Lindo v. NCL Bahamas, Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

September 30, 2011

Lindo v. NCL Bahamas, Ltd.

Amicus Brief

The attorneys at Lipcon, Margulies, Alsina & Winkleman, actively advocate on behalf of passengers and crewmembers aggrieved by ship owners. We take it upon ourselves to help shape the law in a way that protects individual’s rights. This is so important to the firm that Partner Michael Winkleman recently filed an amicus brief with the Eleventh Circuit Court of appeals. In this brief Mr. Winkleman explains to the court the dire necessity of protecting existing law so that cruise lines can be prevented from forcing their employees to arbitrate disputes under foreign law. Mr. Winkleman’s brief explains the implications of this, including denial of access to U.S. courts, denial of rights under U.S. statutory law, and the deplorable conditions allowing this change would encourage at sea.

CASE NO.: 10-10367
District Court Docket No.: 09-cv-22926-DLG
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
_______________________________

HAROLD LEONEL PINEDA LINDO,
Plaintiff/Petitioner,

vs.

NCL (BAHAMAS) LTD. d/b/a NCL,
Defendant/Respondent.
_________________________________

APPEAL TAKEN FROM
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
____________________________________________________________

PROPOSED AMICUS BRIEF ON BEHALF OF
PORT MINISTRIES’ INTERNATIONAL, INC.
IN SUPPORT OF PETITION FOR REHEARING EN BANC
____________________________________________________________

MICHAEL A. WINKLEMAN TONYA J. MEISTER
CHARLES R. LIPCON MEISTER LAW, LLC
LIPCON, MARGULIES, Attorneys for Amicus Curiae

ALSINA & WINKLEMAN, P.A.
Port Ministries International
Attorneys for Amicus Curiae Courthouse Tower, Suite 750
Port Ministries International 44 West Flagler Street
One Biscayne Tower, Suite 1776Miami, Florida 33130
2 South Biscayne BoulevardTelephone: (305) 590-5570
Miami, Florida 33131 span>
Telephone: (305) 373-3016

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

The undersigned counsel of record for Amicus Curiae Port Ministries International, in compliance with FRAP 26.1 and 11th Cir. R. 26.1-1, certifies that the following listed persons, parties, and corporations have an interest in the outcome of this appeal.

Curtis Jay Mase, Esq., Attorney for Respondent
Mase, Lara, Eversole, P.A., Attorney for Respondent
Philip D. Parrish, Esq., Attorney for Petitioner
Elias Benzo Rudnikas, Esq., Attorney for Petitioner
Mark Lee Stokes, Esq., Attorney for Petitioner
Stokes & Gonzalez, Attorney for Petitioner
Valentina M. Tejera, Esq., Attorney for Respondent
Harold Leonel Pineda Lindo, Petitioner/Plaintiff

NCL (BAHAMAS), LTD., Respondent/Defendant
NCL, Respondent/Defendant
Charles R. Lipcon, Esq.
Jason R. Margulies, Esq.
Richard V. Alsina, Esq.
Michael A. Winkleman Esq.
Carlos Llinas, Esq.
Nicole L. Wulwick, Esq.
Lipcon, Margulies, Alsina & Winkleman, P.A.
Tonya J. Meister, Esq.
Port Ministries International, Inc.
Meister Law, LLC.

STATEMENT OF COUNSEL PURSUANT TO 11TH CIR. R. 35-5 (c)

tc “STATEMENT OF COUNSEL”

I express a belief, based on a reasoned and studied professional judgment, that this appeal involves one or more questions of exceptional importance:

1.Whether seafarers, long time wards of the admiralty courts, and a favored class by congress, should be subject to arbitration clauses which effectively deny them all of the rights afforded to them under U.S. law?
2.Whether the depraved conditions faced by foreign seafarers as a direct result of the enforcement of arbitration provisions, violate the longstanding policy of protecting seafarers as Wards of the Admiralty Courts?

