Plaintiff Eileen Anne Neely, a young American employed at a Club Med resort in St. Lucia, was seriously injured when she was sucked into the propellers of a scuba diving vessel, the Long John. Plaintiff was a member of the crew of the vessel, which was in St. Lucian coastal waters at the time of the accident. She brought suit in the District Court for the Eastern District of Pennsylvania, and a jury there, responding to special interrogatories, found her employers negligent and the vessel unseaworthy, and awarded plaintiff a large verdict on her Jones Act, general maritime law, and maintenance and cure claims. Molding the verdict in response to post-trial motions, the court modified and substantially reduced the verdict by applying to the unseaworthiness claim the percentage of contributory negligence found by the jury with respect to the Jones Act claims. Then, on cross-appeals, a panel of this court, invoking Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), vacated the entire judgment for the plaintiff on the ground that the district court had lacked subject matter jurisdiction over the action. We granted rehearing in banc and vacated the panel opinion and judgment.

While the appeals present a large number of questions, we address only the subject matter jurisdiction, choice of law, and verdict molding issues.1 With respect to subject matter jurisdiction, we conclude that the multi-factored analysis established by Lauritzen, Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) (together, the "Lauritzen triad"), governs choice of law, not subject matter jurisdiction, in Jones Act and American general maritime law claims. Then, applying the usual analyses for federal question and admiralty jurisdiction, we conclude that the district court had subject matter jurisdiction over this suit.

Turning our attention to the multi-factored "substantial contacts" test of the Lauritzen triad, we adopt a two-stage interpretation of that test, subjecting the Lauritzen factors to a relatively simple sufficiency test followed by a more involved reasonableness inquiry. We first find American maritime law potentially applicable in this case because the plaintiff is an American citizen. Accordingly, we consider whether applying American law is reasonable under the circumstances. Because the defendants did not inform the district court of the content of St. Lucian law, any interests St. Lucia might have in this case are undefined and, consequently, do little to render application of American law unreasonable. Additionally, in considering the significance of the various Lauritzen factors, we pay heed to the non-traditional context of this suit. By this we do not mean that the vessel involved here was unlike those in traditional, international shipping cases; rather, the activity here was non-traditional, for the Long John did not take its crew from sea to sea in pursuit of international commerce but rather only from beach to reef in aid of scuba diving adventures.

The accident occurred in St. Lucian waters, which as we explain is an important consideration in non-shipping contexts. And one of the defendants is a corporation organized under the laws of St. Lucia, a factor that also reflects some interest on the part of St. Lucia in applying its law. But these factors do not mean that American law may not be reasonably applied under the circumstances. Even when we add to these some evidence that the Long John, the vessel that injured plaintiff, was registered in St. Lucia, we cannot conclude that St. Lucia's interests, whatever they may be, are so threatened or so strong that America's interests must be ignored.

As our opinion explains, the United States has an overriding interest in assuring adequate compensation for its injured seamen. In the non-shipping context of this case, the significance of plaintiff's American allegiance is an especially important factor, and the relevance of the plaintiff's having entered into her employment contract in the United States is also enhanced. Conversely, the law of the flag of the Long John is of diminished importance in the non-traditional context, and, at all events, the law of the flag would be entitled to virtually no significance here both because there was no evidence that the Long John actually flew the flag of St. Lucia (or any other nation) and because the district court was presented with no information as to the content of St. Lucian law.

Additionally, two of the defendants are American corporations, the Long John was built in America to American specifications, and the St. Lucian defendant, whose operations are in large measure run by one of its affiliated American co-defendants, derives the majority of its income from American tourists booked by another affiliated American co-defendant. Because the connections between this incident and the United States implicate significant American interests, and because consideration of all the circumstances confirms the reasonableness of applying United States law, we conclude that the contacts with the United States are "substantial," and American laws, both the Jones Act and our general maritime law, apply to this suit.

We also conclude that the district court erred in molding the verdict to apply the percentage of comparative negligence found by the jury with respect to the Jones Act claim to the unseaworthiness claim. We so hold because the defendants waived the issue, and because the court, which did not submit it to the jury, lacked authority to later make the omitted factual determinations sua sponte. We will therefore affirm the order of the district court holding two of the defendants liable under American law, but will vacate the district court's order of January 26, 1993, and direct it, on remand, to enter judgment for the plaintiff against Club Med Management and Holiday Village in the full amount of damages found by the jury, as more fully explained below.

The defendants in this action are Club Med, Inc., Club Med Sales, Inc., and Club Med Management Services, Inc., all of which have offices in New York, and Club Med, Inc.'s wholly owned subsidiary Holiday Village (St. Lucia) Ltd. Of the 10,000 to 15,000 people per year who vacation at the Club Med Holiday Village resort, approximately seventy to eighty percent come from the United States. Seventy to eighty percent of Holiday Village's annual income of approximately fifteen million dollars is generated by Holiday Village's American sales bureau, Club Med Sales.

Plaintiff is an American citizen domiciled in Telford (Montgomery County), Pennsylvania. After vacationing at a Club Med resort, she applied to Club Med for a position as a scuba diving instructor. Plaintiff was interviewed in New York by Club Med Management, a New York corporation. Following the interview, plaintiff received a letter of interest from the defendants, followed several months later by a phone call, initiated in New York by Club Med Management, offering her a position at Holiday Village, which she accepted. In early May of 1991, the defendants arranged and paid the travel expenses for her to go to Holiday Village in St. Lucia.

Plaintiff was hired to work as an "au pair" for a six-week period. She was not given a cash salary, but rather received room and board in exchange for her work. Once at Holiday Village, she served as either Scuba Diving Instructor or Divemaster on approximately thirteen or fourteen voyages from May 13 to May 23, 1991. She typically had trips twice in the morning and once in the afternoon. She was responsible for checking and preparing all equipment (which was stored aboard scuba diving boats) for each voyage. During the trips, she provided instruction and warnings to the Club Med guests who would be diving.

The scuba expeditions on which plaintiff worked were conducted by a small fleet operated by Holiday Village. The fleet consisted of the Blue Lagoon, owned by Club Med, and the Long John, chartered by Holiday Village for use as a diving vessel from its title owner Joseph LeMaire (who lives in Miami, Florida but is not a United States citizen). A declaration executed by LeMaire claimed that the Long John, which was built in the United States, was "registered" in St. Lucia, but the charter left blank the state of registry.

On May 23, 1991, plaintiff served Club Med guests on a scuba diving excursion on the Long John, which was captained by Philipe Le Cann. When the boat arrived at the dive site in coastal waters off St. Lucia, the passengers and dive crew prepared to enter the water. The boat was put in neutral, and, after donning her gear, plaintiff entered the water.

It was disputed whether Stephane Gaudry, the Divemaster, had given the signal to enter the water before plaintiff jumped in: the uncontroverted testimony was that Gaudry made no entry of plaintiff's dive time on the dive log. Whatever the precise sequence of events, after plaintiff had entered the water, the captain put the ship's engines into reverse. The churning propellers of the twin 350 horsepower diesel engines sucked plaintiff under the boat and into the ship's propellers, which were not shielded by propeller guards, and she emerged on the starboard side with extremely serious injuries to various parts of her body. She was brought on board the ship, taken immediately to shore, and thereafter to a clinic and then a hospital.

After being treated, plaintiff was out of work for approximately five and one-half months. During this time, she convalesced at her parents' home in Telford, where they cared for her on a daily basis. Despite two surgeries for nerve damage, her use of her right arm was permanently restricted; she also will require plastic surgery for her numerous conspicuous scars.

Plaintiff eventually brought suit in the District Court for the Eastern District of Pennsylvania, pleading the federal question and admiralty statutes, 28 U.S.C. Secs. 1331 and 1333 (1988), as bases for subject matter jurisdiction. She alleged that her injuries were caused by negligence in violation of the Jones Act, and by the unseaworthy condition of the vessel in violation of the general maritime law. The defendants interposed a host of defenses, including contributory negligence and, relying on Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), the claim that the district court lacked subject matter jurisdiction to apply American law. Although they argued that St. Lucia had a greater interest in having its law applied, the defendants did not present the court with any information concerning the law of St. Lucia.

