united-states law-of-the-sea conflict-of-laws extraterritorial-jurisdiction
When does US state law apply on the high seas?
<p>Closely related: <a href="https://law.stackexchange.com/q/56288/10458">What is the furthest point from land at sea where individual U.S. state laws apply?</a> , but in reference to US territorial waters.</p>
<p>It is pretty clear that at least some US federal laws applies to US-flagged ships on the high seas (not territorial waters) as part of the US's claimed <a href="https://www.law.cornell.edu/uscode/text/18/7" rel="noreferrer">Special maritime and territorial jurisdiction of the United States</a>. This means that simply taking a boat a mile outside of the US's territorial waters does not fully relieve those aboard from Federal liability or jurisdiction.</p>
<p>To what extent do US <em>states</em> have jurisdiction on acts committed on the high seas?</p>
<p>States typically have extraterritoriality when the laws in question inherently allow for some extraterritorial effect (such as the famous <a href="https://law.stackexchange.com/q/47651/10458">&quot;Four Corners Murder&quot;</a> scenario or general hypothetical standing-on-the-border-line shenanigans), or sometimes when they explicitly state so (a controversial area of law, getting <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2406&amp;context=mlr" rel="noreferrer">new attention</a> in the context of leaving a state to obtain an abortion).</p>
<p>Are there other principles that determine when and if a particular state law is applicable on a US-flagged ship on the high seas?</p>
<p>As a hypothetical, suppose I buy a used oil tanker, register it in the US, and set it up as a hydroponic farm on the high seas somewhere between Bermuda and the Azores. I grow crops that are legal Federally but banned under all, or essentially all, US states. Is there any precedent that would allow any of them to reach out and slap me with a state charge just for growing them at sea? If so, how is it determined which state(s) have jurisdiction? The state I am a legal resident of? The state I was last present in before leaving the territorial limits of the USA? Whatever state finds me first? Do all 50 of them get their own chance to apply their laws to whatever it is I am doing on the high seas?</p>
<p>Another hypothetical could be practicing a state-licensed profession without a license. If the regulation of the profession is solely covered by state laws, is there any way that a state could &quot;get&quot; me if I limited my practice to the Special maritime and territorial jurisdiction of the United States, requiring my clients to come to me on the high seas for services that aren't currently regulated under Federal law?</p>
<p>While the juiciest hypotheticals relate to criminal law, civil law could also be considered. For example, I am a resident of a state that has passed a statute allowing me to sue anyone who does the Hokey Pokey and turns themselves around. This is a novel cause of action and has neither precedent nor an equivalent in Federal law. I'm on a US-flagged cargo ship on the high seas when the captain does the Hokey Pokey and turns themselves around. Does the state have jurisdiction over the captain to subject him to the judgment of the state's court?</p>

<p>California courts have held that state's labor law applicable to mariners on a vessel based in California, and mostly working in local waters, even when the ship's voyage took it into federal or international waters - <a href="https://law.justia.com/cases/california/court-of-appeal/2020/b298318a.html" rel="noreferrer"><em>Gulf Offshore Logistics, LLC v. Superior Court of Ventura County</em>, case no. B298318, 2020</a>.</p>
<p>Following a direction from the California Supreme Court, the California Court of Appeal decided that the state's wage and hour regulations apply to maritime workers on the same basis as is used for certain other highly mobile workers. That includes pilots and flight attendants, as in <em>Ward v United Airlines</em> (2020) 9 Cal.5th 732, which held:</p>
<blockquote>
<p>For interstate transportation workers and others who do not work more than half the time in any one state, we conclude this principle will be satisfied if the worker performs some work here and is based in California, meaning that California serves as the physical location where the worker presents himself or herself to begin work.</p>
</blockquote>
<p>The ship in the case was based in a port just west of Los Angeles. It travelled from there through California coastal waters, and into the Santa Barbara Channel. That is an anomalous area because California considers it to be part of the state as far as state law, but the federal government does not. The workers lived in various other states, and the company owning the vessel was based in Lousiana - therefore, they had moved for summary dismissal of the California case in favor of Lousiana law.</p>
<p>The Court of Appeal said that in addition to the relevant federal labor law (the FLSA), California law would apply when the majority of work done was in California territorial waters. And:</p>
<blockquote>
