Ex-MSC Cruises Crewman Fights Arbitration In Injury Suit


Law 360

A former crewman on an MSC Cruises vessel who claims the ship’s doctor ignored his kidney condition has told a Florida federal judge that he shouldn’t have to go to arbitration, saying conflicting dispute-resolution clauses in his employment and collective bargaining agreements cancel each other out.

Darwin Humberto Cortez Martinez on Wednesday opposed MSC Cruises SA Co.’s motion to either compel arbitration or dismiss his suit, arguing that his “seafarer’s employment contract” requires that job-related disputes be adjudicated in the jurisdiction of a vessel’s flag state ― Panama, in this case ― while his CBA calls for arbitration of disputes in London under English law.

“Agreements that conflict on material terms are unenforceable because ‘the parties never reached a meeting of the minds regarding an essential term of the agreement,'” Martinez said, citing the Eleventh Circuit’s 2017 decision in Aldora Aluminum & Glass Products Inc. v. Poma Glass & Specialty Windows Inc.

The ultimate effect is that the conflicting terms “cancel each other out,” and the Florida federal court should find that since the parties didn’t reach a meeting of the minds over a forum and dispute-resolution procedure, the court may adjudicate the case because it has personal and subject-matter jurisdiction, according to Martinez, who is a citizen of El Salvador.

The May 4 complaint, initially filed in state court, claims that Martinez’s employment agreement was first attached to the Malta-flagged MSC Meraviglia but that he was transferred in September 2019 to a Panamanian-flagged vessel, the MSC Poesia, where his employment-related incident and dispute occurred.

Between September and December 2019, the cruise company via its Fort Lauderdale-based agent MSC Cruises (USA) Inc. was responsible for Martinez’s improper medical care aboard the Poesia, according to the suit. Martinez alleges damages of at least $30,000 and claims he is permanently disabled and deserves the maximum disability payment provided by the employment agreement he signed with MSC.

He says he went to the medical center aboard the Poesia on several occasions, complaining of intense headaches, and medical personnel including a shipboard doctor and nurses examined him and consistently found him to be suffering from uncontrollably high blood pressure.

But despite the cruise line staffers’ awareness of his condition, they failed to promptly diagnose Martinez’s underlying kidney condition and treat him accordingly, according to the suit. Instead, he was prescribed a diuretic water pill, furosemide, which exacerbated his condition, the suit says.

“Defendants directly caused plaintiff to suffer kidney and cardiovascular injuries,” the suit said. “Defendants failed to provide plaintiff prompt, proper and adequate medical treatment aboard the vessel and shoreside; and plaintiff thereby became injured and his underlying medical conditions became aggravated.”

Martinez’s suit asserts a count of negligence under the Jones Act, a U.S. law that allows seagoing workers to pursue their employers for negligence. In addition, the suit claims that the Poesia was unseaworthy and was a legal cause of Martinez’s injury.

Martinez’s attorneys at Lipcon Margulies & Winkleman PA said in a statement Thursday that they’re hopeful the district court will keep the case in Florida, so he can get the medical care he needs.

“This case is another example of the cruise lines attempting to systematically deprive crew members of their rights under U.S. law through the use of foreign arbitrations,” according to the statement. “For example, cruise lines require passengers to litigate their claims in Florida courts — but attempt to require poor crew members to adjudicate their claims in arbitration where the crew member is required to pay the arbitrator’s fees.”

Counsel for MSC Cruises did not immediately respond Thursday to a request for comment.

Martinez is represented by Michael A. Winkleman, Jacqueline Garcell and Luis Alex Perez of Lipcon Margulies & Winkleman PA.

MSC Cruises is represented by Jeffrey B. Maltzman and Steve Holman of Maltzman & Partners PA.

The case is Darwin Humberto Cortez Martinez v. MSC Cruises SA Co. et al., case number 0:21-cv-61399, in the U.S. District Court for the Southern District of Florida.