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 remanded back to state court in light of the Eleventh Circuit's decision in Thomas v. Carnival Corporation, 573 F.3d 1113 (11th Cir. 2009) [21 Fla. L. Weekly Fed. C1989a]. In that case, the Eleventh Circuit held that the exact same arbitration provision as presented in this case was unenforceable as to the plaintiff's Seaman's Wage Act claim. Id. at 1124. Finding Panamanian law did not provide a reasonable equivalent to plaintiff's rights under the Seaman's Wage Act and there was no assurance of an opportunity for review of plaintiff's claim, the Thomas court held that the arbitration and choice of law provisions acted in tandem to strip the plaintiff of his statutorily-created rights. Id. at 1123. Thus, the Thomas court found the arbitration provision null and void, as contrary to public policy, with regard to the plaintiff's wage claim and reversed the district court's decision to compel arbitration. Id. at 1124. The Plaintiff argued that the arbitration provision is similarly void in this case.
The Plaintiff also argued that since the rest of his claims were not removable, the whole case must be remanded back to state court. Moreover, the Plaintiff sought an award of attorney's fees and costs pursuant to 28 U.S.C. § 1447 as the Defendant filed the notice of removal in this action well after the opinion in Thomas was issued, thus making removal unjustified.
The Court agreed with the Plaintiff and found that the case should be remanded back to state court in its entirety. Judge Lenard found that as a result of Thomas, the arbitration clause in the Plaintiff's employment agreement is null and void as to his Seaman's Wage Act claim. In addition, the Court found persuasive another decision that found that “it would be against public policy to compel arbitration of Plaintiff's Jones Act claim according to Panamanian law because to do so would deprive her of important statutory rights provided by Congress to effectuate public policy.” Kovacs, 2009 WL 4980277 at *1.
The Court also relied on affidavits from Panamanian attorneys, detailing that under Panamanian law, a seaman must prove that the employer was itself actively negligent in order to establish liability for the negligence of another employee. In contrast, the Jones Act imposes strict liability on employers for the negligence of any of its employees. As such, compelling arbitration of the Plaintiff's Jones Act claim would contravene public policy and the arbitration provision must be declared null and void as it relates to the Jones Act claim. Finally, the Court found that compelling arbitration as to the Plaintiff's unseaworthiness and maintenance and cure claims, while remanding his Jones Act and Seaman's Wage Act claims, would be inefficient and a waste of judicial resources.
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