Plaintiff v. NCL Bahamas Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

August 10, 2012

Plaintiff v. NCL Bahamas Ltd.

Initial Appellate Brief

Our experienced maritime attorneys are prepared to fight for our clients through all stages of litigation. Thanks to the size of our firm and our in house appelate counsel, we often represent clients in Courts of appeal, including the United States Court of Appeals for the Eleventh Circuit. In this case, our firm appealed the decision to force one of our clients to arbitrate his claims outside of Court. The ability to appeal these decisions not only helps our clients win their cases, but also allows us to create positive law for all seafarers and future clients.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
CASE NO.: 12-11965
PLAINTIFF
Plaintiff/Appellant

vs.

NCL (BAHAMAS) LTD. d/b/a NCL
Defendant/Appellee
Appeal from the United Status District Court for the Southern District of Florida, Docket # 1:11-cv-22163-JEM
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

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
tc l1 “CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

The undersigned counsel of record for Petitioner, in compliance with Fed. R. App. P. 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.

Plaintiff

NCL (BAHAMAS) LTD.

Lipcon, Margulies, Alsina & Winkleman P.A.
Charles R. Lipcon, Esq.
Jason R. Margulies, Esq.
Ricardo V. Alsina, Esq.
Michael A. Winkleman, Esq.
Carlos Felipe Llinás Negret, Esq.
Eric Morales, Esq.
Mase, Lara & Eversole
Valentina Tejera, Esq.

PETITION FOR HEARING EN BANC AND ORAL ARGUMENT

Appellant respectfully requests oral argument. I express a belief, based upon a reasoned and studied professional judgment, that this Honorable Court should hear the case sitting en banc. The outcome of this case will resolve conflicts between three Eleventh Circuit panel opinions: Paladino v. Avnet Computer Technologies, Inc., 134 F. 3d 1054 (11th Cir. 1998); Thomas v. Carnival Corp., 573 F. 3d 1113, 1117 (11th Cir. 2009); and Lindo v. NCL (Bahamas), Ltd., 2011 WL 3795234 (11th Cir. 2011). Moreover, the panel decision in Lindo conflicts U.S Supreme Court precedent in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970). Therefore, consideration by the full court is necessary to secure and maintain uniformity of decisions of this court.

This appeal involves one of more questions of exceptional importance:

Whether Congress intended to permit U.S. based cruise line employers to contractually exempt themselves as Jones Act employers?

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 and remedies afforded to them under U.S. law?

_____________________________
CARLOS FELIPE LLINÁS NEGRET
Attorney for Petitioner

TABLE OF CONTENTS

Page(s)

STATEMENT REGARDING ORAL ARGUMENT …. ii
TABLE OF CONTENTS ….. iii
TABLE OF AUTHORITIES ……vi
STATEMENT OF JURISDICTION ……9
STATEMENT OF THE ISSUES .. …9
STATEMENT OF THE CASE …… 10
SUMMARY OF ARGUMENT 12
STANDARD OF REVIEW…..15
ARGUMENT …..1 5
I. PLAINTIFF IS A SEAFARER. SEAFARERS ARE WARDS OF THE ADMIRALTY COURTS AND A HISTORICALLY PROTECTED CLASS BY CONGRESS….15
II. NCL’S MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN DENIED AND THE MATTER REMANDED.17

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…..17

B. The arbitral provision’s choice of law clause, requiring Bahamian 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)&18

i. Bahamian Law does not recognize seafarers U.S. statutory rights pursuant to the Jones Act&…..20

ii. Bahamian law does not provide Plaintiff a cause of action against Defendant-employer for maintenance and cure…… 27

C. Pursuant to binding United States Supreme Court precedent, in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), NCL’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…..30

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… 31

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& 33

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&.. 36

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…..38

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)……39

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…..41

CONCLUSION….. 43
CERTIFICATE OF COMPLIANCE ….. 43
CERTIFICATE OF SERVICE….. 44

TABLE OF AUTHORITIES

Page(s)