The district court denied defendants' motion to dismiss for lack of subject matter jurisdiction and failure to state a claim, and allowed the suit to go to trial. During trial, the court ruled, without objection from the defendants, that contributory negligence was not a defense to the unseaworthiness claim. At the close of trial, the court instructed the jury and provided it with a special verdict form, the first draft of which had been prepared by defense counsel. The form required the jury to answer a number of specific questions, grouped and captioned as we now describe.

The first set of questions were presented under the heading "Jones Act Claim." In these, the jury was asked whether plaintiff was employed by one or more of the defendants; if so, which defendant or defendants were her employer; whether her employer or employers were negligent; whether any such negligence was a substantial factor in bringing about plaintiff's injuries; whether plaintiff was contributorily negligent; whether any such contributory negligence was a substantial factor in bringing about her injuries; and how the causal negligence should be allocated (totalling 100%) among the employer or employers and, if appropriate, the plaintiff.

The second set of questions were grouped under the caption "General Maritime Claim." In this section of the form the jury was required to answer whether any of the defendants owned or sufficiently controlled the Long John to qualify as owner or owner pro hac vice; if so, which defendant(s) controlled the vessel; whether the plaintiff had shown that the vessel was unseaworthy; and if so, whether the unseaworthiness was a substantial factor contributing to plaintiff's injuries. This section asked no questions about contributory responsibility.

The third section of the special verdict sheet was labeled "Damages." The jury was there directed to "[s]tate the amount of damages, if any, sustained by the Plaintiff as a result of the accident, without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the plaintiff."

The fourth and final portion of the verdict sheet was captioned "Maintenance." There, the jury was asked whether it found the plaintiff entitled to maintenance, and whether any of the defendants (and, if so, which) acted unreasonably in denying maintenance to her.

On the Jones Act questions, the jury found that plaintiff was employed by Club Med Management and by Holiday Village, that those defendants had been negligent, and that their negligence was a substantial factor in causing the plaintiff's injuries. The jury also found, however, that the plaintiff was contributorily negligent. It allocated the total causal negligence thirty percent to Club Med Management, ten percent to Holiday Village, and sixty percent to the plaintiff. In answer to the General Maritime Law questions, the jury found that Holiday Village exercised sufficient control over the Long John to be its owner pro hac vice. It also found the Long John to have been unseaworthy, and that the unseaworthiness was a substantial factor causing plaintiff's injuries.

On the remaining questions, the jury found the plaintiff's total damages sustained from the accident, without regard to any causal negligence on her own part, to be $545,000. It also found that the plaintiff was entitled to maintenance, but that none of the defendants had acted unreasonably in withholding payment. Thereupon, the district court molded the verdict to reflect plaintiff's comparative negligence: On the Jones Act claim, the court entered judgment against Club Med Management and Holiday Village in the amount of forty percent of $545,000, that is, $218,000. On the maintenance claim, the court entered judgment against the same defendants for $11,700, but denied attorneys fees to plaintiff because the jury had found that the denial of maintenance was not unreasonable. On the unseaworthiness claim, the court entered judgment in plaintiff's favor against Holiday Village in the full amount of $545,000.

A week later the defendants moved the district court to mold the verdict on the unseaworthiness claim. Relying upon case law holding that comparative fault is a partial defense to general maritime law unseaworthiness claims, the defendants urged the district court to reduce the unseaworthiness verdict by sixty percent, the percentage of the plaintiff's contributory negligence on the Jones Act claim. Over plaintiff's objection, the district court entered an order so modifying the judgment.

Plaintiff filed a timely appeal, and defendants cross-appealed. Under 28 U.S.C. Sec. 1291 (1988), we have appellate jurisdiction over the final orders of the district court.

Beginning with their initial answer in the district court, the defendants have argued that, pursuant to the multi-factored analysis developed in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), the district court lacked subject matter jurisdiction over plaintiff's Jones Act and general maritime law unseaworthiness claims. Because subject matter jurisdiction restrictions impose a limit on the power of the federal courts to entertain an action, we must first consider whether the district court had subject matter jurisdiction over plaintiff's suit. If the district court lacked such jurisdiction, it would be our duty to vacate the judgments in plaintiff's favor and direct the district court to dismiss her action.

We hold that the district court had subject matter jurisdiction over this suit. This ruling primarily reflects a disagreement with defendants' premise that the Lauritzen triad (composed of Lauritzen, Rhoditis, and Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959)) provides the framework for determining whether a district court has subject matter jurisdiction in Jones Act or general maritime law cases.

A. The Non-Jurisdictional Nature of the Lauritzen

In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), the Supreme Court enunciated a number of factors to be considered by courts evaluating whether a plaintiff may sue under the Jones Act. These factors include:

(1) the place of the wrongful act,

(2) the law of the flag,

(3) the allegiance or domicile of the injured plaintiff,

(4) the allegiance of the defendant,

(5) the place of contract,

(6) the inaccessibility of a foreign forum, and

(7) the law of the forum.

See Lauritzen, 345 U.S. at 583-92, 73 S.Ct. at 928-33. The Court reiterated the relevance of these factors in Romero, see 358 U.S. at 383, 79 S.Ct. at 486, and in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), it added the defendant's base of operations to this list, id. at 309, 90 S.Ct. at 1734.

Defendants believe that this inquiry determines whether the district court has subject matter jurisdiction. This view was not challenged in the district court, which considered the factors and found subject matter jurisdiction, or before the panel, which reconsidered them but found no jurisdiction. Moreover, a number of cases in various jurisdictions so hold. However, after granting rehearing in banc, we sua sponte directed the parties to prepare supplemental briefing on the question whether the Lauritzen-Romero- Rhoditis factors (henceforth referred to as the "Lauritzen factors" for simplicity) in fact go to subject matter jurisdiction. With the benefit of counsel's briefing and argument, and after studying the Supreme Court's opinions and numerous cases interpreting them, we conclude that the Lauritzen factors are not a test for subject matter jurisdiction, but rather constitute a non-exhaustive list of contacts for choice of law analysis in suits for maritime injuries with foreign connections.

In Lauritzen, the Supreme Court was called on to answer a question of the extraterritorial applicability of the Jones Act. While in New York, Larsen, a Danish seaman, had signed onto a ship of Danish flag and registry owned by Lauritzen, another Danish citizen. The ship's articles that Larsen signed were written in Danish and specified that Danish law would govern the crewmembers' rights. After being injured in the course of his employment while in Havana harbor, Larsen brought suit against Lauritzen in the District Court for the Southern District of New York, seeking to recover damages under the Jones Act. Over Lauritzen's objection that Danish law rather than American law governed, the district court allowed the case to go to the jury under the Jones Act, which rendered a verdict in Larsen's favor. The Court of Appeals for the Second Circuit affirmed, and the Supreme Court granted certiorari.

The Court formulated the "key issue" as "whether statutes of the United States should be applied to this claim of maritime tort." Lauritzen, 345 U.S. at 573, 73 S.Ct. at 923. As did the defendants herein, Lauritzen had framed his objection in terms of subject matter jurisdiction, but the Court quickly disposed of this argument:

The question of jurisdiction is shortly answered.... As frequently happens, a contention that there is some barrier to granting plaintiff's claim is cast in terms of an exception to jurisdiction of subject matter. A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact.

Id. at 574, 73 S.Ct. at 924. Thus, the Court's later analysis introducing the now-famous Lauritzen factors was directed to choice of law, see id. at 583, 73 S.Ct. at 928, not subject matter jurisdiction, which the Court had already determined was present.

Similarly, in Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), the Court faced a suit brought under American law by a foreign sailor. Romero, a Spanish seaman, had signed onto the crew of a vessel of Spanish registry that sailed under the Spanish flag and was owned by a Spanish corporation. After departing from a Spanish port, the ship made numerous stops, including one in Hoboken, where Romero was injured when struck by a cable on the ship's deck. He filed suit in the District Court for the Southern District of New York, contending inter alia that the shipowner ("Compania") was liable to him under the Jones Act and under the general maritime law of the United States for unseaworthiness of the ship, maintenance and cure, and maritime tort. The alleged bases for jurisdiction were the Jones Act, federal question jurisdiction, and diversity jurisdiction.

