In 2017, the USS Fitzgerald, a U.S. Navy destroyer, collided with the MV ACX Crystal, a commercial container ship, in Japanese territorial waters. The incident caused extensive damage and injury, including the death of seven American sailors. Relatives of the deceased sailors sued the ship owner in federal court under the Death on the High Seas Act. They based personal jurisdiction on Fed. R. Civ. P. 4(k)(2), “alleging that, despite NYK Line’s status as a foreign corporation, its substantial, systematic, and continuous contacts with the United States should make NYK Line amenable to suit in federal court.” I

In Douglass v. Nippon Yusen Kabushiki Kaisha, the Fifth Circuit noted that that the case raised novel but significant issues about the distinction between 5th and 14th Amendment due process protections, but found itself constrained by the “rule of orderliness” to follow an earlier Circuit case on the topic. A 2-judge dissent urged en banc consideration, noting that “[o]ur decision today … determines that a global corporation with extensive contacts with the United States cannot be haled into federal court for federal claims arising out of a maritime collision that killed seven United States Navy sailors.” No. 20-30379 (April 30, 2021).

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