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Injured Cruise Ship Worker Allowed to Proceed with Negligence Claim in State Court

Cruise-Foot-Injury-2-242x300A former cruise ship worker for Seabourn was allowed to proceed with her Jones Act negligence and unseaworthiness case in state court. The injured crewmember filed a lawsuit in Florida state court against her cruise line employer for injured sustained while working. The case concerns a blister the crewmember developed on a toe on her left foot. The shipboard physician treated the crewmember aboard the cruise ship, but seven months from the onset of symptoms, her toe showed signs of gangrene and was ultimately amputated.

Removal to Federal Court & Motion to Remand

Seabourn removed the case from state court to federal court under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards arguing an arbitration agreement between it and the crewmember governed the dispute thereby precluding her ability to file a lawsuit. The court reviewed the arbitration agreement and found it not applicable to the claim brought against the cruise line. Upon the court’s determination that the case need not be arbitrated, the crewmember filed a motion to remand the case back to state court for trial. Seabourn opposed the motion to remand arguing that removal is proper under the diversity of citizenship exception and the crewmember waived any objection to the removal by failing to timely challenge the removal.

Ability the Remove a Jones Act Case Based Upon Diversity of Citizenship

Typically, a foreign party can remove a case brought in state court by a citizen of that state to federal court. The Jones Act, however, precludes the removal of seaman negligence cases brought against employer. A narrow exception to the Jones Act’s non-removal rule exists when the maritime employer attempts to compel the enforcement of an arbitration agreement. In this case, the cruise line properly removed the Jones Act negligence claim based upon it attempt to seek enforcement of an arbitration agreement. However, when the court ruled the arbitration agreement was not enforceable, the basis by which the cruise line removed the case evaporated. Seabourn’s attempt to keep the case in federal court by asserting diversity of citizenship failed on both procedural and substantive grounds. First the court noted that Seabourn only asserted the United Nations Convention and not diversity of citizenship as the basis of removal in its original notice. The court found it cannot salvage the removal by later asserting diversity of citizenship as additional basis for removal. Next the court determined that even if the cruise line asserted diversity of citizenship as an original basis for removal, the Jones Act precluded such removal.

Waiver of Right to Remand

Finally, the court rejected Seabourn’s argument that the crewmember waived her ability to seek remand. The court reasoned that the crewmember’s initial position of not objecting to removal occurred before Seabourn asserted diversity jurisdiction. As such, the crewmember simply did not object to the court deciding the arbitrability issue which the court had jurisdiction to decide. Since the court found the arbitration agreement not enforceable, it did not mean the crewmember waived her right to challenge any additional basis for which the cruise line sought to remove the lawsuit.
Based upon the court’s findings, the crewmember was allowed to return to state court and pursue her claims against the cruise line.

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