SEAFARER’S JONES ACT, UNSEAWORTHINESS AND RELATED CLAIMS WERE COMPELLED TO FOREIGN ARBITRATION AFTER DISTRICT COURT SEVERED INVALID CHOICE OF LAW PROVISION
DWIGHT MENESES, Plaintiff, vs. CARNIVAL CORPORATION,
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2010 U.S. Dist. LEXIS 83305
August 3, 2010, Decided
Before the court was Carnival’s Motion to Dismiss and Motion to Compel Arbitration.
Plaintiff was employed aboard several of Defendant’s cruise ships as a headwaiter. Prior to the commencement of his employment, Plaintiff signed a “Seafarer Agreement”, which was a standard agreement setting forth the basic terms and conditions of Plaintiffs employment. Sometime in 2007, Plaintiff was working as a headwaiter aboard a ship owned and operated by Defendant. While working, Plaintiff sustained serious injuries to both his left and right knees, which required surgery. Plaintiff claims that these injuries were both a direct result of Defendant’s negligence and purports to state a: 1) Jones Act negligence; 2) unseaworthiness; and 3) failure to provide prompt, adequate, and complete medical treatment. In response, Carnival filed the Motion to Dismiss and Compel Arbitration stating that Plaintiff may not litigate this matter because he signed a “Seafarer Agreement”, which pursuant to the Convention on the Recognition and Enforcement of Arbitral Awards requires arbitration in one of several locales, depending on which is closer to the seafarer’s home country. Under the terms of that Agreement, “all disputes arising under or in connection with this Agreement or Seafarer’s service on the vessel shall be resolved in accordance with, the laws of the flag of the vessel on which Seafarer is assigned at the time the cause of action accrues.” In the event that any provision of the Seafarer Agreement is found invalid or unenforceable, the Agreement requires severance of that provision and enforcement of the remaining ones. Id. The Court noted that there is conflicting law on the issue raised by the parties. Two cases and their respective progeny seemingly stand in opposition to one another and demand different outcomes. Those cases are Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005) and Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009). The court also noted that this has caused a split among courts in the Southern District of Florida. The Court concluded that Thomas applies, and that the choice of law and choice of forum clauses in the instant case render the arbitration provision unenforceable with respect to the Jones Act claim. In determining an appropriate remedy, the court considered the strong federal interest in arbitration, and thereby severed the choice of law provision in the Seafarer’s Agreement.
The Motion was granted in part and denied in part. Arbitration was ordered, but the choice of law provision was severed and the arbitrator was ordered to apply U.S. statutory law.
Where a barge facility owner sought contribution, claiming that a barge breakaway that damaged a vessel was caused by negligent navigation of a cruise ship, the cruise ship owner was not entitled to application in its favor of a drifting vessel presumption, and findings were insufficient to disregard a passing vessel presumption.
COMBO MARITIME, INC., Plaintiff v. U.S. UNITED BULK TERMINAL, LLC; U.S. UNITED BARGE LINE, LLC; UNITED MARITIME GROUP, LLC, in personam; MARLENE ELLIS M/V, its engines, tackle, apparel, etc., in rem; BRENDA KOESTLER M/V, its engines, tackle, apparel, etc., in rem, Defendants – Appellants v. CARNIVAL CORPORATION / FANTASY M/V, Third Party, Defendants – Appellees
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2010 U.S. App. LEXIS 17644
August 23, 2010, Filed
Plaintiff vessel owner sued defendant barge facility owner in the United States District Court for the Eastern District of Louisiana for damages due to a barge breakaway. The facility owner filed a third-party complaint against third-party defendant cruise ship owner for contribution and damages. The district court granted partial summary judgment for the cruise ship owner and dismissed the third-party complaint. The facility owner appealed.
The vessel owner alleged that a number of barges broke free of their moorings at the facility and allided with the vessel. The facility owner claimed that the barge breakaway was caused by negligent navigation of the cruise ship. The facility owner settled with the vessel owner, which released all of its claims against all parties. The vessel owner also assigned its claims against the cruise ship owner to the facility owner. The court of appeals held that the settlement did not moot the appeal. Although the assignment of the vessel owner’s claims was invalid, the facility owner could bring a contribution claim against the cruise ship owner because a full release was included in the settlement. On the merits, the district court improperly applied in favor of the cruise ship owner a presumption that shifted the burden of proof to a vessel that drifted into an allision with a stationary object; the presumption did not apply between co-defendants. Also, the district court applied the improper test for negating negligence, disregarded a passing vessel presumption without sufficient findings, and apparently misinterpreted the drifting vessel presumption as a presumption of sole fault.
The district court’s grant of partial summary judgment in favor of the cruise ship owner and its judgment against the facility owner on its claims against the cruise ship owner were reversed, and the matter was remanded for further proceedings.