The district court dismissed the complaint after a pre-trial hearing. It concluded that the Jones Act provided no right of action to an alien seaman under the circumstances involved, and thus that the court lacked jurisdiction over the Jones Act claim against Compania. The court dismissed the general maritime claim against the corporation because the company was not of diverse citizenship from Romero and because of its conclusion that the federal question statute did not embrace general maritime law claims.

The Court of Appeals affirmed the dismissal of the complaint, and the Supreme Court granted certiorari. In Part I of its opinion, entitled "Jurisdiction," id. at 359, 79 S.Ct. at 473, the Court concluded that the district court possessed subject matter jurisdiction of the claims. With respect to the Jones Act claims, it noted:

[T]he question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action. Petitioner asserts a substantial claim that the Jones Act affords him a right of recovery for the negligence of his employer. Such assertion alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights.

Id. (internal quotation marks and citation omitted). The Court then affirmed Lauritzen's holding that the usual federal question approach to subject matter jurisdiction governs Jones Act suits. See id.2

Importantly, the Romero Court turned to the Lauritzen factors (in Part II of its opinion, entitled "The Claims Against Compania Transatlantica--The Choice-of-Law Problem," id. at 381, 79 S.Ct. at 485) only after concluding that the district court had erred in dismissing Romero's suit for lack of subject matter jurisdiction. Thus, the Court's decision in Romero confirms that the Lauritzen factors are not a test for subject matter jurisdiction but rather govern choice of law. The innovation in Romero was its pronouncement that the Lauritzen analysis should govern not only Jones Act claims but also claims under the general maritime law for personal injury damages. Id. at 382, 79 S.Ct. at 485.

Our understanding of these precedents is confirmed by a leading admiralty treatise. See GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY Sec. 6-63 (2d ed. 1975) [hereinafter LAW OF ADMIRALTY]. Discussing "Choice of Law in Actions Brought in the United States by Seamen Injured on Foreign-Flag Ships," the authors explain that when "a seaman brings an action to recover for personal injuries, the court must initially decide whether it has jurisdiction and, if it has, whether United States law or the law of a foreign nation is applicable." Id. at 471. They go on to discuss Lauritzen and Romero as follows:

The majority of the Court concluded that neither the situs of the injury nor Romero's treatment in this country made a case, under the Lauritzen criteria, for application of American law in Romero's action against his employer, the Spanish Line. Justice Frankfurter's opinion emphasized that the issue was one of choice of law and not of subject matter jurisdiction. That is, the District Court, having decided that Romero's action against his employer was not governed by American law, could have retained jurisdiction of the action and decided it under Spanish law.

The Supreme Court's third and latest pronouncement on the role of the Lauritzen factors came in 1970. While the Court's opinion in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), is partially opaque, it does not signal a change in the purpose and use of the Lauritzen analysis. Rhoditis concerned a suit under the Jones Act by a Greek seaman for injuries he suffered aboard a ship in the Port of New Orleans. Because the Supreme Court agreed with the trial and appellate courts that the Jones Act applied, the Court did not need to differentiate between subject matter jurisdiction and the plaintiff's entitlement to proceed under the Jones Act--both were present. But the opinion's description of the Lauritzen analysis makes clear that the Court viewed the factors as bearing on applicability of the Act, rather than subject matter jurisdiction.

The Court explicitly endorsed the description of the Lauritzen analysis offered by Judge Medina, who in Bartholomew v. Universe Tankships, Inc., 263 F.2d 437 (2d Cir.1959), had written:

[T]he decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial.

Id. at 441 (quoted in Rhoditis, 398 U.S. at 309 n. 4, 90 S.Ct. at 1734 n. 4) (emphasis supplied here). Furthermore, in adding the shipowner's base of operations to the analysis, the Court characterized it as "another factor of importance in determining whether the Jones Act is applicable." Rhoditis, 398 U.S. at 309, 90 S.Ct. at 1734 (emphases supplied).

It is true that the Court's opinion in Rhoditis twice used the word "jurisdiction."4 However, the presence of two occurrences of the word "jurisdiction" is too ambiguous to mandate a change in the jurisprudence,5 particularly since the Court likely meant to refer to "legislative jurisdiction," see id. at 314 & n. 2, 90 S.Ct. at 1736-37 & n. 2 (Harlan, J., dissenting) (which is also known as prescriptive jurisdiction, see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW Pt. IV, at 230 (1987)). Moreover, subject matter jurisdiction was not presented in the Questions for Review in the petition for certiorari. See Petition for Writ of Cert. at 2-3, Hellenic Lines Ltd. v. Rhoditis, 412 F.2d 919 (5th Cir.1969) (No. 661), cert. granted, 396 U.S. 1000, 90 S.Ct. 554, 24 L.Ed.2d 492 (1970). Rather, the first Question, which is characteristic, was:

Were the lower courts correct in applying the Jones Act to an action by a Greek seaman, himself a resident of Greece, against a Greek corporate owner for injury occurring aboard a Greek flag vessel, solely on the ground that the majority stock holder of the corporate ship owner, although himself a Greek citizen, resided in the United States as a representative of Greece to the United Nations.

Id. (emphasis supplied).

Moreover, treating the Lauritzen analysis as going to subject matter jurisdiction would be out of keeping with the approach of most jurisdictional inquiries, which tend to be straightforward threshold questions. "The dangers of a totality-of-the-circumstances approach to jurisdiction would be obvious. An undefined test requires courts and litigants to devote substantial resources to determine whether a federal court may hear a specific case." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., --- U.S. ----, ----, 115 S.Ct. 1043, 1057, 130 L.Ed.2d 1024 (1995) (Thomas, J., concurring in the judgment). The federal judiciary "pursues clarity and efficiency in other areas of federal subject-matter jurisdiction, and it should demand no less in admiralty and maritime law." Id. at ----, 115 S.Ct. at 1059.

Thus, we conclude that the multi-factored analysis of Lauritzen, Romero, and Rhoditis is not to be used to determine whether a district court has subject matter jurisdiction over suits brought under the Jones Act or the general maritime law. Insofar as Matute v. Procoast Navigation, Ltd., 928 F.2d 627 (3d Cir.1991), holds that the Lauritzen factors govern subject matter jurisdiction over Jones Act or general maritime law claims, it is overruled. In so ruling, we agree with the cases from other circuits that have used the Lauritzen analysis to determine choice of law, not subject matter jurisdiction. See, e.g., Schexnider v. McDermott Int'l, Inc., 817 F.2d 1159 (5th Cir.1987) (affirming district court's determination that Lauritzen dictated applicability of Australian law but requiring that district court retain jurisdiction and try the case); cf. also supra note 5 (citing concurring and dissenting opinions that correctly apprehend the issue). Concomitantly, we necessarily disagree with those cases from other circuits holding (without addressing the clear force of Romero ) that the Lauritzen analysis may be used to dismiss a Jones Act claim for lack of subject matter jurisdiction. See, e.g., Gutierrez v. Diana Investments Corp., 946 F.2d 455, 456-57 (6th Cir.1991) (per curiam) (affirming dismissal of suit for lack of subject matter jurisdiction flowing from non-applicability of American law under Lauritzen analysis); Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 349-50 (4th Cir.1985) (en banc) (same);6 Rodriguez v. Flota Mercante Grancolombiana, S.A., 703 F.2d 1069, 1071-72 (9th Cir.1983) (same).

B. Federal Question and Admiralty Jurisdiction

Although we have demonstrated that the Lauritzen inquiry is non-jurisdictional in nature, there remains the question whether the district court had subject matter jurisdiction over plaintiff's claims, which the defendants have contested throughout this litigation. We conclude that it did, under both the federal question and the admiralty jurisdiction statutes.

