ARBITRATION OF A SEAMAN'S CLAIMS: WHAT'S PERFORMANCE ABROAD? ANOTHER NAIL IN THE SEAMAN'S COFFIN!

Author:Loga, Tyler S.
 
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TABLE OF CONTENTS I. Introduction 354 II. Alberts Factual Background 355 III. The Federal Arbitration Act 356 A. Brief History and Composition 356 B. Sections 1, 208, Francisco, and Freudensprung 358 C. Section 202--Four Element Non-domestic Jurisdictional Test 364 IV. Alberts Analysis 366 A. Elements Undisputed in Alberts 366 1. An Agreement in Writing 366 2. Provides for Arbitration in a Signatory Nation 366 3. Commercial Relationship 367 B. Disputed Element--National Diversity of Parties 367 1. Exception: The Relationship Involves Property Located Abroad 368 2. Exception: The Relationship Envisages Performance or Enforcement Abroad 368 a. Defining "Performance Abroad" 369 (1). Matabang (2009) 369 (2). Odom (2011) 370 (3). Armstrong (2013) 372 (4). Rutledge (2015) 373 b. Plaintiff--Appellant's Argument 375 c. Defendant - Appellee's Argument 376 d. The Court's Ruling 377 VI. Conclusion and Solutions 378 I. INTRODUCTION

The sea has always been and will always be treacherous. As noted by the Roman poet Ovid, "The man who has experienced shipwreck shudders even at a calm sea." (1) The sea has also been and will always be a source of great wealth. From its fisheries and offshore mineral reserves to its status as a highway for international trade, the sea holds great opportunity to those who depend on it professionally. Because of the dangerous nature of maritime work, and its necessity to commerce, Congress saw the need to elevate the "seaman" to a protected class.

In an effort to construct formal protections, the Merchant Marine Act of 1920 ("The Jones Act") was passed. Under the Jones Act, a seaman is given special statutory protections, including the ability to directly sue their employer for negligence and the traditional maritime remedy of maintenance and cure. However, many employers now include arbitration clauses in their employment contracts, which require, for example, that "all disputes 'be referred to and resolved exclusively by mandatory binding arbitration."' (2) Mandatory arbitration means that the court must compel arbitration and it is the only way a claim may be brought. Additionally, arbitration provides no process for appeal. Furthermore, arbitration can be stipulated to occur outside of the United States and to be governed by foreign law, preventing United States seamen from availing themselves of their Jones Act protections under United States statutory law.

How can such a loophole exist? In recent decisions from the United States Courts of Appeals for the Fifth Circuit and Eleventh Circuit, cruise line employees who qualify as seamen have found themselves in this very situation. This comment will use Alberts v. Royal Caribbean Cruises as a case study to examine how precedence has allowed United States employers to use an international treaty to circumvent the statutory protections of United States seamen.

  1. ALBERTS FACTUAL BACKGROUND

    Robert Alberts, a United States citizen, was the lead trumpeter on the OASIS OF THE SEAS, a Bahamian-flagged cruise ship owned and operated by his employer, Royal Caribbean Cruise Lines ("RCCL"), a Liberian corporation with its principal place of business in Florida. (3) The vessel made its homeport in Fort Lauderdale, Florida and sailed to several foreign ports in the Caribbean. (4) As stated by the Eleventh Circuit, "Alberts played his trumpet--and hit his high Cs--only while the ship was sailing the high seas," illustrating that Alberts' work was not performed in the foreign ports but limited to the high seas travel between the named ports. (5) On one such voyage Alberts began bleeding rectally. (6) He alleged that his employer failed to "provide him prompt and adequate medical examination and treatment and did not take his complaints seriously." (7) Alberts was later diagnosed with colon cancer and claimed his condition was worsened due to RCCL's inadequate treatment. (8) He filed a host of claims including unseaworthiness, negligence under the Jones Act, maintenance and cure, as well as for seaman's wages and penalties. (9) Prior to the claim arising, the parties agreed to an arbitration clause in Alberts' employment contract "which required that all disputes '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.'" (10) The employment contract also stipulated that such arbitration shall take place in (1) Miami, Florida, (2) Oslo Norway, or (3) in any location agreed by the parties, "with the procedural and substantive law of the proceeding being the law of Norway." (11) Royal Caribbean moved to compel arbitration, which the district court granted. (12)

