Skip to main content

Posts

Showing posts from December, 2011

Arbitration Not Time Barred by Statute of Limitations Unless Contract Says So

In the case ofRAYMOND JAMES FINANCIAL SERVICES, INC. v. PHILLIPS, 36 Fla. L. Weekly D2479a (Fla. 2d DCANov. 16, 2011), the Second District Court of Appeals held that arbitration claims are not civil actions or proceedings for purposes of section 95.011, Florida Statutes (2005), and that as a result, Florida statutes of limitations are not applicable to arbitration where the arbitration agreement does not expressly provide for their application.
Facts of Case
Account Holders executed client agreements with Raymond James for investment purposes. Pursuant to the provisions of the client agreements, the Account Holders were required to submit any disputes with Raymond James to the National Association of Securities Dealers, Inc. ("NASD"), for arbitration. Section 10304, the applicable NASD Code of Arbitration Procedure, provides a time limit upon submissions for arbitration. It states in pertinent part:
"(a) No dispute, claim, or controversy shall be eligible for submission t…

Does Judge Lenard Do an About Face on Arbitrability? Not So Fast...

Last week, I blogged on the decision of Pavon v. Carnival Corporation, 23 Fla. L. Weekly Fed. D96a (S.D. Fla. Jan. 20, 2010), wherein Judge Lenard granted Plaintiff's Motion to Remand and Attorneys Fees, after the plaintiff requested the Court to remand the case back down to state court and award attorney's fees and costs for Carnival improperly removing the case to federal court.

This decision, of course, spurred lots of debate. Many in the defense bar quickly argued that Pavon was necessarily overruled by Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257 (11th Cir. 2011), wherein the Eleventh Circuit Court of Appeals found that the seaman's single count claim for Jones Act negligence had to be arbitrated "at the initial arbitration-enforcement stage." Thus, it would appear that at first blush, Lindo arguably overturned Pavon.

However, it is interesting to note that Pavon involved a claim for failure to pay wages under the Seaman's Wage Act, among other claims. Ju…

Miami River Hosts Mega Yachts

At least once every four to five years, yachts must find a boatyard with sufficient lifting capacity and quality workmanship to tweak the running gear, repaint the hull, and add the latest in electronics and navigation equipment. As reported in the Caribbean Magazine in their October-December 2011 edition, this may also include adding a few meters in length to such a vessel to accommodate some new interior design concepts.

Golden Odyssey, a 264 foot/80.50 meter vessel was built at the Blohm & Voss yard in Hamburg, Germany and delivered in 1990. In 1995, Golden Odyssey had a refit at the Campbell shipyard. There her hull was lengthened from 76m to 80.5m after a modification of her stern. She also got a fully repaint. From time to time she underwent several small refits at different (undisclosed) yards.

Golden Odyssey is the flagship of the Golden Fleet and is sailing seas all over the world with her support yacht Golden Shadow (219 ft/66.75m) and the sport fishermen Golden Osprey (9…

Seaman's Removed Action Remanded by Southern District of Florida

In PAVON v. CARNIVAL CORPORATION, 23 Fla. L. Weekly Fed. D96a (S.D. Fla.Jan. 20, 2010), District Judge Joan A. Lenard granted Plaintiff's Motion for Remand and Attorneys Fees,  requesting the Court remand the case back to state court and award attorney's fees and costs after Carnival removed the case to federal court.
The Plaintiff, a seaman injured during his employment aboard the M/V Carnival Celebration, brought a lawsuit in state court in Miami-Dade County, Florida, alleging: (1) negligence under the Jones Act, 46 U.S.C. § 30104; (2) unseaworthiness; (3); failure to provide maintenance and cure; and (4) failure to pay wages under the Seaman's Wage Act, 46 U.S.C. § 10313. The cruise line subsequently removed the action to federal court, arguing that the Plaintiff's claims were governed by an arbitration provision in his employment agreement, which allegedly called for Panamanian law to apply.
In his Motion for Remand, the Plaintiff argued that his case must be remand…

Cruise Crewmember Gets $1 Million for Surgery

A Miami state court jury has awarded $1 million to a seafaring pastry chef who lived with a disabling pacemaker for a year only to discover he never needed it. Shalesh Butto, an otherwise healthy, 31-year old second-degree black belt jiu-jitsu fighter, blamed his employer for the mistake. Celebrity Cruise Lines sent the crewmember from Europe to the Dominican Republic in 2009 to see less expensive doctors after he complained of headaches and facial pain in 2009.

Doctors first inserted a pacemaker and then performed sinus surgery for an infection the following week. Butto's symptoms disappeared. But for the next year, pain surged through Butto's chest and he ultimately had to use a walker to walk. After obtaining a visa, he saw Miami cardiologists who removed the pacemaker and after doing so, Butto recovered.

Butto sued for medical negligence under the U.S. Jones Act and won the award after a one-week jury trial before Miami-Dade Circuit Judge Ronald Dresnick. Celebrity is repo…

Cruising in Cuba

American citizens are allowed to visit Cuba, but U.S. law prohibits us form spending money there and the U.S. embargo prohibits cruise ships that visit Cuba to enter the United States for six months afterwards. In 2005, cruise shipping came to a near halt in 2005 when Fidel Castro said he no longer wanted cruise ships in Cuba. He cited the cost of day-visit tourists tramping through Havana outweighing the benefits. Fidel criticized cruising for being floating hotels, floating restaurants, floating theaters and floating diversions that try to leave their trash, their empty cans and papers for a few miserable cents. Fidel then cancelled an Italian firm's contract to run Cuba's cruise terminals, with the final nail in the "proverbial coffin" when a Spanish ship, the PULLMANTUR, bypassed the island after being bought by an American firm that was subject to the U.S. embargo.

As a result, only a few cruise ships visited Cuba from 2005 to 2010. However, the Caribbean Marit…