Alcalde v. Carnival Corp.

Lipcon, Margulies, Alsina & Winkleman, P.A - Maritime Lawyer

January 06, 2011

Alcalde v. Carnival Corp.

Plaintiff’s Motion to Remand

In this motion the Plaintiff is seeking to enforce his right to bring suit in the forum of his choosing. Upon initially suing in state court, the Defendant removed the lawsuit to Federal Court. This motion seeks to have the Federal court return the action to Florida State Court.

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 MOTION FOR REMAND

COMES NOW, the Plaintiff, JUAN ALCALDE, and hereby moves for remand of this action to the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. For good cause, Plaintiff relies on the following.

MEMORANDUM OF LAW

I. THIS MATTER SHOULD BE REMANDED FOR SEVERAL COMPELLING REASONS. FIRST, BECAUSE PURSUANT TO BINDING ELEVENTH CIRCUIT PRECEDENT THE ARBITRATION AGREEMENT HERE IS UNENFORCEABLE, REMOVAL PURSUANT TO THE CONVENTION ACT (THE SOLE BASIS FOR REMOVAL) WAS NOT PROPER. SECOND, THE JONES ACT PROVIDES SEAFARERS THE RIGHT TO BRING A CLAIM AGAINST THEIR EMPLOYER IN STATE COURT AND SPECIFICALLY PROHIBITS THE REMOVAL OF JONES ACT CLAMS TO FEDERAL COURT. THIRD, THE ARBITRATION CLAUSE AT ISSUE IS NOTHING MORE THAN AN INVALID FORUM SELECTION CLAUSE.

This Motion for Remand is filed concurrently with Plaintiff’s Preliminary Response without the Benefit of Discovery in Opposition to Defendant’s Motion to Compel Arbitration. For the reasons stated herein, this matter should be remanded in its entirety to the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida under 28 U.S.C. §§1446(a).

This case involves a seaman’s claims against Defendant Carnival Corporation d/b/a/ Carnival Cruise Lines, Inc. (hereinafter “Carnival”) for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure and failure to treat. Carnival removed the matter under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “the Convention”), its controlling legislation of 9 U.S.C. §202, et seq., 9 U.S.C. §205 and 28 U.S.C. §§1441, et seq. This matter should be remanded for the following reasons.

First, because the arbitration agreement here is unenforceable pursuant to binding Eleventh Circuit Court precedent in Thomas v. Carnival, 573 F. 3d 113 (11th Cir. 2009); removal pursuant to the Convention Act – the sole basis for removal – was not proper. Second, the Jones Act provides seafarers the right to bring a claim against their employer in state court and specifically prohibits the removal of Jones Act claims to federal court. Third, the Jones Act prevails over the Convention since it was recently amended last in time, logically precluding removal of this action. As fully explained below, for these reasons, this matter should be remanded in its entirety to the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida Standard of Review. In determining whether removal is proper, all doubts must be resolved in favor of remanding the case to state court. Brooks v. Maersk Line, Limited, 396 F. Supp. 2d 711 (E.D. Va. 2005) citing Shamrock Oil & Gas Corp., 313 U.S. 100, 108-09 (1941) (holding that due regard for the independence of state governments requires strict construction of the removal statute) and Roche v. Lincoln Prop. Co., 373 F. 3d 610, 615 (4th Cir. 2004) (stating the “well settled” rule that doubts about the propriety of removal must be resolved in favor of remanding the case to state court).

FIRST GROUND IN FAVOR OF REMAND: THE ARBITRATION PROVISION IS UNENFORCEABLE. 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. AS A RESULT, BECAUSE THE ARBITRATION AGREEMENT HERE IS UNENFORCEABLE, REMOVAL PURSUANT TO THE CONVENTION ACT WAS NOT PROPER.

i. Carnival’s Subject Arbitration Provision.

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.

ii. Thomas v. Carnival.

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[1]) 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.

(Id. Emphasis Added).

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.[2] 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. In doing so, because the arbitration agreement here is unenforceable pursuant to Thomas; removal pursuant to the Convention Act – the sole basis for removal – was not proper. Remand is therefore warranted.

ii. Following Thomas, the Sourthern District of Florida declared identical arbitral provisions (containing foreign choice of law clauses and foreign venue clauses) in seafarer employment contracts, unenforceable and therefore null and void as against public policy. Having concluded that the arbitration agreement should not be enforced, the Court found remand was proper. Further, these opinions have unequivocally held (1) that Thomas is not limited to claims under the Seaman’s Wage Act (i.e. applies also to 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).[3]

Watt v. NCL (Bahamas) Ltd., 2010 U.S. Dist. LEXIS 67745 10-20293 (S.D. Fla. 2010) (Chief Judge Moreno). In Watt, 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 void as against public policy, remanding the action back to Florida State Court, 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. Id. (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):

Because the Court finds that the arbitration provision is unenforceable, the Court remands this case. Defendant removed this case solely on the grounds that the Court has jurisdiction pursuant to the Convention to enforce the arbitration agreement.8(Response to Motion to Remand at 4.) As Defendant recognizes, Jones Act claims are not otherwise generally removable. See also Lewis v. Lewis & Clark Marine, Inc.,531 U.S. 438, 455, 121 S. Ct. 993, 148 L. Ed. 2d 931 (2001)“Moreover, in this case respondent raised a Jones Act claim, which is not subject to removal to federal court even in the event of diversity of the parties.”). Having concluded that the arbitration agreement should not be enforced, the Court finds remand is proper. Beiser v. Weyler284 F. 3d 665, 675 (5th Cir. 2002) (“If the district court decides that the arbitration [*13] clause does not provide a defense, and no other grounds for federal jurisdiction exist, the court must ordinarily remand the case back to state court.”)Id. (Emphasis Added).
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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).

