Unpacking the Originalist Argument for Maximalist Personal Jurisdiction, Part III: Admiralty Jurisdiction
July 31, 2025
This is the third in a series of posts questioning the originalist argument for maximalist personal jurisdiction. The crux of the originalist argument is that early federal decisions discussed limits on personal jurisdiction in terms of international law (not constitutional constraints) and that Congress could override international law. Thus, the theory goes, Congress as an original matter could override limits on personal jurisdiction as well. My last post challenged both the major and minor premise of that syllogism: not all international law was defeasible, and the assertion that judges understood limits of personal jurisdiction to be based on international law (in particular, defeasible international law) relies on inferences that are not the only possible inferences to draw from the evidence.
The originalist argument thus would greatly benefit from examples of early federal courts in fact recognizing unbounded personal jurisdiction. I suspect this is why the briefing in Fuld v. PLO (2025) invoked so many early admiralty cases: they look like examples of maximalist assertions of personal jurisdiction. As I have described at length elsewhere (as well as in some posts here at TLB), early federal courts not infrequently heard admiralty disputes between foreign parties regarding claims that arose outside U.S. territorial waters—cases that would today disparagingly be labelled “foreign-cubed.”
Nonetheless, personal jurisdiction in these “foreign-cubed” admiralty cases was based on the territorial authority of the court and thus did not test the limits of adjudicative power, whether those limits were defined by international law or due process. This post will explain why the personal jurisdiction exercised in the admiralty cases was not controversial and why these cases thus do not provide examples of congressional statutes overriding traditional limits on personal jurisdiction. Admiralty, in short, is a red herring when it comes to the argument for unbounded personal jurisdiction.
A Brief Introduction to Admiralty Jurisdiction
From the outset of the Republic, admiralty differed from the law and equity sides of the federal courts along several dimensions. First, Congress’s grant of subject-matter jurisdiction over admiralty was broad, requiring no territorial or citizenship nexus with the United States. Second, unlike for cases at law and equity, Congress did not limit the federal venues in which such claims could be brought. The federal courts, sitting in admiralty, thus could hear maritime claims that arose anywhere in the world, regardless of the nationality of the parties.
I suspect that this global breadth—and the early courts’ recognition that their willingness to hear such transnational cases helped grease the wheels of global trade—catches some modern judges and lawyers by surprise because the Supreme Court has successfully painted “foreign-cubed” cases as a modern phenomenon. It isn’t. The global economy of the 1700s and 1800s depended on maritime commerce, which in turn depended on local courts being able and willing to hear disputes between foreigners who washed up in their ports. Early U.S. courts were typically happy to oblige.
As the Fuld petitioners put it, admiralty shows that “extraterritorial cases were permitted” in the early Republic. The “extraterritoriality” involved, however, was one of subject-matter jurisdiction, not personal jurisdiction. For personal jurisdiction, these “foreign-cubed” admiralty cases still depended on the courts’ territorial power. When a foreign ship was in a U.S. port, the local federal court could assert in personam jurisdiction over any persons on the ship and in rem jurisdiction over the ship itself. That in rem jurisdiction is critical because many substantive claims in admiralty create implied liens on the ship.
This is the critical piece of admiralty law that I think is getting lost in the personal jurisdiction debate. Claims for seamen’s wages, collision, salvage, repairs, contracts for the provision of the ship, and even personal injury onboard the ship all gave the libellant (the equivalent of a plaintiff) a financial stake in the ship itself. If the claim was successful, the ship could be sold by the court to pay the libellant’s judgment. Those claims were thus brought in rem based on the physical presence of the ship within the territory of the court.
In sum, while admiralty courts did hear many “foreign-cubed” disputes, their assertion of personal jurisdiction was solidly based on the physical presence of persons or ships within their territorial ambit.
Piracy and Universal Jurisdiction
Proponents of unbounded personal jurisdiction point specifically to piracy as establishing the federal government’s unlimited power to assert global personal jurisdiction. This argument again confuses prescriptive and adjudicative power. The reason that piracy is such a compelling red herring is because the prescriptive power over piracy was (and is) indeed unlimited. That is because piracy is the original example of universal jurisdiction.
As Justice Thomas quoted in his Fuld concurrence, Congress’s power to proscribe piracy—and to grant concomitant subject-matter jurisdiction over the offense to the federal courts—does not depend “on whom or where a piratical offense has been committed.” That statement, however, addresses the breadth of anti-piracy laws, not the breadth of personal jurisdiction to apply those laws. Sovereign states could outlaw piracy regardless of whether it was committed in their territorial waters, by or against their nationals, or by or against their ships. That substantive breadth, however, did not translate to unlimited personal jurisdiction—you still had to have physical custody of the pirate. It was just that once you had custody of the pirate, you could try them for any piratical act, even if that act had nothing to do with the United States.
To repeat, piracy prosecutions still depended on the physical presence of the alleged pirate in U.S. territory. But once the U.S. court had territorial power over the pirate, it could (in accordance with international law) try that pirate for piratical attacks committed anywhere, against anyone. Personal jurisdiction required a physical nexus to the United States, even if no nexus was required for the exercise of subject-matter jurisdiction or the application of U.S. statutory law.
Particular Cases
To illustrate the above points, let us examine more closely a couple of admiralty cases that are frequently cited by proponents of unbounded personal jurisdiction.
Talbot v. Jansen
Perhaps the most frequently cited admiralty case in this debate is the Supreme Court’s decision in Talbot v. Jansen (1795), or specifically, one sentence in Justice Iredell’s opinion (speaking only for himself):
That prima facie all piracies and trespasses committed against the general law of nations, are enquirable, and maybe proceeded against, in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it.