Alcalde v. Carnival Cruise Lines, 1:10-cv-24457-Moore/Torres (S.D. Fla. 2010).. 34
Atlantic Sounding v. Townsend, 129 S.Ct. 2561 (2009)……. 27-28
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)15, 26
Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005).. 15, 33-36
Bertrand v. International Mooring and Marine, 710 F.2d 837 (5th Cir. 1983)&… 21
Bonnerv. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981)… 10
Castillo v. Spiliada Martime Corp., 937 F. 2d 240, 243 (5th Cir. 1991) &.. 15
City of Waco v. United States Fidelity & Guar. Co., 283 U.S. 140 (1934) &. 9
CSX Transportation, Inc. v. McBride, 131 S.Ct. 2630 (2011)… 21
Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977)… 21
Fitzgerald v. United States Company, 374 U.S. 16 (1963) &… 22
Flagship Marine Services, Inc. v. Belcher Towing Co., 23 F.3d 341 (11th Cir. 1994)&.37
Flores v. Carnival Cruise Lines, 47 F.3d 1120 (11th Cir. 1995)& 18, 27
Granite Rock Co., v. International Broth. of Teamsters, 130 S.Ct. 2847
(2010)17-18
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
Jacob v. New York, 315 U.S. 752 (1942)… 21
Key Enterprises, Inc. v. Venice Hospital, 9 F.3d 893 (11th Cir. 1993)& 37-38
Lagarde v. Carnival Corporation, 11-20822-UNGARO (S.D. Fla. 2011)&. 34
Lindo v. NCL, 652 F.3d 1257 (11th Cir. 2011)13, 36-41
Meneses v. Carnival Corp., 731 F. Supp. 2d 1332 (S.D. Fla. 2010)&…34
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)..9, 13, 30-31, 35, 39, 40-43
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).9, 13, 18-19, 26, 22, 32-35, 39, 41, 43
Pavon v. Carnival Corporation, 11-cv-23148-JAL (S.D. Fla. 2011)&.. 38
Perez v. Globe Airport Security, Service, Inc., 294 F.3d 1275 (11th Cir. 2002)&. 37
Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970) . 39-40
St. Hugh Williams v. NCL (Bahamas) Ltd., Case No. 10-22046 (S.D. Fla. 2011) (Lenard, J.)&.&23, 28-29
Thomas v. Carnival, 573 F.3d 1113 (11th Cir.2009)&. 10, 14, 15, 27, 32-36, 38-39
Thermatron Products Inc., v. Hermansdorfer, 423 U.S. 336 (1976 9
United States v. Archer, 531 F.3d 1347 (11th Cir. 2008)&..38-39
U.S. Bulk Carriers Inc. v. Arguelles, 400 U.S. 351, 355 (1971) … 16
Wilburn v. Maritrans GP Inc., 139 F.3d 350 (3d Cir. 1998)&.. 21
Williams v. Carnival Cruise Lines, 907 F. Supp. 403 (S.D. Fla. 1995)… 22
Federal Statute
9 U.S.C. § 1&.. 28
9 U.S.C. § 205& 9
9 U.S.C. § 206.. 14, 35
9 U.S.C. § 207&14,35
45 U.S.C. § 51 20
46 U.S.C. § 30104.. 20

STATEMENT OF JURISDICTION

The district court had federal question jurisdiction over Appellant’s complaint based on 9 U.S.C. § 205, as an action or proceeding relating to an arbitration agreement falling under the Convention on Recognition and Enforcement of Arbitral Awards (“Convention”).

This Court has jurisdiction to review the district court’s order that compelled arbitration and denied Plaintiffs’ Motion for Remand. See City of Waco v. United States Fidelity & Guar. Co., 283 U.S. 140 (1934); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976); see also Snapper, Inc. v. Redan, 171 F. 3d 1249, 1252-53 (11th Cir. 1999); see generally Beiser v. Weyler, 284 F. 3d 665, 672-75 (5th Cir. 2002).

STATEMENT OF THE ISSUES

1.Whether the district court erred in granting NCL’s Motion to Compel Arbitration and denying Plaintiff’s Motion for Remand?
2. Whether NCL’s arbitration clause, requiring the application of Bahamian law at arbitration, deprives Appellant of his congressional U.S. statutory rights under the Jones Act, and his legal rights pursuant to the doctrine of “maintenance and cure” ?
3.Whether Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), Paladino v. Avnet Computer Technologies, Inc., 134 F. 3d 1054 (11th Cir. 1998) and Thomas v. Carnival Corp., 573 F. 3d 1113, 1117 (11th Cir. 2009); required the district court to declare NCL’s arbitral provision unenforceable?
4.Whether Appellant will have a subsequent opportunity to review the arbitrator’s decision in a U.S. district court, particularly because there is no provision under the Convention for a vacatur action?

STATEMENT OF THE CASE

This matter involves a labor dispute between Appellant, Plaintiff (hereinafter “Plaintiff”/ “Plaintiff”/ “Appellant”) and NCL (Bahamas) Ltd., (hereinafter “NCL”), the owner operator of the vessels Pearl and Sky. [R.E. Tab 2, ¶5]. On or about September, 2010, Plaintiff was employed by NCL as a seaman and a member of the vessel’s crew. [Id., ¶ 7]. On or about the above referenced date, NCL required Plaintiff to move a unreasonably heavy garbage bin in the garbage storage area. As a result, Plaintiff sustained severe injuries, including damage to his left shoulder. [Id., ¶ 9].[1]

As a result of his injuries, and exercising his United States statutory rights, Plaintiff filed suit in Florida State Court against NCL. In the suit, Plaintiff alleged claims against NCL for “Jones Act negligence,” “unseaworthiness,” “failure to provide maintenance and cure”, and “failure to treat.” [R.E. Tab. 2]. On June 15, 2011 NCL removed the matter pursuant to 28 U.S.C. §§1441, et seq. [R.E. Tab 3(a)]. Subsequently, on June 22, 2011, Defendant filed a Motion to Compel Arbitration. [R.E. Tab 3(b)].

The subject arbitration provision contains a choice of law clause which provides, in part at paragraph 12 that the “substantive law to be applied to the arbitration shall be the law of the flag of the vessel.” [D.E. Tab 3(a), Document 1-3, pg. 2]. The flag state of the vessel on which the Plaintiff was assigned at the time the cause of action accrued was a Bahamian vessel.

Additionally, the subject arbitration provision contains a foreign venue clause which provides that arbitration must take place in the Bahamas or Nicaragua. [R.E. Tab (3)(a), Document 1-3, pg. 2].

Pursuant to the terms of NCL’s arbitral provision, therefore, if Plaintiff were compelled to arbitrate this matter, Plaintiff would be forced to arbitrate his claims exclusively under Bahamian law – in Nicaragua or the Bahamas. Because all of the Plaintiff’s causes of action are U.S. based law remedies (which Bahamian law does not recognize), compelling the case to arbitration would completely deprive Plaintiff of his causes of action under U.S. law.

On July 6, 2011, Plaintiff filed a Motion for Remand. [R.E. Tab 4].
On March 3, 2012