  2. THE FEDERAL ARBITRATION ACT

    1. Brief History and Composition

      Before the enactment of the Federal Arbitration Act ("FAA") in 1925, traditional common law, including within the United States, "rejected arbitration as a deprivation of the jurisdiction of the courts and therefore contrary to public policy." (13) The FAA was introduced with the goal of eliminating the historic judicial hostility toward arbitration agreements and to place them "upon the same footing as other contracts." (14) The passage of the act by Congress signaled a shift in federal policy toward acceptance of arbitration as an appropriate method of dispute resolution in the United States. (15) In 1923 and 1924, when the act was being considered, arbitration was not a new concept. Arbitration clauses were only enforceable by New York state law or when both parties agreed to honor the clause by their own submission. (16) In Congressional hearings on the act, arbitration was primarily discussed as a forum to quickly and efficiently resolve disputes between merchants. (17) The idea was that two businessmen of a particular field could agree and appoint an arbitrator, someone similarly an expert in their particular field, to settle their dispute. The arbitration process would be quicker and cheaper than resolving the dispute through the courts, and, as the parties are on truly equal footing, the agreement to arbitrate is a genuine consensus.

      Today, the FAA is interpreted to signify a strong federal policy in favor of arbitration. (18) As held by the Supreme Court, "[a]ny doubts concerning the scope of arbitral issues should be resolved in favor of arbitration...." (19) The scope of arbitration has expanded far beyond the original merchant-versus-merchant intent. Modern arbitration clauses can be found in virtually any type of contract. This is particularly problematic in employment contracts and consumer contracts where bargaining power is not equal and the contract is generally non-negotiable. The lack of balance in bargaining power involved in binding arbitration disputes is alarming because the party with the bargaining power, typically a large corporation, may make it a non-negotiable term of doing business: that the party with lesser power, the employee or consumer, will never be entitled to an opinion of a public court concerning their relationship with that corporation, or any type of appeal process. Even more alarming is when these arbitrations, generally private in nature, are confidential and hidden from the public eye as they would not be in the court system.

      The FAA is codified in Title 9 of the United States Code. The Title's structure makes a distinction between domestic and non-domestic disputes. Chapter One ("The FAA"), which primarily governs domestic disputes, was amended in 1947 to generally reflect its current language. (20) Chapter Two ("The Convention Act") was added in 1970 after the United States ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. (21) Similarly, in 1990, Chapter Three was added after ratification of the Inter-American Convention on International Commercial Arbitration, also known as the Panama Convention. (22) Chapters Two and Three govern non-domestic disputes, but both of them reference back to Chapter One, complicating the statutory framework. For example, Section 201 states, "The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in the United States courts in accordance with this chapter [Ch. 2]." (23) Section 208 states, "Chapter 1 applies to actions and proceedings brought under this chapter [Ch. 2] to the extent that chapter [Ch. 1] is not in conflict with this chapter [Ch. 2] or the Convention as ratified by the United States." (24) In other words, when an arbitration clause is considered non-domestic and is enforceable under the New York Convention, Chapter 2 of Title 9, as well as the Convention as ratified by the United States, both apply, with Chapter 1 also governing in a supplementary nature.

    2. Sections 1, 208, Francisco, and Freudensprung

      Section 1 of Title 9 states in pertinent part: "[B]ut nothing herein contained shall apply to the contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." (20) Seemingly, this provision by its plain language bars the enforcement of any arbitration clauses contained within the seamen's employment contract. The court in Alberts and many other recent decisions appear to ignore this provision and instead apply a four-part non-domestic jurisdictional test laid out in Section 202 to determine whether the New York Convention applies. (26) The Fifth Circuit case, Francisco v. STOLT ACHIEVEMENT MT, is the source of this trend. (27)

      In Francisco, the plaintiff, a Filipino seaman, filed a personal injury lawsuit in Louisiana state court against his employer, Stolt, for injuries sustained onboard the defendant's chemical tanker while on the Mississippi River in Louisiana. (28) In the employment agreement between the plaintiff and Stolt, (a Liberian corporation), the parties agreed that "[all] claims and disputes arising...

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