163 F. Supp. 3d 338

Kelly David JOHNSON v. NCL (BAHAMAS) LTD. d/b/a Norwegian Cruise Line

CIVIL ACTION CASE NO. 15-4400

United States District Court, E.D. Louisiana.

Signed February 19, 2016

*339Paul Richard Miller, Paul R. Miller, Attorney at Law, Houston, TX, for Kelly David Johnson.

Henry J. Rodriguez, Antonio J. Rodriguez, Susan Grace Keller-Garcia, Fowler Rodriguez, New Orleans, LA, for NCL (Bahamas) Ltd.

ORDER

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant NCL (Bahamas) Ltd.’s (“NCL”) “Motion to Compel Arbitration and Stay Proceedings”1 and Plaintiff Kelly David Johnson’s (“Johnson”) “Motion to Remand.”2 Having considered the motions, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant Defendant’s motion to compel arbitration and deny Plaintiffs motion to remand.

*340I. Background

On June 25, 2015, Plaintiff, an alleged seaman aboard a vessel owned by NCL, filed suit in Civil District Court for Orleans Parish seeking damages pursuant to the Jones Act, the Federal Employers Liability Act (“FELA”), and general maritime law for injuries he allegedly sustained on October 31, 2014 while attempting to exit his bunk after being suddenly awoken by an unannounced drill.3 Johnson, a U.S. citizen, worked as a casino pit supervisor aboard the Norwegian Dawn (“the Dawn”), a Bahamian-flagged passenger cruise vessel operated by NCL.4 Johnson’s employment with NCL, which began on August 15, 2014 and was scheduled to last until February 15, 2015,5 was governed by a Seafarer’s Employment Agreement (“Employment Agreement”), which contained an arbitration clause mandating that any claims relating in any way to Johnson’s employment would be “referred to and resolved exclusively by binding arbitration pursuant to United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) (‘The Convention’).”6

On September 14, 2015, Defendant filed a “Notice of Removal” pursuant to 9 U.S.C. § 205, which provides for removal of causes of action relating to an arbitration agreement falling under the Convention.7 Defendant then filed a “Motion to Compel Arbitration and Stay Proceedings” on September 30, 2015.8 On October 20, 2015, Johnson filed an opposition.9 On October 28, 2015, with leave of Court, Johnson filed an amended opposition solely to correct typographical errors.10 On the same day, Defendant filed a reply in support of its motion to compel arbitration and stay proceedings.11

While the motion to compel arbitration was pending, on October 13, 2015, Johnson filed a motion to remand the casé.12 NCL filed an opposition on October 20, 2015.13 With leave of Court, Johnson filed a reply in support of remand on October 29, 2015,14 and NCL filed a sur-reply on the same day.15

II. Parties’ Arguments

A. Motion to Compel Arbitration and Stay Proceedings

1. Defendant’s Arguments in Support of Its Motion to Compel Arbitration and Stay Proceedings

In its motion, NCL argues that arbitration of Plaintiffs claims is the exclusive and mandatory form of dispute resolution under the Employment Agreement.16 NCL argues that, because Plaintiff signed an arbitration clause pursuant to the Convention, the Court may engage in only a limited inquiry to determine whether the Convention requires compelling arbitration in a particular case.17 According to NCL, the *341Court’s preliminary inquiry consists of determining whether: (1) there is a written agreement to arbitrate the matter; (2) the agreement provides for arbitration in a Convention signatory nation; (3) the agreement arises out of a commercial legal relationship; and (4) one of the parties is not a U.S. citizen, or where all parties to the agreement are U.S. citizens, the relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.18 NCL avers that if the four jurisdictional prerequisites are met, and no affirmative defense applies, the Court must compel arbitration.19

Here, NCL contends, all jurisdictional prerequisites are met and arbitration is therefore required.20 According to NCL, it is “unquestionabl[e]” that there is a written agreement to arbitrate this dispute, which provides for arbitration in the United States, a Convention signatory.21 NCL also avers that the employment relationship between itself and Johnson was a commercial relationship that envisaged performance abroad.22 NCL claims that the Convention therefore applies, and because Plaintiff lacks any basis for attacking the arbitration clause’s validity or ability to be performed, the clause must be enforced.23

