June 26, 2012
Plaintiffs v. Norwegian Seafarer’s Union
In this complaint, our maritime attorneys ask a Florida Court to declare that the norwegian seafarers union does not represent the Plaintiff seafarers and that the collective bargaining agreement governing the Plaintiffs’ employment is void.
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 12-23521 CA 25
each on their own behalf, and on behalf of all other current and future crewmembers working for Royal Caribbean Cruises Ltd., similarly situated, Plaintiff(s), CLASS REPRESENTATION
NORWEGIAN SEAFARERS’ UNION, aka
NORWEGIAN SEAMEN’S UNION, aka
Norsk Sjømannsforbund, a Norwegian Corporation
AMENDED SEAMAN’S CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT WITH INTERROGATORIES, REQUEST FOR PRODUCTION AND REQUEST FOR ADMISSION
COME NOW, the Plaintiffs each on their own behalf and on behalf of all other current and future crewmembers working for Royal Caribbean Cruises Ltd, similarly situated, and file a declaratory action against the NORWEGIAN SEAFARERS’ UNION aka NORWEGIAN SEAMEN’S UNION, aka Norsk Sjømannsforbund, a Norwegian Corporation, (hereafter referred to as “NSU”), as follows:
This is a case seeking a Declaratory Judgment under Chapter 86 of the Florida Statutes. More specifically, this proposed class action seeks a Declaratory Judgment stating that the Norwegian Seafarers Union aka NORWEGIAN SEAMEN’S UNION, aka Norsk Sjømannsforbund, a Norwegian Corporation, does not have the right or authority to negotiate on behalf of the proposed class members, who are seamen employees working aboard Royal Caribbean Cruise Line cruise ships.
The amount in controversy herein exceeds the required jurisdictional amount.
Because Plaintiffs and NSU are both foreign citizens/entities, diversity does not exist. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 569 (2004). Plaintiffs are foreigners who were employed as seafarers / crewmembers aboard Royal Caribbean Cruises Ltd. Defendant NSU is a Norwegian Corporation, doing business in Florida.
This matter does not arise from a claim either in law or equity under the Constitution, any Law of the United States, or any treaty made under the authority of the laws of the United States as described in 28 USC § 1333. The Plaintiff claims no cause of action created by Federal law. No Federal law preempts the state law claims presented herein. Nothing in Plaintiff’s action refers to or relies on any federal law or regulation. Nor does Plaintiff’s complaint refer to or rely on an order from an order or decree from a Federal Court. There are no disputed questions of Federal Law presented herein. The amount in controversy does not exceed $5,000,000.
Defendant, at all times material hereto, personally or through an agent;
Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
B. Was engaged in substantial activity within this state;
C. Committed one or more of the acts stated in Florida Statutes, Sections 48.081, 48.181 or 48.193;
Defendant, NSU is a Norwegian Corporation doing business in Florida, which claims to represent the interests of foreign seafarers. NSU has a “Miami Service Office” located at the Port of Miami, as well as offices in Port Canaveral, Florida and Puerto Rico. In addition, the NSU owns various properties in Miami, Florida.
The acts of Defendant set out herein occurred in whole or in part in this country and/or state. At all times material, the conduct complained of herein took place, at least in part, in Miami, Florida, including, but not limited to: negotiations and ship inspections.
At all times material hereto, Plaintiffs were employed as seafarers / crewmembers aboard Royal Caribbean Cruises Ltd. While RCCL is not a defendant, it is a co-conspirator with the Union in taking steps to deprive the seafarers of their longstanding rights and remedies under U.S. law and General Maritime Law.
“Seafarer from the start were wards of admiralty.” U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 355 (1971) citing Robertson v. Baldwin, 165 U.S. 275, 287 (1897). In 1823, Justice Story declared:
Every Court should watch with jealousy an encroachment upon the rights of a seaman, because they are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. But Courts of maritime law have been in the constant habit of extending towards them a peculiar, protecting favor and guardianship. They are emphatically the wards of the admiralty
… Harden v. Gordon, 11 Fed. Cas. 480 (No. 6047) (C.C. Me 1823).
As the Court later stated “[f]rom the earliest times maritime nations have recognized that unique hazards, emphasized by unusual tenure and control, attend the work of seafarer.” See Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724 (U.S. 1943). The Aguilar Court further held: “the restrictions which accompany living aboard ship for long periods at a time combine with the constant shuttling between unfamiliar ports to deprive the seaman of the comforts and opportunities for leisure, essential for living and working that accompany most land occupations.” Id., at 728.
In Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995) (Internal Citations omitted), the Court reaffirmed this longstanding principle that seafarer are wards of the Admiralty Courts as a “feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.” The Fifth Circuit Court of Appeals explained the rationale for affording seafarers special protections in Castillo v. Spiliada Maritime Corp., 937 F.2d 240, 243 (5th Cir. 1991):
[Seafarer] enjoy this status because they occupy a unique position. A seaman isolated on a ship on the high seas is often vulnerable to the exploitation of his employer. Moreover, there exists a great inequality in bargaining position between large ship-owners and unsophisticated seafarer. Ship-owners generally control the availability and terms of employment.
Accordingly, the Admiralty Courts have a rich tradition of protection of seafarers, which flowed from the uniquely abhorrent conditions workers face at sea.
It is not just the Courts which recognize the need to protect seafarers, as “[t]he policy of Congress, as evidenced by its legislation, has been to deal with [seafarers] as a favored class.” Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278 (1932).
As a result of Seafarers’ favored status, U.S. law, both statutory and common law, have developed to provide tremendous protections to the seafarer. Such laws include, but are not limited to, the Jones Act, the Seamen’s Wage Act, Maintenance and Cure and the right to a trial by jury.
Over the course of the past decade or so, RCCL has worked tirelessly in order to avoid the reach of these powerful U.S. laws. RCCL’s most potent tool: a unions that they can pay in order to create an appearance of fairness, while stripping away the rights of their crewmembers.
Although the NSU refers to itself as a labor union, its conduct and day-to-day operations do not fit the definition of a traditional labor organization. The proposed class members herein were not even aware they were allegedly members of a Union. They were never provided a copy of any Collective Bargaining Agreement; they never voted in elections; never heard about or attended a union meeting; and never paid any union fees or dues.
More importantly, the NSU is acting to harm the plaintiffs and those similarly situated, by agreeing to foreign arbitration provisions which prevent plaintiffs and those similarly situated from accessing U.S. Courts and the benefits and protections of U.S. law.
As reported by the New York Times, by forming “offshore” affiliates with radically lower wages and conditions than the home union, the NSU and other unions, have perverted the foundations of trade unionism by colluding with the shipowner. As evidenced by their agreements, accepting benefits lower than those required by law, and shunning even the most basic of democratic processes, these “unions” have established that their allegiances lie with the shipowner rather than the seafarers they purportedly represent. 
For example, on May 27, 2011, John Doe, 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. The complaint detailed two schemes created by RCCL which deprived its seafarers of their earned wages and forced them to work for free. Doe (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.
Pursuant to their employment contracts, the vast majority of Doe’s wages were from tips received from passengers. For a seven (7) day cruise, Doe was, on average, entitled to receive approximately $1,100. Furthermore, under the contract, Doe 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.
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, 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 combination of free labor and forced labor.
How did the NSU respond in light of these egregious allegations? First and foremost, the NSU (without any authority from the named plaintiffs or from any proposed class member) had previously entered into a Collective Bargaining Agreement (“CBA”) with RCCL, which required the seafarers to arbitrate their claims under Norwegian law, which does not recognize the seafarers’ U.S. statutory rights under the Seaman’s Wage Act (46 U.S.C. §10313 and 46 U.S.C. § 10504), nor Plaintiffs’ other rights under the General Maritime Law of the United States.
Consequently, the substantive law chosen by and/or agreed to by the NSU effectively stripped these seafarers of their statutory and legal rights under U.S. law.
Then, to make matters worse, after the Doe lawsuit was filed, the NSU entered into an Amendment of the CBA, which retroactively excused and/or allowed the “Evolution of Housekeeping” program described above. In other words, the NSU agreed that forced labor and/or free labor is acceptable.
COUNT I- DECLARATORY DECREE
Plaintiffs re-allege, adopt and incorporate by reference the allegations in paragraph 1 through 22 as though alleged originally herein.
This count seeks declaratory relief pursuant to Florida’s Declaratory Judgment Statute, F.S. § 86, and other similar legislation.
Plaintiffs request this Honorable Court decree that the NSU does not have the authority or right to represent the Plaintiffs as their claimed Union, and that the CBA negotiated by the NSU on their behalf is void and/or invalid. The grounds for this decree are that the NSU has no actual right or authority to represent, negotiate and/or collectively bargain on behalf of these seafarers. They were never hired or retained by the seafarers. In fact, the seafarers were not even aware of the existence of the NSU.
