Johnson v. NCL (Bahamas) Ltd., CIVIL ACTION CASE NO. 15-4400
| Decision Date | 19 February 2016 |
| Docket Number | CIVIL ACTION CASE NO. 15-4400 |
| Parties | Kelly David Johnson v. NCL (Bahamas) Ltd. d/b/a Norwegian Cruise Line |
| Court | U.S. District Court — Eastern District of Louisiana |
Paul Richard Miller, Paul R. Miller, Attorney at Law, Houston, TX, for Kelly David Johnson.
Henry J. Rodriguez, Antonio J. Rodriguez, Susan Grace Keller-Garcia, Fowler Rodriguez, New Orleans, LA, for NCL (Bahamas) Ltd.
NANNETTE JOLIVETTE BROWN
Before the Court are Defendant NCL (Bahamas) Ltd.'s (“NCL”) “Motion to Compel Arbitration and Stay Proceedings”1 and Plaintiff Kelly David Johnson's (“Johnson”) “Motion to Remand.”2 Having considered the motions, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant Defendant's motion to compel arbitration and deny Plaintiff's motion to remand.
On June 25, 2015, Plaintiff, an alleged seaman aboard a vessel owned by NCL, filed suit in Civil District Court for Orleans Parish seeking damages pursuant to the Jones Act, the Federal Employers Liability Act (“FELA”), and general maritime law for injuries he allegedly sustained on October 31, 2014 while attempting to exit his bunk after being suddenly awoken by an unannounced drill.3 Johnson, a U.S. citizen, worked as a casino pit supervisor aboard the Norwegian Dawn (“the Dawn”), a Bahamian-flagged passenger cruise vessel operated by NCL.4 Johnson's employment with NCL, which began on August 15, 2014 and was scheduled to last until February 15, 2015,5 was governed by a Seafarer's Employment Agreement (“Employment Agreement”), which contained an arbitration clause mandating that any claims relating in any way to Johnson's employment would be “referred to and resolved exclusively by binding arbitration pursuant to United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) (‘The Convention’).”6
On September 14, 2015, Defendant filed a “Notice of Removal” pursuant to 9 U.S.C. § 205
, which provides for removal of causes of action relating to an arbitration agreement falling under the Convention.7 Defendant then filed a “Motion to Compel Arbitration and Stay Proceedings” on September 30, 2015.8 On October 20, 2015, Johnson filed an opposition.9 On October 28, 2015, with leave of Court, Johnson filed an amended opposition solely to correct typographical errors.10 On the same day, Defendant filed a reply in support of its motion to compel arbitration and stay proceedings.11
While the motion to compel arbitration was pending, on October 13, 2015, Johnson filed a motion to remand the case.12 NCL filed an opposition on October 20, 2015.13 With leave of Court, Johnson filed a reply in support of remand on October 29, 2015,14 and NCL filed a sur-reply on the same day.15
In its motion, NCL argues that arbitration of Plaintiff's claims is the exclusive and mandatory form of dispute resolution under the Employment Agreement.16 NCL argues that, because Plaintiff signed an arbitration clause pursuant to the Convention, the Court may engage in only a limited inquiry to determine whether the Convention requires compelling arbitration in a particular case.17 According to NCL, the Court's preliminary inquiry consists of determining whether: (1) there is a written agreement to arbitrate the matter; (2) the agreement provides for arbitration in a Convention signatory nation; (3) the agreement arises out of a commercial legal relationship; and (4) one of the parties is not a U.S. citizen, or where all parties to the agreement are U.S. citizens, the relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.18 NCL avers that if the four jurisdictional prerequisites are met, and no affirmative defense applies, the Court must compel arbitration.19
Here, NCL contends, all jurisdictional prerequisites are met and arbitration is therefore required.20 According to NCL, it is “unquestionabl[e]” that there is a written agreement to arbitrate this dispute, which provides for arbitration in the United States, a Convention signatory.21 NCL also avers that the employment relationship between itself and Johnson was a commercial relationship that envisaged performance abroad.22 NCL claims that the Convention therefore applies, and because Plaintiff lacks any basis for attacking the arbitration clause's validity or ability to be performed, the clause must be enforced.23
Specifically, NCL argues that the Employment Agreement “unquestionably envisaged performance abroad” given that Johnson's work as a casino pit supervisor was to be performed primarily outside the United States.24 According to NCL, during Plaintiff's time on the Dawn, it touched ports in ten different countries and constantly sailed.25 NCL argues that although both it and Plaintiff are U.S. citizens, the Convention explicitly states that a legal relationship entirely between citizens of the United States may nevertheless be governed by the Convention if a contract for work on a vessel in foreign waters envisages performance abroad.26 According to NCL, in Freudensprung v. Offshore Technical Services, Inc.,
the Fifth Circuit affirmed a district court decision compelling arbitration in a case where the agreement at issue was between an American company and an American individual for work aboard a sea-going barge in West African waters, finding that the agreement envisaged performance abroad.27
NCL contends that the term “abroad” is “generally defined as ‘[o]utside a country,’ ”28 which is consistent with the strong public policy in favor of international arbitration, as well as the Fifth Circuit's holding in Freudensprung
.29 According to NCL, the definition of “abroad” is not limited to foreign soil, and instead encompasses any place outside of the United States and its territorial waters, including international waters and the territorial waters of other nations.30 NCL cites other recent cases in which it claims, in the passenger cruise ship context, crewmember employment agreements were found to envisage performance abroad where the plaintiff's work was to be performed primarily outside the United States.31 In fact, NCL claims, in D'Cruz v. NCL (Bahamas) Ltd.
