United States Court of Appeals, Eleventh Circuit.

Joseph SECO, Plaintiff–Appellant,


NCL (BAHAMAS), LTD., a Foreign Corporation, Defendant–Appellee.

No. 13–15091 | Non–Argument Calendar. | Oct. 2, 2014.

PROCEDURAL POSTURE:   Passenger brought action against owner of vessel, alleging violations of Title III of Americans with Disabilities Act (ADA) and seeking injunctive relief. The United States District Court for the Southern District of Florida, dismissed action due to being time-barred and failing to state a claim. Passenger appealed.

OVERVIEW: Plaintiff Joseph Seco, who is confined to a wheelchair, was a passenger on board the defendant NCL’s vessel, Norwegian Sky. He alleges that two architectural barriers on the Norwegian Sky deprived him of full enjoyment of the cruise: (1) a lack of handicapped-accessible exterior cabins with balconies or window views; and (2) doors that are not ADA-compliant because they require excessive force to open. The district court granted NCL’s motion to dismiss, finding that Seco’s complaint was time-barred and failed to state a claim. On appeal, Seco challenges both bases of the district court’s ruling. Court held that it need not decide those issues because it affirmed the dismissal on the alternative ground that Seco’s claims are subject to compulsory arbitration. Cf. Seminole Tribe of Fla. v. Fla. Dep’t of Revenue, 750 F.3d 1238, 1242 (11th Cir.2014) (“[W]e may affirm the dismissal of a complaint on any ground supported by the record even if that ground was not considered by the district court….”). Paragraph 10(b) of Seco’s passenger ticket contract provides, inter alia, that: Any and all disputes, claims, or controversies whatsoever, other than for personal injury, illness or death of a Guest, … including but not limited to alleged violation of civil rights [or] discrimination … laws, … shall be referred to and resolved exclusively by binding arbitration. Seco did not argue before the district court and does not argue on appeal that he is not bound by ¶ 10(b) or that the clause is otherwise inequitable or unenforceable; significantly, he has never disputed—despite ample opportunity to do so—the validity of ¶ 10(b)’s arbitration provision. Seco instead contends that, under our precedents, ADA claims are considered claims for “personal injury” and are therefore not subject to ¶ 10(b)’s requirements. Court disagreed and found that the court had never held that civil rights claims are a type of personal injury claim. The court was unpersuaded by Seco’s efforts to characterize his ADA claims as claims for personal injuries for purposes related to his cruise ticket contract. Accordingly, we hold that ¶ 10(b) of the contract governs his claims and that these claims must therefore be dismissed in favor of arbitration. Cf. Solymar Invs., Ltd. v. Banco Santander S.A., 672 F.3d 981, 999 (11th Cir.2012) (holding that “the district court correctly dismissed the entirety of the … [c]omplaint in favor of arbitration”); Randolph v. Green Tree Fin. Corp.-Alabama, 244 F.3d 814, 815, 819 (11th Cir.2001) (affirming a district court compelling arbitration and dismissing the action with prejudice).




148 So.3d 155

District Court of Appeal of Florida,

Third District.



Jeanette CLARKE, Appellee.

No. 3D14–871. | Oct. 8, 2014.

PROCEDURAL POSTURE: Passenger brought negligence action against operator of cruise ship. The Circuit Court, Miami–Dade County, Spencer Eig, J., denied operator’s motion to dismiss for improper venue. Operator appealed.

OVERVIEW: Clarke, a passenger aboard a Royal Caribbean vessel, filed a negligence claim against Royal Caribbean in state court, a few days before the expiration of the contractual one-year limitation period. Royal Caribbean moved to dismiss Clarke’s complaint on improper venue grounds. In support of its motion, Royal Caribbean submitted an affidavit which established that Clarke needed to check in and accept all of the terms and conditions of the ticket contract before she boarded the vessel. The trial court denied Royal Caribbean’s motion to dismiss, finding that there was no evidence Clarke received and read the ticket contract before she boarded the vessel. The first paragraph of the ticket contract indicated in bold and capital letters that it “[c]ontains important limitations on the rights of passengers, it is important that you carefully read all terms of this contract, paying particular attention to section 3 and sections 9 through 11,” which pertained to the forum selection clause and the one-year limitation period to file suit provision. The forum selection clause in section 9 stated, “[a]ll disputes and matters whatsoever arising under, in connection with or incident to this agreement … shall be litigated, if at all, in and before the United States District Court for the Southern District of Florida located in Miami–Dade County, Florida….”

Court held that the record reflects that Royal Caribbean reasonably communicated to Clarke the existence of important terms and conditions of the ticket contract before she boarded the vessel. The appropriate inquiry is whether a cruise ship operator “reasonably communicates to passengers the existence within the ticket of important terms and conditions which affect legal rights,” not whether the passenger actually received and read the ticket contract. Leslie v. Carnival Corp., 22 So.3d 567, 574 (Fla. 3d DCA 2009). Court further held that the record sufficiently established that Clarke entered into the ticket contract and the first paragraph of the ticket contract reasonably communicated to Clarke, in bold and capital letters, important limitations such as the forum selection clause and the one-year limitation to file suit. The record also reflects Clarke timely filed her negligence suit and, as such, she acknowledged the ticket contract’s provision relative to the application of the one-year limitation period to file suit. The ticket contract’s forum selection clause, like the one-year limitation period provision, was contained in the ticket contract. Court held that Clarke also failed to satisfy her burden of establishing the non-enforcement of the forum selection clause. Finally, Royal Caribbean had no obligation to remove the case to federal court in Miami after Clarke filed the negligence claim in the Eleventh Judicial Circuit Court for Miami–Dade County. This Court has enforced similar forum selection clauses and has recognized dismissal as a proper mechanism to enforce a forum selection clause of a cruise ticket.