Specifically, NCL argues that the Employment Agreement “unquestionably envisaged performance abroad” given that Johnson’s work as a casino pit supervisor was to be performed primarily outside the United States.24 According to NCL, during Plaintiffs time on the Dawn, it touched ports in ten different countries and constantly sailed.25 NCL argues that although both it and Plaintiff are U.S. citizens, the Convention explicitly states that a legal relationship entirely between citizens of the United States may nevertheless be governed by the Convention if a contract for work on a vessel in foreign waters envisages performance abroad.26 According to NCL, in Freudensprung v. Offshore Technical Services, Inc., the Fifth Circuit affirmed a district court decision compelling arbitration in a case where the agreement at issue was between an American company and an American individual for work aboard a sea-going barge in West African waters, finding that the agreement envisaged performance abroad.27

NCL contends that the term “abroad” is “generally defined as ‘[ojutside a country,’ ”28 which is consistent with the strong public policy in favor of international arbitration, as well as the Fifth Circuit’s holding in Freudensprung,29 According to NCL, the definition of “abroad” is not limited to foreign soil, and instead encom*342passes any place outside of the United States and its territorial waters, including international waters and the territorial waters of other nations.30 NCL cites other recent cases in which it claims, in the passenger cruise ship context, crewmem-ber employment agreements were found to envisage performance abroad where the plaintiffs work was to be performed primarily outside the United States.31 In fact, NCL claims, in D’Cruz v. NCL (Bahamas) Ltd., a judge in the Southern District of Florida compelled the plaintiff, an American IT systems manager, to arbitrate claims for injuries allegedly sustained on-board the Dawn, the same vessel involved in the present case.32 There, NCL contends, the court rejected the plaintiffs argument that he did not perform his duties abroad because he worked solely on the ship and not in any foreign states, holding that the language of the Convention, which employs the broad term “abroad,” was not limited only to the performance of employment duties in foreign states.33

NCL avers that the contractual relationship between Plaintiff and NCL clearly contemplated performance abroad given that, during Plaintiffs time aboard the vessel, the Dawn spent more than 80% of her time abroad.34 NCL claims that at the time that Plaintiff signed the Employment Agreement, the Dawn was scheduled to regularly sail to numerous foreign countries, including Bermuda, Honduras, Belize, Mexico, Curasao, Canada, Jamaica, Cayman Islands, and Aruba.35 According to NCL, during the Dawn’s sailings between August 15, 2014 and November 30, 2014 — the time Johnson was employed aboard the vessel — onboard gaming usually only took place when the ship was at least three nautical miles from the land of the U.S.36 Furthermore, NCL argues, the Supreme Court has held that a ship “is deemed to be a part of the territory of that sovereignty whose flag it flies, and not to lose that character when in navigable waters within the territorial limits of another sovereignty.”37 Defendant claims that the Dawn sails under the flag of the Bahamas and, as a result, to the extent the ship spent any time in U.S. ports or waters, it maintained its character pursuant to Supreme Court precedent.38 Thus, Defendant argues, the law is clear that Johnson’s claims are subject to arbitration in the United States and the Court should compel arbitration and stay the instant proceedings.39

2. Plaintiffs Arguments in Opposition to Arbitration

In opposition, Plaintiff first argues that NCL’s motion should be denied because the case should instead be remanded to *343the Civil District Court of Orleans Parish, arguments Plaintiff elaborates on in its motion to remand.40 Next, Johnson argues that the Convention does not apply to this case because it involves two United States citizens.41 Johnson avers that, despite relying heavily on case law from the Southern District of Florida, NCL has failed to advise the Court of contrary decisions in Armstrong v. NCL (Bahamas) Ltd., 42 Matabang v. Carnival Corp.,43 and Hines v. Carnival Corp., 44 each of which Plaintiff argues held that: (1) due to a lack of a foreign connection, the Convention does not apply to a cruise ship employee’s injury and/or (2) that an employee’s case removed pursuant to the Convention must be remanded to state court.45 Johnson also alleges that NCL failed to inform the Court that the decision in D’Cruz v. NCL (Bahamas) Ltd., on which NCL relies, is currently on appeal to the Eleventh Circuit.46

Next, Johnson argues that in Freudensprung v. Offshore Technical Services, Inc., cited by NCL, the Fifth Circuit held that the Convention does not apply to agreements between United States citizens, such as the one in this case, unless “there is a reasonable connection between the parties’ commercial relationship [the agreement] and a foreign state which is independent of the arbitral clause itself.”47 Plaintiff avers that although NCL characterizes Freudensprung as Fifth Circuit authority supporting its position that any work outside of the United States constitutes performance envisaged abroad, “Freudensprung instead stands for the proposition that a contract specifically calling for performance in a foreign state envisages performance abroad, which was the legislative intent behind § 202 when it was enacted by Congress and was the drafters’ intent when they borrowed the Uniform Commercial Code’s interpretation of ‘abroad’ meaning in a foreign state.”48