1. Federal Question Jurisdiction Under 28 U.S.C. Sec. 1331

In its first Jones Act case, the Supreme Court held that the Jones Act, as a federal statute providing remedies for injured seamen, is subject to the usual rule for "arising-under" jurisdiction. See Panama R.R. Co. v. Johnson, 264 U.S. 375, 383-84, 44 S.Ct. 391, 392, 68 L.Ed. 748 (1924) ("This case arose under a law of the United States [i.e., the Jones Act] and involved the requisite amount, if any was requisite; so there can be no doubt that the case was within the general jurisdiction conferred on the district courts by [the federal question statute]...."); see also Hartford Fire Ins. Co. v. California, --- U.S. ----, ----, 113 S.Ct. 2891, 2917, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting in part) (discussing Lauritzen and distinguishing subject matter jurisdiction from applicability of American law).

Section 1331 provides that the federal "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. Sec. 1331 (1988). "The question of whether the district court had subject matter jurisdiction pursuant to [the Jones Act] is not whether [plaintiff] had a valid cause of action against the [defendants] under federal ... law. Rather, the subject matter jurisdiction analysis is one of whether the determination of the existence vel non of that cause of action is a question 'arising under the ... laws ... of the United States.' " Airco Indus. Gases, Inc. v. Teamsters Health & Welfare Pension Fund, 850 F.2d 1028, 1032 (3d Cir.1988). Plaintiff clearly meets that standard, for whether she could assert claims under the Jones Act and general maritime law is a question of federal law. The district court clearly had jurisdiction over plaintiff's Jones Act claims.7

2. Admiralty Jurisdiction Under 28 U.S.C. Sec. 1333

Plaintiff's remaining claims against the defendants allege violations of the general maritime law duty to provide a seaworthy vessel. Again, although the Lauritzen factors are to be used in determining the applicability of substantive American maritime law, they do not go to subject matter jurisdiction. Rather, for non-statutory causes of action, we apply the customary admiralty jurisdiction analysis of Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), and Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), as recently reaffirmed in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., --- U.S. ----, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).

"[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. Sec. 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity." Id. at ----, 115 S.Ct. at 1048. For tort claims, the locality test requires that "the tort occurred on navigable water or ... injury suffered on land was caused by a vessel on navigable water." Id. Here, the locality test is "readily satisfied," id. at ----, 115 S.Ct. at 1049, for plaintiff's injuries occurred in navigable waters and were caused there by a vessel, see id. at ----, 115 S.Ct. at 1048.

The maritime connection inquiry is two-fold. First, we "assess the general features of the type of incident involved to determine whether the incident has a potentially disrupting impact on maritime commerce." Id. (internal citations and quotation marks omitted). Second, we "determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Id. (internal citations and quotation marks omitted).

With respect to the potential disruption prong, we describe the incident "at an intermediate level of possible generality." Id. at ----, 115 S.Ct. at 1051. Following the Supreme Court's lead, the "general features of the incident at issue here may be described as damage by a vessel in navigable water to [a seaman]." Id.8 "So characterized, ... this is the kind of incident that has a potentially disruptive impact on maritime commerce." Id. Injury to a seaman in navigable waters "could lead to restrictions on the navigational use of the waterway," id., during necessary investigations into the accident, which could be especially lengthy in a case where the seaman's injuries proved fatal. Additionally, a vessel's need to replace an incapacitated seaman could lead to delays in commercial shipping. Although this case involves a pleasure boat rather than a vessel engaged in commercial shipping, that fact does not affect the jurisdictional result. In Sisson v. Ruby, the features of the incident were described as "a fire on a vessel docked at a marina on navigable waters," 497 U.S. at 363, 110 S.Ct. at 2896, even though the "vessel" was a pleasure boat.

The second prong of the maritime connection test is also easily met here. "In the second Sisson enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Jerome B. Grubart, Inc., --- U.S. at ----, 115 S.Ct. at 1051. "Navigation of boats in navigable waters clearly falls within the substantial relationship...." Id. Thus, the travels of the Long John qualify despite the short distances involved in its voyages. Cf. Sinclair v. Soniform, Inc., 935 F.2d 599, 600 (3d Cir.1991) (upholding admiralty jurisdiction over claim arising from failure of crew of vessel that transported plaintiff to detect symptoms of and administer proper care for decompression sickness suffered during scuba diving investigation in navigable waters); see also 1 STEVEN F. FREIDELL, BENEDICT ON ADMIRALTY Sec. 171, at 11-22 to -23 nn. 54-56 (7th ed. rev. 1995) (citing cases finding admiralty jurisdiction over claims that navigation errors or negligent operation of vessel injured others) [hereinafter BENEDICT ON ADMIRALTY]. Since the locality and maritime connection tests were clearly met, the district court had admiralty jurisdiction over plaintiff's claims.9

III. APPLICABILITY OF AMERICAN LAW UNDER THE LAURITZEN

The questions whether American law actually applies under the Lauritzen triad, and if so whether the facts entitle the plaintiff to recover, arise only when, as here, a district court has subject matter jurisdiction over a Jones Act or American general maritime law claim. Moreover, Lauritzen analysis is a choice of law methodology, and, like a plaintiff's need to prove one or more of the specific statutory elements of his or her claims, choice of law issues may be waived.10 Thus, if defendants do not argue that American law is inapplicable as a matter of choice of law, the court will not analyze the Lauritzen factors. The plaintiff would need only to prove the particular elements of the cause of action, such as seaman status, employer status, negligence, causation, and damages (for a Jones Act case).

When a defendant does raise the Lauritzen issue, a plaintiff suing for personal injury damages under American maritime law must, as with any other cause of action, both establish the applicability of the law under which the case was brought and prove the elements of the cause of action. See, e.g., Larry Kramer, Rethinking Choice of Law, 90 COLUM.L.REV. 277, 290 (1990); cf. G.E.J. Corp. v. Uranium Aire, Inc., 311 F.2d 749, 751 (9th Cir.1962) ("Generally a party must establish a fact which is essential to his claim or defense...."). If American law is not applicable, or if the plaintiff fails to prove one of the specific elements of the cause of action, the suit would, in the ordinary course, fail on the merits.11

B. Purposes of and Problems with the Lauritzen Analysis

Determining whether or not American maritime law (statutory or general) applies with respect to a given incident entails a choice of law analysis, mandated by the Supreme Court as a matter of statutory construction. The Court adverted to choice of law principles because of the facial universality of the Jones Act, whose terms offer a remedy to "any seaman." 46 U.S.C.App. Sec. 688(a) (1988). In Lauritzen--which involved a lawsuit by a Danish sailor (for injuries suffered in the coastal waters off Cuba) against his employer, a Danish shipowner with whom he had contracted (in Danish)--the Court was concerned with restricting the "literal catholicity," Lauritzen, 345 U.S. at 576, 73 S.Ct. at 925, of the Jones Act's language to ensure that it would not apply to situations where "the seaman, the employment [and] the injury [lack] the slightest connection with the United States." Id. at 577, 73 S.Ct. at 925. Thus, the first aim of Lauritzen analysis is to assure that American maritime law is not applied to incidents that lack any significant American connection.

The second, related purpose of the analysis is to resolve and avoid conflicts with the maritime laws of other nations.12 See Lauritzen, 345 U.S. at 582, 73 S.Ct. at 928. To this end the Court invoked a presumption that in the absence of specific direction to the contrary, statutes of Congress would not be interpreted to violate international law. See 345 U.S. at 577, 581, 73 S.Ct. at 926, 927-28. Applying this presumption to the Jones Act, the Court in Lauritzen adopted a form of interest analysis to cabin the sweep of the Jones Act. See id. at 582, 73 S.Ct. at 928 ("The criteria, in general, appear to be arrived at from weighing of the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority.") (emphasis supplied); id. at 577, 73 S.Ct. at 925 (extolling expertise of "courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests"). Courts ruling on the reach of American law were thus directed to consider seven factors that were, in part for pragmatic reasons, accorded various degrees of importance.

