Cruise Line Has No Right To Demand Arbitration Without Signing Arbitration Agreement

In CAPPELLO v. CARNIVAL CORPORATION, 23 Fla. L. Weekly Fed. D317a (S.D. Fla. Aug. 10, 2012) (J. Altonaga), a crewmember and his wife filed a lawsuit in state court against Carnival Corporation (“Carnival”) alleging breach of warranty of seaworthiness, Jones Act negligence, failure to provide maintenance and cure, failure to provide prompt, proper and adequate maintenance and cure, common law negligence and loss of consortium. Carnival filed a Notice of Removal of the lawsuit attempting to compel the Plaintiff to arbitrate his claims against Carnival. The Plaintiffs in turn filed a Motion to Remand the case back to state court.

 

The District Court found that it lacked federal question jurisdiction over the seaman's action under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Convention because Convention does not apply. The court found that Carnival had not met the jurisdictional prerequisites of the Convention by presenting a signed arbitration agreement between parties and, instead, produced only an “Officer's Agreement” to which it is not a signatory. The District Court further held that the doctrine of equitable estoppel does not allow Carnival, as non-signatory to the document it relies on, to compel arbitration where it makes no showing of how the Plaintiffs' claims implicate terms of Officer's Agreement . The court reasoned that to extent Carnival contends the seaman was equitably estopped from avoiding arbitration because underlying incident giving rise to his claims arose while he was employed, and the seaman was employed by means of Officer's Agreement, Eleventh Circuit precedent forecloses this line of reasoning.

 

The court further found that there was no existential basis for federal jurisdiction under admiralty law, and Carnival alleged no other basis for federal jurisdiction. Therefore, the court held that because it lacked subject matter jurisdiction, remand was appropriate and it is therefore inappropriate to rule on substantive merits of claim and granted the Plaintiffs leave to address appropriateness of attorney's fees and costs for improper removal.

 

If you are interested in receiving a complete copy of this decision, please feel free to contact me at mov@chaloslaw.com.

Eleventh Circuit Validates Forum-Selection Clause in Passenger Contract

In the case of the Estate of Tore Myhra v. Royal Caribbean Cruises, Ltd., Case No. 10-15840 (11th Cir. Sept. 21, 2011), the Plaintiff, the estate of Tore Myhra, brought suit against Royal Caribbean, seeking damages for Mr. Myhra's injuries and death. The Plaintiff alleged that a bacterial infection that the passenger had acquired while on board Royal Caribbean's vessel had caused the events which resulted in his death. The district court dismissed the Plaintiff's case, noting that forum-selection clauses are presumptively valid and the Plaintiff failed to make the strong showing required to void the presumptively valid forum-selection clause.

On appeal, the estate contended that the forum-selection clause should be invalidated both because it was against the statutorily expressed public policy of the United States and because its terms were not reasonably communicated to the Myhras. The court concluded that 46 U.S.C. section 30509(a) did not prevent Royal Caribbean from including the forum-selection clause in the decedent's contract. Nor did the court perceive any procedural or substantive error in the district court's conclusion that the clause was reasonably communicated to the Myhras. Accordingly, the decision of the district court to dismiss the case was correct and the court affirmed the judgment.

A full copy of this decision can be found at => http://docs.justia.com/cases/federal/appellate-courts/ca11/10-15840/10-15840-2012-09-21.pdf or you can reach me at miamipandi@comcast.net or mov@chaloslaw.com to obtain a copy.

Virginia Holds Decedent Seaman's Family Entitled to Pre-Death Pain and Suffering Under GML

In John Crane, Inc. v. Hardick, Record No. 101909 (Vir. Sept. 14, 2012), a decedent crewmember's wife and estate, filed suit under general maritime law against John Crane, Inc. (JCI) seeking compensatory and punitive damages, alleging that decedent, a former seaman, was exposed to asbestos contained in products manufactured by JCI and that he contracted mesothelioma as a result of such exposure. The Plaintiffs' third amended complaint included revived personal injury survival claims - which sought damages for Decedent's pre-death pain and suffering - and Plaintiffs' wrongful death claims. A jury awarded $2 million in damages for Decedent's pre-death pain and suffering. The Supreme Court vacated the award. The Plaintiffs petitioned for a rehearing, which the Court granted. The Court then reinstated the award and modified its opinion, holding that because the Jones Act permits recovery for the losses suffered during a decedent seaman's lifetime in a survival action, including pre-death pain and suffering, Decedent's estate may recover for his pre-death pain and suffering under general maritime law.

A complete copy of the decision can be found here => http://statecasefiles.justia.com/documents/virginia/supreme-court/101909-0.pdf?ts=1347883638.

If you need to reach me or are unable to download the opinion in Hardick and would like a copy of the decision, please feel free to reach me at miamipandi@comcast.net or mov@chaloslaw.com.