<p>We note that [the ship] also sailed outside of California’s boundaries and into international waters.  This circumstance does not alter our conclusion.</p>
</blockquote>
<p>The wage and hour regulations then apply, as with airline workers and truckers, to work done outside California, but by somebody whose work is based there (the ship's home port and the location of the majority of its voyage). That is in addition to federal law.</p>

<p>The general rule is that activities on the high seas are subject to federal law, both under general principles of <a href="https://en.wikipedia.org/wiki/Admiralty_law" rel="nofollow noreferrer">admiralty law</a> (which &quot;consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean-going ships&quot;) and under federal criminal law applicable in the &quot;Special maritime and territorial jurisdiction&quot; of the United States, but not the law of any particular state, as defined at 18 U.S.C. § 7 for purposes of the federal criminal code which provides (emphasis added), that:</p>
<blockquote>
<p>The term “special maritime and territorial jurisdiction of the United
States”, <strong>as used in this title</strong>, includes:</p>
<p>(1)The high seas, any other waters within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of any
particular State, and any vessel belonging in whole or in part to the
United States or any citizen thereof, or to any corporation created by
or under the laws of the United States, or of any State, Territory,
District, or possession thereof, when such vessel is within the
admiralty and maritime jurisdiction of the United States and out of
the jurisdiction of any particular State.</p>
<p>(2)Any vessel registered, licensed, or enrolled under the laws of the
United States, and being on a voyage upon the waters of any of the
Great Lakes, or any of the waters connecting them, or upon the Saint
Lawrence River where the same constitutes the International Boundary
Line.</p>
<p>(3)Any lands reserved or acquired for the use of the United States,
and under the exclusive or concurrent jurisdiction thereof, or any
place purchased or otherwise acquired by the United States by consent
of the legislature of the State in which the same shall be, for the
erection of a fort, magazine, arsenal, dockyard, or other needful
building.</p>
<p>(4)Any island, rock, or key containing deposits of guano, which may,
at the discretion of the President, be considered as appertaining to
the United States.</p>
<p>(5)Any aircraft belonging in whole or in part to the United States, or
any citizen thereof, or to any corporation created by or under the
laws of the United States, or any State, Territory, district, or
possession thereof, while such aircraft is in flight over the high
seas, or over any other waters within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of any
particular State.</p>
<p>(6)Any vehicle used or designed for flight or navigation in space and
on the registry of the United States pursuant to the Treaty on
Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies and
the Convention on Registration of Objects Launched into Outer Space,
while that vehicle is in flight, which is from the moment when all
external doors are closed on Earth following embarkation until the
moment when one such door is opened on Earth for disembarkation or in
the case of a forced landing, until the competent authorities take
over the responsibility for the vehicle and for persons and property
aboard.</p>
<p>(7)Any place outside the jurisdiction of any nation with respect to an
offense by or against a national of the United States.</p>
<p>(8)To the extent permitted by international law, any foreign vessel
during a voyage having a scheduled departure from or arrival in the
United States with respect to an offense committed by or against a
national of the United States.</p>
<p>(9)With respect to offenses committed by or against a national of the
United States as that term is used in section 101 of the Immigration
and Nationality Act—</p>
<p>(A)the premises of United States diplomatic, consular, military or
other United States Government missions or entities in foreign States,
including the buildings, parts of buildings, and land appurtenant or
ancillary thereto or used for purposes of those missions or entities,
irrespective of ownership; and</p>
<p>(B)residences in foreign States and the land appurtenant or ancillary
thereto, irrespective of ownership, used for purposes of those
missions or entities or used by United States personnel assigned to
those missions or entities.</p>
<p>Nothing in this paragraph shall be deemed to supersede any treaty or
international agreement with which this paragraph conflicts. This
paragraph does not apply with respect to an offense committed by a
person described in section 3261(a) of this title.</p>
</blockquote>
<p>In <a href="https://en.wikipedia.org/wiki/Admiralty_law" rel="nofollow noreferrer">admiralty law cases</a>:</p>
<blockquote>
<p>Article III, Section 2 of the United States Constitution grants
original jurisdiction to U.S. federal courts over admiralty and
maritime matters; however, that jurisdiction is not exclusive, and
most maritime cases can be heard in either state or federal courts
under the &quot;saving to suitors&quot; clause.</p>
