New Jones Act Case From Eleventh Circuit – Lindo v. NCL (BAHAMAS), LTD.

New case from the Eleventh Circuit Court of Appeals regarding arbitration clause in a Jones Act employment contract. The case is Lindo v. NCL (BAHAMAS), LTD., 2011 U.S. App. LEXIS 18001 and it can be found here (with a 24 page dissent, it is 92 pages, so PRINT CAUTION). Facts: a Nicaraguan citizen is employed by a Bermuda corporation with its principal place of business in Miami onboard a Bahamian flagged cruise ship. [Note: none of those facts are really determinative but you gotta love admiralty!]. The employee's employment was governed by a collective bargaining agreement and an employment contract. The contract included an arbitration provision. He brought suit in Florida state court with counts of Jones Act negligence, maintenance and cure and unseaworthiness. NCL removed the case to federal court and moved to compel arbitration per the employment contract. After removal, the plaintiff amended his complaint alleging a single count of Jones Act negligence. Analysis: Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as codified in the Federal Arbitration Act, arbitration provisions requiring foreign arbitration are enforceable. The hiccup, however, is that in a foreign arbitration, the plaintiff may not have his Jones Act statutory claim. The court reviewed all the Jones Act – arbitration cases and spent the bulk of the decision analyzing the plaintiff's argument that "public policy" made the arbitration clause unenforceable. The court found that argument improper at the where-do-we-litigate stage and proper only at the arbitration enforcement stage (either on a Petition to Vacate or in opposition to a Petition to Confirm). The dissent found that an arbitration under foreign law would constitute a waiver of his statutory Jones Act rights which violates public policy. Hat tip to: Cruise Law News

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