Cosgun v. Seabourn Cruise Line Inc.

Decision Date28 March 2023
Docket Number21-cv-61378-ALTMAN/Hunt
CourtU.S. District Court — Southern District of Florida



Our Plaintiff, Bulent Cosgun-a crewmember aboard the M/V Seabourn Odyssey (a cruise ship)-agreed to arbitrate any dispute he might have with his employer, Seabourn Cruise Line Limited (Seabourn). But, after injuring himself aboard the Odyssey, Cosgun bypassed the parties' agreement and sued Seabourn in state court. Seabourn removed the case to us and promptly moved to compel arbitration. Cosgun responded by urging us to remand his case to state court. After careful review, we conclude both that we have jurisdiction to compel arbitration and that we must compel the parties to arbitrate in the Southern District of Florida. We, therefore, GRANT Seabourn's Motion to Compel Arbitration [ECF No. 26] and DENY Cosgun's Motion to Remand [ECF No 27].

The Facts
I. Background

Cosgun is a citizen of Turkey and a “seaman” by trade. Complaint [ECF No. 1-2] ¶¶ 1, 6. On December 3, 2018, Seabourn hired Cosgun to work “as a waiter on board the cruise ship M/V SEABOURN ODYSSEY.” Id. ¶ 6; see also Seafarer's Employment Contract [ECF No. 26-3] at 2. On September 16, 2019-while working on the Odyssey-Cosgun “slipped and fell on a flooded deck that was covered in water leaking from a broken water line.” Complaint ¶ 10. As a result of his fall, Cosgun sustained injuries that required everything from “steroid injections,” id. ¶ 15, to “back surgery,” id. ¶ 34. Because of these injuries, Cosgun says, he “can no longer work . . . in his chosen profession.” Id. ¶ 38.

II. The Arbitration Agreement

On December 27, 2017, Seabourn and the Norwegian Seaman's Union entered into a Collective Bargaining Agreement (the “Agreement”), which delineated “the terms and conditions of employment of seafarers serving onboard vessels owned, operated or managed by Seabourn Cruise Line Limited[.] Agreement [ECF No. 26-4] at 2. The Agreement took effect on January 1, 2018. See ibid. In Cosgun's signed employment contract, he agreed to “abide by the terms and conditions set forth in the Collective Bargaining Agreement[.] Seafarer's Employment Contract at 2. The Agreement included an arbitration provision, which reads as follows:

If not resolved by the Unions, the Owners/Company, and/or the Seafarer as provided in the Dispute Resolution Procedure above, all grievances and any other dispute whatsoever, whether in contract, regulatory, statutory, common law, tort or otherwise relating to or in any way connected with the Seafarer's service for the Owners/Company under this Agreement, including but not limited to claims for personal injury/disability or death, no matter how described, pleaded or styled, and whether asserted against the Owners/Company, Master, employer, Vessel owner, Vessel or Vessel operator shall be referred to and resolved exclusively by mandatory binding arbitration pursuant to the United Nations Conventions [sic] on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958), 21 U.S.T. 2517, 330 U.N.T.S. (“The Convention”), except as provided by any government mandated contract. In addition, Seafarer agrees to arbitrate any and all disputes regarding the existence, validity, termination, or enforceability of any term or provision in this Agreement.

Agreement at Art. 35(1). In our case, the “Seafarer” is Cosgun-the “person who is employed or engaged or works in any capacity onboard a ship.” Id. at Art. 1(C)(1). And Seabourn is the “Owner[]/Company[.] Id. at Art. 35(2). The Agreement provides that “arbitration shall take place in such place as is agreed upon by the Unions, Owners/Company and Seafarer.” Id. at Art. 35(3). But, [i]n the event that all three parties are unable to agree upon an alternative location, the agreement of any two of the three shall prevail.” Ibid.