In Romero v. International Terminal Operating Co., 358 U.S. at 354, 79 S.Ct. at 468, the Supreme Court emphasized that the Lauritzen factors were gleaned not from the terms of the Jones Act but rather from more general maritime law choice of law principles, and that they were intended to guide courts generally in applying maritime law regarding personal injury claims to incidents with foreign connections. See 358 U.S. at 382, 79 S.Ct. at 485.13 Finally, in Hellenic Lines Ltd. v. Rhoditis, the Supreme Court elaborated upon the Lauritzen analysis. In particular, the Court added an eighth factor for consideration, see 398 U.S. at 309, 90 S.Ct. at 1734, and attached a label to the types of contacts with the United States necessary to sustain applicability of American law in light of the aims of the Lauritzen analysis: "substantial" contacts. Id. at 309 n. 4, 90 S.Ct. at 1734 n. 4.

In adopting this terminology, the Court placed its focus primarily, though not myopically, on whatever American contacts the transaction may have. See id. ("The decisional process ... involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial.") (quoting Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 441 (2d Cir.1959)); id. at 310, 90 S.Ct. at 1734 ("The [foreign contacts present] are in the totality of the circumstances of this case minor weights in the scales compared with the substantial and continuing contacts that this alien owner has with this country.").

Despite these developments, Lauritzen interest analysis remained a somewhat amorphous process. The Supreme Court stressed in Rhoditis that Lauritzen's choice of law interest analysis is not mechanical, that the significance of each factor is variable, and that the enumerated factors are not exhaustive of potentially relevant considerations. See 398 U.S. at 308, 90 S.Ct. at 1734. The analysis is consequently imbued with a flexibility that permits courts to take account of the context of any incident that American law is alleged to govern, but this malleability has not always proven the surest guide. Indeed, one troubled trial court remarked that the case law applying the Lauritzen triad had "made the relative significances of the 'factors' almost infinitely variable," and it feared "that each 'factor's' significance is sufficiently obscure or variable to justify any judicial conclusion." Munusamy v. McClelland Engineers, Inc., 579 F.Supp. 149, 153 (E.D.Tex.), mandamus denied (with request for certification), 742 F.2d 837 (5th Cir.1984), order vacated, 784 F.2d 1313 (1986). Academic commentary has been similarly critical. See, e.g., Michael Boydston, Cruz v. Chesapeake Shipping and the Choice-of-Law Problem in Admiralty Actions, 27 TEX.INT'L L.J. 419, 434 (1992); Symeon Symeonides, Maritime Conflicts of Law from the Perspective of Modern Choice of Law Methodology, 7 MAR.LAW. 223, 242-43 (1982) [hereinafter Symeonides, Maritime Conflicts ].

C. The Two Steps of the Lauritzen Choice of Law Inquiry

The solution to the lack of guidance lies in approaching the Lauritzen analysis in a way that is faithful to its nature as a specialized form of interest analysis designed to ensure that American maritime law of personal injuries applies only where significant American interests are implicated and only in conformity with international law. Specifically, we interpret the notion of "substantial contacts" to embody these twin concerns in a two-step inquiry derived from international law. We conclude below that, in a Jones Act or general maritime law case, a court deciding whether American contacts are "substantial" (so that American law applies) must at the threshold ask whether one of the following factors is involved in the incident, in which case there is a basis for prescriptive jurisdiction (which, we explain infra subsection 1, means that significant American interests are implicated): injury to an American seaman or a seaman with American dependents, injury in American territory, American defendants, an American flagged ship, or a contractual choice of law clause specifying American law. If so, the second step in the substantial contacts inquiry is for the court to ascertain whether application of American law is reasonable under the circumstances, in which case (as subsection 2 describes) international law is satisfied.14

In this case, as we explain below, the plaintiff succeeds on both steps of the inquiry. Her American citizenship satisfies the threshold requirement of a basis for prescriptive jurisdiction, and consideration of the Lauritzen factors reveals that the American interests at stake here are such that American law may be reasonably applied. Hence, the American contacts are "substantial" and the plaintiff was entitled to sue under American law.

In the following analysis, we "rely on the Restatement (Third) of Foreign Relations Law for the relevant principles of international law. Its standards appear fairly supported in the decisions of [the Supreme] Court construing international choice-of-law principles ( [e.g.,] Lauritzen, Romero, and McCulloch [v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) ]...." Hartford Fire Ins. Co. v. California, --- U.S. ----, ----, 113 S.Ct. 2891, 2920, 125 L.Ed.2d 612 (Scalia, J., dissenting in part). A primary reason for relying on the Restatement of Foreign Relation Law is that one of the Court's chief motives for cabining the potentially unlimited scope of the Jones Act in Lauritzen was a concern that the legislation not violate norms of international law. While the dissent argues that the sections we rely on "were not meant to apply in a tort case such as this," dissenting op. infra at 208 (quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW Pt. IV, Ch. 1, Introd. Note, at 237 (1987) [hereinafter RESTATEMENT], the passage it quotes reveals that the Restatement's rules are not unconditionally irrelevant to tort cases: they only "do not necessarily apply." Id. (different emphasis supplied). However, "[i]n some circumstances, issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial international significance and therefore may be considered foreign relations law [.]" RESTATEMENT Sec. 101, cmt. c, at 23 (emphasis supplied). The Jones Act and American maritime law more generally are examples of just such matters, as is reflected by the Supreme Court's concern in Lauritzen about the prospect of violating international law.15 See also infra note 17 (discussing difference between maritime laws and conventional tort law). Furthermore, the views of Lea Brilmayer, one of the leading authorities in the area, support use of the Restatement of Foreign Relations Law here. Professor Brilmayer has analyzed conflict of laws as "the domestic counterpart of the international law issue of the extraterritorial application of American law." Lea Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 L. & Contemp.Probs. 11, 11 (Summer 1987). Of particular relevance here, she has noted the unhelpfulness of the public/private distinction as regards international law: "Whether or not that distinction is viable, it does not describe the different roles of the two Restatements. Some private law cases, such as Lauritzen v. Larsen, fall under the Restatement of Foreign Relations Law." Id. at 12 (footnote observing that Lauritzen is mentioned in the Restatement of Foreign Relations Law Sec. 403, reporters' note 2 omitted; emphasis supplied).16

1. Do the Contacts Show a Basis for Prescriptive Jurisdiction?

The first essential question in Lauritzen analysis is whether the suit implicates significant interests of the United States. In accordance with Lauritzen's direction to construe American maritime law so as not to violate international law, we identify this preliminary inquiry with the question whether there is a basis for the United States to exercise prescriptive jurisdiction over the incident at issue.

"International law has long recognized limitations on the authority of states to exercise jurisdiction to prescribe in circumstances affecting the interests of other states." RESTATEMENT, Introd. Note, at 230. The Restatement defines prescriptive jurisdiction--which is not to be confused with subject matter jurisdiction--as the authority of a state "to make its law applicable to the activities, relations, or status of persons, or the interests of person in things...." RESTATEMENT Sec. 401(a). It lists several alternative bases for prescriptive jurisdiction. As a general matter (subject to restrictions we discuss below), nations may prescribe law

with respect to

(1)(a) conduct that, wholly or in substantial part, takes place within its territory;

* * * * * *

(c) conduct outside its territory that has or is intended to have substantial effect within its territory; [and]

(2) the activities, interests, status, or relations of its nationals outside as well as within its territory[.]

RESTATEMENT Sec. 402. Additionally, the Restatement recognizes the authority of a state to apply its law to activities connected with vessels flying its flag. See id. Sec. 502.

The Lauritzen factors directly provide the answer to the first question in the Lauritzen choice of law interest analysis--whether (in the terminology of the Restatement) the United States has a basis for prescriptive jurisdiction with respect to the incident. When an American worker or a worker with American dependents is injured, application of United States law will affect the interests and relations of Americans, and there are likely to be substantial effects within the United States. Hence, application of American maritime law in suits for personal injuries to American seamen or seamen with American dependents affects the interests of nationals of the United States, thus providing a basis for prescriptive jurisdiction pursuant to Restatement Sec. 402(2) and Sec. 402(1)(c).17 Next, by definition, injuries occurring in American territory (including waters) fall within Sec. 402(1)(a), which thus recognizes that the United States has a basis for prescriptive jurisdiction over such incidents. Where the defendants are American, a basis for prescriptive jurisdiction to apply United States law exists pursuant to Sec. 402(2). Where the ship involved flies the American flag, Sec. 502 of the Restatement recognizes prescriptive jurisdiction on the part of the United States.