Plaintiff argues that, here, both he and NCL are United States citizens, Plaintiff signed an employment agreement in Boston, Massachusetts, and the agreement was silent as to a place of performance other than mentioning the Dawn as the initial vessel on which Plaintiff would serve, subject to being reassigned to other unnamed vessels.49 According to Plaintiff, no itinerary was attached to the contract, and Plaintiff was not informed of or aware of the Dawn’s itinerary when he signed the contract.50 Plaintiff alleges that he performed all of his work as a casino pit supervisor in the vessel’s casino and never worked onshore in a foreign country while serving on the Dawn.51 According to Johnson, the vessel’s casino was closed whenever the vessel was in foreign territorial *344waters, except for the waters of Bermuda, and he was not required to perform his work duties when the casino was closed.52

Johnson contends that the burden of establishing jurisdiction under the Convention is on the party asserting such jurisdiction — here, NCL.53 Johnson avers that NCL cannot do so because the employment agreement in this case, as in Armstrong, Matabang, and Hines, does not call for performance in a foreign state.54 Plaintiff cites Ensco Offshore Co. v. Titan Marine L.L.C., a Southern District of Texas case in which Plaintiff avers that the court held that a clause in a contract between two U.S. companies calling for arbitration in London under English law was not sufficient to establish a reasonable connection with a foreign state where the contract called for performance in international waters in the Gulf of Mexico.55 Similarly, Plaintiff contends, the Second Circuit has held that a contract between United States citizens calling for arbitration in England under English law, but calling for performance off the coast of Long Island, did not “envisage performance abroad.”56 According to Johnson, contrary to NCL’s assertions, time spent on a vessel traveling in international waters or traveling from port to port does not envisage performance abroad for purposes of § 202.57 Johnson quotes at length from Armstrong, in which a judge in the Southern District of Florida found that an agreement did not envisage performance of work abroad because the plaintiff worked only aboard a vessel and never on foreign soil.58 Furthermore, Johnson argues, the fact that the Dawn flew a “flag of convenience” does not establish a connection with a foreign state.59 According to Plaintiff, in Matabang, the court expressly rejected that argument, finding that because the vessel and its owner were based in the United States, the flag of convenience of the vessel did not inject a foreign element into the contract.60

Finally, Johnson briefly argues that the Employment Agreement’s selection of Bahamian law in place of the Jones Act voids the arbitration clause because it violates the Jones Act’s statement that “[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.”61 Plaintiff avers that the “ ‘effective vindication’ exception, which prohibits an arbitration agreement constituting a prospective waiver of a plaintiffs statutory right (such as the right to proceed under the Jones Act), renders both the alleged arbitration agreement and the choice of law agreement contained therein void.”62

3. Defendant’s Arguments in Further Support of Arbitration

In reply, Defendant contends that the Employment Agreement expressly con*345templates performance “abroad” under controlling legal authority “and under the most rational and common understanding of that term.”63 NCL argues that the Employment Agreement also satisfies the alternative basis under the Convention, in that it bears a substantial relation to one or more foreign states.64 NCL also avers that the Court should reject Plaintiffs “vague statements regarding the potential application of Bahamian law as premature and contrary to the law of this Circuit.”65

First, Defendant contends that the Employment Agreement clearly contemplated performance abroad, as Plaintiff was hired to serve onboard NCL’s vessels, whose movement to foreign ports of call through foreign territorial and international waters was an integral part of the bargain between Johnson and NCL.66 According to NCL, Paragraph 14 of the Employment Agreement states that “[t]he Seafarer guarantees that no circumstances exist which would hinder him/her from obtaining the necessary documents and visas required for travel to and from the vessels located worldwide.”67 Similarly, Defendant contends, Johnson was required to state his nationality, place of birth, passport number and expiration date, visa type and visa expiration date.68 NCL claims that the Agreement repeatedly references repatriation of the seafearer at completion of the contract or at his dismissal, and that Plaintiff agreed that he was subject to being transferred to any other ship during the term of his contract.69 According to NCL, only Johnson’s initial assignment was on board the Dawn, and the port at which he would sign off at the end of his term was to be determined.70 Of the 13 ships operated by NCL, Defendant avers, all but one had a casino onboard, and the ships regularly call at ports in more than 70 different countries on every continent except Antarctica.71 According to Defendant, many of the cruises never enter U.S. ports or territorial waters, and the “decidedly international flavor of the Employment Agreement is integral to virtually every aspect of Plaintiffs employment, and not merely incidental as Plaintiff would have this Court believe.”72

