Alacalde v. Carnival Corp.

Lipcon, Margulies, Alsina & Winkleman, P.A

January 03, 2011

Alacalde v. Carnival Corp.

Response in Opposition of Defendant’s Motion to Compel Arbitration

This response in opposition to the Defendants Motion to Compel Arbitration argues against the Defendant’s attempt to block the Plaintiff’s access to the Courts by forcing him to an alternative dispute resolution.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1: 10-CV-24457-MOORE/SIMONTON
JUAN ALCALDE,
Plaintiff,

v.

CARNIVAL CORPORATION, d/b/a
CARNIVAL CRUISE LINES, INC.,
Defendant.
______________________________________/

PLAINTIFF’S PRELIMINARY RESPONSE WITHOUT THE BENEFIT OF DISCOVERY[1] IN OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION

COMES NOW, the Plaintiff, Juan Alcalde, by and through undersigned counsel, and hereby files his preliminary response without the benefit of discovery in opposition to Defendant’s Carnival Corporation d/b/a/ Carnival Cruise Lines, Inc. (hereinafter “Carnival”) Motion to Compel Arbitration and for good cause relies on the following memorandum of law.

MEMORANDUM OF LAW

I. DEFENDANT’S MOTION TO COMPEL ARBITRATION SHOULD BE DENIED IN ITS ENTIRETY FOR SEVERAL COMPELLING REASONS. FIRST, PURSUANT TO BINDING ELEVENTH CIRCUIT PRECEDENT IN THOMAS V. CARNIVAL, ARBITRAL PROVISIONS IN SEAFARER’S CONTRACTS CONTAINING FOREIGN VENUE CLAUSES AND DESIGNATING FOREIGN LAW AS THE LAW OF THE ARBITRATION ARE NULL AND VOID AS AGAINST PUBLIC POLICY. AS A RESULT, THE ARBITRATION CLAUSE HERE IS UNENFORCEABLE UNDER THE CONVENTION, GIVEN THAT PANAMANIAN LAW, AND NOT U.S. LAW, WILL BE APPLIED IN A FOREIGN VENUE. SECOND, ARBITRATION IS ALSO UNENFORCEABLE UNDER THOMAS V. CARNIVAL BECAUSE IT WOULD DEPRIVE PLAINTIFF OF HIS STATUTORY RIGHT TO A JURY TRIAL.

A. OVERVIEW

This case arises out of injuries sustained to Plaintiff while working as a seafarer aboard Defendant’s vessel. Plaintiff, a citizen and resident of Peru, filed the instant lawsuit in state court in the Eleventh Circuit of Miami-Dade County, Florida (Case No. 10-4425 CA 25) on or about August 27, 2010 for Negligence under the Jones Act (Count I),[2] unseaworthiness of the ship (Count II), failure to provide maintenance and cure (Count III)[3] and failure to treat (Count IV). Defendant filed a Notice of Removal to the United States District Court, Southern District of Florida on December 14, 2010. [D.E. 1].

On December 17, 2010, Carnival filed its Motion to Compel Arbitration [D.E. 6]. For the reasons outlined below, however, this Honorable Court should deny Defendant’s Motion to Compel on grounds that the arbitral provision is void as against public policy.

B. SEAFARERS FROM THE START WERE WARDS OF ADMIRALTY.

The issue of arbitrability of a Jones Act seafarers’ claim should begin with the fact that seafarers are a protected class. “The policy of Congress, as evidenced by [the Jones Act], has been to deal with [seafarers] as a favored class.” Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278, 282 (1932). Similarly, “[s]eafarers from the start were wards of admiralty.” U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 355 (1971)(citing Robertson v. Baldwin, 165 U.S. 275, 287 (1897)). “From the earliest times, maritime nations have recognized that unique hazards, emphasized by unusual tenure and control, attend the work of seafarers.” See Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 728 (1943). More recently, in Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995) (internal Citations omitted), the Court reaffirmed the longstanding principle that seafarers are wards of the Admiralty Courts as a “feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.”[4]