Furthermore, the NSU has repeatedly taken steps that are in fact detrimental to the position of these seafarers. The NSU has agreed to foreign arbitration provisions which have stripped the seafarers of their powerful rights and remedies under longstanding U.S. law, including the right to trial by jury; and the NSU has allowed and/or excused conduct which is tantamount to slavery and/or forced labor in violation of federal law.
In addition, any benefits to seafarers under the purported Collective Bargaining Agreement, such as retirement or disability benefits, are rarely, if ever, enforced.
Under Norwegian law, the NSU has to protect the interest of the employees against their employers. Herein, the NSU has done precisely the opposite and systematically worked to undermine the interests of the plaintiff employees against their employer RCCL.
WHEREFORE, Plaintiffs request a declaratory decree stating that the NSU does not and cannot represent the Plaintiff seafarers, and that any and all applicable collective bargaining agreements purporting to cover the Plaintiffs are void and/or invalid. In addition, the union should be enjoined from representing the Plaintiffs and proposed class members. In addition, Plaintiffs request any and all other applicable relief that the Court deems reasonable and necessary.
CLASS ACTION ALLEGATIONS
This action is brought by Plaintiffs as a class action, on their own behalf, and on behalf of all others similarly situated, under the provisions of Rule 1.220(b)(1)(B) of the Florida Rules of Civil Procedure.
The class so represented by the Plaintiffs in this action, and of which Plaintiffs are members, consists of all current and former employees of Royal Caribbean Cruises, LTD., employed at any time during the period of May 27, 2008 to the present, who are allegedly covered by the Collective Bargaining Agreement between Royal Caribbean Cruises, LTD., and the Norwegian Seafarers’ Union, in effect at any time between 2008 and the present.
The exact number of members of the class is not known, but it is estimated that there are in excess of 5,000 members. The class is so numerous that joinder of all members is impracticable.
There are common questions of law and fact that relate to and affect the rights of each member of the class and the relief sought is common to the entire class. The same or similar misconduct on the part of Defendant NSU affected and will continue to negatively affect the entire class.
The claims of Plaintiffs are typical of the claims of the class, in that the claims of all members of the class, including Plaintiffs, depend upon a showing of the acts and omissions of Defendant NSU.
Plaintiffs are the representative parties for the class, and are able to, and will, fairly and adequately protect the interests of the class. There is no conflict between Plaintiffs and other members of the class with respect to this action, or with respect to the claims for relief herein. The attorneys for Plaintiffs are experienced and capable in the field of maritime claims for wages, including class actions, and have successfully represented claimants in other litigation of this nature.
This action is properly maintained as a class action in as much as questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to the other available methods for the fair and efficient adjudication of controversy. In support of the forgoing, Plaintiffs allege that common issues predominate and can be determined on a class-wide basis regarding NSU’s improper, unauthorized conduct.
A class action is superior to other available methods for the fair and efficient adjudication of controversy because it is highly unlikely that individual plaintiffs would assume the burden and the cost of this complex litigation, and Plaintiffs are not aware of any class members who are interested in individually controlling the prosecution of a separate action. The interests of justice will be served by resolving the common disputes of the class members with RCCL in a single forum, and individual actions by class members, many of whom are foreign nationals would not be cost effective. The class consists of a finite and identifiable number of individuals which will make the matter manageable as a class action.
 Douglas Frantz, Sovereign Islands/ A Special Report; For Cruise Ship’s Workers, Much Toil, Little Protection. New York Times, December 24, 1999.
 Sailors Union of the Pacific, Floating Sweatshops, Foreign-flag cruise ship working conditions exposed. Volume LXIII, No. 1, January 21, 2000.
 Pursuant to 18 U.S.C. §1595 (a) an individual who is a victim of forced labor and/or “peonage” may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participating in a venture which that person knew or should have known has engaged in an act of forced labor and/or peonage) in an appropriate court of the United States and may recover damages and reasonable attorneys fees.
 Flores v. Carnival Cruise Lines, 47 F. 3d 1120, 1125 (11th Cir. 1995) stands for the proposition that tips and/or gratuities are considered an essential part of seafarer’s wages.
 To be clear, the Doe Plaintiffs, when working in the back of the house, were still being paid their $50 a month wages directly from RCCL, which amounts to $1.67 per day; but, it is important to note that the Doe Plaintiffs were entitled to receive the $50 regardless of whether they worked in the back of the house. As such, they were working for two weeks, without any tips as additional pay.
 In Doe, RCCL filed its motion to compel arbitration, which argued that Norwegian law should apply instead of U.S. law. The District Court compelled arbitration. The matter is presently on appeal.