December 20, 2011
Franklin Vasquez v. Yii Shipping Company
Federal Appellate Brief
In this case a crewmember was injured while working onboard the Defendant’s ship in the Bahamas. When the crewmember attempted to sue his employer in the United States, the employer moved to compel the seafarer to arbitrate his claims. After fighting this effort to force arbitration at the trial court level unsuccesfully Lipcon, Margulies & Winkleman, P.A. took the case up to the United States Eleventh Circuit Court of Appeals to argue for reversal and a change in the existing law.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
CASE NO.: 11-15141-BB
FRANKLIN VASQUEZ
Petitioner/Appellant
vs.
YII SHIPPING COMPANY, LTD.
Respondent/Appellee
Appeal from the United Status District Court for the Southern District of Florida, Docket # 1:11-cv-60248-CMA
APPELLANT’S INITIAL BRIEF
CARLOS FELIPE LLINÁS NEGRET
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Appellant/Plaintiff
2 South Biscayne Tower, Suite 1776
Miami, Florida 33131
Telephone: (305) 373 – 3016
Facsimile: (305) 373 – 620
STATEMENT REGARDING ORAL ARGUMENT
Appellant respectfully requests oral argument. The outcome of this case will have a substantial impact on claim preclusion cases (i.e. res judicata, collateral estoppel, and the Rooker-Feldman doctrine), and thus implicates important policy considerations. Additionally, the outcome of this case will have a substantial impact on ship-owners doing substantial amounts of business in the United States, which – by virtue of legal fictions such as flags of convenience – circumvent their legal obligations under the Jones Act and the General Maritime Laws of the United States. As such, Appellant believes oral argument will be of assistance in presenting this case to the Court.
TABLE OF CONTENTS
Page(s)
STATEMENT REGARDING ORAL ARGUMENT ………………………………. i
TABLE OF CONTENTS ………………………………………………………….. ii
TABLE OF AUTHORITIES ……………………………………………………… .v
STATEMENT OF JURISDICTION ………………………………………………. 1
STATEMENT OF THE ISSUES ………………………………………………….. 1
STATEMENT OF THE CASE ……………………………………………………. 2
SUMMARY OF ARGUMENT …………………………………………………… 4
STANDARD OF REVIEW ……………………………………………………….. 5
ARGUMENT ……………………………………………………………………… 5
I. CRYSTAL’S MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN DENIED AND THE MATTER REMANDED…………… 5
A. Pursuant to binding Supreme Court precedent under Granite Rock Co., v. International Broth. of Teamsters, 130 S. Ct. 2847 (2010), there is no “federal policy in favor of arbitration” if the formation of the parties arbitration agreement, its enforceability or application is at issue……… 5
B.The arbitral provision’s choice of law clause, requiring Norwegian law as the substantive law of the arbitration, deprives Plaintiff of any meaningful relief and is therefore unenforceable pursuant to Paladino v. Avnet Computer Technologies, Inc., 134 F. 3d 1054 (11th Cir. 1998)…… 6
i. Norwegian Law does not recognize seafarers U.S. statutory rights pursuant to the Jones Act…………………………………………….. 8
ii. Norwegian law does not provide Plaintiff, a non-Norwegian cruise ship employee, the right to sue the ship-owner for the vessel’s “unseaworthiness.”……………………………………………………. 14
iii. Norwegian law does not provide Plaintiff, a non-Norwegian cruise ship employee, a cause of action against Defendant-employer to pay maintenance and cure (including a claim for punitive damages)….. .17
C.Pursuant to binding United States Supreme Court precedent, in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), Crystal’s arbitration provision is void as against public policy. The foreign choice of law provision and foreign venue selection provision operate in tandem as a prospective waiver of Plaintiff’s statutory rights……………………………………………………………. 23
