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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. Judge Lenard found in Pavon (relying on an earlier decision of the Eleventh Circuit, Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009)) that the arbitration clause in the employment contract was null and void as to his Seaman's Wage Act claim. On the other hand, Lindo involved only a single claim for Jones Act negligence and made no claim under the Seaman's Wage Act. Thus, the facts of the two cases are easily distinguished.

We now come to Judge Lenard's latest ruling on the subject in Kote v. Princess Cruise Lines, Ltd., 2011 WL 4434858 (S.D. Fla. Sept. 23, 2011). This action involved injuries sustained by a crewmember, alleging two counts: 1) Jones Act negligence; and 2) maintenance and cure. Kote did not seek damages under the Seaman's Wage Act. In addition, the defendant in Kote waived the exclusive application of Bermudan law (which was the choice of law provision in the employment contract) and stipulated to the application of United States law to Kote's Jones Act claim. Judge Lenard, detailing Lindo and relying on this latest pronouncement of the Eleventh Circuit, found that Kote's case must be compelled to arbitration under either a Thomas or Lindo analysis. The court reasoned that the plaintiff must show how the laws of the country where arbitration would be conducted did not recognize Jones Act claims or comparable remedies. This is particularly relevant where the defendant has agreed to apply U.S. law in the foreign jurisdiction. Thus, the court found that the plaintiff failed to do so in this instance and compelled arbitration.

Thus, the question remains whether with a Seaman's Wage Act claim and a plaintiff being able to show how the laws of the country where arbitration would be conducted would not recognize a claim similar to the Seaman's Wage Act. One would expect that all jurisdictions have some sort of penalty against an employer for failing to pay their seamen employed by the ships. One would also expect defendants to agree to the application of U.S. law in the foreign jurisdiction to avoid any argument that the case should remain in the U.S. Nevertheless, to make the quantum leap that Lindo essentially takes all seaman's contracts involving arbitration out of the United States does not fully take into account the reasoning of both Thomas and Lindo, the Eleventh Circuit pronouncements on these issues.

If you are interested in reading a full copy of Judge Lenard's latest decision in Kote or wish to reach me, you may do so by contacting me at


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