NCL cites the Fifth Circuit’s decision in Freudensprung, tracking the language of § 202, as holding that the Convention applies to “a relationship involving property abroad or contemplating performance or enforcement abroad or having some other reasonable relation with one or more foreign states.”73 NCL argues that Plaintiff conflates these three independent bases by claiming that a contract envisaging performance abroad also requires a separate, reasonable relation with foreign soil.74 According to NCL, however, no Fifth Circuit authority, nor the statute itself, requires anything more than a contemplation of the relationship being performed outside of the United States.75 To read the statute and Freudensprung as Johnson suggests, Defendant contends, would render the “en*346visages performance or enforcement abroad” basis meaningless, a result prohibited by the basic canon of statutory construction “that when interpreting a statute, all parts of a statute should be given effect, and an interpretation making any part superfluous or meaningless should be avoided.”76

Next, Defendant argues that although Plaintiff makes much of the fact that the Dawn’s itinerary was not attached to the Employment Agreement, nothing in § 202 requires the contract at issue to expressly state that performance will take place in a particular country.77 NCL argues that such a requirement would be too rigid, and it would be unreasonable to require NCL to attach the itineraries of every one of its vessels to the Employment Agreement.78 According to NCL, even if Plaintiff was unaware of the ports to which NCL vessels sailed, which is unlikely given NCL’s advertising campaigns and the availability of online information, the international nature of the Employment Agreement is clear from its uses of the terms “worldwide” and “repatriate” and its requirement that Plaintiff be able to obtain travel visas and other documents for international travel.79

Defendant argues that Johnson’s argument that the Convention does not apply because he was not required to set foot on foreign soil is contrary to controlling Fifth Circuit authority in Freudensprung and to the Supreme Court’s recognition that the goal of the Convention “was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.”80 NCL claims that, in relying on Matabang and Armstrong, decisions from the Southern District of Florida, Plaintiff ignores the fact that this Court, unlike the Southern District of Florida, is bound by the Fifth Circuit’s holding in Freudensprung.81 NCL concedes that both Matabang and Armstrong held that the contracts at issue did not envisage performance abroad because they did not involve work on foreign soil, but notes that the Matabang court further relied on the fact that the contract con-tainéd no references to performance abroad or any foreign state, unlike the contract here.82 NCL argues that such requirements are not found in the Convention, as properly interpreted and applied in Freudensprung, % case in which NCL claims there was no indication that the plaintiff ever set foot on foreign soil — only that he was hired to work on a seagoing derrick barge in West African waters.83 Furthermore, NCL avers, the applicable contracts in Freudensprung did not expressly state that the plaintiff would be working in the waters or soil of a particular foreign state, but the Fifth Circuit nevertheless properly concluded that the Convention applied.84 Additionally, NCL claims, a line of more recent cruise industry cases out of the Southern District of *347Florida have rejected the Matdbang and Armstrong rationale and compelled arbitration.85

Next, NCL argues that even if the Court interprets the term “abroad” more narrowly than its. plain meaning of “outside the United States,” the Convention applies with equal force in this case because the Employment Agreement satisfies the “reasonable relation to one or more foreign states” basis for application of the Convention under § 202 and Freudensprung. 86 In Freudensprung, NCL contends, the plaintiff worked only in Nigerian waters, whereas here, Plaintiff was hired as a crewmember to work on any combination of NCL’s vessels that call in over 70 different countries.87 According to NCL, having relations with such a volume of foreign states falls squarely within the purview of the Convention and § 202.88 Furthermore, NCL contends, in the 3.5 months that Plaintiff was on board the Dawn, 8 of the vessel’s 11 cruises were to Bermuda where, as Plaintiff concedes, the casino remained open.89 According to NCL, this demonstrates a substantial relation with Bermuda that is sufficient to establish applicability of the Convention.