/s/ Michael Winkleman
MICHAEL A. WINKLEMAN
FLORIDA BAR NO. 36719

TABLE OF CONTENTS

PAGE NO.
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT….2
STATEMENT OF COUNSEL PURSUANT TO 11TH CIR. R. 35-5(c)…3
TABLE OF CONTENTS…..4
TABLE OF AUTHORITIES…..5
STATEMENT OF THE ISSUE(S) ASSERTED TO MERIT EN BANC CONSIDERATION ..6
STATEMENT OF ANY FACTS NECESSARY TO ARGUMENT OF THE ISSUES……6
ARGUMENT…..6
I.LIFE AT SEA FOR THE SEAFARER SINCE BAUTISTA; THE PRACTICAL EFFECTS OF THE ENFORCEMENT OF ARBITRATION PROVISIONS IN SEAFARER’S CONTRACTS…..6

1. Post Bautista; the ‘Bait and Switch’ of Reshma Harilal; lured to the U.S. with the promise of one job, but forced to take a far lowing paying job on arrival. And when she refused to take the lower paying position, Carnival refused to return her passport, refused to let her leave the ship and forced her to work against her will…..8
2.POST BAUTISTA, THE CORE OF RCCL’S “EVOLUTION OF HOUSEKEEPING” IS FREE LABOR AND FORCED LABOR…..12

3. WHAT ACTUALLY OCCURS IN ARBITRATION. THE SAGA OF LOBO V. CELEBRITY….16
CONCLUSION…..20
CERTIFICATE OF SERVICE & COMPLIANCE…..21
TABLE OF AUTHORITIESBautista v. Star Cruises,396 F. 3d 1289 (11th Cir. 2005)…11, 15, 19
Costa v. Celebrity, Case. No. 10-24229. …..18
Flores v. Carnival Cruise Lines, 47 F. 3d 1120, 1125 (11th Cir. 1995)…..13
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 572 (1982)……15, 19

Lindo v. NCL (Bahamas) Ltd., ___ F.3d ___, 2011 WL 3795234 (Aug. 31, 2011)…7, 8, 15, 18, 20
Lobo v. Celebrity Cruises, Inc.,<488 F.3d 891 (11th Cir. 2007)….16, 17
Thomas v. Carnival Corp.,
573 F.3d 1113 (11th Cir. 2009)…………………………………………14
Wallace v. NCL (Bahamas) Ltd.,
Case NO: 09-21814…13

18 U.S.C § 1592 …10
18 U.S.C. §1595….10
46 U.S.C. §10313..12
Rory Bahadur, Constitutional History, Federal Arbitration And Seamen’s Rights Sinking In A Sea Of Sweatshop Labor. Journal of Maritime Law and Commerce, April 2008.. 12
Douglas Frantz, Sovereign Islands/ A Special Report; For Cruise Ship’s Workers, Much Toil, Little Protection, New York Times, December 24, 1999..18.
Sailors Union of the Pacific, Floating Sweatshops, Foreign-flag cruise ship working conditions exposed. Vol. LXIII, No. 1, Jan 21, 200018

STATEMENT OF THE ISSUE(S) ASSERTED TO MERIT EN BANC CONSIDERATION

1.Whether seafarers, long time wards of the admiralty courts and a favored class by congress, should be subject to arbitration clauses which effectively deny them all of the rights afforded to them under U.S. law?
2.Whether the depraved conditions faced by foreign seafarers as a direct result of the enforcement of arbitration provisions, violate the longstanding policy of protecting seafarers as wards of the admiralty courts?

STATEMENT OF FACTS NECESSARY TO ARGUMENT OF THE ISSUES

None.

ARGUMENT AND AUTHORITIES

“You shall not oppress a hired servantwho ispoor and needy,whetherone of your brethren or one of the aliens who isin your land within your gates.”

Deuteronomy Chapter 24, verse 14.

I.LIFE AT SEA FOR THE SEAFARER SINCE BAUTISTA; THE PRACTICAL EFFECTS OF THE ENFORCEMENT OF ARBITRATION PROVISIONS IN SEAFARER’S CONTRACTS.

Pursuant to FRAP 29(c)(3), Port Ministries International (“PMI”) is a thirty-six member association of seafarer’s ministries and individuals serving international seafarers with locations in many ports in the U.S. PMI’s purpose is evangelism and to meet the physical, emotional and spiritual needs of seafarers.[1] As such, PMI comes face to face with foreign seafarers on a daily basis. They tell their stories; they share their hardships. It is the singular goal of PMI to make this Honorable Court aware of the practical realities faced by seafarers as a direct result of the enforcement of foreign arbitration provisions.