i. This Honorable Court recognized the Supreme Court’s “prospective waiver” doctrine of Mitsubishi, in Thomas v. Carnival, 573 F. 3d 113 (11th Cir. 2009), and declared an identical provision void as against public policy……………………………………………………………. 24
D.The Eleventh Circuit’s decision in Bautista v. Star Cruises, 396 F. 3d 1289, 1294 (11th Cir. 2005) does not control the outcome of this case. Contrary to the Honorable Court’s ruling below, Thomas does not conflict with Bautista. Bautista predates Thomas and did not address the issue of whether a contract that calls for application of only foreign law in arbitration is void as against public policy…………………………… 26
E.Subsequent to Thomas, this Honorable Court decided Lindo v. NCL, 2011 WL 3795234 (11th Cir. 2011). Lindo, however, is an advisory opinion not binding on this Court. Before the Eleventh Circuit issued its mandate in Lindo, the parties in Lindo settled and moved to voluntarily dismiss the appeal. Controlling precedent holds that when a case settles before the end of the appellate process, any opinion that has been produced should be vacated. Lindo v. NCL should therefore be vacated…………………………………………………………………….. 29
i. Lindo was a panel opinion and therefore cannot purport to overturn Thomas. Pursuant to the prior panel precedent rule, Thomas v. Carnival is still the law of this Circuit: neither the Eleventh Circuit en banc nor the United States Supreme Court has overruled Thomas…………………………………………………………………. 31
ii.Lindo conflicts with Paladino v. Avnet Computer Technologies, Inc., 134 F. 3d 1054 (11th Cir. 1998). Lindo also ignores controlling Supreme Court precedent in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970)……………………………………….. 32
F. If appellant is required to arbitrate his claims, he will have no opportunity for subsequent review. There is no provision under the Convention for a vacatur action………………………………………….. 34
CONCLUSION…………………………………………………………………… 36
CERTIFICATE OF COMPLIANCE …………………………………………….. 36
CERTIFICATE OF SERVICE …………………………………………………… 36
TABLE OF AUTHORITIES
Page(s)
Federal Cases
14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456 (2009)……………………………… 23
Alcalde v. Carnival Cruise Lines, 1:10-cv-24457-Moore/Torres (S.D. Fla. 2010).. 27
Anders v. Hometown Mortgage Services, Inc., 346 F.3d 1024 (11th Cir. 2003)…… 7
Atlantic Sounding v. Townsend, 129 S.Ct. 2561 (2009)………………………. 18, 21
Bass v. Phoenix Seadrill 78, Ltd., 749 F.2d 1154 (5th Cir. 1985)………………… 21
Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278 (1932)………… 13
Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005)………………….. 5, 26-29
Bertrand v. International Mooring and Marine, 710 F.2d 837 (5th Cir. 1983)…… 10
Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981)………………… 10
CSX Transportation, Inc. v. McBride, 131 S.Ct. 2630 (2011)……………………. 10
Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977)…………………….. 9
Ferrostaal, Inc. v. M/V Sea Phoenix, 447 F.3d 212 (3d Cir. 2006)………………… 8
Flagship Marine Services, Inc. v. Belcher Towing Co., 23 F.3d 341 (11th Cir. 1994)……………………………………………………………………….. 30
Flores v. Carnival Cruise Lines, 47 F.3d 1120 (11th Cir. 1995)…………………. 18
Granite Rock Co., v. International Broth. of Teamsters, 130 S.Ct. 2847 (2010)… 5-6
Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970)…………………………. 32-33
Ingaseosas Intern. Co. v. Alconcagua Investing Ltd., 09–23078–CIV, 2011 WL 500042 (S.D. Fla. Feb. 10, 2011)………………………………………….. 35
Isbrandtsen Marine Servs. v. M/V Inagua Tania, 93 F.3d 728 (11th Cir. 1996)…. 21
Jacob v. New York, 315 U.S. 752 (1942)…………………………………………… 9
Key Enterprises, Inc. v. Venice Hospitalspan style=”font-size: 14.0pt; line-height: 200%;”>, 9 F.3d 893 (11th Cir. 1993)…………… 30