NCL argues that, although Plaintiff seeks to have the Court constrain its assessment of the Convention’s application to the times during which the casino aboard the Dawn was in operation, Plaintiffs position is at odds with § 202’s requirement that the Court focus on the Employment Agreement as a whole to determine its international character.90 NCL contends that its ships’ movements to foreign ports of call was an integral part of the Employment Agreement, and. that furthermore, Plaintiffs job duties included more than just working in the pit when the casino was open, but also extended to maintaining the casino inventory, completing relevant paperwork, participating in training programs, evaluating subordinates, and so on.91 Therefore, NCL claims, Johnson’s employment relationship with NCL was not suspended during the hours the casino was closed, and instead continued while the vessel was in foreign or international waters.92

NCL next criticizes Johnson’s reliance on a Southern District of Texas decision in Ensco Offshore Co. v. Titan Marine L.L.C., arguing that the case is distinguishable on its facts because Ensco involved a contract between two American companies for delivery of oil rig pieces from a rig located on the Outer Continental Shelf just off the Gulf Coast to Texas.93 According to NCL, Ensco did not involve the employment of a seafearer on vessels calling in one foreign port after the other, and furthermore, the Ensco court favorably cited the Freudensprung decision as having held that connection to a single foreign state satisfied the Convention requirement.94 NCL argues that Ensco, un*348like this case, did not involve any foreign states and the employment contract at issue lacked the required international connection that “is so apparent in the present case.”95

Finally, NCL alleges that Plaintiffs argument regarding the application of Bahamian law is “entirely unsupported by fact or law,” noting that Plaintiff did not explain how the purpose or intent behind the choice of Bahamian law clause in the Employment Agreement was to exempt NCL from liability for his alleged injuries.96 NCL contends that Plaintiff cites no relevant case law in support of his argument against enforcing the arbitration agreement, and moreover, any such argument is improper at this initial arbitration enforcement stage.97 NCL avers that the Convention provides two causes of action in federal court: (1) an action to compel arbitration in accordance with the terms of the agreement under 9 U.S.C. § 206, and (2), at a later stage, an action to confirm an arbitral award made pursuant to an arbitration agreement under 9 U.S.C. § 207.98 According to NCL, the defense that Plaintiff wishes to rely on — namely that enforcement or recognition of an arbitration award would be contrary to public policy— applies only at the award enforcement stage, and not at the initial arbitration enforcement stage.99 Defendant argues that the Supreme Court has squarely rejected arguments such as Plaintiffs at this stage of the proceedings, where the Court must consider solely whether to compel arbitration.100 Furthermore, NCL contends, the Fifth Circuit in Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG recently rejected arguments similar to Plaintiffs and compelled a seaman to arbitrate his Jones Act and general maritime claims against his employer in the Philippines under Philippine law.101 Therefore, NCL claims, the Court should reject Plaintiffs arguments and compel arbitration here.

B. Motion to Remand

1. Defendant’s Notice of Removal

In its notice of removal, Defendant argues that 9 U.S.C. § 205 allows for the removal of causes of action relating to an arbitration agreement falling under the Convention.102 Defendant states that Plaintiff signed an Employment Agreement containing an arbitration provision requiring Plaintiff to submit all disputes to arbitration.103 Defendant argues that the Agreement envisaged performance abroad and therefore falls under the Convention, allowing removal of the entire case to federal court.104

2. Plaintiffs Arguments in Support of Remand

In support of its motion to remand, Plaintiff argues that this action is clearly brought under the Jones Act and FELA.105 According to Johnson, the Jones Act, *349which incorporates FELA, specifically prohibits removal to any district court of the United States.106 Therefore, Plaintiff claims, Defendant wrongfully removed this case in violation of 28 U.S.C. § 1445(a), and this case should be remanded to state court with attorney’s fees and costs incurred in this motion to be taxed against Defendant.107 Furthermore, Johnson argues, an alleged arbitration agreement between the parties would not allow removal in light of the clear statutory language prohibiting removal.108

3. Defendant’s Arguments in Opposition to Remand

In opposition, Defendant argues that the case was properly removed because it is settled law in the Fifth Circuit that the arbitration provision in the Employment Agreement, governed by the Convention, allows removal to federal court even of Jones Act claims.109 NCL argues that 9 U.S.C. § 205, governing removal of claims that “relate to an arbitration or agreement of award falling under the Convention,” has been recognized by the Fifth Circuit as “one of the broadest removal provisions ... in the statute books.”110 Therefore, NCL avers, the Fifth Circuit has held that “absent the rare frivolous petition for removal, as long as the defendant claims in its petition that an arbitration clause provides a defense, the district court will have jurisdiction to decide the merits of that claim.”111

