163 F. Supp. 3d 338
E.D. La.2016Background
- Plaintiff Kelly David Johnson, a U.S. citizen, worked as a casino pit supervisor aboard the Norwegian Dawn (a Bahamian-flagged cruise ship) under a Seafarer’s Employment Agreement containing an arbitration clause invoking the New York Convention and selecting Bahamian law.
- Johnson sued in Louisiana state court asserting Jones Act, FELA, and general maritime claims arising from an onboard injury; NCL removed under 9 U.S.C. § 205 (Convention Act) and moved to compel arbitration and stay proceedings.
- Johnson moved to remand, arguing the Convention does not apply because both parties are U.S. citizens and the employment did not envisage performance in a foreign state; he also argued the Jones Act bars removal and that the arbitration clause (and choice of foreign law) impermissibly waives statutory rights.
- NCL argued the Convention applies because the contract contemplated performance “abroad” (ship sailed primarily to foreign ports, required visas, repatriation provisions, and possible reassignment among international voyages) and thus removal and arbitration are proper; NCL relied on Fifth Circuit precedent favoring a broad reading of “abroad.”
- The court held the Convention applied (finding the employment agreement envisaged performance abroad or had a reasonable relation to foreign states), granted NCL’s motion to compel arbitration, and denied Johnson’s motion to remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Convention applies to the Employment Agreement | Johnson: both parties are U.S. citizens and the contract does not require performance on foreign soil; mere sailing/international waters is insufficient; contract lacked specific foreign-venue language | NCL: contract contemplates performance abroad — ship’s itineraries, visa/repatriation clauses, and reassignment to worldwide vessels create an international relationship under §202 | Held: Convention applies — agreement envisaged performance abroad or had reasonable relation to foreign states (court follows Freudensprung/Fifth Circuit guidance) |
| Whether a Jones Act claim is removable when the Convention applies | Johnson: Jones Act (and §1445(a)) bars removal of his Jones Act claims to federal court | NCL: §205 (Convention Act) authorizes removal of cases relating to Convention arbitration agreements; Fifth Circuit and other courts have allowed removal of Jones Act claims under the Convention | Held: Removal under §205 is proper where the Convention applies; Jones Act does not bar removal in that circumstance |
| Whether the arbitration clause is void as prospective waiver of statutory rights (Jones Act) or by choice-of-law to Bahamian law | Johnson: clause and Bahamian choice-of-law effectively waive Jones Act rights and are contrary to public policy / 46 U.S.C. §55 | NCL: such public-policy arguments are premature at the initial enforce-arbitration stage; defenses to arbitration at this stage are limited to contract defenses like fraud, duress, mistake | Held: Court declined to address the public-policy/waiver argument at this stage as premature; only the limited "null and void" defenses are considered now |
| Whether remand is required given conflicting district court decisions in other circuits | Johnson: cites Southern District of Florida cases to argue Convention should not apply and remand is required | NCL: relies on Fifth Circuit precedent and other courts holding Convention governs similar cruise-ship employment contracts; urges deference to Freudensprung and related authority | Held: Court follows Fifth Circuit line (Freudensprung et al.) and recent decisions allowing Convention application to cruise employment contracts; remand denied |
Key Cases Cited
- Freudensprung v. Offshore Tech. Servs., 379 F.3d 327 (5th Cir. 2004) (contract between U.S. parties for maritime work off foreign coast may "envisage performance abroad" under §202)
- Francisco v. STOLT ACHIEVEMENT MT, 293 F.3d 270 (5th Cir. 2002) (Convention may render certain disputes removable to federal court)
- Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (U.S. 1995) (discussing U.S. policy favoring enforcement of international arbitration agreements)
- Scherk v. Alberto-Culver Co., 417 U.S. 506 (U.S. 1974) (federal policy favoring arbitration of international commercial agreements)
- Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005) (discusses limits of Convention application to seamen and international arbitration)
- Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft, 783 F.3d 1010 (5th Cir. 2015) (addresses enforceability of seamen’s arbitration agreements and related defenses)