652 F.3d 1257 (11th Cir. 2011), 10-10367, Lindo v. NCL (Bahamas), Ltd.

Docket Nº:10-10367.
Citation:652 F.3d 1257
Opinion Judge:HULL, Circuit Judge:
Party Name:Harold Leonel Pineda LINDO, Plaintiff-Appellant, v. NCL (BAHAMAS), LTD., d.b.a. NCL, Defendant-Appellee.
Attorney:Philip D. Parrish, Philip D. Parrish, PA, South Miami, FL, Elias Benzo Rudnikas, Mark Lee Stokes, Stokes & Gonzalez, Miami, FL, for Plaintiff-Appellant. Rachel Sherry Cohen, Curtis J. Mase, Scott P. Mebane, Valentina M. Tejera, Mase Lara Eversole, PA, Miami, FL, for Defendant-Appellee.
Judge Panel:Before BARKETT, HULL and KRAVITCH, Circuit Judges. BARKETT, Circuit Judge, dissenting:
Case Date:August 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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652 F.3d 1257 (11th Cir. 2011)

Harold Leonel Pineda LINDO, Plaintiff-Appellant,

v.

NCL (BAHAMAS), LTD., d.b.a. NCL, Defendant-Appellee.

No. 10-10367.

United States Court of Appeals, Eleventh Circuit.

August 29, 2011

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[Copyrighted Material Omitted]

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Philip D. Parrish, Philip D. Parrish, PA, South Miami, FL, Elias Benzo Rudnikas, Mark Lee Stokes, Stokes & Gonzalez, Miami, FL, for Plaintiff-Appellant.

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Rachel Sherry Cohen, Curtis J. Mase, Scott P. Mebane, Valentina M. Tejera, Mase Lara Eversole, PA, Miami, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

HULL, Circuit Judge:

Plaintiff-Appellant Harold Leonel Pineda Lindo (" Lindo" ) appeals the district court's enforcement of the arbitration agreement in his employment contract with Defendant-Appellee NCL (Bahamas) Ltd. (" NCL" ). Lindo sues NCL on a single count of Jones Act negligence, pursuant to 46 U.S.C. § 30104. He claims that NCL breached its duty to supply him with a safe place to work. The district court granted NCL's motion to compel arbitration and dismissed Lindo's complaint.

Given the New York Convention and governing Supreme Court and Circuit precedent, we must enforce the arbitration clause in Plaintiff Lindo's employment contract, at least at this initial arbitration-enforcement stage. After review and oral argument, we affirm the district court's order compelling arbitration of Lindo's Jones Act negligence claim.

I. FACTUAL BACKGROUND

Plaintiff Lindo is a citizen and resident of Nicaragua. Defendant NCL is a Bermuda corporation that operates cruise ships, with its principal place of business in Miami, Florida. See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 126, 125 S.Ct. 2169, 2175, 162 L.Ed.2d 97 (2005) (referring to NCL as " a Bermuda corporation with a principal place of business in Miami, Florida" ).

NCL employed Lindo to serve as a crewmember on the M/S Norwegian Dawn, which flies a Bahamian flag of convenience.1 The ship typically departs from ports in the United States and travels to international locales, such as Bermuda, Canada, and venues throughout the Caribbean.

Lindo alleges that in December 2008, while acting in the scope of his employment on NCL's private island in the Bahamas,2 he injured his back after he was ordered to transport heavy trash bags to the ship. He later underwent surgery to correct the injury.

A. Lindo's Employment Contract

Lindo's employment with NCL was governed by (1) a collective bargaining agreement (" CBA" ) negotiated by NCL and the Norwegian Seafarers' Union, and (2) an employment contract (the " Contract" ), which Lindo executed in January 2008.

Lindo's Contract provides that the " [e]mployee and the employment relationship established hereunder shall at all times be subject to and governed by the CBA." Lindo's Contract also provides that, notwithstanding whether he is a union member, he " understands and agrees that with respect to the Employer's obligations under general maritime law in the event of injury or illness, the terms of the CBA control and the Employee will be provided with benefits, including unearned wages, maintenance, cure and medical care and will be compensated in accordance with said CBA." Lindo's Contract " acknowledges that he[ ] has had an opportunity to review said CBA."

