E.N., Plaintiff, v. Silversea Cruises Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

 

November 05, 2015

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

IN ADMIRALTY

 

CASE NO. 14-CV-20593-HUCK/O’SULLIVAN

 

E.N.,

Plaintiff,                                                                                            

SILVERSEA CRUISES LTD.,

v.

SILVER SPIRIT SHIPPING CO. LTD.,

  1. SHIPS LEISURE INC., V. SHIPS LEISURE USA INC.,
  2. SHIPS LEISURE SAM, and V. SHIPS USA LLC.

Defendants.

______________________________________/

 

PLAINTIFF’S UNOPPOSED MOTION TO REOPEN A CLOSED CIVIL CASE

COMES NOW, Plaintiff, E.N., by and through undersigned counsel and hereby moves this Honorable Court to reopen this matter, and for good cause states as follows.

  1. Plaintiff E.N. is a 34 year old Filipino seafarer who suffered a traumatic amputation injury while working aboard the M/V Silver Spirit, a cruise ship owned and operated by Defendant(s) Silversea Cruises and/or V Ships.
  2. While E.N. was in Miami, Florida undergoing rehabilitation post amputation, he was told he would be sent home to the Philippines prior to obtaining a permanent prosthetic leg.
  3. As such, on February 17, 2014, E.N. filed a claim against Silversea Cruises Ltd. and Silver Spirit Shipping Co. Ltd. for Maintenance and Cure, including an emergency motion for preliminary injunction to prevent them from repatriating him back to the Philippines. [D.E. 1].
  4. On February 20, 2014, the district court granted E.N.’s preliminary injunction. [D.E. 8].
  5. March 24, 2014, E.N. filed an Amended Complaint asserting four additional claims (i.e., Jones Act negligence, unseaworthiness, failure to provide, failure to treat, and general negligence) to his original claim for maintenance and cure. [D.E. 13].  Additionally, E.N. added four additional defendants to the action: V. Ships Leisure, Inc., V. Ships Leisure USA Inc., V. Ships Leisure SAM, and V. Ships USA LLC.
  6. On April 10, 2014, Silversea Cruises Ltd. filed a Motion to Compel Arbitration in the Philippines under Philippine law. [D.E. 28.]. In opposition, E.N. argued, inter alia, that enforcement of the arbitration agreement would violate U.S. public policy, because it would prospectively waive E.N.’s right to vindicate his U.S. statutory rights afforded to him under the Jones Act.
  7. This Honorable Court compelled all of E.N.’s claims to arbitration in the Philippines. [D.E. 104].
  8. On July 18, 2014, the district court denied E.N.’s motion for reconsideration and/or rehearing [D.E. 106] of the district court’s June 13, 2014 Order compelling arbitration. [D.E. 109]. The matter was administratively closed.
  9. The order compelling arbitration was appealed. On August 5, 2015, the Eleventh Circuit affirmed and stated in pertinent point that “N. may, if he so chooses, argue Filipino law afforded him no meaningful relief at the award-enforcement stage.”  Opinion attached as Exhibit 1, p. 10, emphasis added.   That is precisely what E.N. intends to argue once this matter is reopened.
  10. Based on the Court’s order compelling Arbitration, E.N. instituted arbitration proceedings in the Philippines.
  11. On August 10, 2015, the Labor Arbiter rendered the ruling in E.N.’s arbitration claim. See Philippine Arbitration Decision attached hereto and marked as Exhibit 2.
  12. The ruling held that E.N.’s sole remedy under the laws of the Philippines, was entitlement to disability compensation benefits pursuant to the scheduled benefits provided in the POEA agreement and/or Collective Bargaining Agreement. As such, E.N. was awarded disability benefits in the amount of $80,000 dollars for suffering an above-the-knee amputation.
  13. During the arbitration, E.N. repeatedly sought the application of U.S. law and the Jones Act. The arbiter refused to apply U.S. law.
  14. Consequently, E.N. was denied the right to pursue any remedy under the Jones Act. Instead, he was merely given a contractual disability benefit of $80,000 USD pursuant to Filipino law.
  15. Now, herein, E.N. files this Motion to Reopen this matter in order to file a separate Motion to set aside the Philippines Arbitration award pursuant to Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. 207 (“The Convention”). Copy of Motion to Set Aside the Arbitration attached as Exhibit 3 (without exhibits).

