MANDATORY ARBITRATION OF SEXUAL ASSAULTS IN MARITIME LAW.

• Author: Bratslavsky, Andrew

1. INTRODUCTION

   Following the Eleventh Circuit's holding in Bautista, cruise line employers have tried to compel arbitration of sexual assault claims brought by their employees ("seafarers"). (1) In Doe v. Royal Caribbean Cruises, Ltd., a Filipino woman ("Doe") was hired by Royal Caribbean Cruise Lines ("RCCL") through an employment agency in her native Philippines. (2) A pre-requisite to getting the job was signing a contract of employment, and the contract contained a provision stating that all claims would be settled in the Philippines. (3) The contract also incorporated standard terms promulgated by the Philippines Overseas Employment Administration--which governs the employment of Filipino seafarers--and one of the terms included an arbitration clause. (4)

   Doe filed suit alleging she was sexually assaulted while under the employment of RCCL, and RCCL responded by filing a motion to compel arbitration. (5) The court agreed with RCCL, holding that "[Doe] was employed by [RCCL] pursuant to an agreement that requires that [Doe's] dispute be brought either before the National Labor Relations Commission of the Philippines, or to an arbitrator." (6)

   In Doe v. Princess Cruise Lines, Ltd., the court describes the harrowing ordeal of the alleged victim:

   [These] allegations tell a story of a woman, working for Princess Cruise Lines on one of its ships, who was drugged by other employees, raped and physically injured while she was unconscious, and when she reported to officials of the cruise line what had happened to her they treated her with indifference and even hostility, failed to provide her with proper medical treatment on board, and interfered with her attempts to obtain medical treatment and counseling ashore. (7) Despite the court's moving account, the issue was not whether the claim was true, but, rather, whether the scope of the arbitration clause should include the sexual assault. (8) Princess Cruise Lines ("PCL") argued in the affirmative, claiming the sexual assault "related to, arose out of, or [was] connected with [the victim's] employment duties...." (9) In holding that arbitration was not proper in this case, the court reasoned that the plain language of the arbitration clause was too broad and, if PCL wanted to include sexual assaults under the clause's scope, they should have used narrower language. (10)

   Michelle Haasbroek ("Haasbroek"), a South African spa facialist, was employed by PCL and agreed to an arbitration clause in her employment contract. (11) Haasbroek claimed to have been sexually assaulted by another employee of PCL, and because of this, she became pregnant. (12) Haasbroek argued that the sexual assault should not be arbitrated because the assault was independent of her employment. (13) The court disagreed, holding that a sexual assault "does not necessarily fall outside the scope of an arbitration clause in an employment agreement." (14)

   This Comment discusses the emergence of mandatory arbitration clauses in seafarer employment contracts, and how these clauses impact cases of sexual assault. (15) Part II will trace the origin of arbitration, the history of seafarer rights and remedies, a Supreme Court decision that opened the door to arbitration of sexual assaults, and its progeny in the Eleventh Circuit. (16) Finally, Parts III and IV will suggest solutions to address the issue presented in this Comment. (17)

   With that in mind, this Comment does not aim to disparage or discredit arbitration at large. Arbitration, when mutually agreed to, can be an effective means of alternative dispute resolution. The narrow focus of this Comment is the inequity of compelling arbitration of sexual assaults, and how this phenomenon relates to maritime law.

2. BACKGROUND

   1. THE ARBITRATION PROCESS

      Arbitration in the American legal system stems from the Federal Arbitration Act of 1925 ("FAA"). (18) In 1970, the United States became signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (later codified and popularly referred to as the "Convention Act"). (19) There are two kinds of arbitration: (1) voluntary; and (2) mandatory. (20) The finality of the arbitrator's decision rests on whether the agreement calls for binding or non-binding arbitration. (21)

      The primary goal of arbitration is to settle disputes outside the courtroom by using a neutral third party. (22) Some argue that, when compared with litigation, arbitration may be more favorable because it is informal, more cost-efficient, and a quicker way to settle disputes. (23) On the other hand, because arbitration is a non-judicial process, some benefits enjoyed through litigation are restricted or limited in arbitration. (24)