To start, PMI finds it troubling that the majority opinion in Lindo v. NCL makes no mention of the actual plight faced by foreign seafarers working aboard cruise ships. PMI respectfully asserts this exceptionally important issue should only be considered with the practical reality of seafarers in mind. This is not a cold, legal issue regarding the enforcement of an agreement between sophisticated businesses, this is the ‘life and death’ struggle of foreigners lured to work with U.S. based cruise lines with the promise of economic prosperity and the dire circumstances they then face.

The dissent by the Honorable Judge Barkett in Lindo recognizes the entrenched legal and legislative tradition of protecting seafarers as wards of the Admiralty Courts. In discussing the public policy exception at issue in Lindo, and specifically, whether the exception can be considered at the “agreement enforcement stage” or the “award enforcement stage,” Judge Barkett states sets out an “extreme example” that based on the majority opinion, “the Convention would require a court to compel arbitration in a dispute involving the sale of slaves, despite knowing full well that any resulting arbitral award would be unenforceable as a matter of public policy.” Lindo Opinion, p. 30.
Unfortunately, Judge Barkett’s “extreme example” is, in fact, the reality faced by seafarers as a direct result of this Honorable Court’s enforcement of foreign arbitration provisions in Bautista. Judge Barkett hit the nail on the head because the enforcement of these arbitrations provisions has become a green light to what is most akin to slavery on the high seas. What follows are examples of what really goes on at sea.[2]

1. Post Bautista; the ‘Bait and Switch’ of Reshma Harilal; lured to the U.S. with the promise of one job, but forced to take a far lower paying job on arrival. And when she refused to take the lower paying position, Carnival refused to return her passport, refused to let her leave the ship and forced her to work against her will.

Ms. Reshma Harilal, a citizen of South Africa, was lured by Carnival to travel from South Africa to Florida to join a Carnival cruise ship to work in the position of Stateroom Stewardess.[3] Harilal borrowed $1,800 to travel from South Africa to Florida to work on a Carnival cruise ship for a position she thought was guaranteed.

As soon as Harilal arrived in Florida and boarded the cruise ship, Carnival forced her to sign a “Seafarer’s Agreement” indicating her position was Stateroom Stewardess. Harilal had no choice to but to sign the Agreement because she believed that Carnival would not provide her job if she did not sign the Agreement. She understood that she had no bargaining ability with regard to the Agreement. To make matters worse, Harilal had to sign the Agreement because she had no money to get back home to South Africa. As such, if she did not sign the Agreement, she would be stuck in a foreign country with little or no money. Appx. 1.[4]

After Harilal signed the agreement, Carnival informed her she would work in a lower position as an Assistant Stateroom Stewardess earning approximately $250 to $300 every two weeks instead of approximately $1,500 every two weeks as a Stateroom Stewardess. According to Harilal, approximately fifteen or sixteen other crewmembers in her department were also forced to work lower paying jobs. Appx. 1.

Harilal refused to work in the lower position at the lower rate of pay and requested Carnival return her passport so she could leave the cruise ship and try to return home. Carnival refused to return Harilal’s passport to her in violation of 18 U.S.C § 1592.[5] Carnival forced Harilal to stay on board the vessel against her will. These events occurred while the vessel was docked at Port Canaveral, Florida, in the territorial waters of the United States.

On February 12, 2008, Harilal filed suit in the Southern District of Florida alleging violation of several U.S. statutes regarding Forced Labor, Trafficking with Respect to Peonage, Slavery, Involuntary Servitude, and Unlawful Conduct with Respect to Documents in Furtherance of Trafficking, Peonage, Slavery, Involuntary Servitude, or Forced Labor. Appx. 2.

Carnival moved to compel arbitration based on the Seafarer’s Agreement, which required arbitration in Monaco, pursuant to Panamanian law. Appx. 3. In response, Harilal set forth a litany of arguments against enforcement, including, but not limited to: i) duress; ii) prohibitive costs; iii) unconscionability (procedural and substantive); and iv) void as against public policy. Appx. 4. But based on Bautista’s “limited inquiry,” the district court compelled Arbitration. Appx. 5. Harilal appealed the district courts order, but the appeal was dismissed sua sponte for lack of jurisdiction by the Eleventh Circuit on October 21, 2008. Appx. 6. The story of Reshma Harilal is the story of what really happens to the faceless seafarers who are directly impacted by this Honorable Court’s ruling(s) regarding the enforcement of foreign arbitration provisions. Enforcement of these foreign arbitration clauses has made the conduct of unscrupulous shipowners even more brazen and taken to dangerous extremes where they can now commit crimes with impunity. Shipowners now have confidence they will not be held accountable in U.S. Courts and are not likely to be held accountable in the foreign arbitrations. This “confidence” has quickly escalated to the levels that constitute forced labor, slavery and/or human trafficking of the seafarer. Harilal’s story shows that seafarers who endure the most difficult of conditions are being wrongly deprived of access to U.S. Courts and are no longer being recognized as wards of the admiralty Courts. “In other words, American maritime employers are free to hire third world labor to work in deplorable conditions but, because arbitral clauses permit removal, they can in effect, immunize themselves from the unique safeguards American general maritime law provides to ameliorate the harshness of the realities of maritime employment.”[6]