Finally, parties may generally consent to application of American law to govern their relations, as evidenced by a choice of law clause. Cf. National Ass'n of Sporting Goods Wholesalers, Inc. v. F.T.L. Mktg. Corp., 779 F.2d 1281, 1285 (7th Cir.1985) (citing Casio, Inc. v. S.M. & R., Co., 755 F.2d 528, 531 (7th Cir.1985)). In such cases it may be technically imprecise to speak of prescriptive jurisdiction, for American law applies not by virtue of the sovereign power of the United States but rather by the choice of the parties. However it is styled, a reasonable, mutual, ex ante choice of American law would create an American interest in applying the Jones Act or American general maritime law sufficient to meet the threshold requirement.18

In sum, then, we hold that a plaintiff generally must establish one of the following to demonstrate a basis for prescriptive jurisdiction, which under the Lauritzen analysis is a threshold requirement for American maritime law to apply:

(a) injury to an American seaman or a seaman with American dependents,

(b) injury in American territory,

(c) American defendants,

(d) an American flagged ship, or

(e) a contractual choice of law clause specifying American law.

See also Bailey v. Dolphin Int'l, Inc., 697 F.2d 1268, 1278 n. 25 (5th Cir.1983) ("[A] sufficient American interest in a particular transaction can rest on the presence of even one substantial contact between the transaction and this country...."), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir.1987) (en banc).

The plaintiff's threshold burden of proving one of these contacts with the United States arises when a defendant alleges that American law is inapplicable under the Lauritzen triad. The plaintiff must proffer evidence from which a jury might conclude that one of the specified factors supporting prescriptive jurisdiction exists, and if the evidence introduced by either side (as to the existence vel non of one of the pertinent United States contacts) as a whole does not establish by a preponderance that such a factor exists, the court must hold American law inapplicable.

In the present case, the Lauritzen factors clearly exhibit a basis for prescriptive jurisdiction. It is uncontested that Neely, the injured seaman, is an American citizen. This American contact is among those we have identified as implicating significant American interests, and we turn therefore to the second step of the inquiry.

2. Are the Contacts Such That Application of American Law Would Be Reasonable?

Where plaintiffs have shown that there is a basis for prescriptive jurisdiction, significant American interests are implicated, and courts must consider the second goal of the Lauritzen analysis in determining whether American law is applicable. The second step in the Lauritzen choice of law inquiry is concerned with resolving or avoiding conflicts with foreign law by construing American law in harmony with international law. We identify the pertinent inquiry primarily with the restriction on prescriptive jurisdiction described by Sec. 403(1) of the Restatement. Section 403(1) expresses a limitation on the exercise of prescriptive jurisdiction. It specifies that "[e]ven when one of the bases for jurisdiction under Sec. 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable," RESTATEMENT Sec. 403(1); in determining whether it is reasonable to apply American law, courts are to consider "all relevant factors," id. Sec. 403(2), which includes the American contact that provided a basis for prescriptive jurisdiction.19

Thus, the plaintiff's burden of proving the applicability of American law translates at this step to a burden of proving reasonableness. This burden does not require the plaintiff to show the absence of foreign contacts, or to bear a burden of proof with respect to each of the Lauritzen factors, as the defendants urge, see Reply Br. of Appellees/Cross-Appellants at 3. While there is a dearth of precedent concerning the scope of the plaintiff's burdens when the defendant invokes the Lauritzen triad, logic dictates that the plaintiff need adduce evidence concerning only those factors that he or she believes support the reasonableness of applying American law. The individual factors are not required elements of a Jones Act or general maritime law claim--the Supreme Court has made clear that no particular factor need reflect a contact with the United States for a plaintiff to have a claim under American law, see, e.g., Rhoditis, 398 U.S. 306, 90 S.Ct. 1731 (applying American law despite foreign employer, foreign-flag ship, foreign plaintiff, and contract in foreign language specifying foreign law)--but rather are subsidiary indicia of the reasonableness of applying American law. Moreover, general choice of law analyses do not deem a plaintiff responsible for bringing forth information on all circumstances--whether helpful or harmful to the plaintiff's case--that might inform the choice of law. For all these reasons, we decline to impose such a requirement here.20

Instead, once the plaintiff has established the existence of a basis for prescriptive jurisdiction, it is incumbent upon defendants to prove the existence of foreign contacts. This allocation of burdens comports with the remedial policies behind the Jones Act (and the unseaworthiness cause of action), which is designed for the protection of seamen. Information relevant to a great variety of the circumstances that could figure in a Lauritzen analysis may be in the hands of defendants. We therefore believe that it would be at odds with Congress's solicitous intent for courts to require seamen to make a negative showing with respect to factors on which they do not rely in establishing the reasonableness of applying American law.21

If the court concludes that the evidence as a whole does not establish the existence of any foreign contacts that would provide a foreign nation with a basis for prescriptive jurisdiction, the plaintiff immediately prevails on the choice of law issue: a preponderance of--indeed, all--the evidence shows that the application of American law in such a case is reasonable. As long as the plaintiff has shown a basis for prescriptive jurisdiction, cf. DeMateos v. Texaco, Inc., 562 F.2d 895, 900 (3d Cir.1977) ("[D]ue process require[s] the identification of significant American interests before an American sovereignty ... [may] export its laws to foreign transactions...."), American interests are implicated, and maritime law may apply unless concerns about conflicts with the law of other interested nations compel the conclusion that this would not be reasonable. Where there are no significant foreign contacts, the court cannot conclude that any other nation is interested in the relevant sense. And since the plaintiff has by this step of the inquiry established an American contact that implicates significant American interests, this in turn establishes that application of American law is reasonable and proper.

Foreign contacts standing alone, however, are of extremely limited value, for "the actual conflict before the court is a conflict between competing laws, not between physical contacts. Such conflicts can be resolved intelligently and rationally only by ascertaining and evaluating the policies underlying the competing laws." Symeonides, Maritime Conflicts, 7 MAR.LAW. at 245; see also Romero, 358 U.S. at 383, 79 S.Ct. at 486 ("The controlling considerations are the interacting interests of the United States and of foreign countries....") (emphasis supplied). Indeed, Lauritzen analysis generally seems to presuppose that the court has information concerning the substantive content of foreign law. See, e.g., Lauritzen, 345 U.S. at 575-76, 73 S.Ct. at 924-25 (developing at outset the conflict between American and Danish law); id. at 582, 73 S.Ct. at 928 ("The criteria, in general, appear to be arrived at from weighing of the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority.") (emphasis supplied).

Consequently, where the substance of foreign law is unknown, the Lauritzen inquiry could at most be used prophylactically, to steer clear of potential but unknown conflicts. Because holding American law inapplicable at this point would do so without a textual mandate--and with significant American interests present--such judicially imposed restraint should not be de rigueur. A court typically should not hold that the United States' exercise of prescriptive jurisdiction is unreasonable in a case where the substance of relevant foreign law is unknown, unless it concludes that the basis for prescriptive jurisdiction is exceedingly weak and that virtually all other contacts likely implicate policies of the foreign nation.

