefits of the forum state. When Congress approved Federal Rule of Civil Procedure 4(k)(2), it provided an avenue for the assertion of federal law claims based on national service and contacts under the Fifth Amendment Due Process Clause. Even with this expanded approach to service, most courts have continued to address due process under the Fourteenth Amendment precedent, refusing to hear cases that should be litigated in American courts. This Article argues two ways to improve the situation. First, courts should reconsider their application of the traditional Fourteenth Amendment approach to these maritime cases. In time and voyage charter cases, courts should look to the nature of the shipping business and the benefits that the owner receives from its vessel's U.S. port visit to determine whether the owner has purposefully availed itself of those benefits. Second, courts should recognize that the Fifth Amendment and Fourteenth Amendment do not necessarily require the same due process analysis. The Fourteenth Amendment was meant, in part, to adjust the relationship among states. The Fifth Amendment is more concerned with the federal government's sovereignty. For this reason, courts should abandon the Fourteenth Amendment approach in Fifth Amendment cases and replace it with standards based on international legal principles relating to a nation's power to exercise jurisdiction over entities outside its borders.
- Subjects
UNITED States; MARITIME shipping; MARITIME law; DUE process of law; JURISDICTION; VENUE (Law); SOVEREIGNTY
- Publication
Tulane Maritime Law Journal, 2011, Vol 36, Issue 1, p123
- ISSN
1048-3748
- Publication type
Article