This passage has nothing to do with the scope of personal jurisdiction. Iredell was speaking about the scope of the federal courts’ subject-matter jurisdiction—he himself labeled this discussion as addressing “[w]hether the District Court had jurisdiction prima facie upon the subject matter of the libel, taking for granted that the allegations in it were true.” No one doubted that the U.S. courts had personal jurisdiction over the parties as the subject ships were within U.S. territory at the time of adjudication.
Talbot was a case about privateering in the midst of the Neutrality Crisis. Ballard, admittedly a U.S. citizen and captain of the ship L’Ami de la Liberté, had seized a Dutch ship (the Vrouw Christiana Magdalena, captained by Jansen) off the coast of Cuba. Ballard had then rendezvoused with Talbot, captain of the L’Ami de la Point à Petre, who claimed to have denounced his U.S. citizenship in favor of French citizenship and to possess a French commission to capture Dutch merchant ships as prize, France and the Netherlands then being at war. Claiming the Vrouw Christiana Magdalena as a French prize, Ballard and Talbot sailed to the Port of Charleston. There, Jansen challenged their seizure in a U.S. court as contrary to U.S. laws trying to limit the involvement of U.S. citizens in French privateering.
Because the ship was in a U.S. port, there was no doubt that the court had authority over the ship. There was also no doubt that U.S. citizens were prohibited by U.S. law from doing what Ballard and Talbot had done (assuming Talbot was still a U.S. citizen). The two questions presented by the case were instead (1) whether Talbot’s French citizenship must be recognized and (2) whether the U.S. court had subject-matter jurisdiction to determine the legality of the seizure. There was an argument that since the case involved a matter of French prize, only a French prize court could determine the seizure’s legality. The Supreme Court instead held that whether the privateers were in fact French was an antecedent question that could be adjudicated by a non-French court.
Iredell’s comment, then, simply indicated an understanding that many matters of admiralty law could be decided by any court by application of the “general law of nations,” as long as that court had control over the ship in question. It does not suggest that a U.S. court could require a foreign ship to sail into a U.S. port in order for the court to adjudicate that claim.
Iredell’s quote—though repeated by the Fuld petitioners and several of the Fuld amici—has nothing to do with personal jurisdiction.
The Mariana Flora
In The Mariana Flora (1825), a Portuguese merchant vessel mistook a U.S. armed schooner for pirates and attacked it, leading the U.S. ship in turn to mistake the Portuguese ship for pirates and to seize it and bring it back to the United States for possible forfeiture. The Supreme Court concluded that the Portuguese ship had not technically engaged in piratical aggression because it lacked the requisite intent, and it restored the ship to its owner. But it also rejected the Portuguese ship owner’s request for damages for wrongful seizure.
The petitioners and amici in Fuld quote the following passage from the beginning of Justice Story’s opinion for the Court:
It has, indeed, been argued at the bar, that even if this attack had been a piratical aggression, it would not have justified the capture and sending in of the ship for adjudication, because foreign ships are not to be governed by our municipal regulations. But the act of Congress is decisive on this subject. It not only authorizes a capture, but a condemnation in our Courts, for such aggressions; and whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that Courts of justice are bound to obey and administer them.
As a preliminary matter, this passage was dictum, addressing a hypothetical counterargument following the Court’s quick conclusion that the Portuguese ship had not in fact violated municipal U.S. law. Further, just a couple of paragraphs later, Justice Story made clear that the U.S. law, which authorized the seizure of pirates in international waters, did not violate the law of nations:
Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation; for they are, in truth, the common enemies of all mankind, and, as such, are liable to the extreme rights of war. And a piratical aggression by an armed vessel sailing under the regular flag of any nation, may be justly subjected to the penalty of confiscation for such a gross breach of the law of nations.
More importantly for present purposes, the initial oft-quoted passage refers to excessive assertions of prescriptive and enforcement jurisdiction: how far U.S. law can reach, and whether a U.S. ship acted wrongly in seizing suspected pirates. At most, the passage suggests Congress can assert that its laws reach extraterritorial conduct and that U.S. authorities may seize potential perpetrators outside the United States even if doing so violates international law. But once the ship and its crew were brought back into a U.S. port, there was standard territorial power to adjudicate the ship’s character.
Conclusion
Admiralty is fascinating. It has always been a space in which U.S. federal courts operated on a global stage and helped resolve transnational—and sometimes purely foreign—disputes. But despite the potentially global reach of admiralty jurisdiction in terms of prescriptive power and subject-matter jurisdiction, there were still limits on personal jurisdiction over persons and property. I am not aware of any early case in which a U.S. court sitting in admiralty heard a dispute in which neither in personam nor in rem jurisdiction was established based on the physical presence of the individual or the ship within the court’s territorial jurisdiction. Absent such an example, admiralty cases are a red herring when it comes to defending unbounded personal jurisdiction.
To recap, then, proponents of unbounded personal jurisdiction have relied on a syllogism about personal jurisdiction being a matter of international law that they have not been able to conclusively establish. They have tried to bolster that inferential and incomplete logic by pointing to admiralty cases as purported examples of maximalist personal jurisdiction, but this post has explained how admiralty in fact relied on traditional territorial concepts of personal jurisdiction. That leaves, as the final evidence in support of the originalist argument, a trio of non-admiralty cases that are said to establish Congress’s authority to override limits on personal jurisdiction—in particular Picquet v. Swan (C.C. D. Mass. 1828). My next post will explain how those three cases have also been misread and misapplied.
Other posts in this series: