Case 1:20-cv-23715-BB Document 15 Entered on FLSD Docket 10/23/2020 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. 20-cv-23715-BLOOM/Louis
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`FNU ISANTO, as Personal Representative of the
`Estate of Fnu Pujiyoko, deceased,
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`Plaintiff,
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`v.
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`ROYAL CARIBBEAN CRUISES, LTD.,
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`Defendant.
`____________________________________/
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`ORDER
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`THIS CAUSE is before the Court upon Defendant’s Motion to Compel Arbitration and
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`Dismiss Plaintiff’s Complaint, ECF No. [4] (“Motion”). Plaintiff filed a Response to the Motion,
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`ECF No. [6] (“Response”), to which Defendant filed a Reply, ECF No. [9] (“Reply”). The Court
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`has considered the Motion, the Response, the Reply, the record in the case, the applicable law, and
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`is otherwise fully advised. For the reasons set forth below, the Motion is granted in part and denied
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`in part.
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`I.
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`BACKGROUND
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`This matter stems from a lawsuit Plaintiff initiated in the Eleventh Judicial Circuit in and
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`for Miami-Dade County, Florida against Defendant on May 4, 2020, ECF No. [1]. Defendant
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`removed the case to this Count on September 4, 2020, pursuant to 9 U.S.C. § 205 and 28 U.S.C.
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`§§ 1331, 1333. Id. at 4-5.
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`According to the Complaint, ECF No. [1-5], Fnu Pujiyoko (“Decedent”) was a seaman that
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`worked aboard Defendant’s Symphony of the Seas vessel (the “Vessel”). Id. at ¶¶ 10-11. Plaintiff
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`is Decedent’s father and the personal representative of Decedent’s estate. Id. at ¶ 2. Decedent’s
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`employment contract and/or Collective Bargaining Agreement (“CBA”) had a projected end date
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`of March 21, 2020; however, his employment terminated on or about March 13, 2020. Id. at ¶¶ 12-
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`14. In light of the COVID-19 pandemic, on March 14, 2020, passengers aboard the Vessel were
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`disembarked while Decedent and other crewmembers were permitted to roam about the Vessel
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`without limitations or restrictions between March 14, 2020 and March 28, 2020. Id. at ¶¶ 15-16;
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`see also id. at ¶ 39 (Defendant suspended all of its future cruises on March 13, 2020 and the Centers
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`for Disease Control and Prevention issued a No Sail Order on March 14, 2020). During this time,
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`crewmembers allegedly were “encouraged to attend parties, shows, events and activities that took
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`place aboard the ship which required crewmembers to be in close proximity, crowded spaces and
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`stand in long lines.” Id. at ¶ 17. See also id. at ¶ 39 (alleging that after March 14, 2020, Defendant’s
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`“management continued to hold large in-person meetings amongst crew members and failed to
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`implement social distancing requirements/guidelines aboard the vessel”).
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`Beginning on March 23, 2020, while aboard the Vessel, Decedent began to suffer from
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`worsening flu-like symptoms, and on March 30, 2020, Decedent was medically disembarked from
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`the Vessel and transferred to Broward Health Medical Center. Id. at ¶¶ 18-19. He passed away on
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`April 11, 2020. Id. at ¶ 22. See also id. at ¶¶ 23-27 (alleging Defendant’s “careless and continuous
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`failure to protect its crewmembers assigned to work aboard the vessels from COVID-19 – despite
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`[Defendant] having prior notice pertaining to the dangerous conditions and/or explosive
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`contagiousness associated with COVID-19 aboard its vessels”).
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`The Complaint alleges that Defendant implemented a social distancing requirement aboard
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`the Vessel on March 29, 2020, after Decedent became ill. Id. at ¶ 39. “At all times material[],
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`Decedent was a crewmember who worked for Defendant aboard Defendant’s vessel and who
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`contracted COVID-19 and/or was at a heightened risk of exposure while working aboard” the
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`Vessel. Id. at ¶ 41. In Plaintiff’s view, Decedent contracted the virus “as a result of Defendant’s
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`negligence and/or gross negligence and/or intentional conduct.” Id. at ¶ 43. The Complaint alleges
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`four counts: Jones Act wrongful death (Count I); unseaworthiness (Count II); failure to provide
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`prompt, proper and adequate medical care (Count III); and failure to provide maintenance and cure
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`(Count IV).
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`Defendant now moves to compel arbitration in accordance with the terms set forth in an
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`arbitration provision in Decedent’s “Sign-On Employment Agreement,” ECF No. [4-1] at 4-5
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`(“SOEA”), and in the CBA, ECF No. [4-2] at 39-42 (collectively, “Employment Agreement”). In
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`particular, the Employment Agreement provides that all grievances are to be resolved by
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`arbitration under Bahamian law, as that is the law of the Vessel’s Flag State:
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`All grievances and any other dispute whatsoever, whether in contract, regulatory,
`statutory, common law, tort or otherwise relating to or in any way connected with
`the Seafarer’s service for the Owners/Company under the present Agreement,
`including but not limited to claims for personal injury/disability or death, no matter
`how described, pleaded or styled, and whether asserted against
`the
`Owners/Company, Master, Employer, Ship Owner, vessel or vessel operator shall
`be referred to and resolved exclusively by mandatory binding arbitration pursuant
`to the United Nations Convention on the Recognition and Enforcement of Foreign
`Arbitral Awards (New York 1958), 21 U.S.T. 2517, 330 U.N.T.S., (“The
`Convention”), except as provided by any government mandated contract.
`. . .
`Subject to the exception noted in Section 4, the seat of any arbitration and the venue
`for the final hearing of any arbitration shall take place in the Flag State of the vessel,
`or in any location agreed by the Owners/Company and the Union or the
`representative of the Seafarer. The laws of the Flag State shall govern over any
`dispute in arbitration without regard to any Flag State conflict of law principles and
`the parties to this Agreement recognize that Flag State law will apply to all disputes,
`notwithstanding and without regard to any provision of Flag State law that may be
`construed to preclude the application of Flag State law to non-resident Seafarers.
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`SOEA at 4 ¶¶ 1, 3; CBA at 39-40 ¶¶ 1, 3.
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`The Employment Agreement, likewise, delegates certain authority to the arbitrator such
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`that:
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`The arbitrator, not any federal, state or local court or agency shall have the exclusive
`authority to resolve any dispute relating to the interpretation, applicability,
`enforceability or formation of this Agreement including, but not limited to any
`claim that all or any part of this agreement is void or voidable and as to choice of
`law. The arbitrator shall also have the power to provide any remedies necessary to
`address the dispute such as, but not limited to, damages, specific performance, and
`injunctive relief.
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`SOEA at 5 ¶ 14; CBA at 42 ¶ 14.
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`According to Defendant, its records, which include a punch-in and punch-out time detail
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`report, reflect that Decedent continued to work until March 23, 2020, and there is no indication
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`that his employment had been terminated at any time before his medical sign-off on March 30,
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`2020. ECF No. [4] at 3 (citing ECF No. [4-4] at 9). In its view, Plaintiff’s claims arise out of
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`Decedent’s employment and are subject to the arbitration terms of the Employment Agreement.
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`Id. at 4.
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`Defendant makes five overarching points in support of compelling arbitration. First, federal
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`law favors arbitration, particularly with respect to international commercial transactions. Id. at 4-
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`5. Second, all conditions are met to compel arbitration under the United Nations Convention on
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`the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”), which is
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`implemented by Chapter 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 201 et seq. Id. at 5-
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`8. Third, the United States Court of Appeals for the Eleventh Circuit and district courts have
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`consistently enforced seamen’s arbitration agreements. Fourth, other courts have enforced
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`arbitration agreements similar to the Employment Agreement at issue. Id. at 8-9. And fifth,
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`Plaintiff’s efforts to avoid arbitration by alleging that Decedent’s employment terminated on
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`March 13, 2020 and that the arbitration clause “expired” are unconvincing and contrary to the
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`record. Id. at 10.1 Defendant, thus, requests the Court compel arbitration and dismiss the case.
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`Plaintiff responds that the matter should be remanded and that under the facts as alleged,
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`there is no valid and binding arbitration clause at issue. ECF No. [6]. He makes six main
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`arguments. First, the Court’s review should be limited to the four corners of the Complaint and
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`should not include a review of Defendant’s time detail report. Id. at 3. Second, the case should be
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`remanded because the Court lacks subject matter jurisdiction. Id. at 3-7. Third, there is no federal
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`policy favoring arbitration if the applicability of the agreement itself is at issue. Id. at 7-8. Fourth,
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`Defendant fails to cite binding law in this circuit, and the Eleventh Circuit authority Defendant
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`cites is inapplicable. Id. at 8-9. Fifth, the Jones Act, 46 U.S.C. § 30104, prohibits removal of Jones
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`Act claims to federal court. Id. at 10-13. Finally, the arbitration provision is unenforceable. Id. at
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`13-14.
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`Defendant replies that the issues Plaintiff raises in the Response are for the arbitrator to
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`decide, not the Court, and that Plaintiff fails to show how the jurisdictional requirements under the
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`Convention are not satisfied. ECF No. [9]. It makes five points. First, Plaintiff’s objections to
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`arbitration are for the arbitrator to decide. Id. at 2-3. Second, the broad language in the arbitration
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`agreement shows that it is valid, enforceable, and intended to survive expiration. Id. at 3-6. Third,
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`federal law gives this Court jurisdiction to enforce an international arbitration agreement. Id. at 6-
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`7. Fourth, the Motion is founded on binding precedent, and Plaintiff’s authorities are inapplicable.
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`Id. at 7-8. Finally, arbitration agreements are enforceable so long as the remedies available are
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`fundamentally fair, and the instant arbitration agreement is enforceable. Id. at 8-10.
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`1 The Complaint alleges that “[j]ust shy of the projected end date for Decedent’s last employment
`contract, or about March 13, 2020, RCCL terminated Decedent’s contract. Therefore, no
`arbitration provision in Decedent’s employment contract and/or CBA is applicable because
`Decedent’s contract had expired.” ECF No. [1-5] at 6 ¶ 13.
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`The Motion, accordingly, is ripe for consideration.
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`II.
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`LEGAL STANDARD
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`A. Motion to dismiss
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`Rule 8 of the Federal Rules requires that a pleading contain “a short and plain statement of
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`the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a
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`complaint “does not need detailed factual allegations,” it must provide “more than labels and
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`conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see Ashcroft v.
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`Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)’s
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`pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
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`accusation”). In the same vein, a complaint may not rest on “‘naked assertion[s]’ devoid of ‘further
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`factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557,
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`127 S.Ct. 1955 (alteration in original)). “Factual allegations must be enough to raise a right to
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`relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. These elements are
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`required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
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`which requests dismissal for “failure to state a claim upon which relief can be granted.”
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`When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
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`plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor
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`of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304
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`F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.
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`Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and
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`courts “are not bound
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`to accept as
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`true a
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`legal conclusion couched as a factual
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`allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
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`Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006).
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`A court considering a Rule 12(b) motion is generally limited to the facts contained in the
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`complaint and attached exhibits, including documents referred to in the complaint that are central
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`to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess,
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`Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four
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`corners of the complaint may still be considered if it is central to the plaintiff’s claims and is
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`undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.
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`2002)).
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`B. Motion to compel arbitration under the Convention
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`The Convention requires courts of signatory nations, such as the United States, to give
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`effect to private arbitration agreements and to enforce arbitral awards made in signatory nations.
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`United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art.
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`I(1), June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3; see also Sierra v. Cruise Ships Catering &
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`Servs. Int'l, N.V., 631 F. App’x 714, 715-16 (11th Cir. 2015). The United States enforces its
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`agreement to the Convention’s terms through Chapter 2 of the FAA. See 9 U.S.C. §§ 201-208.
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`In ruling on a motion to enforce an arbitration agreement under the Convention, a district
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`court conducts a “very limited inquiry.” Bautista v. Star Cruises, 396 F.3d 1289, 1294 (11th Cir.
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`2005) (quoting Francisco v. Stolt Achievement MT, 293 F.3d 270, 273 (5th Cir. 2002)). As a
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`threshold matter, “[u]nder both the FAA and the Convention ‘the first task of a court asked to
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`compel arbitration of a dispute is to determine whether the parties agreed to arbitrate’ it.” Doe v.
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`Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213 n.9 (11th Cir. 2011) (quoting Mitsubishi Motors
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`Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 626 (1985)). In other words, “the parties
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`will not be required to arbitrate when they have not agreed to do so.” Id. at 1214 (quoting Goldberg
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`v. Bear, Stearns & Co., 912 F.2d 1418, 1419 (11th Cir. 1990)).
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`Beyond that threshold consideration, an arbitration agreement is governed by the
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`Convention if four jurisdictional prerequisites are met: (1) the agreement is “in writing within the
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`meaning of the Convention;” (2) “the agreement provides for arbitration in the territory of a
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`signatory of the Convention” (3) “the agreement arises out of a legal relationship, whether
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`contractual or not, which is considered commercial;” and (4) one of the parties to the agreement is
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`not an American citizen. Bautista, 396 F.3d at 1294 n.7. If the agreement satisfies those
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`jurisdictional prerequisites, the district court must order arbitration unless any of the Convention’s
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`affirmative defenses apply. Id. at 1294-95. “That is, arbitration is mandatory unless the plaintiff
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`proves that the agreement is ‘null and void, inoperative or incapable of being enforced.’” Azevedo
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`v. Carnival Corp., No. 08-CIV-20518, 2008 WL 2261195, at *3 (S.D. Fla. May 30, 2008) (citation
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`omitted).
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`Moreover, “[t]he party opposing a motion to compel arbitration or to stay litigation
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`pending arbitration has the affirmative duty of coming forward by way of affidavit or allegation
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`of fact to show cause why the court should not compel arbitration.” Sims v. Clarendon Nat'l Ins.
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`Co., 336 F. Supp. 2d 1311, 1324 (S.D. Fla. 2004). “This burden is not unlike that of a party seeking
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`summary judgment,” and therefore “the party opposing arbitration should identify those portions
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`of the pleadings, depositions, answers to interrogatories, and affidavits which support its
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`contention.” Id. “[A]ny doubts concerning the scope of arbitrable issues should be resolved in
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`favor of arbitration, whether the problem at hand is the construction of the contract language itself
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`or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp.
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`v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also
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`Bautista, 396 F.3d at 1295 (“the Convention Act ‘generally establishes a strong presumption in
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`favor of arbitration of international commercial disputes’”) (citation omitted).
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`Through these lenses, the Court considers the Motion and the parties’ arguments.
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`III. DISCUSSION
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`Deciding whether Defendant is entitled to the relief it requests raises four overarching
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`issues. First, whether the Decedent’s time detail report should be considered in analyzing whether
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`the parties agreed to arbitrate the underlying disputes in this case. Second, whether the Court has
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`federal jurisdiction over this action. If so, third, whether the four jurisdictional requirements of the
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`Convention have been satisfied and if one of the Convention’s affirmative defenses applies.
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`Finally, if the Court compels arbitration, whether the case should be stayed or dismissed. The Court
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`will address each issue in turn.
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`A.
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`The Court will not consider Decedent’s time detail report
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`Defendant removed the case to this Court on September 4, 2020, pursuant to 9 U.S.C. §
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`202 et al. (the Convention) and 28 U.S.C. §§ 1331 (federal question), 1333 (admiralty and
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`maritime jurisdiction). ECF No. [1] at ¶¶ 11-16. Although Plaintiff does not argue that removal
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`was untimely,2 he maintains that the Court should not consider Defendant’s time detail report, the
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`Court lacks jurisdiction because the arbitration provision contained in the Employment Agreement
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`is invalid, and the arbitration agreement does not extend beyond termination. ECF No. [6] at 3-7.
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`As an initial matter, although Plaintiff maintains that under the “well pled facts, there is no
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`valid, binding arbitration clause at issue,” id. at 1, the Complaint itself does not clearly allege that
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`the arbitration clause is inapplicable. In particular, the Complaint alleges that Decedent was
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`2 Under 9 U.S.C. § 205, a defendant may remove an action “at any time before the trial thereof,”
`where “the subject matter of an action or proceeding pending in a State court relates to an
`arbitration agreement or award falling under the Convention[.]” Id.
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`terminated on March 13, 2020 before the projected end of the employment relationship and hence
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`the Employment Agreement’s arbitration clause does not apply, ECF No. [1-5] at ¶ 13. However,
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`the Complaint also alleges that Decedent contracted COVID-19 “while working” aboard the
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`Vessel, id. at ¶ 11, and that at “all times material” Decedent was a crewmember who “worked” for
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`Defendant and contracted COVID-19 “while working” on the Vessel, id. at ¶¶ 41-42. See also id.
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`at ¶¶ 44-45 (alleging that Defendant failed to provide Decedent with a reasonably safe place to
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`work aboard the Vessel). Thus, the Complaint does not uniformly set forth allegations that bar the
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`potential application of the arbitration agreement.
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`Nonetheless, Defendant does not seek to compel arbitration on the ground that the
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`Complaint’s allegations themselves are internally inconsistent. In fact, it argues that “arbitration
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`should still be compelled even if [D]ecedent’s contract was terminated as factiously alleged.” ECF
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`No. [9] at 6. Instead, Defendant asserts that the Court should examine extrinsic materials,
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`particularly Decedent’s time detail report, ECF No. [4-4], because Plaintiff’s allegations that
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`Decedent’s employment was terminated is “wholly unfounded, contrary to the record evidence
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`and solely advanced to avoid the mandatory arbitration provision of the Employment Agreement.”
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`ECF No. [4] at 10. Defendant likewise argues that the Complaint’s allegations regarding
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`Decedent’s termination are conclusory and factually bare. ECF No. [9] at 5-6. Accordingly, the
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`first issue the Court must assess is whether to consider Decedent’s purported time detail report,
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`which was not part of the Complaint but instead was attached to the Motion.
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`Plaintiff challenges that the Court cannot look beyond the four corners of the Complaint,
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`ECF No. [6] at 3, and must accept the Complaint’s allegations as true. However, as Defendant
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`correctly notes, courts can consider extrinsic documents not attached to the complaint where the
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`document is central to the plaintiff’s claim and is undisputed. ECF No. [9] at 6 (citing Horsley,
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`304 F.3d at 1134 (“[A] document attached to a motion to dismiss may be considered by the court
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`without converting the motion into one for summary judgment only if the attached document is:
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`(1) central to the plaintiff’s claim; and (2) undisputed. ‘Undisputed’ in this context means that the
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`authenticity of the document is not challenged.”) (internal citation omitted)); see also Harris v.
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`Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999) (“[A] document central to the complaint that
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`the defense appends to its motion to dismiss is also properly considered, provided that its contents
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`are not in dispute.”) (citation omitted).
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`Here, Plaintiff has not challenged the authenticity of the Employment Agreement and refers
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`to it in the Complaint. See ECF No. [1-5] ¶ 12. In contrast, Plaintiff does contest Decedent’s time
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`detail report, ECF No. [4-4], and, as such, it will not be considered. See Roberts v. Carnival Corp.,
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`No. 19-14993, 2020 WL 4931653, at *1-2 (11th Cir. Aug. 24, 2020) (vacating dismissal order
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`where the lower court erred in considering materials outside the complaint).
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`B.
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`The parties agreed to arbitrate arbitrability
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`“Under both the FAA and the Convention, ‘the first task of a court asked to
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`compel arbitration of a dispute is to determine whether the parties agreed to arbitrate’ it.” Doe, 657
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`F.3d at 1213 n.9. In determining the scope of an agreement, the Court must “look first to whether
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`the parties agreed to arbitrate a dispute” rather than to general policy goals. Id. at 1214. Courts are
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`“not to twist the language of the contract to achieve a result which is favored by federal policy but
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`contrary to the intent of the parties.” Id. (citation omitted). That means “the parties will not be
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`required to arbitrate when they have not agreed to do so,” because arbitration “is a matter of
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`consent, not coercion.” Id. (citation omitted). Simply put, “[b]ecause arbitration is strictly a matter
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`of contract, we cannot compel arbitration for disputes which arose during time periods in which
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`no effective contract requiring arbitration was governing the parties.” Klay v. All Defendants, 389
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`F.3d 1191, 1203 (11th Cir. 2004) (citing Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso,
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`P.A. v. MedPartners, Inc., 312 F.3d 1349, 1358 (11th Cir. 2002) (“We will compel no arbitration
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`of issues that are outside an agreement to arbitrate.”)).
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`Even if the Court were to overlook the Complaint’s pleading issues and construe Plaintiff’s
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`allegations in a light most favorable to him such that Decedent’s employment was terminated on
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`March 13, 2020, the matter would still be subject to arbitration. Under the Employment
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`Agreement, gateway issues of arbitrability, including the applicability and enforceability of the
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`arbitration agreement, are for the arbitrator to decide:
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`The arbitrator, not any federal, state or local court or agency shall have the exclusive
`authority to resolve any dispute relating to the interpretation, applicability,
`enforceability or formation of this Agreement including, but not limited to any
`claim that all or any part of this agreement is void or voidable and as to choice of
`law. The arbitrator shall also have the power to provide any remedies necessary to
`address the dispute such as, but not limited to, damages, specific performance, and
`injunctive relief.
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`SOEA at 5 ¶ 14; CBA at 42 ¶ 14.
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`Under this broad language, the Court finds that the parties agreed to arbitrate their
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`underlying disputes. A court “may conclude that the parties agreed to arbitrate the very issue of
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`‘arbitrability’ where ‘there is clear and unmistakable evidence that they did so.’” Martinez v.
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`Carnival Corp., 744 F.3d 1240, 1246 (11th Cir. 2014).3 Martinez is instructive. In that case, a
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`seaman that sustained a back injury while working on the ship brought an action in state court,
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`3 Plaintiff’s citation to Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010) for the
`proposition that only the Court, and not the arbitrator, can decide whether the parties agreed to
`arbitrate their disputes is unavailing. That case does not involve arbitration under the Convention
`or a dispute arising from a cruise ship setting, and the United States Supreme Court found “no
`need to apply the rule requiring ‘clear and unmistakable’ evidence of an agreement to arbitrate
`arbitrability” because “neither party argues that the arbitrator should decide this question[.]” Id. at
`297 n.5. Further, the Supreme Court explained that parties can “specifically commit[] . . . disputes
`to an arbitrator” regarding enforceability or applicability of the arbitration agreement. Id. at 299.
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`Case No. 20-cv-23715-BLOOM/Louis
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`later removed to federal court, asserting claims for Jones Act negligence, unseaworthiness, and
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`failure to provide adequate maintenance and cure. Id. at 1243. His employment agreement, similar
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`to the Agreement here, contained an arbitration clause stating that except for wage disputes, “any
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`and all disputes arising out of or in connection with this Agreement, including any question
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`regarding its existence, validity, or termination, or Seafarer’s service on the vessel, shall be referred
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`to and finally resolved by arbitration.” Id. The district court granted a motion to compel arbitration
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`pursuant to the Convention, which prompted the appeal. Id. at 1242.