C. THOMAS V. CARNIVAL HOLDS THAT THE SUBJECT ARBITRATION PROVISION IS NULL AND VOID AS AGAINST PUBLIC POLICY AND IS THEREFORE UNENFORCEABLE. THIS IS SO BECAUSE THE CONTRACT’S CHOICE OF LAW CLAUSE, DESIGNATING PANAMANIAN LAW AS THE SUBSTANTIVE LAW IN ANY ARBITRATION PROCEEDING, COMBINED WITH A FOREIGN VENUE CLAUSE, OPERATE IN TANDEM TO DEPRIVE PLAINTIFF OF HIS STATUTORY RIGHTS.

The subject arbitration provision contains a choice of law clause which provides, in part, at paragraph 8 that “[the] Agreement shall be governed by, and all disputes arising under or in connection with th[e] 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, without regard to principles of conflicts of laws thereunder.” [D.E. 6-4, pg. 9]. The flags of the vessel on which the Plaintiff was assigned at the time the cause of action accrued were Panamanian flag vessels (Carnival M/S Destiny, Carnival M/S Freedom and M/S Conquest). [D.E. 6, at pg. 2].

Additionally, the subject arbitration provision contains a foreign venue clause which provides, in part, that “[t]he place of arbitration shall be London, England, Monaco, Panama City, Panama or Manila, Philippines.”

Pursuant to the terms of Carnival’s arbitral provision, therefore, if Plaintiff were compelled to arbitrate this matter, Plaintiff would be forced to arbitrate his claims exclusively under Panamanian law – in England, Panama, Monaco or the Philippines. Because all of Plaintiff’s causes of action are U.S. based law remedies (which Panamanian law does not recognize), compelling the case to arbitration would completely deprive Plaintiff his U.S. statutory rights. As shown below, for this very reason, under binding Eleventh Circuit precedent in Thomas v. Carnival, 573 F. 3d 1113 (11th Cir. 2009), Carnival’s arbitration is unenforceable, null and void as against public policy.

In Thomas v. Carnival, 573 F. 3d 1113 (11th Cir. 2009) the Court succinctly held that arbitration provisions in seafarers contracts – such as the one herein – with foreign choice of law clauses and foreign venue clauses are against public policy and thus render the entire arbitration clause null and void. Thomas concerned a seaman who was injured aboard two Carnival cruise ships. Like in this matter, the claims asserted were negligence under the Jones Act and unseaworthiness. Carnival sought to compel arbitration based upon an arbitration provision in the seaman’s employment agreement. The district court compelled arbitration, but a panel of the Eleventh Circuit reversed. Although it concluded that the seaman’s employment agreement was governed by the Convention, see id. at 1117, it ruled that the application of the arbitration clause – under which disputes would be arbitrated in the Philippines and resolved under Panamanian law – would be void as against the public policy of the United States (an affirmative defense under Article V(2)(B) under the Convention[5]) because it forced the seaman to essentially waive his American statutory rights (i.e. Seaman’s Wage Act/Jones Act) in a forum that must apply non-U.S. law (i.e. Panamanian law). See Thomas v. Carnival, 573 F, 3d 1113 (11th Cir. 2009), citing Vimar Seguros Y Reaseguros v. M/V Sky Reefer, 515 U.S. 528 (1995):

….[U]nder the terms of the Arbitration clause, Thomas must arbitrate in the Philippines (choice-of-forum) under the law of Panama (choice-of-law). As the arbitrator is bound to effectuate the intent of the parties irrespective of any public policy considerations, these arbitration requirements “operate in tandem” to completely bar Thomas from relying on any U.S. statutorily-created causes of action

Moreover, there is no assurance of “opportunity for review…..in this case Thomas would only be arbitrating a single issue claim, one derived solely from a U.S. statutory scheme. If applying Panamanian law, Thomas receives no award in the arbitral forum – a distinct possibility given the U.S. based nature of his claim – he will have nothing to enforce in U.S. Courts, which will deprive him of any later opportunity to review.