According to NCL, Plaintiffs Jones Act claim does not defeat removal under the Convention because the Fifth Circuit has recognized that the Convention, an international treaty, is an exception to the general rule cited by Plaintiff that Jones Act claims are not removable.112 NCL cites Francisco v. STOLT ACHIEVEMENT MT, a Fifth Circuit case in which NCL alleges that the court affirmed a district court finding of removal jurisdiction and subject matter jurisdiction over a dispute brought by a Jones Act seaman.113 According to Defendant, the Fifth Circuit held that the Convention did not recognize any exception to its applicability for seamen employment contracts, and because in the case before it, the agreement entered into by the seaman plaintiff met all jurisdictional prerequisites for application of the Convention, removal was appropriate and arbitration of his claims was mandatory.114 Similarly, NCL contends, a judge in another section of the Eastern District of Louisiana held that removal of a Jones Act case is proper in Amizola v. Dolphin Shipowner, S.A., wherein NCL avers that the court recognized the general rule regarding removal of Jones Act cases, but nevertheless explicitly held that “a claim under the Jones Act does not defeat removal under *350the Convention Act.”115 NCL argues that the cases cited by Plaintiff did not involve removal under 9 U.S.C. § 205, and that Plaintiff has cited no authority contrary to the Fifth Circuit’s holdings that the Convention is a proper mechanism for removal of a Jones Act claim.116

Finally, NCL reurges many of the arguments made in its motion to compel arbitration and stay proceedings, arguing that this dispute meets all requirements for application of the Convention, and therefore for removal under § 205 and compulsion of arbitration.117

4. Plaintiffs Arguments in Further Support of Remand

In reply, Plaintiff argues that Defendant’s opposition is largely a rehashing of its motion to compel arbitration with just one additional Fifth Circuit case, Franscisco v. STOLT ACHIEVEMENT MT, that Defendant claims allows a Jones Act case subject to the Convention to be removed despite 28 U.S.C. § 1445(a)’s clear prohibition against removal of Jones Act cases.118 Johnson argues, however, that Franscisco-does not procedurally or factually support removal of this case.119 Similarly, Johnson argues, the two district court decisions cited by Defendant, Amizola v. Dolphin Shipowner, S.A., 120 from the Eastern District of Louisiana, and Bautista v. Star Cruises, 121 from the Southern District of Florida, solely involved foreign seamen to whom the Convention clearly applied, as opposed to a U.S. seaman, to whom the Convention clearly does not apply.122

Johnson argues that there are many other cases involving U.S. seamen directly on point that mandate remanding to state court when a case is wrongfully removed under the Convention.123 Plaintiff also contends that Defendant mischaracterizes Francisco as clearly recognizing that the Convention’s removal provisions trump the Jones Act’s prohibition on removal, whereas, in reality, the motion to remand in Francisco was denied because the district court found that the motion to remand under the “saving to suitors clause,” rather than § 1445(a), was filed more than 30 days kfter the case was removed and that the plaintiff had therefore waived his right to remand the case.124 According to Plaintiff, the district court’s decision followed Fifth Circuit precedent holding that motions to remand pursuant to the “saving to suitors clause” are not jurisdictional and must be filed within 30 days of removal pursuant to 28 U.S.C. § 1446(b).125 Therefore, Johnson contends, the remand in Francisco had nothing to do with the application of the Convention, and the denial of the motion to remand was not at issue during the appeal of the Francisco case to the Fifth Circuit.126

*351Johnson notes other alleged factual differences between Francisco and the instant case, including the fact that Francisco involved a plaintiff who was a citizen of the Philippines and to whom all four of the jurisdictional requirements of the Convention clearly applied.127 Furthermore, Johnson argues, unlike in this case, the plaintiff in Francisco was bound by a Philippine state employment agreement negotiated by a state employment agency in the Philippines, and it was “fairly obvious that the Jones Act would probably not apply to the foreign seaman’s claim,” whereas here the Jones Act clearly applies.128

Johnson avers that the only other cases cited by Defendant for its claim that removal under 9 U.S.C. § 205 trumps the provision prohibiting removal of Jones Act cases are Amizola and Bautista. 129 According to Johnson, as in Francisco, the plaintiffs in both Amizola and Bautista were Philippine seamen bound by a government employment agreement to which the Convention clearly applied.130 Plaintiff argues that no detailed fact analysis was required in those cases to determine whether there was a substantial connection with a foreign state, as is required here.131 Furthermore, Johnson alleges, although a judge in the Eastern District of Louisiana decided in Amizola that § 205 allows removal of a foreign seaman case in spite of § 1445(a), no authority or statutory language was cited to support such a conclusion.132 Instead, Johnson argues, the rulings in both Amizola and Bautista are supported more by the fact that the Philippine plaintiffs in those cases were arguably making fraudulent Jones Act claims, which would not support the application of § 1445(a).