<p>There are five types of cases which can only be brought in federal
court:</p>
<ul>
<li>limitation of shipowner's liability,</li>
<li>vessel arrests in rem,</li>
<li>property arrests quasi in rem,</li>
<li>salvage cases, and</li>
<li>petitory and possession actions.</li>
</ul>
<p>The common element of those cases are that they require the court to
exercise jurisdiction over maritime property. For example, in a
petitory and possession action, a vessel whose title is in dispute,
usually between co-owners, will be put in the possession of the court
until the title dispute can be resolved. In a limitation action, the
shipowner will post a bond reflecting the value of the vessel and her
pending freight. A sixth category, that of prize, relating to claims
over vessels captured during wartime, has been rendered obsolete due
to changes in the laws and practices of warfare.</p>
</blockquote>
<p>And, even if a state court is a proper forum for a case in which there is concurrent federal and state jurisdiction:</p>
<blockquote>
<p><strong>A state court hearing an admiralty or maritime case is required to</strong>
<strong>apply the admiralty and maritime law, even if it conflicts with the</strong>
<strong>law of the state</strong>, under a doctrine known as the &quot;reverse-Erie
doctrine&quot;. While the &quot;Erie doctrine&quot; requires that federal courts
hearing state actions must apply substantive state law, the
&quot;reverse-Erie doctrine&quot; requires state courts hearing admiralty cases
to apply substantive federal admiralty law. However, state courts are
allowed to apply state procedural law.</p>
</blockquote>
<p><em>See, e.g.</em>, Joseph R. Oliveri, &quot;Converse-Erie: The Key to Federalism in an Increasingly Administrative State&quot; (2008).</p>
<p>In the United States, the admiralty court exercises jurisdiction over all admiralty and maritime actions, comprising two types of cases: (1) those involving acts committed on the high seas or other navigable waters, including prize cases and torts, injuries, and crimes committed on the high seas, and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters.</p>
<p>(<a href="https://www.law.cornell.edu/wex/admiralty_court" rel="nofollow noreferrer">Source</a>)</p>
<p>But, precisely what constitutes matters within the scope of admiralty jurisdiction, however, is not always entirely clear. There is a <a href="https://www.law.nyu.edu/sites/default/files/upload_documents/Admiralty_Kimball_Spring_2006.doc" rel="nofollow noreferrer">long and involved body of case law</a> governing this question.</p>
<p>But, basically, for the law of a state to apply, there has to be some hook showing a substantial relationship between the matter litigated and the state whose law one seeks to have apply, and one has to show that it isn't within the scope of admiralty law.</p>
<p>In the case of criminal law, the basic rule is that a state has jurisdiction over a crime if it was committed in a state, or if an injury was caused in the state by the crime as a result of the crime being directed at a person or at property located in the state.</p>
<p>So, in the vast majority of cases, state criminal law will not apply to crimes committed on a vessel on the high seas.</p>
<p>But if, for example, you defrauded someone you knew was in Alabama while you were located in a ship on the high seas, Alabama would have jurisdiction to try you for the crime of fraud under Alabama law.</p>
<p>These analysis for non-criminal laws is similar. For a state to have jurisdiction to be a forum in a non-criminal dispute involving someone who does not reside in the state, the defendant must have &quot;minimum contacts&quot; with that state which show that the defendant &quot;availed himself&quot; of that state's laws and should reasonable expect to be subject to its laws.</p>
<p>Someone who resides in a state may be sued in that state's courts over any matter involving that person anywhere in the world, under a concept known as &quot;general jurisdiction&quot;, unless the matter is in the exclusive jurisdiction of the federal courts, which is a very small, statutorily enumerated class of cases, since most matters of federal law raised in lawsuits are under the current jurisdiction of the state and federal courts.</p>
<p>But, even if a state court is a proper forum for a lawsuit, because the defendant resides there, it can only apply its own laws to cases that have a sufficient connection to the state to bring the case out of the scope of applicability of admiralty law. Another answer to this questions from @KatieTR illustrates such a case.</p>
<blockquote>
<p>As a hypothetical, suppose I buy a used oil tanker, register it in the
US, and set it up as a hydroponic farm on the high seas somewhere
between Bermuda and the Azores. I grow crops that are legal Federally
but banned under all, or essentially all, US states. Is there any
precedent that would allow any of them to reach out and slap me with a
state charge just for growing them at sea?</p>
</blockquote>
<p>Generally not. But, for example, if you bought your hydroponic farm equipment from a vendor in Georgia, and there was a disputed over whether the equipment you bought was all delivered or was defective, that dispute might be subject to Georgia law.</p>
