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September 04, 2012

John Doe and Jane Doe, et al v. Norwegian Seafarers Union

Plaintiff’s Reply in Support of Motion to Remand

In this case, Plaintiff seafarers have brought a declaratory action against their union, the Norwegian Seafarers Union. The lawsuit alleges that the Norwegian Seafarers Union does not represent the interest of its members. Accordingly, the Plaintiffs have asked the Court to declare that they are not represented by the Defendant and that all contracts negotiated by the Defendant on the seafarers behalf are null and void. The Plaintiffs filed their lawsuit in Florida state court and the Defendant removed the case to federal court. In this reply, the Plaintiffs explain the reason that the case was improperly removed and why it should be sent back to state court.

JOHN DOE, JANE DOE, each on their own behalf, and on behalf of
all other current and future crewmembers working for
Royal Caribbean Cruises Ltd., similarly situated,


Sjømannsforbund, a Norwegian corporation,

______________________________ /


COME NOW, the Plaintiffs, JOHN DOE, et al. (“Plaintiffs”), by and through undersigned counsel, hereby file the instant reply in support of their Motion for Remand [D.E. 8] and, in furtherance thereof, state as follows:


I. Introduction

The NSU’s response to Plaintiffs’ Motion for Remand makes clear that the only possible ground for removal is based on the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958), 21 U.S.T. 2517 (“the Convention”).[1] The NSU therefore concedes that there is no diversity of citizenship between the parties and the Plaintiffs’ claim does not present a federal question.

As set forth below, however, Section 205 of the Convention does not apply because the jurisdictional prerequisites of the Convention have not been met – there are no written arbitration agreements between the Plaintiffs and the NSU, and the NSU may not rely on contracts to which it is not a party to. Furthermore, even if this Honorable Court were to find that the Plaintiffs’ employment contracts and the CBA govern the parties herein, the case should still be remanded because the CBA’s arbitration clause does not include claims against the NSU.

II.The jurisdictional prerequisites of the Convention have not been met because the NSU fails to present the Court with written arbitration agreements between the Plaintiffs and the NSU, and the only agreements the NSU presents are insufficient because they are with a non-party to this action.

Contrary to the NSU’s argument, this case fails to meet the jurisdictional requirements under Section 205 of the Convention because there are no written arbitration agreements between the Plaintiffs and the NSU, and the NSU may not rely on agreements between the Plaintiffs and a non-party to this action.

Pursuant to Section 205, an action is subject to removal if it “relates” to an agreement “falling under the Convention.” 9 U.S.C. § 205. For an agreement to “fall under” the Convention, all of the following jurisdictional prerequisites must be met: (1) there is an agreement in writing to arbitrate the dispute; (2) the agreement provides for arbitration in the territory of a signatory to the Convention; (3) the agreement to arbitrate arises out of a commercial legal relationship; and (4) there is a party to the agreement who is not an American citizen. Bautista v. Star Cruises, 396 F.3d 1289, 1295 n. 7 (11th Cir. 2005). If the Court finds that the agreement at issue falls outside the Convention, “there is no basis for federal jurisdiction and the case must be remanded.” Matabang v. Carnival Corp., 630 F. Supp. 2d 1361, 1363 (S.D. Fla. 2009).

The NSU argues that the agreement which meets the four prerequisites is the CBA which contains the arbitration clause. However, the CBA only comes into play if the seafarer signs an employment contract because that is where he agrees to incorporate and be bound by the terms and conditions of such CBA. Without the employment agreement, the Plaintiffs are not bound by the CBA’s arbitration clause.[2] Therefore, the Plaintiffs’ employments contracts – not just the CBA – must meet the four jurisdictional prerequisites. In conducting such an analysis, it is clear that the first prerequisite is not met.[3] Specifically, it is evident from the face of the employment agreements that they are solely between the Plaintiffs and Royal Caribbean. These agreements are therefore insufficient because the NSU is not a party to them.

It is well settled by the United States Supreme Court and the Eleventh Circuit that “[a] rule of contract law is that one who is not a party to an agreement cannot enforce its terms against one who is a party.” Lawson v. Life of the S. Ins. Co., 648 F.3d 1166, 1167-68 (11th Cir. 2011) (citing Walsh v. Columbus, H.V. & A.R. Co., 176 U.S. 469, 479, 20 S.Ct. 393, 397, 44 L.Ed. 548 (1900); Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1169 (11th Cir. 2009); United States v. Puentes, 50 F.3d 1567, 1574 (11th Cir. 1995)) (emphasis added). Based on that principle, this Honorable Court recently held that a third party (like the NSU) cannot rely on an arbitration agreement between the seafarer and their non-party employer (like Royal Caribbean). Specifically, in the matter of Cappello v. Carnival Corp., 12-22181-CIV, 2012 WL 3291844 (S.D. Fla. Aug. 10, 2012), this Court granted the plaintiffs’ motion for remand due in part to the defendant-cruise line’s failure to produce written arbitration agreements to which it was a party to. The Court explained as follows:

Plaintiffs contend section 205 does not apply because the jurisdictional prerequisites of the Convention have not been met. The jurisdictional requirements of the Convention are that: (1) there is an agreement in writing within the meaning of the Convention… Bautista v. Star Cruises, 396 F.3d 1289, 1295 n. 7 (11th Cir. 2005). According to Plaintiffs, the first element is not met—there is no agreement in writing covered by the Convention. The Convention states, “[a]n arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention.” 9 U.S.C. § 202….

