For the past six years, cruise lines such as Carnival, Royal Caribbean, Celebrity and Norwegian (NCL) have attempted to require their crewmembers who get hurt on the job to forgo the right to jury trial and compel them to have arbitrators decide what compensation they deserve. Most times the cruise lines bury this jury trial waiver / arbitration provision in the employment contract’s fine print. Worst still, cruise lines such as Royal Caribbean and Celebrity, have language in the employment contracts that references the terms of collective bargaining agreement are incorporated into the employment agreement. The problem is the seamen have no representation in the “union” who negotiated the collective bargaining agreement and are often not given a copy of the collective bargaining agreement. As such, many seafarers have no idea they are waiving their jury trial rights.
The purpose of this article is to provide a brief summary on the cruise lines’ efforts in compelling crewmember personal injury claim to arbitration and the recent order obtained by Brais & Brais remanding a seafarer’s case to a Miami, Florida State court for jury trial.
The tragic events concerning the boiler explosion of the aging NCL cruise ship Norway which killed at least six crewmembers and injuring other serves as the backdrop for the first time an appellate court reviewed the legality of the cruise lines attempt to compel arbitration of workplace injury claims. In Bautista v. Star Cruises, the Eleventh Circuit court found, despite the plan language in the Federal Arbitration Act which excludes seaman from employment being compelled to arbitrate their work related injury claims, that cruise lines can force their crewmembers to arbitrate personal injury claims. This decision opened the floodgates for nearly every major cruise line to include arbitration of personal injury claims as a condition of employment.
Not satisfied with only depriving their crewmembers of the right to jury trials, the cruise lines started inserting foreign choice of law clauses into their employment agreements. The purpose of this is to foreclose crewmembers of the liberal Jones Act, Penalty Wage Statute and general maritime law rights for lesser, more pro-shipping company, rights afforded under foreign law. The Eleventh Circuit had an opportunity to review this practice in Thomas v. Carnival. The court found that the cruise lines efforts to deprived crewmembers of their U.S. statutory rights violated public policy. The impact of this decision was that many trial courts analyzing seafarer employment contracts deemed the foreign choice of law provision null and void and/or found the entire employment contact, including the arbitration provision, unenforceable.
Two years after the Thomas opinion, a separate panel of the Eleventh Circuit re-reviewed whether Federal courts can deem foreign choice of law provisions placed in crewmember employment agreements null and void. In a lengthy opinion named Lindo v. NCL, two of the three judges case concluded Thomas was wrongly decided. The Lindo court found crewmembers must first go to arbitration, and only if the arbitrators refused to apply U.S. statutory law, they have the right to address the public policy issue in the Federal court system. The third judge on the Lindo panel wrote a decanting opinion finding Thomas was rightly decided and a Federal court has the authority to review the public policy issue prior to arbitration.
With the above history, this article now focus on a case concerning Hector Pavon, a Honduran crewmember who was injured while working as a stateroom attendant for Carnival. Mr. Pavon filed his case against Carnival Cruise Lines in Miami, Florida State court at a point in time between the Thomas and Lindo opinions. Carnival removed the case to Federal court seeking an order compelling the claim to arbitration based upon the employment contract. The Federal court, basing its decision on Thomas, found Carnival’s employment contract requiring the application of Panamanian law violated Mr. Pavon’s right to bring U.S. statutory claims of Jones Act negligence and the Penalty Wage Statues. The court deemed the provision null and void as to those U.S. statutory claims and remanded the case back to a Miami, Florida State Court for a jury trial his claims for Jones Act Negligence and Carnival’s violation of the Penalty Wage Statute.
Two days after Lindo was decided, and a month before the case was set for jury trial, Carnival re-removed Mr. Pavon’s Jones Act case from Florida State court back to Federal court for the purpose of compelling the statutory claim to arbitration. The cruise line argued Lindo created a change in the law and the remand order based upon Thomas was wrongly decided. Brais & Brais’ Florida Board Certified Maritime attorneys argued a later Lindo panel of the Eleventh Circuit cannot overrule a prior Thomas panel and the Carnival lacked a basis to remove the case for a second time. The Court agreed with Brais & Brais’ legal analysis finding the Lindo opinion does not overrule the Thomas opinion and remanded the case back to Miami State Court so Mr. Pavon can have a jury decide his case.
The cruise lines’ arbitration experiment is far from being solidified. Though many crewmembers’ employment contracts contain arbitration provisions, many courts have different opinions as to how far the cruise lines can go in their quest to limit seafarers’ rights. The impact of the Pavon decision is injured crewmembers can at least argue to courts deciding this issue that they should be allowed to have their Jones Act negligence and Penalty Wage Act rights decided without first having to participate in a potentially meaningless arbitration.