Lagarde v. Carnival Corporation, 11-20822-UNGARO (S.D. Fla. 2011)………. 27
Lindo v. NCL, 652 F.3d 1257 (11th Cir. 2011)………………………………… 29-34
Martin v. Walk, Haydel and Associates, Inc., 742 F.2d 246 (5th Cir. 1984)……… 15
Melea, Ltd. v. Jawer SA, 511 F.3d 1060 (10th Cir. 2007)…………………………. 8
Meneses v. Carnival Corp., 731 F.Supp.2d 1332 (S.D. Fla. 2010)………………. 27
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)……………………………………………… 1, 5, 23-24, 29, 32-33, 35
Odom v. Celebrity Cruises, Inc., 10-23086-AJ (S.D. Fla. 2011)…………………. 23
Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir. 1998)………………………………………….. 1, 4, 6-8, 13-14, 17, 22, 32-35
Pavon v. Carnival Corporation, 11-cv-23148-JAL (S.D. Fla. 2011)…………….. 31
Perez v. Globe Airport Security, Service, Inc., 294 F.3d 1275 (11th Cir. 2002)…. 30
Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries, 353 F.3d 916 (11th Cir. 2003)…………………………………………………… 8
The Osceola, 189 U.S. 158 (1903)………………………………………………… 15
Thomas v. Carnival, 573 F.3d 1113 (11th Cir. 2009)………………………………………. 2, 5, 14, 17, 20, 23-29, 31-32, 35
United States v. Archer, 531 F.3d 1347 (11th Cir. 2008)………………………… 31
Wilburn v. Maritrans GP Inc., 139 F.3d 350 (3d Cir. 1998)………………………. 9
Williams v. Carnival Cruise Lines, 907 F. Supp. 403 (S.D. Fla. 1995)…………… 10
Federal Statute
9 U.S.C. § 1……………………………………………………………………….. 28
9 U.S.C. § 205……………………………………………………………………… 1
9 U.S.C. § 206…………………………………………………………………….. 35
9 U.S.C. § 207…………………………………………………………………….. 35
45 U.S.C. § 51……………………………………………………………………… 9
46 U.S.C. § 30104………………………………………………………………… 8-9
STATEMENT OF JURISDICTION
Appellant’s action involved allegations under the Jones Act 46 U.S.C. §30104, and the General Maritime Laws of the United States. On October 28, 2011, the district court entered its Final Order dismissing the case on forum non conveniens grounds in favor of Defendant YII Shipping, Inc. On October 28, 2011, Plaintiff’s Notice of Appeal was filed. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. §1291. This appeal is from a final order of a federal district court that disposes of all the parties’ claims.
STATEMENT OF THE ISSUES
1. Whether the district court erred in holding that Plaintiff’s claims were barred by the doctrine of Collateral Estoppel, res judicata and the Rooker-Feldman doctrine?
2. Whether the district court erred in holding that YII Shipping, Ltd. does not have a base of operations in the United States – as that term is defined in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970) – such that U.S. law does not apply and the case could be dismissed on grounds of Forum Non Conveniens?
STATEMENT OF THE CASE
1. Factual Background.
Appellant, Franklin Vasquez (hereinafter “Vasquez”) a resident of the Dominican Republic, was employed by Defendant/ship-owner, YII Shipping Ltd. (hereinafter “YII Shipping”), aboard the Merchant Vessel Yeocomico as a seaman and a member of the vessel’s crew. [D.E. 1, pg. 5, ¶17].
On June 21, 2007, while the vessel was docked in Freeport, Bahamas, Plaintiff and another seafarer were ordered to cut pieces of metal with a gas powered acetylene gun. After a sudden loss of pressure, the tank exploded and caught fire, severely burning Plaintiff’s left arm, left ear and left side of his mouth. [D.E. 1, pp. 5- 6, ¶ 19].[1]
Thereafter, Plaintiff was not provided with prompt, proper, or adequate medical treatment which left him in considerable pain and further aggravated his injuries. Plaintiff reported the incident to the vessel’s captain and asked to be taken to the hospital. Despite the fact the vessel was docked in port, and a medical facility was close by, the captain declined Plaintiff’s request, in violation of Plaintiffs’ rights to receive prompt, proper and adequate medical treatment. [D.E. 1, pp. 6, 20].