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`On appeal, the seaman argued that the lower court erred in compelling arbitration because
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`the employment agreement had terminated before the dispute arose. Id. at 1245. Like here, the
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`agreement’s arbitration clause did not expressly state whether it survived termination, but the
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`Eleventh Circuit noted that the arbitration agreement’s terms “suggest[] viability” such that “the
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`parties contemplated some circumstances in which the arbitration clause would survive the
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`termination of the Seafarer’s Agreement.” Id. at 1245-46. The panel, accordingly, affirmed the
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`district court’s order and determined that the dispute about whether the contract had terminated
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`was properly for the arbitrator, and not the court, to decide.
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`“[P]arties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as
`whether the parties have agreed to arbitrate or whether their agreement covers a
`particular controversy.” Thus, a court may conclude that the parties agreed to
`arbitrate the very issue of “arbitrability” where “there is clear and unmistakable
`evidence that they did so.” Because parties can agree to arbitrate the very question
`of arbitrabililty, they can also agree to arbitrate disputes about contract termination.
`In this case, the district court did not err in refusing to determine whether the
`Agreement had terminated because the question of termination has remained in
`dispute and the “clear and unmistakable” language of the contract indicates that the
`parties intended for just such a dispute to be decided by arbitration and not the court.
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`Id. at 1246 (internal citations omitted).
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`Here, like the arbitration agreement in Martinez, there is “clear and unmistakable”
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`language in the Employment Agreement’s arbitration provisions that disputes related to gateway
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`Case No. 20-cv-23715-BLOOM/Louis
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`issues, such as whether the arbitration provision even applies, are for the arbitrator to decide. See
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`SOEA at 5 ¶ 14; CBA at 42 ¶ 14. Notably, other courts have determined that disputes under similar
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`broadly-worded arbitration agreements are subject to arbitration even though the plaintiffs, like
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`Plaintiff here, argued that the employment agreement had terminated and thus the arbitration
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`clauses did not apply. See Montero v. Carnival Corp., 523 F. App’x 623, 627 (11th Cir. 2013)
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`(rejecting argument that “arbitration is not required if an employee brings a claim after the
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`employment contract terminates” because it “would contradict the arbitration clause’s broad
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`language, as well as the Convention’s policy in favor of arbitration,” and compelling arbitration
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`where agreement required arbitration of “any and all disputes arising out of . . . Seafarer’s service
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`on the vessel”); Bendlis v. NCL (Bahamas), Ltd., 112 F. Supp. 3d 1339, 1345-46 (S.D. Fla. 2015)
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`(explaining that arbitration clause stating that “any and all claims, grievances, and disputes of any
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`kind whatsoever relating to or in any way connected with the Seaman’s shipboard employment
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`with the Company . . . shall be referred to and resolved exclusively by binding arbitration” is
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`“broad language” that “suggests” the parties “intended for the arbitration clause to survive
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`expiration”).
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`Plaintiff does not present grounds for why the instant arbitration agreement, which contains
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`similarly worded and broad language, should be treated differently so as to not subject Plaintiff’s
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`claims to arbitration. In fact, the Response fails to address the Employment Agreement’s
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`delegation provision altogether. Instead, it concentrates on the allegation that Decedent was
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`terminated on March 13, 2020, and thus the Employment Agreement cannot apply. This allegation,
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`however, is not dispositive of whether the action is subject to arbitration. And, as noted, the
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`Complaint’s allegations themselves do not clearly demonstrate that Decedent was terminated at
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`the time that he contracted COVID-19, which alone displaces Plaintiff’s unadorned allegation that
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`Case No. 20-cv-23715-BLOOM/Louis
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`the arbitration provision is inapplicable because the employment contract had “expired” when
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`Decedent’s employment was terminated. ECF No. [1-5] at 6 ¶¶ 13-14. Accordingly, the Court
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`concludes that the first Bautista prong is satisfied. Because Plaintiff does not contest the remaining
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`three prongs of Bautista, which the Court likewise concludes are present, Defendant has
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`demonstrated the four conditions to compel arbitration are satisfied. Defendant therefore has
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`carried its initial burden to show that an agreement to arbitrate is subject to the Convention. Thus,
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`unless one of the Convention’s limited affirmative defenses applies, the Court must co