Constitutional History, Federal Arbitration and Seamen's Rights Sinking in a Sea of Sweatshop Labor

Posted: 7 Jul 2008  

Rory D. Bahadur

Washburn University - School of Law

Date Written: July 7, 2008

Abstract

According to the maritime law of the United States, seamen have a constitutionally based choice of forum in which to bring their work-related claims in personam. The Supreme Court has held repeatedly that, when a seaman chooses to sue in state court, the case cannot be removed to federal court. Beginning with the Francisco and the Bautista decisions in 2002 and 2005 respectively, however, federal appellate and district courts have made an exception. They now consistently and unanimously hold that the maritime claims of seamen are removable to federal court if they qualify for arbitration. This paper traces the history of the Supreme Court's jurisprudence regarding maritime claim removal, examines its historical basis in the law of nations, relates it to federal arbitration law, and argues that the initiative of the lower courts favoring removal of such claims is wrong, contrary to values long embodied in the law of nations, traditionally expressed in our general maritime law, and of undiminished importance today.

Keywords: admiralty, maritime, seamen, removal, arbitration, interpretation, Bautista, Francisco

JEL Classification: J28, K32, K41, L92

Suggested Citation

Bahadur, Rory D., Constitutional History, Federal Arbitration and Seamen's Rights Sinking in a Sea of Sweatshop Labor (July 7, 2008). Journal of Maritime Law and Commerce, Vol. 39, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1156452

Rory D. Bahadur (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

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