Moreover, the plaintiff generally has no responsibility to demonstrate the content of potentially applicable foreign law.22 At this step of the inquiry, a defendant's continued insistence that the established American contacts are not "substantial" amounts to the argument that American law should be interpreted not to apply in order to accommodate the policies served by some foreign law.23 In effect, then, the defendant seeks to rely on foreign law to set up an obstacle to American law. For the same or similar reasons that plaintiffs need not establish Lauritzen factors that do not support their case,24 the responsibility for demonstrating the content of foreign law rests with the defendants who wish to use it to defeat a claim under American law.25 To hold otherwise would be at odds with congressional intent, for where Congress does want to impose upon a seaman the onus of establishing the content of foreign law in order to proceed under American law, it knows how to draft an appropriate provision: In the 1982 amendments to the Jones Act, Congress denied the benefit of the Act to foreign seamen in certain circumstances unless they show that foreign law offers them no remedy. See 46 U.S.C.A. Sec. 688(b)(2).26

In this case, the evidence presented at trial establishes the existence of foreign contacts, but the defendants have presented no information concerning what potentially applicable St. Lucian law might provide. Indeed, even at in banc reargument before this court they were unable to state what the law of St. Lucia provided (and they have made no post-argument submissions). Accordingly, we cannot calibrate the extent of foreign interests at stake, and unless virtually all of the Lauritzen factors point away from the United States, application of American law will be reasonable in light of the American interests that the plaintiff has shown to be implicated. With this in mind, we now consider the various factors.

a. Inaccessibility of a Foreign Forum

We regard the potential inaccessibility of a foreign forum as a relatively insignificant factor in favor of the law of any jurisdiction, American or St. Lucian. As the Supreme Court explained in Lauritzen, inaccessibility of a foreign forum is a consideration more appropriate to a forum non conveniens-type analysis than to the question of the extraterritorial reach of a statute. See Lauritzen, 345 U.S. at 589-90, 73 S.Ct. at 932. Accordingly, we do not think that the degree to which a forum in St. Lucia might be inaccessible to Neely particularly supports application of American law in this case. Nor, however, does it count against the reasonableness of applying American law, and especially so because the defendants have presented the court with no information about what remedies St. Lucian law might or might not offer the plaintiff.

b. Law of the Forum

We do know what American law provides, but the law of the forum (the seventh factor) was considered by the Supreme Court in Lauritzen to be a very weak consideration in favor of application of American law:

The purpose of a conflicts-of-laws doctrine is to assure that a case will be treated in the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum. Jurisdiction of maritime cases in all countries is so wide and the nature of its subject matter so far-flung that there would be no justification for altering the law of a controversy just because local jurisdiction of the parties is available.

Lauritzen, 345 U.S. at 591, 73 S.Ct. at 932. Despite this disparagement of the law of the forum, the Court treated it as a relevant factor in Rhoditis. See Rhoditis, 398 U.S. at 308, 90 S.Ct. at 1733. Thus, albeit weakly, the law of the forum supports application of American law.27

c. Place of the Wrongful Act

In conducting the Lauritzen reasonableness inquiry, courts must attend to the context of the incident at the heart of the suit. Where seamen are not plying the world's seas in traditional international shipping activity, some contacts take on heightened significance and others diminished significance, for some of the rationales concerning the significance of the factors articulated in the Lauritzen opinion do not apply with the same force in all circumstances. See, e.g., Zipfel v. Halliburton Co., 832 F.2d 1477, 1482-83 (9th Cir.1987); Chiazor v. Transworld Drilling Co., 648 F.2d 1015, 1019 (5th Cir.1981), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir.1987) (en banc). Although some of the cases recognizing the variability of the Lauritzen factors significance refer to the type of vessel at issue, see, e.g., Zipfel, 832 F.2d at 1482 ("cases involving atypical vessels"), the basis for the distinctions is not the nature of the vessel but rather, as our discussion below illustrates, the nature of the activity, see, e.g., Fogleman v. ARAMCO, 920 F.2d 278, 282 (5th Cir.1991) ("[T]he significance of each factor in a nontraditional maritime context like offshore oil production may vary from that in the traditional shipping context in which the Lauritzen-Rhoditis test arose.") (emphases supplied); Phillips v. Amoco Trinidad Oil Co., 632 F.2d 82, 86 (9th Cir.1980) (distinguishing the case before the court from "a typical maritime case involving a vessel sailing in international commerce") (emphasis supplied). Common sense confirms that this is a non-traditional Jones Act case. The activity here took the Long John and its crew not from sea to sea in pursuit of international commerce but rather from beach to reef in aid of scuba diving adventures. This case is thus the antithesis of a traditional international shipping case, and we treat it accordingly.28

In traditional international shipping contexts, the place of the wrongful act is accorded little importance in the choice of law inquiry. International shipping vessels journey through the waters of many different nations, and the local law might therefore change frequently, see Lauritzen, 345 U.S. at 585, 73 S.Ct. at 930, rendering difficult the protection or even the formation of justified expectations about the law governing seamen's employment relations if the place of the injury were a significant factor. Cf. Romero, 358 U.S. at 384, 79 S.Ct. at 486 ("an unduly speculative burden"). Moreover, the site of the injury will largely be fortuitous when the seaman is exposed to the same risks throughout the course of the journey and an accident happens to occur in a particular locale. See, e.g., id.; Fogleman, 920 F.2d at 282 ("The place of the wrongful act is accorded little weight in traditional maritime cases, in which the locality of the ship changes constantly.").

In non-traditional contexts, however, the vessels at issue do not ply the waters of multiple seas. It may be predicted at the outset that any injuries will likely occur, nonfortuitously, in the locale where the vessel is stationed. Thus, the justified expectations would not be thwarted if the place of the act were considered a significant choice of law factor. See, e.g., Fogleman, 920 F.2d at 282 ("When the injury stems from work on a permanently situated offshore oil rig or work platform, however, the place of the wrong assumes greater importance.").

This "shift" is relevant in this case, which did not arise in a traditional international shipping context. Admittedly, the Long John, the ship that injured plaintiff, was a sixteen metric ton vessel capable of plying the high seas, unlike the drilling platforms that have been involved in many nontraditional cases. But as we have already explained, it is the nature of the activity, not of the vessel, that matters. The Long John was used at the time of plaintiff's accident solely for Club Med scuba diving expeditions in the waters off St. Lucia. Similarly, plaintiff, an American citizen, contracted in the United States to serve as a scuba instructor, specifically to take Club Med guests on scuba diving expeditions off the coast of St. Lucia. She was a crewmember of a fleet (which included the Long John ) used solely for this purpose. Thus, the location of this accident was not "fortuitous" in the same way as that of a shipboard tort against a traditional seaman. Due to the non-traditional context of this suit, the place of the wrongful act would normally take on greater significance.

All parties now agree that the injury occurred in St. Lucian waters, and there is no suggestion that the allegedly improper training complained of by the plaintiff in her Jones Act count occurred in the United States. The location of this accident presumably implicates, with more force than it might in cases involving traditional sea-going vessels, whatever regulatory interests St. Lucia may have in applying its law to this accident. But because St. Lucia's interests are undefined in this case, this factor does not strongly suggest that application of American law would not be reasonable.29

d. Place of Contract

Another factor whose significance shifts in non-traditional contexts is the place of contract. In Lauritzen, the Supreme Court discounted the importance of the place of contract for choice of law. It reasoned that "[a] seaman takes his employment, like his fun, where he finds it; a ship takes on crew in any port where it needs them." 345 U.S. at 588, 73 S.Ct. at 931. However, although the place of contracting is "of little import due to its 'fortuitous' occurrence for the traditional seaman, [it] becomes a substantial factor in nontraditional maritime employment aboard a vessel more or less permanently located off the coast of a particular country." Fogleman, 920 F.2d at 283 (footnotes omitted). See also Chiazor, 648 F.2d at 1019.

The relatively stationary nature of the employment setting allows the ex ante formation of reasonable beliefs about the locale of likely work-related injuries, and there are therefore fewer unforeseen contingencies to detract from the importance of the site of contracting. The Court downplayed this factor in Lauritzen largely because of the fortuity of the place of contracting, when international shippers took on crew as needed in various nations' ports. However, with a non-traditional operation such as the one here, employers need not (and do not) take on crewmembers at random ports as hiring needs dictate; rather, they may (and do) select employees in advance, wherever they choose.