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 choice of law clause was unenforceable 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.

Kovacs v. Carnival Corporation, 09-22630, 2009 U.S. Dist. LEXIS 122255 (S.D. Fla. 2009) (Judge Huck). The Court remanded the case finding:

At today’s oral argument, Defendant [Carnival] conceded, for the first time, that Panamanian law does not provide seaman with a reasonable equivalent to the rights provided by the Seaman’s Wage Act, 46 U.S.C. § 10313. Defendant [Carnival] also agreed that, pursuant to Thomas v. Carnival Corp.,573 F. 3d 1113 (11th Cir. 2009), it would be inappropriate to arbitrate a Seaman’s Wage Act claim using Panamanian law, because to do so would effectively deprive the claimant of the rights provided by the Seaman’s Wage Act, thereby violating U.S. public policy …

….The Court concludes, based on a careful review of the expert affidavits and the relevant Panamanian law, that Panamanian law does not provide seaman with a reasonable equivalent to the U.S. statutory right provided by the Jones Act to recover damages from an employer for an injury stemming from the negligence of a fellow crew member. Accordingly, based on Thomas, the Court finds 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. Further, the Court finds that it would be inefficient, and improper, to bifurcate Plaintiff’s Jones Act and/or Seaman’s Wage Act claims, and then compel arbitration of Plaintiff’s other non-statutory claims for unseaworthiness and failure to provide maintenance and cure.

Accordingly, for these reasons, and those stated in open court today, it is hereby ORDERED that Plaintiff’s Motion to Remand (D.E. # 2) is granted. This case is remanded to the Circuit Court for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida.[4]

Id. , at 2 – 3(Emphasis Added).

Pavon v. Carnival Corp. Case No. 09-22935-CV-LENARD (S.D. Fla. Jan. 20, 2010) (Judge Lenard) (“The Court finds that this case should be remanded back to state Court in its entirety […] 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”).

iv. 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. Because the agreement to arbitrate is unenforceable, removal pursuant to the convention was not proper.

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.

See Cardoso v. Carnival Corporation, 09-23442, 2010 U.S. Dist. LEXIS 24602 (S.D. Fla. 2010) (Judge Gold) (…a holistic reading of Thomas indicates that the Eleventh Circuit’s reasoning applies with equal force to claims brought pursuant to the Jones Act…[I]n reaching its conclusion that [the] arbitration clauses can if enforced in tandem-constitute a prospective waiver of statutory rights in violation of public policy […] the Eleventh Circuit focused on the fact that the clauses would have … bar[red] Thomas from relying on any U.S. Statutory rights.) (Id. Emphasis Added).

B. IN THE ALTERNATIVE, SECOND GROUND FOR REMAND: THE JONES ACT PROVIDES SEAFARERS THE RIGHT TO BRING A CLAIM AGAINST THEIR EMPLOYER IN STATE COURT AND SPECIFICALLY PROHIBITS THE REMOVAL OF JONES ACT CLAIMS TO FEDERAL COURT.

i. Pursuant to binding United States Supreme Court precedent Plaintiff’s Jones Act claim cannot be removed as a matter of law. Therefore, at all times material, Defendant’s removal was improper.

Plaintiff asserted a cause of action against Carnival for negligence pursuant to the Jones Act, 46 U.S.C. §30104. As shown below, this case should be remanded because Jones Act claims cannot be removed as a matter of law. See Lackey v. Atlantic Richfield Co., 980 F. 2d 332 (5th Cir. 1993) (“Jones Act suits may not be removed from state court because the Jones Act incorporates the general provisions of the Federal Employers’ Liability Act, including 28 U.S.C. § 1445(a), which in turn bars removal). See also Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001) (“Moreover, in this case respondent raised a Jones Act claim, which is not subject to removal to federal court even in the event of diversity of the parties”); American Dredging v. Miller, 510 U.S. 443, 460 (1994) (Congress has withheld from Jones Act Defendants the right of removal).

The rationale for holding that Jones Act actions are non-removable was eloquently explained in Rosa Brooks v. Maersk Line, Ltd., 396 F. Supp. 2d 711 (E.D. Va. 2005):

The Jones Act provides that any Seaman who suffers personal injury in the course of his employment may, at his election, maintain an action for damages against his employer. citing 46 U.S.C. §30104. In such an action “all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employers shall apply.” Id. The Federal Employer’s liability Act (“FELA”) is one such statute modifying or extending the common law right or remedy in cases of personal injury to railway employees. See 45 U.S.C. §§ 51 et seq. (1986). Title 28 U.S.C. §1445 (a)[5] provides that FELA actions brought in state court may not be removed to any federal district court. Accordingly, Jones Act actions brought in State Court are non-removable.