Paragraph 12 of Lindo's Contract specifies that all Jones Act claims will be resolved

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by binding arbitration pursuant to the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards (" the New York Convention" or " the Convention" ):

Seaman agrees ... that any and all claims ... relating to or in any way connected with the Seaman's shipboard employment with Company including ... claims such as personal injuries [and] Jones Act claims ... shall be referred to and resolved exclusively by binding arbitration pursuant to the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards....

The Convention requires courts in signatory nations to give effect to private international arbitration agreements and to recognize and enforce arbitral awards entered in other contracting states. See The United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3. The CBA likewise provides that Jones Act claims will be resolved by binding arbitration pursuant to the Convention.

As to the place of arbitration, Lindo's Contract states that " [t]he place of the arbitration shall be the Seaman's country of citizenship, unless arbitration is unavailable under The Convention in that country, in which case, and only in that case, said arbitration shall take place in Nassau, Bahamas." As to the choice of law, Lindo's Contract provides, " The substantive law to be applied to the arbitration shall be the law of the flag state of the vessel." This entailed that any claim, including Lindo's Jones Act claim, would be arbitrated in Nicaragua (Lindo's country of citizenship) under Bahamian law (the law of the flag state of the vessel).3

Lindo does not challenge the place of arbitration. Rather, Lindo challenges having arbitration at all because Bahamian negligence law, not U.S. statutory negligence law under the Jones Act,4 would apply.

B. Procedural History

In 2009, Lindo filed suit in Florida state court. He asserted various claims: (1) Jones Act negligence, pursuant to 46 U.S.C. § 30104 (Count I); (2) failure to provide entire maintenance and cure (Count II); (3) failure to treat and provide adequate medical cure (Count III); (4) unseaworthiness (Count IV); and (5) an unnumbered count for disability benefits under the CBA. NCL filed a motion to dismiss and compel arbitration.

Pursuant to 9 U.S.C. § 205, NCL also removed the action to the U.S. District Court for the Southern District of Florida and sought to compel arbitration. Lindo filed a second amended complaint alleging a single count of Jones Act negligence. Lindo's related motion stated that " NCL has to date met its maintenance and cure obligations."

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Subsequently, Lindo opposed NCL's motion to dismiss and sought a remand to state court. Lindo argued that the arbitration provision in his Contract was void as against public policy because it operated as a prospective waiver of his Jones Act claim. Alternatively, Lindo contended that the arbitration provision should not be enforced due to the economic hardship Lindo would incur because his Contract was unclear regarding the extent to which he must pay arbitration costs.

The district court denied Lindo's motion to remand, granted NCL's motion to compel arbitration, and dismissed Lindo's second amended complaint. See Lindo v. NCL (Bahamas) Ltd., No. 09-22926-CIV, 2009 WL 7264038, at *4, 2009 U.S. Dist. LEXIS 129452, at *10 (S.D.Fla. Dec. 23, 2009); see also 9 U.S.C. § 206 (" A court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States." ). Lindo timely appealed.

II. THE NEW YORK CONVENTION

A. Enforcement of Arbitration Agreements

We start with the New York Convention referenced in Lindo's Contract. In 1958, the United Nations Economic and Social Council adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more commonly known as the New York Convention. In 1970, the United States acceded to the treaty, which was subsequently implemented by Chapter 2 of the Federal Arbitration Act (" FAA" ), 9 U.S.C. § 201 et seq.

The Convention requires contracting states, such as the United States, to recognize written arbitration agreements concerning subject matter capable of settlement by arbitration:

Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

New York Convention, art. II(1) (emphasis added). Both Nicaragua (where Lindo is a citizen) and the Bahamas (whose law Lindo agreed to in his Contract) are also signatories to the Convention.

Section 201 of the FAA provides that the Convention shall be enforced in U.S. courts: " The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter." 9 U.S.C. § 201 (emphasis added); see also Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1440 (11th Cir.1998) (" As an exercise of the Congress' treaty power and as federal law, the Convention must be enforced according to its terms over all prior inconsistent rules of law." (quotation marks omitted)). The Supreme Court has stated that " [t]he goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries." Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15, 94 S.Ct. 2449, 2457 n. 15, 41 L.Ed.2d 270 (1974).

B. Two Stages of Enforcement

To implement the Convention, Chapter 2 of the FAA provides two causes of action in federal court for a party seeking to

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