McAlpin Tanner Marcotte Successfully Defends Crewmember’s Appeal Of Order Compelling Action
McAlpin Tanner Marcotte successfully represented a cruise line on an issue of first impression before the 11th Circuit Court of Appeals: whether a cruise ship employee who is injured on the job and whose employment contract contains an arbitration agreement governed by the New York Convention and Chapter 2 of the Federal Arbitration Act, can bar arbitration by showing that high costs may prevent him from effectively vindicating his federal statutory rights in the arbitral forum.
In Suazo v. NCL (Bahamas) Ltd., — F.3d —, 2016 WL 2642065 (11th Cir. 2016), the crewmember appealed the district court’s order compelling him to arbitrate his claims against the cruise line pursuant to his contract of employment. The arbitration agreement contained within Suazo’s employment contract is governed by The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (AKA the “New York Convention”) and Chapter 2 of the Federal Arbitration Act, 9 U.S.C. 201, et. seq.
The arbitration provision in Suazo’s employment agreement was silent as to which party was to pay for the arbitration. The crewmember argued that, because he could not afford to pay for even half the costs of arbitration, that he would be prevented from effectively vindicating his federal statutory rights in the arbitral forum. On behalf of the cruise line, McAlpin Tanner Marcotte argued that Suazo’s public policy “effective vindication” defense is not available at the current arbitration enforcement stage under the New York Convention and, even if it were available for the sake of argument, Suazo failed to meet the threshold minimum showing that operation of the arbitration agreement would prevent him from effectively vindicating his rights.
After a thorough analysis of the case law standing for the proposition that Suazo’s public policy “effective vindication” defense was not available as raised by McAlpin Tanner Marcotte in its appellate brief and at oral argument, the Court concluded that it need not definitely answer the question because Suazo plainly failed to establish that the costs of arbitration would preclude him from arbitrating his federal statutory claims. Therefore, the court found in favor of the cruise line and affirmed the district court’s order compelling the parties to arbitrate.