MEMORANDUM OF LAW

Pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 207, “[t]he court shall confirm [a foreign arbitration] award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the … Convention.”

Article V(2)(b) of the Convention specifies that “[r]ecognition and enforcement of an arbitral award may … be refused if the competent authority in the country where recognition and enforcement is sought finds that … recognition or enforcement of the award would be contrary to the public policy of that country.”  Emphasis added.

Herein, Plaintiff initially invoked his U.S. federal statutory rights as a seaman under the Jones Act by filing his claim in federal court under its admiralty jurisdiction.  Defendant, however, sought to deprive Mr. E.N. of rights and remedies under the Jones Act by compelling arbitration in the Philippines.  Fortunately, now that the Filipino arbitration has concluded, this Honorable Court has the authority to ensure that the legitimate interests in the enforcement of the Jones Act have been addressed.

As the Eleventh Circuit stated in Lindo, 652 F.3d at 1267-8:

“At the award-enforcement stage, federal courts retain the ability to review whether the arbitral proceeding paid sufficient heed to a litigant’s claims and the public policies underlying them: “Having permitted the arbitration to go forward, the national courts of the United States will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been addressed.” Mitsubishi. at 638, 105 S.Ct. at 3359 (emphasis added).

Further allaying concerns that such public policy review would occur too late in the process, the Supreme Court stated that although “the efficacy of the arbitral process requires that substantive review at the award-enforcement stage remain minimal, it would not require intrusive inquiry to ascertain that the tribunal took cognizance of the antitrust claims and actually decided them.” Id. at 638, 105 S.Ct. at 3360. In other words, at the arbitral award-enforcement stage, a court can ascertain if the *1268 arbitral tribunal recognized the antitrust claims.

 

Consequently, herein, E.N. seeks to reopen this matter in order to file a separate Motion to Set aside the Arbitration Award pursuant to the Convention.

WHEREFORE, E.N., respectfully requests that this Honorable Court reopen this closed civil case so that E.N. may refile a separate Motion to vacate (and/or refuse to enforce) the foreign arbitration award on public policy grounds pursuant to Art. V(2)(b) of the Convention.

LOCAL RULE 7.1. CONFERENCE

Undersigned counsel conferred with counsel for Defendants, Jeffrey Foreman, Esquire, who stated that his clients do not oppose the Motion to Reopen, but do oppose the Motion to Set aside the Arbitration Award.

Respectfully submitted,

LIPCON, MARGULIES,

ALSINA & WINKLEMAN P.A

Attorneys for Plaintiff

Suite 1776, One Biscayne Tower

Miami, Florida 33131

Telephone: (305) 373 – 3016

Facsimile: (305) 373 – 6204

 

By: /s/Michael Winkleman           

MICHAEL A. WINKLEMAN 

Florida Bar No. 36719

DAVID A. VILLARREAL

Florida Bar No. 100069

 

 

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 5th day of November, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF.  I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to electronically receive Notices of Electronic Filing.

Service List

Case: E.N. v. Silversea Cruises Ltd., et. al.

Case No. 14-CV-20593-Huck/O’Sullivan

 

Michael A. Winkleman, Esq.

[email protected]

David A. Villarreal, Esq.

[email protected]

LIPCON, MARGULIES

ALSINA & WINKLEMAN, P.A.

Suite 1776, One Biscayne Tower

Miami, Florida 33131

Tel: 305-773-3016/ Fax: 305-373-6204

Counsels  for Plaintiff

Jeffrey E. Foreman, Esq.

[email protected]

Darren W. Friedman, Esq.

[email protected]

FOREMAN FRIEDMAN, PA

One Biscayne Tower – Suite #2300

2 South Biscayne Boulevard

Miami, Florida 33131

Tel: 305-358-6555/ Fax: 305-374-9077

Counsels for Defendant