In this case, the place of contracting was the United States. After interviewing in the United States, plaintiff received a letter of interest from the defendants before their need for another scuba instructor at Holiday Village even arose. Several months later she formed an oral contract to work for Club Med Management and Holiday Village in St. Lucia for six weeks, with offer and acceptance occurring during a telephone call between New York and either Washington, D.C. or Pennsylvania. Thus, since the parties contracted in America for employment in a determinate, fixed locale, the significance of the place of contracting--the United States--is not discounted as it would be in a traditional setting, thus supporting the reasonableness of applying American law.

e. Law of the Flag

In contrast to both the place of the wrongful act and the place of contract, the law of the flag is less important in non-traditional contexts. See, e.g., Zipfel, 832 F.2d at 1482-83. We have previously recognized that application of the law of the flag in maritime cases "is not an inflexible rule." Cruz v. Chesapeake Shipping, Inc., 932 F.2d 218, 228 (3d Cir.1991) (Rosenn, J., announcing the judgment of the court). In cases where the vessel at issue does not ply the open seas but stays essentially in one location, the pragmatic basis for according the law of the flag great significance, see, e.g., Zipfel, 832 F.2d at 1482, is diminished, and it has frequently been accorded less weight, see, e.g., Cuevas v. Reading & Bates Corp., 770 F.2d 1371, 1378-79 (5th Cir.1985) (discounting law of the flag of a jack-up drilling ship and holding American law inapplicable), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir.1987) (en banc); Koke v. Phillips Petroleum Co., 730 F.2d 211 (5th Cir.1984) (same, concerning a semi-submersible platform for oil-field support service), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir.1987) (en banc); Zipfel, 832 F.2d at 1483 (same, concerning a floating oil-drilling rig).30

Since the plaintiff did not show that the vessel flies the American flag, the second Lauritzen factor does not aid her. Nor, however, does the law of the flag hurt her case for the reasonableness of applying American law. First, as we have noted, the law of the flag is of less significance in a non-traditional case such as this one. Second, the defendants presented no testimony as to what flag, if any, the Long John flew. There was only a declaration of the Long John's un-cross examined title owner averring that the vessel was "registered" in St. Lucia. The charter between the title owner and Holiday Village conspicuously left blank the registration number and place of registry.31

Moreover, in order for the law of the flag appreciably to diminish the reasonableness of applying American law, the defendant would have had to demonstrate both what the law of the flag was and that it conflicts in some respect with American law, which the defendants here have failed to do. Where the content of foreign law is unknown, this factor should be accorded little significance in the Lauritzen inquiry. After all, the Supreme Court included among the Lauritzen factors "the law of the flag," rather than merely "the flag." Absent knowledge of the contours of foreign laws, a court cannot identify what foreign interests are relevant, and it would then be impossible to discern any conflict between American law and foreign law. Thus, unthinking deference to the flag of the ship at issue would disserve the American interests that we know are implicated at this stage of the analysis without any assurance that foreign interests would otherwise be threatened. In short, while the law of the flag has in the past been justified as a highly significant contact on pragmatic grounds (although less so in cases where there is a "flag of convenience," see, e.g., Hellenic Lines, Ltd. v. Rhoditis, 412 F.2d 919, 923-24 (5th Cir.1969) (relying on Lauritzen), affd, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970)), it is basically insignificant when the court does not know what that law is, or where there is no conflict between American law and the law of the flag. Here, the defendants did not make the required showing, and we therefore accord this factor no particular significance in deciding whether the application of American law is reasonable in this case.

f. Defendants' Allegiance, Bases of Operations, and Other Contacts with the United States

Turning to the "allegiance of the defendant shipowner" and the defendants' bases of operations, the vessel Long John was found at trial to be owned (pro hac vice ) by Holiday Village, a St. Lucian corporation. The Lauritzen triad discussed the liability of the defendant shipowner; the Court was not addressing situations where a defendant employer is not the shipowner. The Jones Act, however, provides a right of compensation for injuries negligently caused by the seaman's employer. Cf. Fogleman, 920 F.2d at 282-83 ("Since this is not a traditional shipping case, however, Fogleman's alleged employers--and therefore the defendants in this case--are Fluor Arabia and ARAMCO, rather than the shipowners."). Thus, with respect to the Jones Act claim, we must consider the allegiance and bases of operations of both Holiday Village and Club Med Management, plaintiff's employers,32 and with respect to unseaworthiness, Holiday Village, the vessel owner pro hac vice. Moreover, because we are inquiring into the substantiality of contacts with the United States, we consider both the base of daily operations of the vessel (the Long John ) and the corporate bases of the defendants. See, e.g., Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 289, 296 (5th Cir.1984).

Holiday Village is apparently a St. Lucian corporation, although there was scant evidence of that at trial, and it apparently operated the Club Med resort in St. Lucia. The Long John was operated solely in St. Lucia for the benefit of Holiday Village and its guests. These connections do give rise to an interest on the part of St. Lucia in applying its law to incidents involving Holiday Village--but only weakly.

Because the Lauritzen factors are not exclusive or etched in stone, and because we determine choice of law by considering the reasonableness of applying American law, we consider not just the formal legal status of Holiday Village but also its operational contacts with the United States. This analysis does not amount to piercing the corporate veil as the defendants argue in an attempt to forestall our considering Holiday Village's contacts with the United States. We are not looking at Holiday Village's connections to the United States for the purpose of reaching the personal assets of its shareholders. Rather, we are examining the substance of the connections for the purpose of determining the reasonableness of applying American law under the circumstances. See Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 442 (2d Cir.1959).

We believe that the defendants' continual and quite substantial commercial invitation of American tourists to Holiday Village (St. Lucia) implicates interests of the United States that supports application of American law to this case. Holiday Village advertises widely in American media and uses an American corporation, Club Med Sales, to solicit business in the United States, and another, Club Med Management, to oversee many of the resort's operations. The overwhelming majority of Holiday Village's income derives from the defendants' purposeful, directed solicitation of American tourism. In light of these contacts, we do not think that the incorporation of Holiday Village in St. Lucia strongly suggests that applying American law would not be reasonable. Moreover, Club Med Management and Club Med Sales are American corporations, and their allegiance and bases of operations are in the United States. This demonstrates a substantial connection with the United States and these factors contribute greatly to American interests, and hence to the reasonableness of applying American law in this case.

Furthermore, these connections support application of American law because plaintiff's injuries were directly related to the defendants' American tourism operations. She was hired to be a scuba diving instructor to the tourists who patronize Holiday Village, and her injuries were suffered in the course of doing just that. These American tourists would have been (and may continue to be) at least as vulnerable to the lack of propeller guards on the Long John as was Neely, who was after all a scuba instructor. The United States has a great interest in assuring adequate protection for the life and health of Americans who are solicited in the United States to vacation or work at Club Med or other foreign spots, an interest which in these circumstances supports the application of American law. This interest is enhanced where, as here, the unseaworthy vessel substantially responsible for the injuries was built in the United States, apparently to American specifications. (See ACA Investigation Rpt.; C. Colby, Trial Tr. Day 5, at 28; Day 4, at 84-86.)

g. Domicile or Allegiance of the Injured Seaman

Finally, several cases hold that the seaman's allegiance is of increased importance in non-traditional contexts. See, e.g., Zipfel, 832 F.2d at 1483; Ali v. Offshore Co., 753 F.2d 1327, 1331 (5th Cir.1985), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir.1987) (en banc); Zekic v. Reading & Bates Drilling Co., 536 F.Supp. 23, 25 (E.D.La.1981), affirmed in part, vacated in part on other grounds, 680 F.2d 1107, 1108 (5th Cir.1982), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir.1987) (en banc). As we have seen, the law of the flag is less important in non-traditional settings, for there is less need for it as a pragmatic device for avoiding conflicts. This attenuates the duty of allegiance that the seaman owes the flag state, and the allegiance to his or her home state is accordingly more important in the reasonableness inquiry. In the present non-traditional context, therefore, plaintiff's American citizenship implicates an even higher degree of American interest than it would in a traditional setting.

Furthermore, in both non-traditional and traditional contexts, an injured seaman's connection to the United States is one of the most important of the Lauritzen factors tending to show the reasonableness of applying American law. In Lauritzen, the Supreme Court noted that the history of the Jones Act began "with the 1915 enactment of the comprehensive LaFollette Act, entitled, 'An Act To promote th