Despite our general deference to arbitration agreements in an area of international trade expansion, the possibility of such a result would counsel against being deferential in this circumstance, as it is exactly the sort that the Supreme Court has described as a “prospective waiver of parties’ rights to pursue statutory remedies” without the assurance of a “subsequent opportunity to review.” Vimar, 515 at 540. The Court explicitly stated that in such situations it “would have little hesitation in condemning the agreement as against public policy.” Id. For the reasons expressed, we find the Arbitration Clause requiring Arbitration in the Philippines under Panamanian Law null and void as it relates to Thomas’s Seaman’s Wage Act Claim.

Herein, Carnival, as it did in Thomas, seeks to compel arbitration under a contract that calls for arbitration pursuant to the laws of the Panama. This contract would undoubtedly deprive Plaintiff of his U.S. statutory rights, as none of the claims presented by Plaintiff would be cognizable under Panamanian law. Further, the language of the arbitration and choice of law clauses in Thomas is similar, if not identical, to the language of the arbitration and choice of law clauses in the employment agreement here.[6] As a result, the rationale in Thomas controls and the arbitration and choice of law clauses cannot be enforced to deprive Plaintiff of his federal statutory rights. Therefore, pursuant to binding Eleventh Circuit precedent – which declared the same arbitral provision in a Carnival contract void as against public policy; this Honorable Court should find the subject Carnival arbitral provision null and void as against public policy.

D. FOLLOWING THOMAS, THE SOUTHERN DISTRICT OF FLORIDA HAS DECLARED IDENTICAL ARBITRAL PROVISIONS (CONTAINING FOREIGN CHOICE OF LAW CLAUSES AND FOREIGN FORUM SELECTION CLAUSES) IN SEAFARER EMPLOYMENT CONTRACTS, UNENFORCEABLE AND THEREFORE NULL AND VOID AS AGAINST PUBLIC POLICY. FURTHER, THESE OPINIONS HAVE UNEQUIVOCALLY HELD (1) THAT THOMAS IS NOT LIMITED TO CLAIMS UNDER THE SEAMAN’S WAGE ACT (I.E. APPLIES ALSO JONES ACT NEGLIGENCE CLAIMS) AND (2) THAT THOMAS APPLIES TO BOTH STATUTORY AND NON-STATUTORY CLAIMS (I.E. APPLIES ALSO TO UNSEAWORTHINESS, MAINTENANCE AND CURE AND FAILURE TO TREAT CLAIMS).

Govindarajan v. Carnival Corporation, 09-23386-CIV (Judge Jordan) (S.D. Fla. 2010) [D.E. 23]. The Plaintiff, a seamen, sued Carnival Cruise Line for injuries while working on its vessel, alleging Jones Act Negligence, unseaworthiness, failure to provide maintenance and cure, and failure to treat. Carnival, like here, sought to compel arbitration based upon an arbitration clause in the seaman’s employment agreement, requiring Panamanian law to apply in the arbitration. Citing Thomas, the Court held Carnival’s arbitral provision unenforceable and therefore void as against public policy, holding, in part:

For the reasons which follow, I do not believe that arbitration can be compelled. [D.E. 23, pg. 1] … The language of the arbitration and choice of law clauses in Thomas is similar, if not identical to the language of the arbitration and choice of law clauses in the employment agreement here. Bautista, moreover, did not address whether arbitration would be against U.S. public policy. See Bautista, 393 F. 3d at 1301-03…. I agree with the majority of my colleagues in this District and conclude (1) that Thomas is not limited to claims under the Seaman’s Wage Act, (2) that Thomas applies to both statutory and non-statutory claims, and (3) that the arbitration clause in this case is not enforceable under the Convention given that Panamanian law, and not U.S. law, will be applied in any arbitration proceeding under the choice of law clause (which is null and void under Thomas).[Id. D.E. 23, pg. 4]. (Emphasis added).