Plaintiff avers that the Convention clearly does not apply to this case, as evidenced by the legislative history of the treaty.133 Plaintiff quotes Ensco Offshore Co. v. Titan Marine L.L.C., a Southern District of Texas case stating that the language of § 202 appears to have been taken from the Uniform Commercial Code, suggesting that the term “abroad” specifically refers to a connection with a foreign state.134 According to Johnson, Ensco and Freu-densprung state that a reasonable relationship with a foreign state requires the involvement of a foreign element, such as property located abroad or the performance of a contract in a foreign country, and that such a connection does not exist in this case.135

Finally, Johnson urges the Court to consider an opinion by another section of the Eastern District of Louisiana, Asignacion v. Rickmers Genoa Schiffahrts, “which contains an excellent discussion of the doctrine which voids arbitration agreements, which like the arbitration agreement in this case, prohibit a plaintiff from asserting a statutory cause of action such as the Jones Act.”136

5. Defendant’s Sur-Reply in Opposition to Remand

In its sur-reply, NCL argues that Plaintiff attempts to “subvert the clear language of the Fifth Circuit in Francisco v. STOLT ACHIEVEMENT M/T by focus*352ing on an unpublished order issued by a district court.”137 Defendant • argues that, regardless of the basis for the district court’s denial of the plaintiffs motion to remand, the case was a Jones Act case that was not remanded and for which the Fifth Circuit found removal and subject matter jurisdiction on the basis of the Convention.138

NCL also contends that Johnson’s reliance on the unpublished decision in Asig-nación is misleading because that opinion does not represent the current state of the law on the issue of enforcement of seamen’s arbitration agreements under the Convention.139 According to Defendant, Asignación relies heavily on the Eleventh Circuit’s opinion in Thomas v. Carnival Corp., 140 which was found inapplicable to a crewman’s Jones Act claim under the Convention in Lindo v. NCL (Bahamas), Ltd. 141 In fact, NCL avers, Judge Zainey himself noted that Thomas had been called into question in a September 2013 opinion in Asignacion.142 Therefore, Defendant argues, the Court should deny Plaintiffs motion to remand and enforce the arbitration agreement.143

III. Law and Analysis

A. The Convention Act (9 U.S.C. §§ 201-208)

In 1958, the United Nations Economic and Social Council adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”).144 In 1970, the United States acceded to the treaty (the “Convention Act”), which was subsequently implemented by Chapter 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 201 et seq. 145

Article 11(1) of the Convention requires contracting states, including the United States, to recognize certain written arbitration agreements. It states:

Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

Section 201 of the FAA provides that the Convention shall be enforced in U.S. courts:146 The Supreme Court has stated that “[t]he goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.”147

*353The Convention Act provides that “[a] court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States.”148 In applying the Convention, the Fifth Circuit has held that it “contemplates a very limited inquiry by courts when considering a motion to compel arbitration,” and that the court should compel arbitration if (1) there is an agreement in writing to arbitrate the dispute, (2) the agreement provides for arbitration in the territory of a Convention signatory, (3) the agreement arises out of a commercial legal relationship, and (4) a party to the agreement is not an American citizen.149 Where all parties to the agreement are American citizens, the Convention Act states that the fourth element may be met in the alternative if the relationship between the parties involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.150 Furthermore, the “reasonable connection between the parties’ commercial relationship and a foreign state [must be] independent of the arbitral clause itself.”151 Once these requirements are met, the Convention requires the district court to order arbitration, “unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”152

To implement the Convention, the FAA provides two causes of action in federal court for a party seeking to enforce arbitration agreements covered by the Convention: (1) an action to compel arbitration in accord with the terms of the agreement,153 and (2) at a later stage, an action to confirm an arbitral award made pursuant to an arbitration agreement.154 The defenses that parties may invoke to challenge either the decision to arbitrate or the recognition and enforcement of the arbitration award differ depending on the stage of the proceedings.155 For example, after arbitration, a court may refuse to enforce an arbitral award if the award is contrary to the public policy of the country.156 The party defending against the enforcement of an arbitral award bears the burden of proof.157

B. Legal Standard on a Motion to Remand

Pursuant to the applicable removal statute, a defendant may remove a state court action only if the action could have originally been filed in federal court.158 Generally, any civil action founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the *354citizenship or residence of the parties.159 Under § 203 of the Convention Act, “[a]n action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States.”160 Furthermore, § 205 of the Convention Act states:

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, the defendant or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States for the district and division embracing the place where the action or proceeding is pending.