2.POST BAUTISTA, THE CORE OF RCCL’S “EVOLUTION OF HOUSEKEEPING” IS FREE LABOR AND FORCED LABOR.

On May 27, 2011, Kenneth Downer, a Jamaican citizen, filed a proposed class action on behalf of all stateroom stewards aboard RCCL’s vessels (estimated at 2000 seafarers) for violations of the Seamen’s Wage Act, 46 U.S.C. §10313, and violation of Federal Laws against forced labor and/or Peonage, 18 U.S.C. §1595.[7] Appx. 7. The complaint details two schemes created by RCCL which deprived its seafarers of their earned wages and forced them to work for free. Downer (referring to all class members) alleged: i) that RCCL created a fleet-wide system on its ships whereby the stateroom stewards were forced to pay other crewmembers from their own wages, in order to complete their job duties; and ii) that RCCL created a fleet-wide system whereby the stateroom stewards were forced to clean crew cabins without pay if they did not perform well.

As to the first scheme, on embarkation day (the day one cruise ends and another begins), the stewards were assigned an insurmountable amount of tasks (single-handedly cleaning 18-22 cabins) in a limited period of time (approximately 5 hours). This was an impossible job to be done alone, as such, the stewards were knowingly and intentionally forced to hire extra workers to help them clean the cabins on embarkation day (referred to as “Helpers,” who are typically off duty workers from the Galley (kitchen)) and to pay these helpers out of their own earned wages. The helpers charged $75.00 per embarkation day and the stewards were required to hire 2 helpers in order to get the job done on time.[8]

Pursuant to their employment contracts, the vast majority of Downer’s wages were from tips received by passengers.[9] For a seven (7) day cruise, Downer was, on average, entitled to receive approximately $1,100.00. Furthermore, under the contract, Downer was entitled to receive $50.00 per month paid directly as wages by RCCL. Accordingly, RCCL found a way to get free labor by forcing their own employees to pay roughly 15% of their own wages ($150 for two helpers each embarkation day) to get the job done on embarkation days.

As to the second scheme, starting around 2008, RCCL implemented a program referred to as “The Evolution of Housekeeping,” which created a rating system for stateroom stewards. Under the rating system, every two weeks, RCCL rated the stateroom stewards. And those stewards with the lowest ranking scores were forced to work, without pay, for two weeks or more, cleaning what was known as “the back of the house.” Cleaning the back of the house meant cleaning staff and officer staterooms, for free in direct violation of their contracts of employment.[10] As part of the “Evolution of Housekeeping,” RCCL eliminated the positions which were previously responsible for cleaning staff and officer staterooms. RCCL designed this system so that at the end of every two week period there would be enough Stateroom stewards to perform the duties of the phased out positions. In other words, the stewards were effectively subject to forced, unpaid labor on a rotating basis.

In short, after Bautista, RCCL made some significant changes to its Housekeeping Department. First, RCCL forced its stateroom stewards to hire and pay roughly 15% of their wages to “helpers” on embarkation day. Second, RCCL eliminated positions and instead forced the stateroom stewards to do the same job for free. Apparently, to RCCL, the “Evolution of Housekeeping” is a nasty combination of free labor and forced labor.[11]

This is the real, practical effect of this Honorable Court’s enforcement of these foreign arbitration provisions: Slavery and Forced Labor. This is also the exact type of unscrupulous conduct that the Seamen’s Wage Act was designed to prevent and deter. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 572 (1982). And this is precisely why this Honorable Court should grant en banc rehearing in Lindo.

3. WHAT ACTUALLY OCCURS IN ARBITRATION. THE SAGA OF LOBO V. CELEBRITY.

Lastly, PMI would like to highlight for this Honorable C