Watt v. NCL (Bahamas) Ltd., 2010 U.S. Dist. LEXIS 67745 10-20293 (S.D. Fla. 2010) (Chief Judge Moreno). The Plaintiff, a seamen, sued Norwegian Cruise Line for injuries, alleging Jones Act negligence, unseaworthiness, and failure to provide maintenance and cure. The agreement mandated Bahamian law as the substantive law of the arbitration. Citing Thomas, the Court held NCL’s arbitral provision unenforceable and therefore void as against public policy, holding, in part:

This Court agrees and finds that the instant arbitration agreement is void because, in requiring the application of only Bahamian law to an arbitration in Jamaica, it precludes the Plaintiff from relying on his U.S. statutorily created Jones Act claim. Because the arbitration agreement is unenforceable, removal pursuant to the Convention Act – the sole basis for removal was not proper. The Court accordingly finds that remand is warranted. It is therefore ADJUDGED that: (1) The Motion to Compel Arbitration and to dismiss is DENIED as the Court finds the arbitration agreement void as against public policy. (Emphasis added).

Sivkumar Sivanandi v. NCL (Bahamas) Ltd., Case No. 10-20296, 2010 U.S. Dist. LEXIS 54859 (S.D. Fla. 2010) (Judge Ungaro). Relying on Thomas, Judge Ungaro found that, because the arbitration agreement required the application of only Bahamian law, it precluded the Plaintiff from recovering on his Jones Act claim and was thus void as against public policy.

Cardoso v. Carnival Corporation, 09-23442, 2010 U.S. Dist. LEXIS 24602 (S.D. Fla. 2010) (Judge Gold). Addressing the same argument, Judge Gold found that the arbitration agreement (providing for foreign law and a foreign venue) could not be enforced to require the Plaintiff to submit his claims to a tribunal that precluded him from maintaining his Jones Act claims:

While Defendant is correct insofar as the Eleventh Circuit’s narrow holding in Thomas applied only to claims asserted pursuant to the Seaman’s Wage Act, a holistic reading of Thomas indicates that the Eleventh Circuit’s reasoning applies with equal force to claims brought pursuant to the Jones Act. Specifically, I note that the Eleventh Circuit did not focus on the unique nature of the Seaman’s Wage Act in reaching its conclusion that foreign choice of law and arbitration clauses can if enforced in tandem-constitute a prospective waiver of statutory rights in violation of public policy. Rather, the Eleventh Circuit focused on the fact that the clauses would have ‘operated in tandem’ to bar Thomas from relying on any U.S. Statutory rights.

See also Kovacs v. Carnival Corporation, 09-22630, 2009 U.S. Dist. LEXIS 122255 (S.D. Fla. 2009) (Judge Huck) (“it would be against public policy to compel arbitration of Plaintiff’s Jones Act claim according to Panamanian law because to do so would deprive her of important statutory rights provided by Congress to effectuate public policy”); See also Rozanska v. Princess Cruise Lines, Ltd., 2008 U.S. Dist. LEXIS 95773 (S.D. Fla. August 5, 2008), where the Court made clear the singular purpose of clause contained in the relevant seafarer’s agreement was “to deprive Plaintiff of her Jones Act and maintenance and cure causes of action, regardless if she sued in Bermuda or Poland, and despite the Defendant’s acknowledged base of operations in the United States.” While in Rozanska, the contractual language differed slightly, it should be abundantly clear that Carnival’s purpose or intent remains the same; that is, to deprive seafarer’s of their powerful, longstanding rights under U.S. law.[7]

E. THE CORE AGREEMENT TO ARBITRATE (INDEPENDENT OF ITS FOREIGN CHOICE OF LAW AND FOREIGN VENUE CLAUSES) IS ALSO UNENFORCEABLE. AN ADDITIONAL GROUND TO HOLD DEFENDANT’S ARBITRAL PROVISION VOID AS AGAINST PUBLIC POLICY UNDER THOMAS IS THAT ARBITRATION WOULD DEPRIVE PLAINTIFF OF HIS STATUTORY RIGHT TO A JURY TRIAL.

