Cruise Injury Attorney Richard Rusak Wins Case at Florida's Third District Court of Appeal

December 24, 2012
By Richard Rusak & Keith Brais on December 24, 2012 10:31 AM |

Cruise Injury Law Appeal.gifBrais law's cruise injury attorney Richard Rusak recently won a case before Florida's Third District Court of Appeal. The case involved a Honduran crewmember who worked as a cabin steward aboard a Carnival Cruise Line ship. Being a cabin steward, the crewmember was required to clean dozens of cabins, including lifting heavy mattress to change linens, for the next cruise. Though it was Carnival's policy to have teams of two crewmembers working together to "turn over" these cabins, Carnival failed to provide an assistant. Given the short period of time he had to complete his job, the heavy lifting involved and because Carnival did not provide with an assistant, the cabin steward injured his back.

A lawsuit was filed in Florida state court located in Miami alleging violations of the Federal Jones Act statute, breach of the general maritime law warranty of seaworthiness and failure to provide injury benefits. Carnival removed the case to Federal court under the United Nations Convention for the Enforcement of Foreign Arbitration Awards arguing the seaman's claims were governed by the arbitration provision contained in his contract and that the claims must be arbitrated in Panama under Panamanian law. The Federal court entered an order finding public policy nullifies the arbitration / Panamanian law provisions of the contract with regard to the Federal Jones Act claim and remanded the Jones Act claim to state court for a jury trial. The Federal court based its finding on the Federal Eleventh Circuit's opinion of Thomas v. Carnival which held public policy can be considered when deciding to enforce an arbitration agreement.

Instead of challenging the Federal court's remand order to the appellate court, Carnival decided to participate in the state court litigation without regard to its claimed right to arbitrate. While in state court, Carnival acted contrary to the arbitration provision by engaging in the machinery of the litigation process without even asking the State Court to review whether the statutory claim should be arbitrated. After a year and a half of litigating in State Court, Carnival sought a Federal court to re-review whether the Federal Jones Act must be arbitrated per the contract. This time, Carnival relied on a later opinion from the Eleventh Circuit called Lindo v. NCL (Bahamas) Ltd. which disagreed with the prior Thomas opinion. The Federal trial court, like in the first instance, remanded the case back to state court. After being re-remanded, Carnival, for the first time, asked the State Court to compel the Jones Act claim to arbitration. The state court denied Carnival's motion on two separate grounds. Those grounds being: (1) the prior Federal Court's orders finding against arbitration precluded the issue to be reviewed for a third time and (2) Carnival's actions in proceeding in state court for over a year and a half waived its claimed right to arbitrate.

Carnival then appeal the second remand order to the Federal appellate court and the state court's order denying its motion to compel to the Florida appellate court. Richard Rusak, handling both appeals, was successful in obtaining an order from the Federal appellate court dismissing the appeal. On December 5, 2012, Richard Rusak argued the seaman's case to the Florida appellate court. Two weeks later on December 19, 2012 the state appellate court issued its opinion affirming the denial of Carnival's Motion to Compel arbitration.