OUTCOME: Court concluded that Clarke is bound by the forum selection clause contained in the ticket contract because Royal Caribbean reasonably communicated to her the terms and conditions of the ticket contract, and further concluded that Royal Caribbean had no obligation to remove the case to federal court. We therefore reverse the trial court’s order denying Royal Caribbean’s motion to dismiss for improper venue. Reversed.



2014 WL 5334740

Only the Westlaw citation is currently available.

United States Court of Appeals,

Eleventh Circuit.

Nikolay TRIFONOV, Plaintiff–Appellant,


MSC MEDITERRANEAN SHIPPING COMPANY SA, MSC Cruises (USA), Inc., MSC Crociere S.A., Defendants–Appellees.

No. 14–11655 | Non–Argument Calendar. | Oct. 21, 2014.

PROCEDURAL POSTURE: Seaman commenced action in state court against cruise ship owner, alleging Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to treat. Owner removed case to federal court and filed motion to compel arbitration. The United States District Court for the Southern District of Florida compelled seaman to arbitrate his claims against defendant. Seaman appealed.

OVERVIEW: Nikolay Trifonov appeals the district court’s order compelling him to arbitrate his claims against Defendant MSC Mediterranean Shipping Company (“MSC”), a Swiss-based company, for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to treat. Trifonov was allegedly injured while working as a crew member aboard the MSC Magnifica, a cruise ship owned by MSC and registered and flagged in Panama. Trifonov filed this civil action in state court, asserting claims under the Jones Act and general maritime law. MSC removed the case to federal court and filed a motion to compel arbitration based on a provision of the collective agreement (“Agreement”) it had entered into with Trifonov’s seafarer’s union, which was incorporated into Trifonov’s employment contract. The Agreement provides that all claims by seafarers against MSC, including expressly the kinds of claims asserted in this case by Trifonov, “must be referred to arbitration to the exclusion of any other legal or court proceeding.” According to the Agreement, arbitration shall take place in Panama and shall be governed by the “law of the vessel’s flag,” which in this case is also Panama. The district court granted MSC’s motion, dismissed Trifonov’s complaint, and ordered the parties to proceed to arbitration in compliance with the Agreement. This appeal followed. On appeal, Trifonov argues that his agreement to arbitrate fails to satisfy one of the Convention’s jurisdictional factors. He contends that, pursuant to section 1 of the Federal Arbitration Act (“FAA”)—which excludes expressly “contracts of employment of seamen” from the definition of “commerce”—his employment contract is no “commercial” legal agreement for purposes of the Convention. Court found that Trifonov’s argument is foreclosed by Bautista, which concluded that the Convention recognizes no exception for seamen employment contracts. See Bautista, 396 F.3d at 1295–1300. Because we conclude that each of the four jurisdictional prerequisites has been met, we now examine whether one of the Convention’s affirmative defenses applies. Trifonov contends that the Agreement’s arbitration clause is void as against public policy, based on the Supreme Court’s “effective vindication exception,” arguing that enforcing the arbitration agreement would waive prospectively his rights secured under United States law. In support of his argument, Trifonov describes various ways in which he contends that application of Panamanian law will deprive him of his rights under United States law. In the light of our decision in Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257 (11th Cir.2011), we reject Trifonov’s arguments as “premature” at this stage in the proceedings.  Trifonov argues that Lindo is not good law. First, he contends that Lindo conflicts with the Supreme Court’s decisions in Am. Express Co. v. Italian Colors Rest., ––– U.S. ––––, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013), and Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc. ., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). In Italian Colors, the Supreme Court acknowledged the “effective vindication” doctrine, which the Court said “originated as dictum in Mitsubishi Motors,” and which had been discussed (but not applied) in two other Supreme Court cases. See 133 S.Ct. at 2310. But the Supreme Court still declined to apply the doctrine to invalidate the arbitration agreement at issue in that case. Id. Because the Italian Colors decision does not conflict with our decision in Lindo (which we determined was consistent with Mitsubishi Motors ), Lindo remains good law. Second, Trifonov argues that, under the prior-precedent rule, we are bound by this Court’s decision in Thomas v. Carnival, 573 F.3d 1113 (11th Cir.2009), instead of Lindo. But, as discussed at length in Lindo, to the extent that Thomas acknowledged the availability of a public-policy defense at the motion-to-compel stage, it conflicted with this Court’s even earlier precedent in Bautista and, thus, itself violated the prior-precedent rule. See Lindo, 652 F.3d at 1277–80; see also Burke–Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 n. 2 (11th Cir.2006) (“[W]hen a later panel decision contradicts an earlier one, the earlier panel decision controls.”).