Pursuant to the Jones Act, 46 U.S.C. §30104, Plaintiff, a seafarer, has a statutory right to
a trial by Jury. Section 30104, Personal Injury or Death to Seamen, provides in part:

A seaman injured in the course of employment or, if the seaman dies from injury, the personal representative may elect to bring an a civil action at law, with the right of a trial by jury against the employer.

Further, although a seafarer’s statutory right to a trial by Jury originates in the Jones Act, the right has been extended by the United States Supreme Court to other non-statutory claims, such as unseaworthiness, and failure to provide maintenance and cure. See Fitzgerald v. United States Company, 374 U.S. 16 (1963):

For years it has been a common if not uniform, practice of District Courts to grant jury trials to Plaintiffs who join in one complaint their Jones Act, unseaworthiness, and maintenance and cure claims, as here, grow out of a single transaction or incident. This practice of requiring issues arising out of a single accident to be tried by a single tribunal is by no means surprising… Since Congress in the Jones Act has declared that the negligence part of the claim shall be tried by a jury, we would not be free, even if we wished to require submission of all the claims to the judge alone. Therefore, the jury, a time-honored institution in our jurisprudence, is the only tribunal competent under the precedent congressional enactment to try all the claims. Accordingly, we hold that a maintenance and cure claim joined with a Jones Act claim must be submitted to the jury when both arise out of one set of facts. The seaman in this case was therefore entitled top a jury trial as of right on his maintenance and cure claim. (Emphasis Added).

All in all, under 46 U.S.C. §30104 and Fitzgerald, Plaintiff herein has a statutory right to a trial by jury for both his statutory (i.e. Jones Act) and non-statutory claims (maintenance & cure). Therefore, under Thomas, even if – for the sake of argument – the subject contract had not included a foreign choice of law provision, the arbitration clause would still be void as against public policy because by compelling Plaintiff to arbitrate his claims, he would be completely barred from relying on his U.S. statutory right to a jury trial.

F. PLAINTIFF CANNOT AFFORD THE PROHIBITIVE COSTS ASSOCIATED WITH ARBITRATION IN ENGLAND, MONACO, PANAMA OR THE PHILIPPINES, AND THUS ARBITRATION IS AN ILLUSORY REMEDY INCAPABLE OF BEING PERFORMED.

Quite simply, there is no way that the Plaintiff can afford the prohibitive costs of arbitration in England, Monaco, Panama or The Philippines. Plaintiff cannot afford the airfare to travel to these cities from Peru, cannot afford to pay for his lodging expenses and cannot afford legal representation and the costs and fees of the arbitration itself.[8]

This is a recognized defense under the Convention as Article II, §3 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“The Convention”) expressly provides:

The Court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative, or incapable of being performed.” Art. II, §3. (Emphasis Added).

Accordingly, the text of the Convention itself give this Court the power to set aside an arbitration agreement whenever incapable of being performed.

To this point regarding incapability of performance, the United States Supreme Court and the Sixth Circuit Court of Appeals have recognized a “prohibitive cost defense” to a demand to enforce arbitration of federal statutory claims. See Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 90, 148 L. Ed. 2d 373, 121 S. Ct. 513 (2000); Morrison v. Circuit City Stores, Inc., 317 F. 3d 646 (6th Cir. 2003).