Id., at 714 (emphasis added) citing California Pub. Employees’ Ret. Sys. v. WorldCom, Inc., 368 F. 3d 86, 99 (2d Cir. 2004); Lackey v. Atl. Richfield Co., 990 F. 2d 202, 206-07 (5th Cir. 1993).[6]

All in all, pursuant to U.S.C. §1445(a), FELA causes of action filed in State Court are non-removable actions. As explained by the United States Supreme Court[7], when enacting the Jones Act, Congress incorporated into it all benefits and protections of railway employees provided by FELA – including the prohibition of removal. See Jones Act, 46 U.S.C. §30104, providing, in part: “A seaman injured in the course of employment…may elect to bring a civil action at law… against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.” Accordingly, Jones Act actions brought in State Court are non-removable.

Recognizing the aforementioned jurisprudence, most recently, the Sourthern District of Florida remanded an identical Jones Act cruise line case back to state court on grounds that 1) the arbitral agreement was void as against public policy pursuant to Thomas v. Carnival, 573 F, 3d 1113 (11th Cir. 2009) and also that 2) that Jones Act claims brought in State Court were non-removable. See Sivkumar Sivanandi v. NCL (Bahamas) Ltd., Case No. 10-20296, 2010 U.S. Dist. LEXIS 54859 (S.D. Fla. 2010) (Judge Ungaro):

Because the Court finds that the arbitration provision is unenforceable, the Court remands this case. Defendant removed this case solely on the grounds that the Court has jurisdiction pursuant to the Convention to enforce the arbitration agreement.8(Response to Motion to Remand at 4.) As Defendant recognizes, Jones Act claims are not otherwise generally removable.See also Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455, 121 S. Ct. 993, 148 L. Ed. 2d 931 (2001) (“Moreover, in this case respondent raised a Jones Act claim, which is not subject to removal to federal court even in the event of diversity of the parties.”)

ii. The Jones Act based claim prevails over the New York Convention.

Plaintiff anticipates that Defendant will argue that even though Jones Act claims are non-removable; the New York Convention on Enforcement of Arbitral Awards (a U.S. treaty), prevails over the Jones Act – including its benefits and protections such as the prohibition of removal of Jones Act cases. However, the opposite is true. The Jones Act controls over the New York convention.

If a treaty and statute are inconsistent, “the one last in date will control the other.” Whitney v. Robertson, 124 U.S. 190, 194 (1888). See also Ribas y Hijo v. U.S., 194 U.S. 315, 324 (1904) citing Cherokee Tobacco, 78 U.S. 616 (1870) (when there are inconsistencies “between an act of Congress and a treaty, each being equally the supreme law of the land, the one last in date must prevail”). See also Empresa Cubana del Tobacco v. Culbro Corp., 399 F. 3d 462, 481 (2d Cir. 2005) (legislative acts trump treaty made international law when those acts are passed subsequent to ratification of the treaty). Indeed, the “one last in date” need not be new legislation. If Congress amends an existing statute, that will defeat the “chronological foundation” of a pre-existing treaty. See Egle v. Egle, 715 F. 2d 999, 1013 (5th Cir. 1983).

While 9 U.S.C. §205 of the Convention has never been amended, the Jones Act has been amended a number of times, most recently in 2006 and 2008. Therefore, the Jones Act provisions expressly prohibiting removal and selection of venue prevail as a matter of law over any claim that the convention should apply in this matter is it was the last and only of the two that was ever amended.

iii. Because Plaintiff’s Jones Act claim is as a matter of law non-removable, Plaintiffs other causes of action are also non-removable. Pursuant to binding Supreme Court precedent, because Plaintiff’s other claims (i.e. ‘unseaworthiness,’ ‘failure to treat,’ ‘failure to provide maintenance & cure’), are not separate and independent from Plaintiff’s Jones Act claims – their removal is also improper.

Defendant sought removal of this action pursuant to 28 U.S.C. §1441. Section 1441(c) provides, in part:

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

Here, as established above, Plaintiff’s Jones Act claim is non-removable as a matter of law. A pre-requisite for proper removal under the statute is therefore that Plaintiffs’ other claims (i.e. ‘unseaworthiness,’ ‘failure to treat’ and ‘failure to provide maintenance and cure’) be separate and independent from Plaintiff’s Jones Act claims. If the claims are not separate and independent, then removal of Plaintiffs other claims is improper pursuant to the statute.

The United States Supreme Court has explained that there is no separate and independent claim under 28 U.S.C. §1441(c), and therefore removal is improper, “where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions.” American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951). In determining whether a claim is separate and independent, the court is limited to considering the plaintiff’s pleadings at the time of the Notice of Removal. Rosa Brooks v. Maersk Line, Ltd., 396 F. Supp. 2d 711 (E.D. Va. 2005), citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939). See also Yasir v. Holland America Lines, 1993 A.M.C. 295, 296 (S.D. Fla. 2003) (when interpreting)