III. Our Case

On June 14, 2021, Cosgun sued Seabourn in the 17th Judicial Circuit in and for Broward County, Florida. See generally Complaint; see also Notice of Removal [ECF No. 1] ¶ 7. In his state-court complaint, Cosgun asserted five claims: (1) Jones Act negligence (Count I); (2) unseaworthiness (Count II); (3) failure to provide maintenance and cure (Count III); (4) failure to provide prompt, proper, and adequate medical care (Count IV); and (5) disability benefits under the Agreement (Count V). See Complaint ¶¶ 39-65. Seabourn-citing 9 U.S.C. § 205 and 28 U.S.C. § 1441-removed the case here. See generally Notice of Removal. Once in federal court, Seabourn filed a Motion to Compel Arbitration [ECF No. 3], and Cosgun responded with his own Motion to Remand [ECF No. 11].

After reviewing the parties' briefs, we found that both sides had failed to “address the critical issue” in the case. March 24, 2022 Hearing Transcript (“Hr'g Tr.”) [ECF No. 23] at 4:2-3. So, we brought the parties in for a hearing, see Paperless Minute Entry [ECF No. 21], where we explained, in detail, what we thought was really at issue in the case-namely, whether (as a prerequisite to our jurisdiction to compel arbitration) the parties' agreement needed to specify that arbitration would take place in a signatory nation.[1]See Hr'g Tr. at 10:13-15 ([T]hat suggests to us that there really is no requirement that the arbitration agreement include the forum of arbitration as a jurisdictional prerequisite.”). And we told the parties that we were going to “deny both motions without prejudice,” id. at 17:6-7; give them a chance to “research these issues,” id. at 4:18; and allow them to brief the “elephant in the room,” id. at 17:7. Once the parties refiled their briefs addressing this key issue (we said), we would resolve their motions. See id. at 17:9 ([C]ome back, refile, and then we'll address them at that time.”).

So, here we are (again)-adjudicating Seabourn's Renewed Motion to Compel Arbitration (the Motion to Compel) [ECF No. 26] and Cosgun's Renewed Motion to Remand (the Motion to Remand) [ECF No. 27].[2] Conspicuously absent from these motions, however, is any analysis of the issue we raised at the hearing. See generally Motion to Compel; Motion to Remand. The parties, in other words, ignored just about everything we said at the hearing and refused to brief the sole issue we identified as important when we denied their previous motions.[3]It's typically not our role to make the parties' arguments for them. See United States v. Campbell, 26 F.4th 860, 872 (11th Cir. 2022) ([I]t is inappropriate for a court to raise an issue sua sponte in most situations.”). But, when the parties manage to raise the right issue-and then fail to make the correct arguments-we're not obliged to decide the question with blinders on. See United States v. Undetermined Quantities of All Articles of Finished & In-Process Foods, 936 F.3d 1341, 1350 (11th Cir. 2019) ([T]he court is not limited to choosing one side's position or the other's. The court's role is to get it right, not to choose which side's argument is better and adopt it lock, stock, and barrel.”); see also Campbell, 26 F.4th at 872 (“However, the party presentation principle is supple, not ironclad, and there are no doubt circumstances in which a modest initiating role for a court is appropriate.” (cleaned up)). And that's particularly true in the circumstances we have here-where, after we called the parties in for a hearing, at which we laid out for them (in painstaking detail) the issues we wanted them to address, the parties elected to ignore our directions and to proceed (in essence) with the same misplaced arguments they'd raised before. We'll thus adjudicate both motions here-looking, without much help from the parties, “to get it right.” Undetermined Quantities, 936 F.3d at 1350.

The Law

In 1958, the United Nations Economic and Social Council adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S 3 (the “New York Convention” or the “Convention”). “The New York Convention is a multilateral treaty that addresses international arbitration.” GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1644 (2020). “The Supreme Court has explained that ‘the principal purpose' behind the adoption of the Convention ‘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.' Suazo v. NCL (Bahamas), Ltd., 822 F.3d 543, 545 (11th Cir. 2016) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974)).

Article II of the Convention “addresses the enforcement of arbitration agreements” and is divided into three parts. Article II(1) mandates that [e]ach 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.” Article II(2) defines [t]he term ‘agreement in writing' to “include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.” Finally, Article II(3) requires courts to compel arbitration absent an affirmative defense: “The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties,...

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