In Green Tree, the Supreme Court held that when federal rights are at issue (i.e. the Jones Act is a federal statute), the existence of large arbitration costs could preclude a litigant from effectively vindicating their federal rights in the arbitral forum. See Green Tree, 531 U.S. at 90.5. The Green Tree court went on to hold that “where, as here, a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.” Id. At 92. The court in Green Tree did not provide a standard for determining how detailed the showing of prohibitive expenses must be to find an arbitration agreement unenforceable. Fortunately, the Sixth Circuit Court of Appeals, in Morrison v. Circuit City Stores, Inc. 317 F. 3d 646 (6th Cir. 2003), created its own test, concluding:

If the reviewing court finds that the [arbitration] provision would deter a substantial number of similarly situated potential litigants, it should refuse to enforce the [arbitration] provision in order to serve the underlying functions of the federal statute. In conducting the analysis, the reviewing court should define the class of such similarly situated potential litigants by job description and socioeconomic background. It should take the actual Plaintiff’s income and resources as representative of this larger class’s ability to shoulder the costs of arbitration.

The Morrison analysis provides a precise and neutral analysis of the issue.[9]

Applying the Sixth Circuit’s Morrison analysis from above, first “the reviewing court should define the class of such similarly situated potential litigants by job description and socioeconomic background.” Morrison, 317 F. 3d at 663. Herein, Plaintiff is a member of a well-defined class of similarly situated potential litigants known as seamen. A seamen’s job description includes, but is not limited to: poor or unsafe living conditions, unpaid wages, long hours of work without breaks, abusive employers, abandonment of entire crews, little or no job security, the suppression of legitimate union activity and blacklisting seamen that participate in union activities. See Shayna Frawley, The Great Compromise: Labor Unions, Flags of Convenience, and the Rights of Seafarers, Windsor Review of Legal and Social Issues. 19 W.R.L.S.I. 85 (2005). Most seafarers work seven days a week with long hours each day for months on end. Life at sea for many seafarers involves much abuse. Physical abuses include beatings and sexual assault, inadequate medical treatment, sub-standard accommodation, and inadequate food. Mental abuse arises from isolation, cultural insensitivity and a lack of amenities for social interaction. See International Commission on Shipping, Ships, Slaves and Competition, Neat Corp Group (2000). Regarding seamen’s socioeconomic background, they are, on average, impoverished workers from third-world countries. The sole reason seamen put with such harsh living and working conditions is because the shipowners offer pay far greater than that which is available in their home country. Accordingly, the job description and socioeconomic background of seamen show that they are a class of persons desperately in need of protection by the Admiralty Courts. See generally Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995).

Next, under Morrison, “[i]f the reviewing court finds that the [arbitration] provision would deter a substantial number of similarly situated potential litigants, it should refuse to enforce the [arbitration] provision in order to serve the underlying functions of the federal statute. Id. The underlying function of the Jones Act was to create a federal negligence claim for seamen injured in the course of employment. See §46 U.S.C. 30104. The Jones Act provides heightened legal protection to seamen because of their unique exposure to the perils of the sea in the course of their duties. Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995).[10]

WHEREFORE, the Plaintiff, Juan Alcalde, respectfully requests this Honorable Court enter an Order denying Defendant Carnival’s Motion to Compel Arbitration.

 


[1] Concurrent with the filing of this Motion, Plaintiff is filing his: 1) Motion to Conduct Limited Discovery in regards to the arbitration provision contained in the subject employment contract, 2) Motion to Stay Ruling on the Motion to Compel Arbitration until the completion of limited discovery, and 3) Motion to Remand.

[2] The Jones Act, 46 U.S.C. §30104, confers on seamen the statutory right to sue their employers in an American Court for the negligence of fellow crewmembers.

[3] “Maintenance and Cure is an ancient common-law maritime remedy for seamen who are injured while in the service of the vessel. The Eleventh Circuit has described the action as follows: “The seaman’s action for maintenance and cure may be seen as one designed to put the sailor in the same position as he would have been had he continued to work: the seamen receives a maintenance remedy because working seamen normally are housed and fed aboard ship; he recovers payment for medical expenses in the amount necessary to bring him to maximum cure; and he receives an amount representing his unearned wages for the duration of his voyage or contract period.