, a judge in the Southern District of Florida compelled the plaintiff, an American IT systems manager, to arbitrate claims for injuries allegedly sustained onboard the Dawn, the same vessel involved in the present case.32 There, NCL contends, the court rejected the plaintiff's argument that he did not perform his duties abroad because he worked solely on the ship and not in any foreign states, holding that the language of the Convention, which employs the broad term “abroad,” was not limited only to the performance of employment duties in foreign states.33
NCL avers that the contractual relationship between Plaintiff and NCL clearly contemplated performance abroad given that, during Plaintiff's time aboard the vessel, the Dawn spent more than 80% of her time abroad.34 NCL claims that at the time that Plaintiff signed the Employment Agreement, the Dawn was scheduled to regularly sail to numerous foreign countries, including Bermuda, Honduras, Belize, Mexico, Curaçao, Canada, Jamaica, Cayman Islands, and Aruba.35 According to NCL, during the Dawn's sailings between August 15, 2014 and November 30, 2014—the time Johnson was employed aboard the vessel—onboard gaming usually only took place when the ship was at least three nautical miles from the land of the U.S.36 Furthermore, NCL argues, the Supreme Court has held that a ship “is deemed to be a part of the territory of that sovereignty whose flag it flies, and not to lose that character when in navigable waters within the territorial limits of another sovereignty.”37 Defendant claims that the Dawn sails under the flag of the Bahamas and, as a result, to the extent the ship spent any time in U.S. ports or waters, it maintained its character pursuant to Supreme Court precedent.38 Thus, Defendant argues, the law is clear that Johnson's claims are subject to arbitration in the United States and the Court should compel arbitration and stay the instant proceedings.39
In opposition, Plaintiff first argues that NCL's motion should be denied because the case should instead be remanded to the Civil District Court of Orleans Parish, arguments Plaintiff elaborates on in its motion to remand.40 Next, Johnson argues that the Convention does not apply to this case because it involves two United States citizens.41 Johnson avers that, despite relying heavily on case law from the Southern District of Florida, NCL has failed to advise the Court of contrary decisions in Armstrong v. NCL (Bahamas) Ltd.
,42
Matabang v. Carnival Corp .,43 and Hines v. Carnival Corp.,44 each of which Plaintiff argues held that: (1) due to a lack of a foreign connection, the Convention does not apply to a cruise ship employee's injury and/or (2) that an employee's case removed pursuant to the Convention must be remanded to state court.45 Johnson also alleges that NCL failed to inform the Court that the decision in D'Cruz v. NCL (Bahamas) Ltd., on which NCL relies, is currently on appeal to the Eleventh Circuit.46
Next, Johnson argues that in Freudensprung v. Offshore Technical Services, Inc.
, cited by NCL, the Fifth Circuit held that the Convention does not apply to agreements between United States citizens, such as the one in this case, unless “there is a reasonable connection between the parties' commercial relationship [the agreement] and a foreign state which is independent of the arbitral clause itself.”47 Plaintiff avers that although NCL characterizes Freudensprung as Fifth Circuit authority supporting...
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