   2. TRADITIONAL MARITIME LAW REMEDIES AVAILABLE TO SEAFARERS

      Though the discussion of compelling arbitration of sexual assaults is undoubtedly far-reaching, maritime law deserves its own examination because it has distinct causes of action and possibilities of recovery for seafarers. (25) Justice Story--then a circuit judge--famously dubbed seafarers the "wards of the admiralty," and this reverential treatment stems from the unique relationship seafarers have with a ship, specifically the hazards seafarers face at sea compared with those faced by land-based employees. (26) To that end, three (3) distinct causes of action and corresponding remedies have developed in American maritime law. (27)

      i. Maintenance and Cure

      A discussion of seafarer remedies must start with The Osceola, (28) a seminal case known for establishing the cause of action of Maintenance and Cure ("M&C"). (29) The concept of M&C stems from the belief that a ship is a seafarer's dwelling and should be available to the seafarer in times of special need. (30) M&C affords a greater opportunity of recovery to the seafarer because this obligation does not depend on the fault of the employer, (31) the injury or illness covered is comprehensive, (32) and the employer's failure to pay may result in punitive damages. (33)

      ii. Unseaworthiness

      The second cause of action available to seafarers, the doctrine of unseaworthiness, can also be traced back to The Osceola, (34) and later as Supreme Court dicta in Carlisle Packing. (35) The doctrine of unseaworthiness focuses on a particular condition of the ship and imposes a strong duty on the ship's owner to provide a ship that is reasonably fit for its intended purposes or for the intended voyage. (36) Unseaworthiness is a valuable form of recovery because proof of causation is lenient compared with land-based laws, employers have virtually no defense against it, and there are several ways an employer may breach this duty to seafarers. (37)

      iii. Negligence Under the Jones Act

      The most significant cause of action traditionally available to seafarers is under the Merchant Marine Act (the "Jones Act"). (38) This cause of action was imported from the Federal Employers Liability Act, a statute protecting railroad workers. (39) Although The Osceola was important in providing seafarers M&C and unseaworthiness, the Jones Act filled in a glaring gap left by The Osceola: redressing seafarers harmed by their employer's negligence (which would include a claim of sexual assault by a fellow seafarer). (40) The key difference between the three (3) remedies is that M&C and unseaworthiness are common law remedies, and the Jones Act is statutory. (41)

      iv. Saving to Suitors

      The "saving to suitors" clause is unique to Maritime law and grants a party the choice of pursuing a general maritime claim under federal law in state court. (42) This is significant because there is usually no right to a jury trial under general maritime law in federal court. (43) But because the "saving to suitors" clause allows a party to sue in state court, a right to a jury trial becomes available. (44)

   3. MITSUBISHI AND ITS PROGENY IN THE ELEVENTH CIRCUIT

      i. The Supreme Court Drives It Home with Mitsubishi

      The modern trend of strongly favoring arbitration can be traced back to the Supreme Court's decision in Mitsubishi. (45) In Mitsubishi, Mitsubishi Motors Corporation ("MMC"), a Japanese automobile manufacturer, entered into an agreement with Soler Chrysler-Plymouth, Inc. ("Soler"), a Puerto Rican distributor, to sell Mitsubishi automobiles in Puerto Rico. (46) The agreement included an arbitration clause requiring all disputes to be arbitrated in Japan. (47) Eventually, Soler's performance was not to MMC's liking, and they moved to compel arbitration. (48) Soler counter-claimed alleging, among other things, violations under the Sherman Antitrust Act (the "Sherman Act"). (49)

      The district court compelled arbitration of most of the claims. (50) Intriguingly, the court also held that while the antitrust claims under the Sherman Act were normally not arbitrable, the international nature of this contract represented an exception under the Supreme Court's holding in Scherk. (51) The appellate court reversed the lower court, and the Supreme Court granted certiorari. (52)

      The main question for the Court was whether a statutory claim was arbitrable. (53) Citing a "liberal federal policy favoring arbitration agreements," the Court placed greater emphasis on whether the parties intended to arbitrate their dispute in the first place. (54) Significantly, the Court indicated that arbitration does not necessarily preclude statutory rights. (55) In essence, the Court said the parties agreed to arbitrate and Soler was not barred from pursuing their statutory remedies afforded under the Sherman Act in arbitration. (56)

      Much of the discussion following the Court's holding in Mitsubishi has focused on the opinion's often-debated footnote 19, which states: "[w]e merely note that in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy."...