991 F. Supp. 2d 1187
S.D. Fla.2013Background
- Seaman Ramirez sues NCL for injuries aboard Norwegian Pearl; suit arises from May 24, 2009 incident.
- Plaintiff asserts Jones Act, unseaworthiness, maintenance and cure, and medical care claims in Florida state court; case removed to federal court.
- Arbitration clause appears in Plaintiff’s Employment Agreement and in a Collective Bargaining Agreement (CBA) with NSU; both require binding arbitration under The Convention (New York 1958).
- Arbitration location is the Seaman’s country of citizenship (Nicaragua) or, if unavailable, Nassau, Bahamas; arbitration law to be governed by the vessel’s flag state (Bahamas).
- Court must decide whether to compel arbitration under the Convention, given jurisdictional prerequisites and any defenses; the outcome affects the pending lawsuit’s viability.
- Plaintiff challenges costs allocation under the CBA and argues forum-selection and choice-of-law clauses may render arbitration unfair; court also addresses possible alternative forum and law (Miami, U.S. law).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether arbitration must be compelled under the Convention. | Plaintiff argues possible defenses under Convention Article II. | NCL contends the four Convention prerequisites are met and Lindo/Bautista require arbitration. | Arbitration compelled; prerequisites met and defenses insufficient. |
| Whether NCL’s alleged failure to pay arbitration costs constitutes anticipatory breach. | NCL’s failure to cover costs breaches CBA and justifies denial of arbitration. | CBA only allocates costs in NSU-related disputes or NSU-represented seafarers; not applicable here. | No anticipatory breach; cost allocation for this case falls to arbitrator. |
| Whether choice-of-law and forum provisions are enforceable; should arbitration apply Bahamian law in Nicaragua forum. | Argues American law in Miami; disputes Bahamian law and Nicaragua forum are inadequate. | Clauses designate Nicaragua or Bahamas and Bahamian law; enforceability should be upheld. | Forum and choice-of-law clauses enforceable; arbitration applies under Convention and Bahamian law. |
| Whether the CBA’s cost provisions and NSU representation affect arbitration outcome. | CBA interpretation should favor plaintiff due to NSU support; costs must be borne by NCL. | CBA cost provisions activated only in NSU-related disputes or NSU-represented seafarers; not applicable here. | CBA does not require NCL to pay all costs in this non-NSU-represented case; costs allocated to arbitrator. |
| Whether dismissal or stay is proper pending arbitration. | Arbitration compelled and complaint dismissed with prejudice; court to stay not required; case closed. |
Key Cases Cited
- Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005) (limited inquiry; four Convention prerequisites; defenses)
- Lindo v. NCL (Bahamas), 652 F.3d 1257 (11th Cir. 2011) (affirms enforcement of arbitration under Convention; applies Bautista)
- Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285 (11th Cir. 1998) (honors forum-choice and law provisions unless remedies are fundamentally unfair)
- Meneses v. Carnival Corp., 731 F. Supp. 2d 1332 (S.D. Fla. 2010) ( discusses enforceability of foreign choice-of-law provisions; distinguished in Lindo)
- Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009) (abrogated by Lindo; cited for public policy defenses to arbitration)