In ESTIBEIRO v. CARNIVAL CORPORATION, 23 Fla. L. Weekly Fed. D375a (S.D. Fla. Oct. 2, 2012) (J.Seitz), the Southern District of Florida has again found that an arbitration clause in a seaman's employment contract, which required that the arbitration of claims must be held in Bermuda, unless the Bermuda venue provision is found legally unenforceable, was valid and enforceable. A seaman had brought his Jones Act claims and claims for maintenance and cure against his cruise ship employer, alleging he sustained damage to his heart muscle as result of an alleged failure to administer medication in a timely manner after he suffered a heart attack while working on cruise ship. The plaintiff brought the case in federal court, alleging that the amendment to the Jones Act which deleted the statute's venue provision rendered the Bermuda forum selection clause unlawful and contrary to public policy. The district court disagreed and found that the arbitration clause was neither substantively nor procedurally unconscionable.
Of course, this case follows on the Eleventh Circuit's opinion which reinforced its prior adherence to the enforceability of arbitration provisions in seamen's contracts, which significantly limited the effect of its prior decision invalidating such clauses where they precluded a seaman from seeking recovery under a statutorily defined remedy. In Lindo v. NCL (Bahamas) Ltd., 652 F.3d 1257 (11th Cir. 2011), a 2-to-1 panel decision held that arbitration provisions were enforceable even as to statutory claims, such as those arising under the Jones Act.
Previously, the Eleventh Circuit had followed the Fifth Circuit's earlier recognition of the validity of such provisions in Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005). Subsequently, however, the court cast some doubt on the ultimate enforceability of such clauses in its later opinion in Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), a case which I blogged on previously and received some rather interesting commentary. Thomas refused to give effect to an arbitration agreement which would have precluded the plaintiff's statutory Seaman's Wage Act claim by requiring the application of Panamianian law. In a lengthy opinion in Lindo, the majority sought to harmonize its prior decisions.
Estibero now gives some additional guidance. The Plaintiff in Estibero invited the district court to follow Thomas and find that the arbitration clause is unenforceable as against public policy. The district court refused to do so for three reasons. First, the court found that Thomas is distinguishable from the instant case. Second, the court found that Thomas is of limited precedential value. Third, the court found that the plaintiff failed to make a showing that his remedies under Bermuda law are inadequate. The court gave a clear roadmap of what a plaintiff would have to show in meeting his burden that the remedies in the foreign forum are inadequate.
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