Plaintiffs assert Carnival has not presented a signed arbitration agreement between the parties. Carnival has instead produced an “Officer’s Agreement”, which was signed and entered into by [the Plaintiff] and [his employer], a non-party to this action…. Plaintiffs contend that in order to compel arbitration, Carnival would have to produce an agreement signed by itself and [the Plaintiff].

Carnival does not dispute that it is not a signatory to the Officer’s Agreement between [the Plaintiff] and [the non-party employer]….

“A rule of contract law is that one who is not a party to an agreement cannot enforce its terms against one who is a party….”

The Court finds the Convention does not apply to Plaintiffs’ claims, and [the Plaintiff] is not required to arbitrate.

Cappello, at *2-6 (internal citations omitted) (emphasis added).

In this case, the only agreements which the NSU presents for purposes of removal are agreements between some of the Plaintiffs and their employer-Royal Caribbean (a non-party to this action). Similar to Cappello, in order to remove the case and ultimately compel arbitration, the NSU would have to produce an agreement signed by itself and each Plaintiff. Importantly, however, the NSU does not even claim that there are agreements between the Plaintiffs and the NSU because it cannot. Simply put, there is no agreement to arbitrate between the Plaintiffs and the NSU. The Plaintiffs’ employment agreements only serve as an indication that the Plaintiffs allegedly agreed to arbitrate their claims against Royal Caribbean – not the NSU; and based on Cappello, the NSU may not rely on such contract.

In the absence of a valid agreement in writing to arbitrate, the NSU failed to meet its burden to prove one of the jurisdictional pre-requisites under the Convention and, therefore, cannot remove the Plaintiffs’ action under the Convention.

III. The CBA’s arbitration agreement is null and void as against public policy.

Even if the above four prerequisites are met, a court must further inquire into whether any affirmative defenses in the Convention apply. Harrison v. NCL (Bahamas) Ltd., 1:11-CIV-20414, 2011 WL 1595170 (S.D. Fla. Apr. 27, 2011) appeal dismissed, 11-12179, 2012 WL 3590688 (11th Cir. Aug. 22, 2012) (citing Bautista v. Star Cruises, 396 F.3d 1289, 1301–02 (11th Cir. 2005)); see also Convention, art. II(3). Removal is improper if affirmative defenses render the arbitration agreement “null and void.” Id. Further, “[r]emoval statutes are construed narrowly. ‘Federal courts are courts [of] limited jurisdiction’ and any ‘uncertainties as to removal jurisdiction are to be resolved in favor of remand.’” Harrison, supra (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) and Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001)) (emphasis added).

Herein, as discussed above, the Plaintiffs claim that the NSU does not have the authority or right to represent the Plaintiffs as their claimed Union, and that the collective bargaining agreements negotiated by the NSU on their behalf are void and/or invalid. As a matter of public policy, the NSU should not be allowed to rely on the very document that the Plaintiffs claim is invalid in order to remove the case and ultimately compel arbitration.

IV.The CBA’s arbitration clause does not include claims against the Union.

Lastly, assuming arguendo that this Honorable Court finds that the Plaintiffs’ employment contracts and, thus, the CBA’s arbitration clause govern the parties in this case, it will find that the Plaintiffs’ claims against the NSU (as the Union) are not subject to arbitration.[4]

As the NSU itself acknowledges, “private agreements to arbitrate are enforced according to their terms.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Volt Information Sciences, Inc., 489 U.S. 468 (1989) (emphasis added). The relevant portion of the CBA states as follows:

All grievances and any other dispute whatsoever, whether in contract, regulatory, statutory, common law, tort or otherwise relating to or in any way connected with the seafarer’s service for the Owners/Company under the present Agreement, including but not limited to claims for personal injury/disability or death, no matter how described, pleaded or styled, and whether asserted against the Owners/Company, Master, Employer, Ship Owner, vessel or vessel operator shall be referred to… mandatory binding arbitration…

[D.E. 13-1, p. 33] Article 35, paragraph 1 (emphasis added).

Even the most cursory review of this language demonstrates that the parties against whom arbitration must be brought against is specifically limited to six different types of persons/entities: “the Owners/Company, Master, Employer, Ship Owner, vessel or vessel operator.” Claims against the NSU as the Union are not included or even mentioned.

In its response, the NSU focuses on the definition of “grievance” and the language, “[a]ll grievances and any other dispute whatsoever,” to prove that it is supposed to be construed broadly. The only thing such language proves, however, is that the type of claims considered arbitrable is broadly construed. This language does not dictate the parties involved in the claims.