[4] See also Isbrandtsen Marine Servs. v. M/V Inagua Tania, 93 F. 3d 728 (11th Cir. 1996):

Seamen … are wards of admiralty whose rights federal courts are duty-bound to jealously protect.” Bass v. Phoenix Seadrill 78, Ltd., 749 F. 2d 1154, 1160-61 (5th Cir. 1985). Since the often cited opinion by Justice Story in Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Me. 1823) (No. 6047), it has been accepted that every Court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; …. They are emphatically the wards of the admiralty; …. They are considered as placed under the dominion and influence of men, who have naturally acquired a mastery over them; and as they have little of the foresight and caution belonging to persons trained in other pursuits of life, the most rigid scrutiny is instituted in the terms of every contract, in which they engage. As the Supreme Court has held, seamen is “often ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U.S. 155, 162, 79 L. Ed. 254, 55 S. Ct. 46 1934)

[5] The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention). Article V of the Convention provides specific affirmative defenses to a suit that seeks a court to compel arbitration including the following: “Recognition and enforcement of an arbitral award may also be refused If the competent authority in the country where recognition and enforcement is sought finds that … [t]he recognition or enforcement of the award would be contrary to the public policy of that country.”

[6] In fact the arbitral provision Thomas contained the same Choice of Law Clause:
8. “Governing Law. This agreement shall be governed by, and arising under or in connection with this Agreement or seafarer’s service on the vessel shall be resolved with, the laws of the flag of the vessel on which the seafarer is assigned at the time the cause of action accrues, without regard to principles of conflicts of law thereunder…”

The flag of the vessel in Thomas was Panamanian. Therefore, like herein, the provision called for application of Panamanian law.

[7] In support of its Motion to Compel Defendant cites overturned and/or inapposite authority. For instance, at page 1 of its Motion to Compel, Carnival cites the district Court’s opinion in Thomas v. Carnival. As shown above, however, the District Court’s opinion in that matter was succinctly and unequivocally overturned by the Eleventh Circuit on Appeal in Thomas v. Carnival, 573 F. 3d 1113 (11th Cir. 2009). The other court cases Defendant relies on predate the Eleventh Circuit’s 2009 Thomas decision (i.e. Koda, 2008; Batista, 2005 ). As such, they are inapposite. Batista is additionally inapposite because, as Judge Jordan explained inGovindarajan v. Carnival Corporation, 09-23386-CIV (S.D. Fla. 2010), “Bautista, did not address whether arbitration would be against U.S. public policy.” Govindarajan, D.E. 23, at pg. 4.

[8] See also Rozanska v. Princess Cruise Lines, Ltd., 2008 U.S. Dist. LEXIS 95773 (S.D. Fla. August 5, 2008), where the Court made clear the singular purpose of clause contained in the relevant seafarer’s agreement was “to deprive Plaintiff of her Jones Act and maintenance and cure causes of action, regardless if she sued in Bermuda or Poland, and despite the Defendant’s acknowledged base of operations in the United States.” While in Rozanska, the contractual language differed slightly, it should be abundantly clear that Carnival’s purpose or intent remains the same; that is, to deprive seafarer’s of their powerful, longstanding rights under U.S. Law.

[9] Plaintiff urges this Court to adopt the Morrison analysis to handle the affirmative defense of incapability of performance.

[10] Herein, Plaintiff has requested leave to conduct discovery into the prohibitive costs of arbitration. Plaintiff believes such discovery will yield compelling evidence that Plaintiff will be prevented from holding Carnival liable for their negligence because of this void arbitral provision would force Plaintiff to incur prohibitive costs, Plaintiff simply cannot afford.