Doe v. Lines

• Decision Date: 23 September 2011
• Docket Number: No. 10–10809.,10–10809.
• Citation: 23 Fla. L. Weekly Fed. C 439,18 Wage & Hour Cas.2d (BNA) 208,113 Fair Empl.Prac.Cas. (BNA) 734,657 F.3d 1204,32 IER Cases 1424
• Parties: Jane DOE, Plaintiff, Counter Defendant, Appellee,v.PRINCESS CRUISE LINES, LTD., a foreign corporation, d.b.a. Princess Cruises, Defendant, Counter Claimant, Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

657 F.3d 1204
113 Fair Empl.Prac.Cas. (BNA) 734
32 IER Cases 1424
18 Wage & Hour Cas.2d (BNA) 208
23 Fla. L. Weekly Fed. C 439

Jane DOE, Plaintiff, Counter Defendant, Appellee,
v.
PRINCESS CRUISE LINES, LTD., a foreign corporation, d.b.a. Princess Cruises, Defendant, Counter Claimant, Appellant.

No. 10–10809.

United States Court of Appeals, Eleventh Circuit.

Sept. 23, 2011.

[657 F.3d 1207]

Philip D. Parrish, Philip D. Parrish, PA, South Miami, FL, James Madison Walker, Walker & O'Neill, PA, Miami, FL, for Petitioner–Appellee.Darren Wayne Friedman, Roberta Goodman Mandel, Foreman Friedman, PA, Miami, FL, Steve Holman, Jeffrey Bradford Maltzman, Maltzman & Partners, PA, Coral Gables, FL, for Defendant–Appellant.Appeal from the United States District Court for the Southern District of Florida.Before CARNES, FAY and SILER,^* Circuit Judges.CARNES, Circuit Judge:

On its website, Princess Cruise Lines proclaims to the world, as one of its “core values,” that: “The safety and security of our passengers and employees is our most important responsibility.”¹ The cruise line says that it recognizes crew members as its “greatest asset,” and shows its appreciation to them by making their “life onboard the best it can be.” ² It boasts of

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making “every effort possible to offer its crew members an enjoyable environment and a rewarding career.”³

All of those statements are but empty words, and cynical ones at that, if the allegations in the complaint that is before us are to be believed. Those allegations tell a story of a woman, working for Princess Cruise Lines on one of its ships, who was drugged by other employees, raped and physically injured while she was unconscious, and when she reported to officials of the cruise line what had happened to her they treated her with indifference and even hostility, failed to provide her with proper medical treatment on board, and interfered with her attempts to obtain medical treatment and counseling ashore. ⁴

This case is not here, however, for us to determine whether the allegations in the complaint are true. Instead, it comes to us in an appeal by the cruise line from the district court's denial of its motion to compel arbitration of the dispute between it and the plaintiff. The legal issues involve the scope of the arbitration clause in the crew agreement, and we review de novo the district court's interpretation of that clause to determine whether the allegations of the complaint fall within its scope. See Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1366 (11th Cir.2008) (stating that “[w]e review the district court's interpretation of the arbitration clause de novo” and consider “whether the facts alleged in the amended complaint fall within the arbitration clause”); see also Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109, 1114 (11th Cir.2001) (“Whether a party has agreed to arbitrate an issue is a matter of contract interpretation....”).

I.

The alleged facts are that for twelve hours a day, seven days a week, Jane Doe ⁵ worked as a bar server on Princess Cruise Lines' M/S STAR PRINCESS. On June

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20, 2009, in the early morning hours after she had worked a full shift serving drinks to passengers, Doe was returning to her cabin when a fellow crew member invited her to a birthday party. Some crew members gathered for the party in cabin number 3342, which is a double cabin with a bathroom in the middle. Because of that cabin's size, crew members often used it for parties. Those who were there on that occasion included: Christopher Ugay, Ian Capito, Mark Anchuela, Lou Vivero, and Arnold de Vera. One of those men handed Doe an open beer and, not suspecting anything, she drank it. The beer contained a drug, which rendered her unconscious in the cabin with Ugay and the four other men.

When Doe came to later that morning, she was in one of the beds in cabin 3342. Someone had removed her pants and underwear, and she realized that she had been raped while she was unconscious. She also had a severe headache, was dizzy, disoriented, and weak, all of which are after-effects of a date rape drug.

Ugay was in the cabin when Doe awoke, and she asked him who had done this to her. He blamed Ian Capito. When Doe got back to her own cabin, she felt so sick and weak that she could not climb the ladder to her bunk and instead fell asleep on the floor. Her cabin mate awoke her later, and Doe returned to work early that afternoon. She felt so sick, however, that she had to go back to her cabin to sleep.