The NSU also argues that the silence as to the Union in the arbitration clause should be interpreted to mean “that the Union is subject to arbitration as a named party to the CBA, and that it does not again have to be specifically named in the arbitration clauses…” [D.E. 13, p. 14]. Yet the NSU’s interpretation fails to explain why Royal Caribbean (also a named party to the CBA) is included in the clause as the Owner/Company, Employer, Ship Owner, and/or vessel operator. That interpretation also fails to explain why the Union is “specifically named” so many other times throughout the CBA, including at least sixteen (17) times in the grievance and arbitration sections alone (Articles 34 and 35). [D.E. 13-1, pp. 31-34].

It is well settled that ambiguities in contracts are construed against the drafter. See Arriaga v. Florida Pac. Farms, L.L.C., 305 F.3d 1228, 1246-47 (11th Cir. 2002); see also City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla. 2000). Here, the NSU could have easily avoided this situation by providing much clearer language as to the parties included in the arbitration process. If the NSU had intensions to be a part of the arbitration process, it would have specifically added itself to the arbitration clause. It should not benefit from its failure to do so.

V. Conclusion

Based on the foregoing, Section 205 of the Convention does not apply because the jurisdictional prerequisites of the Convention have not been met and the CBA is null and void as a matter of public policy. In addition, the CBA’s arbitration clause does not even include claims against the NSU. Therefore, Plaintiffs respectfully request that this Honorable Court remand this action back to the Miami-Dade County Circuit Court and require the NSU to pay just costs and actual expenses, including attorneys’ fees, which Plaintiffs incurred as a result of the removal.

Respectfully submitted,
Lipcon, Margulies,
Alsina & Winkleman, P.A.
Attorney for Plaintiffs
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

By: /s/ Michael A. Winkleman
Michael A. Winkleman
Florida Bar No. 36719


I hereby certify that on September 4, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some electronically Notices of Electronic Filing.

By: /s/ Michael A. Winkleman
Michael A. Winkleman
Young, et al. v. Norwegian Seafarers’ Union
Case No. 12-22668-CIV-Rosenbaum/Seltzer
Kathleen M. Phillips
Holly E. Van Horsten
Phillips, Richard & Rind, P.A.
9360 SW 72 Street, Suite 283
Miami, Florida 33173
Telephone: (305) 412-8322
Facsimile: (305) 412-8299
Attorneys for Defendant

[1] At the outset, Plaintiffs contend that the NSU’s Notice of Removal is defective. Section 205 of the Convention clearly states that the defendant’s ground may either appear on the “face of the complaint” or the defendant’s “petition for removal”. 9 U.S.C. § 205. Herein, however, the ground for removal under Section 205 was neither in Plaintiffs’ complaint nor the NSU’s Notice of Removal. [D.E. 1]. In fact, the NSU did not even mention Section 205 in its Notice of Removal.

[2] The NSU realizes this which is why they attached (some) employment agreements to their response [D.E. 13-2]. Notably, however, the NSU does not even present the Court with an employment for each Plaintiff. The NSU only attaches the employment agreements of Plaintiffs, Gregory Hughes [D.E. 13-2, pp. 1-9] and Fitzroy Lloyd Johnson [D.E. 13-2, pp. 10-12]. The NSU fails to attach any agreements for the remaining Plaintiffs (Richard Graham Young, Roan Drumond Scott, Cliff Fitzpatrick, Auzzie Duane Dabrell, and Stanley Armando Mullings). This in and of itself should serve as grounds for remand. See Allen v. Champion Enterprises, 250 Fed. Appx. 266 (11th Cir. 2007); see also Newman v. Hooters of Am., Inc., 8:06CV00364 EAKTGW, 2006 WL 1793541 (M.D. Fla. June 28, 2006).

[3] Without waiving the fact that there is no agreement between the Plaintiffs and the NSU, the Plaintiffs do not contest that Norway and the United States are signatories to the Convention (second factor); the Plaintiffs’ employment agreements with Royal Caribbean are considered to arise out of commercial legal relationships (third factor); and one party to the agreement (each named Plaintiff herein) is not an American citizen (fourth factor).

[4] Contrary to the NSU’s argument, this Honorable Court does have jurisdiction to determine the arbitrability of the Plaintiffs’ claims herein. According to the United States Supreme Court, “[j]ust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter. Did the parties agree to submit the arbitrability question itself to arbitration? If so, then the court’s standard for reviewing the arbitrator’s decision about that matter should not differ from the standard courts apply when they review any other matter that parties have agreed to arbitrate…. If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently. These two answers flow inexorably from the fact that arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes-but only those disputes-that the parties have agreed to submit to arbitration.First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 1923-24, 131 L. Ed. 2d 985 (1995) (internal citations omitted) (emphasis added). Herein, the CBA did not submit the arbitrability question itself to arbitration and, therefore, this Honorable Court has jurisdiction to determine same.

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