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Brett Rivkind
Brett Rivkind
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Appeals Court Addresses Arbitration Clause Involving Claim by Crewmember for Sexual Assault

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I have previously blogged about arbitration clauses in seamen’s employment agreements. The Eleventh Circuit Court of Appeals has recently issued decisions addressing the enforceability of the arbitration clauses that have become increasingly present in seamen’s employment agreements. The decisions involve cruise ship companies, and decisions out of the Southern District of Florida addressing various issues that have arisen regarding the enforceability of arbitration provisions in seamen’s employment agreements. Since the seamen employed by the cruise ship companies are almost virtually all foreign citizens, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. §§ 201-208, which is incorporated in and enforced through the Federal Arbitration Act, is triggered.

In a recent Eleventh Circuit Court of Appeals decision issued September 23, 2011, the Court reviewed a district court order denying a motion to compel arbitration under the Convention on the basis that the sexual assault claims did not fall within the arbitration provision since the claims asserted did not arise out of the terms of the employment agreement.

The recent decision, Doe v. Princess Cruise Lines, Ltd., No. 10-10809 (11th Cir., September 23, 2011), involves extremely disturbing facts, and highlights a crewmember’s plight onboard ship. The case involved a female crewmember who was invited to an after hour’s party, who woke up the following morning discovering that she had been drugged and raped by one or more male crewmembers. Following her rape, the facts alleged by the Plaintiff are extremely disturbing. The Plaintiff alleged she was refused appropriate treatment, and was interrogated and harassed, and denied an opportunity to get off the vessel in the United States for proper medical care and treatment. The allegations reflect the cruise ship company had a total disregard and indifference to her plight, and causes an increased necessity for the courts to shine a spotlight on the industry employing these foreign crewmembers to make sure that these crewmembers are properly treated, and that they have a proper avenue to enforce their rights when something like this happens.

Cruise line companies, who would otherwise be subject to the Jones Act, a congressional statute designed to protect seamen, which grants seamen the rights to a jury trial and a favorable standard of causation in proving their case, are now trying to escape their obligations by mandatory arbitration clauses and forum selection clauses. Cruise ship companies are trying to avoid the Jones Act, seeking to compel arbitration in foreign countries under foreign law. In the recent case of Lindo v. NCL (Bahamas), Ltd., 2011 WL 3795234 (11th Cir. Aug. 29, 2011), the Eleventh Circuit Court of Appeals affirmed a decision compelling arbitration in a case against a popular cruise line company, Norwegian Cruise Lines, which required the seaman to arbitrate his claims in Bermuda under the law of Bermuda. This decision is currently the subject of a motion for rehearing.

In the Doe v. Princess Cruise Lines case, the Court starts out with a quotation from the cruise lines website, which reads as follows:

“The safety and security of our passengers and employees is our most important responsibility.”

The Eleventh Circuit Court of Appeals, recognizing the seriousness of the allegations in this case, commented: “All of those statements are but empty words, and cynical ones at that, if the allegations in the complaint that is before us are to be believed.”

After analyzing the legal issues involved in the complaint, determining whether they were subject to the arbitration clause, the Court considered and interpreted the case of Jones v. Halliburton, 583 F/3d 228 (5th Cir. 2009). In the Jones case, the Fifth Circuit held that the claims arising out of a sexual assault of the Plaintiff fell outside the arbitration provision as they concluded that the claims did not relate to her employment. Accordingly, those claims were not subject to arbitration.

The Eleventh Circuit Court of Appeals in the Doe v. Princess Cruise Lines case said that the Jones case was similar to the Doe case, and went through the process of analyzing all of the claims asserted by the Plaintiff in Doe, which were many, including general tort claims for intentional inffliction of emotional distress, misrepresentation claims, as well as a spoliation of evidence claim.

The district court denied the motion to compel arbitration on all of the claims. The Eleventh Circuit Court of Appeals affirmed in part and reversed in part. The Court concluded that the claims that were asserted in the complaint that were brought pursuant to the Jones Act and General Maritime law of the United States, including the maintenance and cure and unseaworthiness claims, did arise out of the employment agreement and thus were in fact subject to the arbitration provision. The claims asserted under general tort law, apart from the general maritime claims of unseaworthiness, maintenance and cure, and the Jones Act claims, were deemed outside the scope of the arbitration provision.

Another interesting aspect of this decision is the Court’s general discussion about sexual assaults that occur onboard cruise ships, and the reference made to Congressional Hearings that were held previously addressing crimes onboard ships. I had testified at the hearing referred to as a maritime legal expert, invited by Congress to address some of the issues they wanted to consider. The Court cites some interesting testimony from the hearings. The Eleventh Circuit recognized that sexual assaults and other violent crimes on cruise ships are a serious problem. A House Subcommittee on Coast Guard and Maritime Transportation Staff reported that:

“At a hearing in March 2006 convened by the Committee on Government Reform, cruise industry executives testified that 178 passengers on North American cruises reported being sexually assaulted between 2003 and 2005. During that same period, 24 people were reported missing and four others reported being robbed.”

The Eleventh Circuit also referenced a Deputy Assistant Director of the F.B.I. who also testified before Congress about sexual and other physical assaults that happen on cruise ships, and cited to his testimony: “Sexual assault and physical assaults on cruise ships were the leading crime reported to and investigated by the F.B.I. on the high seas over the last 5 years, 55 percent and 22 percent respectively….

As is common in these cruise ship sexual assault cases, in the Doe v. Princess Cruise Lines case, the Court commented on the fact that no one was prosecuted for the crime involving the Doe Plaintiff. The Court again cited to the Deputy Assistant Director for the F.B.I. who had stated in the hearing in 2007 that a majority of sexual assault cases in fact are never prosecuted. I had previously commented on this, and the fact that this is attributable to the complex jurisdictional questions that arise, and the fact that many times the sexual assaults involve crimes against, or committed by, foreign citizens on foreign flag vessels.

This case is yet another disturbing example of not only the fact that sexual assaults and serious crimes are a problem onboard cruise ships, but also focuses on how crewmembers can be treated when they give up everything to come work onboard a cruise ship. The crewmembers from the foreign countries leave their families behind, and often times spend their entire savings to pay for the necessary paperwork, medical exams and travel expenses, associated with coming to work onboard a cruise ship. They deserve better treatment. As the Princess Cruise Lines website recognizes, crewmembers are their “greatest asset”. Their employment is not easy, and is unlike virtually any type of employment on land. The courts have recognized this unique employment, and how crewmembers are deserving of special protection, although the recent decisions enforcing these arbitration clauses and in take it or leave it employment agreements seem to be ignoring this prior precedent and solitude for seamen.

The Supreme Court of the United States, in the decision of Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 731-32, 63 S.Ct. 930, 934 (1943), described the unique employment of seamen:

“Unlike men employment in service on land, the seaman, when he finishes his day’s work, is neither relieved of obligations to his employer nor wholly free to dispose of his leisure as he sees fit. Of necessity, during the voyage he must eat, drink, lodge and divert himself within the confines of the ship. In short, during the period of his tenure the vessel is not merely his place of employment; it is the frame-work of his existence. For that reason among others his employer’s responsibility for maintenance and cure extends beyond injuries sustained because of, or while engaged in, activities required by his employment. In this respect it is a broader liability than that imposed by modern workmen’s compensation statutes.”

Our firm continues to be safety advocates for both crewmembers and passengers who are harmed at sea.