Two months after the incident – and after multiple requests to the ship’s master for medical care, which were summarily denied – Plaintiff, at his own expense, received medical treatment from a specialist in Miami, Florida. The medical care providers in Florida recommended further treatment, including physical therapy at least three times per week. Since Plaintiff has not been placed at maximum medical cure, Plaintiff has made numerous demands asking Defendant to provide a) additional medical care for his injuries, and b) maintenance for his food and lodging while recovering from those injuries. To date, Defendant has violated its obligation under the General Maritime Law by depriving Plaintiff of his right to maintenance and cure. [2]
As a result of the incident, Plaintiff brought claims against Defendant YII Shipping Company Limited for 1) Jones Act Negligence;[3] 2) Unseaworthiness; 3) Failure to Provide Maintenance and Cure and 4) Failure to Treat.
2. Procedural Background.
Plaintiff originally filed suit in this matter in state court in the 17th Judicial Circuit in and for Broward County, Florida on September 21, 2007. Vasquez v. YII Shipping Limited, Case no. 07-24203 03. Defendant moved to dismiss the Complaint based on forum non conveniens.
On June 8, 2009, the Florida state court dismissed Plaintiff’s claims without prejudice and without reaching the merits of Plaintiff’s causes of action based on Florida’s doctrine of forum non conveniens. Thus, the Florida state court never made a final determination on the merits of Plaintiff’s substantive claims. Most notably, the Florida state court, relying on Tananta v. Cruise Ships Catering, 909 So. 2d 874 (Fla. 3d DCA 2005), refused to apply the federal maritime doctrine of forum non conveniens – applicable only in maritime/admiralty cases in federal court. See Tananta (holding that “the State of Florida has the right to direct whether to apply its own state law procedures in determining the venue of foreign seaman cases as opposed to federal standards”). The Florida Fourth District Court of Appeal affirmed the state court’s decision.
On February, 3 2011, Plaintiff re-filed this action in good faith in federal court sitting in admiralty which, as set forth above, follows a different forum non conveniens standard than the state court. Defendant, YII Shipping, moved to dismiss Plaintiff’s Complaint principally on the grounds of forum non conveniens and claim preclusion.
On October 28, 2011, the district court granted Defendant’s motion to dismiss, holding that Plaintiff’s claims were barred by res judicata, collateral estoppel and the Rooker-Feldman doctrine. Additionally, as an alternative ground for dismissal, the district court, applying the federal maritime doctrine of forum non conveniens, held that YII Shipping did not have a base of operations in the United States –such that U.S. law did not apply – and the case could be dismissed on grounds of forum non conveniens.
SUMMARY OF ARGUMENT
The district court erred in granting YII Shipping’s Motion to Dismiss.
First, the Plaintiff’s claims are not barred by res judicata, collateral estoppel, or the Rooker-Feldman doctrine.
No Opportunity. As shown below, the Plaintiff did not have a full and fair opportunity in Florida state court to litigate the issue of YII Shipping’s U.S. “base of operations” under the federal maritime doctrine of forum non conveniens (“federal maritime FNC test”). In fact, the Florida state court only applied Florida’s forum non conveniens analysis (“Florida’s FNC test”), and refused to undertake the federal maritime FNC analysis. Thus, the Florida state court only addressed state law issues.
Plaintiff’s first available opportunity for a court to consider and adjudicate Plaintiff’s argument under the Federal maritime FNC test, was in the present matter when Plaintiff filed his case in federal district court.
Thus, contrary to the lower court’s ruling, Plaintiff did not treat the federal district Court in an “appellate fashion,” as a means to invalidate the state court ruling. Rather, Plaintiff sought a determination in the federal district court – which was never made by the Florida state court: whether under the Federal maritime FNC test, Defendant has a base of operations in the United States, such that U.S. law applies, and the case cannot be dismissed for forum non conveniens. The first court to make this determination