Doe returned to work the next morning, June 21, feeling “humiliated, ashamed, and traumatized” because she had been raped while unconscious in a cabin with five men. She could not recall how many men had participated in the rape or had watched it occur or whether any of them had taken photographs or a video of her being assaulted.

Doe told her work supervisor that she had been raped while unconscious in cabin 3342. She wanted to report the rape to a personnel manager then so that she could ask permission to miss work and get medical treatment, but her supervisor refused to permit her to leave, telling her that she could wait until the next morning to report it. After she got off work the next morning, which was June 22, 2009, Doe went to the personnel manager and reported that she had been raped and explained the circumstances in which it had happened. The personnel manager told her to write a report and then go back to work.

That afternoon, Doe was interrogated by ship officers and required to repeatedly recount the details of the rape in the presence of male officers and supervisors. That same afternoon the cruise line had her prepare another statement and tape recorded her account. As a result Doe, who had not eaten all day, felt “weak and traumatized.” She had not been given any medical attention.

Doe was finally allowed to go to the ship's infirmary on the afternoon of June 22, more than 24 hours after she had reported the rape. After examining her, the ship's doctor concluded that Doe had a torn labia, which could have been a result of “forced entry.” The doctor drew blood and tested Doe's urine for the presence of date rape drugs. The test was positive, although the ship doctor characterized the results as “ ‘weak,’ ” which Doe asserts was attributable to the “length of time since the rape.”⁶

On June 23, crew member Ugay admitted to “ship personnel” that he had engaged

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in “sex” with Doe while she was unconscious, and that he did so without using a condom. The ship's doctor reported in Doe's medical records that she had been raped, but the doctor did not administer anti-retroviral medication in order to counteract the risk of HIV/AIDS or other sexually transmitted diseases. The ship's officers and officials did not allow Doe to disembark for emergency medical treatment in a United States port. Instead, she was instructed to return to work. By the time she was finally allowed off the ship and was treated at a hospital's sexual assault center in Seattle on July 13, 2009, more than three weeks after the rape, it was too late for antiretroviral treatment.

The cruise line did report the incident to the FBI, and agents boarded the ship but they did not arrest anyone. That often happens, Doe alleges, when crimes are committed on foreign flagged cruise ships by one or more foreign nationals (Ugay is Filipino) against another foreign national (Doe is Russian). ⁷ Doe's medical records with the cruise line note that her blood and rape kit samples were then destroyed by dumping them in the incinerator: “29 June 09 17:00 FBI/Bermuda: no case to be made. All forensic evidence taken in waste bags to incinerator.” The cruise line did fire Ugay, after he admitted to “engaging in sex” with Doe while she was unconscious, and then it flew him back to the Philippines. It allowed the other four crew members, who had been in the cabin at the time and may also have raped Doe, to keep their jobs.

After Doe reported that she had been raped, an official from the cruise line told her that she could not leave the ship at a United States port to receive medical treatment or counseling. She had, she was told, only two options: She could go to a clinic in Alaska and return immediately to work, or she could return to Russia. Even though she had a valid tourist visa, a representative of the cruise line told Doe that immigration officials would not allow her to enter the United States for medical treatment. No one from the cruise line informed Doe about her rights as a seaman, allegedly “including the right to obtain medical treatment and counseling ashore in the U.S. and the right to choose her own doctors and receive maintenance and cure until she recovered from the trauma.”

Seeking advice about her legal rights, Doe emailed James Walker, an attorney in Florida, about her plight. On July 2, 2009, Walker communicated by email and fax with the cruise line's general counsel, Mona Ehrenreich. He told Ehrenreich that he represented Doe, who wanted to leave the ship immediately to get emergency medical treatment, antiretroviral medication, and counseling. Ehrenreich's secretary left a message on Walker's answering machine, stating that the cruise line would respond to Doe's request in the next four or five days.

That same day Walker replied to the message from Ehrenreich's secretary. He emailed and faxed Ehrenreich that any delay in addressing the matter was “unacceptable,” and he told her that Doe would “be disembarking the cruise ship once it arrives in Seattle” to obtain “medical and psychological treatment.” Walker also informed Ehrenreich that he would be flying from Miami to Seattle to meet with Doe and to ensure that she received emergency medical treatment and counseling. Ehrenreich responded by telling Walker that

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the situation was not an emergency and that Doe's only option was to leave the ship and return to Russia...