And The Defense Wins

Published 3-28-12 by DRI

Scott P. Mebane

DRI member Scott P. Mebane of Mase Lara Eversole P.A. in Miami, Florida, along with two of his colleagues, succeeded in enforcing the terms of a foreign arbitration agreement. In the case of Lindo v. NCL (Bahamas) Ltd., the Eleventh Circuit Court of Appeals affirmed the district courts order compelling arbitration of a seamans statutory claim. The plaintiff brought a claim against NCL for Jones Act negligence stemming from a back injury he allegedly suffered in the scope of his employment. The plaintiffs employment agreement required his claim to be arbitrated in Nicaragua under Bahamian law. Nevertheless, the plaintiff filed suit in a MiamiDade County Circuit Court. NCL removed the case to the Southern District of Florida, where the court compelled the plaintiffs claim to arbitration. The New York Convention requires enforcement of an international arbitration agreement where certain jurisdictional prerequisites are met and none of the conventions affirmative defenses apply. The Eleventh Circuit Court of Appeals upheld the enforceability of the seamans arbitration agreements under the convention in 2005 in its Bautista v. Star Cruises decision. However, after the Eleventh Circuits 2009 decision refusing to enforce a seamans foreign arbitration agreement in Thomas v. Carnival Corp., motions to compel arbitration of the foreign seamens claims pursuant to the terms of their employment agreements became increasingly difficult. Following Thomas, the U.S. District Court for the Southern District of Florida struggled to make sense of this new legal landscape that favored arbitration, but refused to enforce seamans arbitration agreements. The defense successfully argued that Thomas v. Carnival Corp. violated the Eleventh Circuits prior precedent rule by disregarding Bautista v. Star Cruises. This defense win reaffirms that foreign arbitration agreements must be enforced, unless one of the very limited affirmative defenses is found in the New York Convention.

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