Skip to main content

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 miamipandi@comcast.net.

Comments

Popular posts from this blog

Maritime Law--U.S. Crewmember Required to Arbitrate Claims Applying Norwegian Law

In Alberts v. Royal Caribbean Cruises, Ltd., No. 15-14775 (11th Cir. Aug. 23, 2016), the U.S. Court of Appeals for the Eleventh Circuit held that a U.S. citizen, working aboard a Royal Caribbean cruise ship is required to arbitrate his claims against Royal Caribbean.
Plaintiff, a United States citizen, worked as the lead trumpeter on a passenger Royal Caribbean cruise ship. The ship is a Bahamian flagged vessel with a home port in Fort Lauderdale, Florida. Royal Caribbean, the operator of the vessel, is a Liberian corporation with its principal place of business in Florida. After plaintiff became ill while working for Royal Caribbean, he filed suit alleging unseaworthiness, negligence, negligence under the Jones Act, maintenance and cure, and seaman’s wages and penalties. Royal Caribbean moved to compel arbitration, and the district court granted the motion. This appeal presented an issue of first impression: Whether a seaman’s work in international waters on a cruise ship that calls o…

Maritime Law--Tour Boat Captain Implicated in Tragedy Off Nicaragua

As reported in the Daily Business Review on January 25, 2016, Nicaragua's police, army and navy will investigate the captain of a tourist boat and his assistant for the deaths of 13 Costa Rican passengers killed on January 23rd when the vessel capsized in bad weather. The Reina del Caribe, Spanish for "Caribbean Queen," was carrying 33 people when it went down Saturday amid rain and strong winds as it ferried between the Corn Islands, a popular tourist destination, off Nicaragua's Caribbean coast. The Daily Business Review article can be accessed here=> Daily Business Review article.

The government clarified on the 24th that the boat was carrying 25 Costa Ricans, two Americans, two British citizens, a Brazilian and three Nicaraguans. Previous reports had said there were 32 people on board, including four Americans. All the dead were Costa Ricans.

Nicaragua's naval commander for the southern Caribbean region said the boat's captain was detained because the …

Maritime Law--Lawsuits Filed Over RCCL's "Storm Cruise"

Royal Caribbean Cruises Ltd ("RCCL") faces lawsuits by passengers accusing the company of negligently endangering their lives by letting Anthem of the Seas sail into a February 7, 2016 storm.  One class action lawsuit filed in federal court in Miami specifically states that RCCL should be required to pay punitive damages to passengers on its ship for "knowingly sailing directly into" a strong winter storm with 120-mph winds. It is also alleged that people aboard the ship were "subjected to hours of sheer terror as the gigantic cruise ship was battered by hurricane-force winds and more than 30-foot waves."

The vessel reportedly encountered 100 mph winds and 30-foot waves, and RCCL said the storm was more severe than expected. RCCL later turned the ship around, and it returned to New Jersey on February 10. Anthem of the Seas’ port azipod reportedly burnt through “all four clutches” during the storm. RCCL reported four minor injuries among more than 6,000 p…