<blockquote>
<p>Another hypothetical could be practicing a state-licensed profession
without a license. If the regulation of the profession is solely
covered by state laws, is there any way that a state could &quot;get&quot; me if
I limited my practice to the Special maritime and territorial
jurisdiction of the United States, requiring my clients to come to me
on the high seas for services that aren't currently regulated under
Federal law?</p>
</blockquote>
<p>It depends. What constitutes the conduct of a licensed profession, and how it is localized, vary.</p>
<p>If you give legal advice about events in the Special maritime and territorial jurisdiction of the United States in an office located in Atlanta, Georgia to a resident of the state of Georgia, you are clearly practicing law in Georgia, and subject to its occupational licensing requirements for lawyers.</p>
<p>More generally, this would usually be the case with respect to any licensed profession which you conduct while physically in the state of Georgia.</p>
<p>But, if you do electrical work while on an oil-tanker with a hydroponic farm in it on the high seas, realistically, you are not subject to any state's occupational licensing of electricians.</p>
<p>Also, if you provided advice regarding Georgia law while physically located on an oil-tanker on the high seas to someone, Georgia could probably tag you for unauthorized practice of law, despite the fact that you were not physically in the state when you provided the advice.</p>
<blockquote>
<p>I am a resident of a state that has passed a statute allowing me to
sue anyone who does the Hokey Pokey and turns themselves around. This
is a novel cause of action and has neither precedent nor an equivalent
in Federal law. I'm on a US-flagged cargo ship on the high seas when
the captain does the Hokey Pokey and turns themselves around. Does the
state have jurisdiction over the captain to subject him to the
judgment of the state's court?</p>
</blockquote>
<p>States do not have general legislative jurisdiction over the conduct of their residents while their residents are outside the state, to nearly the same extent that the federal government has jurisdiction over U.S. citizens outside the United States.</p>
<p>For example, the U.S. Supreme Court held in <em>Home Ins. Co. v Dick</em> 281 U.S. 397 (1930) that a Texas statute related to insurance contracts &quot;may not validly affect contracts which are neither made nor are to be performed in Texas&quot; even in a case where the Texas state courts were a proper forum in which to bring the case and it had jurisdiction over the parties.</p>
<p>Similarly, in <em>Allgeyer v. Louisiana</em>, 165 U.S. 578 ((1897), the U.S. Supreme Court struck down Louisiana's attempt to outlaw a contract made and to be performed outside its borders.</p>
<p>The conclusions of these cases was reaffirmed in <em>Hartford Acc. &amp; Indem. Co. v. Delta &amp; Pine Land Co.</em>, 292 U.S. 143 (1934) in which a corporation doing business in Tennessee and Mississippi entered into an insurance contract in Tennessee applying to losses &quot;anywhere&quot; invalidating a Mississippi law that would be barred a lawsuit under the insurance policy, stating:</p>
<blockquote>
<p>A state may limit or prohibit the making of certain contracts within
its own territory . . . but it cannot extend the effect of its laws
beyond its borders so as to destroy or impair the rights of citizens
of other states to make a contract not operate within its
jurisdiction, and lawful where made. . . . Nor may it in an action
based upon such a contract enlarge the obligations of the parties to
accord with every local statutory policy solely upon the ground that
one of the parties is its own citizen.</p>
</blockquote>
<p>More recently, when the &quot;Kansas courts applied Kansas contract and Kansas equity law to every claim&quot; in a case involving an oil and gas lease dispute, &quot;notwithstanding that over 99% of the gas leases and some 97% of the plaintiffs in the case had no apparently connection to the State of Kansas except for this lawsuit,&quot; the U.S. Supreme Court held in <em>Phillips Petroleum Co. v Shutts</em>, 472 U.S. 797 (1985),  that:</p>
<blockquote>
<p>Given Kansas' lack of &quot;interest&quot; in claims unrelated to that State,
and the substantive conflict with jurisdictions such as Texas, we
conclude that application of Kansas law to every claim in this case is
sufficiently arbitrary and unfair as to exceed constitutional limits.</p>
</blockquote>
<p>In my humble opinion, the argument to apply state law to the Hokey Pokey example occurring on the high seas would be exceedingly weak, even if the defendant was a resident of the state whose laws it sought to apply.</p>
<p>But, I'm not sure that there is any case law clearly on point in a similar fact pattern, and the legal standards enunciated above are quite vague. The law related to constitutional limitations on the extraterritorial application of state law is quite thin and many of the relevant precedents are highly fact intensive cases that hinge on details particular to the case being considered.</p>