In general, however, suits properly brought in state court under the Jones Act may not be removed.161 The burden of establishing subject matter jurisdiction rests with the party seeking to invoke it.162

C. Analysis

1. Motion to Remand

The questions of whether the Convention applies to the Employment Agreement between Johnson and NCL and whether this case was properly removed pursuant to the Convention, are deeply intertwined. NCL argues that the Convention applies, and it is “settled law in the Fifth Circuit that Jones Act claims relating to an arbitration agreement under the Convention are removable under the Convention and its codifying legislation.”163 Johnson responds that the Convention does not apply to this case, and that regardless, the cases cited by NCL do not support the broad proposition that such cases may be removed notwithstanding the clear prohibition of removal of Jones Act claims.164

For example, Johnson criticizes NCL’s reliance on Francisco v. STOLT ACHIEVEMENT M/T, a case in which the Fifth Circuit held that, “[njotwith-standing the saving to suitors clause” of the Jones Act, a district court “had removal jurisdiction and subject matter jurisdiction if the pending dispute was one ‘falling under’ the Convention”’165 NCL characterizes Francisco as recognizing that the Convention, an international treaty, is an exception to the general rule that Jones Act claims are not removable.166 Johnson notes, however, that the Fifth Circuit’s statements in Francisco are arguably dicta;167 in Francisco, as Johnson correctly *355points out, the district court held that the case need not be remanded because the plaintiff had waited more than 30 days after the case was removed to move to remand it, and therefore the plaintiff waived his right to challenge any procedural deficiencies in removal.168 Although Defendant contends that “[rjegardless of the basis for the district court’s denial of the plaintiffs motion to remand, the case was a Jones Act case that was not remanded and for which the Fifth Circuit found removal and subject matter jurisdiction on the basis of the Convention,”169 the basis for the district court’s decision is not irrelevant. The mere fact that the case was not remanded does not create a broad proposition that the Convention trumps the Jones Act, given that the reason that the case was not remanded was due to a procedural defect, which is waiveable. Here, Johnson does not waive any such alleged defect. Therefore, contrary to NCL’s claims, the Fifth Circuit’s statement that removal jurisdiction was proper under the Convention was dicta, and does not necessarily compel the result urged by NCL.

Nevertheless, Defendant cites to a number of cases in which courts have allowed claims falling under the Convention to be removed despite the Jones Act’s general prohibition on removal.170 Johnson responds with a series of cases that he contends come to the opposite conclusion.171 A review of the cases cited by Johnson, however, reveals none in which a court held that, although the Convention applied to the claim before it, the Jones Act prohibited removal. Instead, in each case, a court first found that the Convention did not apply to the claims before it, and then remanded the case as improperly removed.172

Moreover, the Eleventh Circuit, a judge on the Eastern District of Louisiana, and a judge on the Western District of Louisiana have explicitly examined the question of whether the Jones Act requires remand of cases even when they relate to an arbitration agreement under the Convention, and have held that it does not. Indeed, the Eleventh Circuit recently stated that “this Court has routinely compelled arbitration of Jones Act claims that had been removed under 9 U.S.C. § 205 when they relate to an arbitration agreement under the Convention”173 and noted that “the few other courts that have decided the issue have concluded that removal of Jones Act claims is proper under the Convention.”174 Fur*356thermore, in Amizola v. Dolphin Shipowner, S.A., a judge in the Eastern District of Louisiana decided that § 205 allows removal of a Jones Act case in spite of § 1445(a).175Similarly, in Adams v. Oceaneering Int'l, Inc., a judge in the Western District of Louisiana rejected a plaintiffs argument that his Jones Act claim was nonremovable under the Convention.176 Therefore, having found no Fifth Circuit authority in which a court has first held that the Convention applies and then found that, nevertheless, remand is warranted, the Court is persuaded by the analysis of the Eleventh Circuit, another section of the Eastern District of Louisiana, and a court in the Western District of Louisiana, in similar cases. Considering the Jones Act would only bar removal in this case if the Convention does not apply, the Court shall first analyze whether the Convention applies to the claims in this matter.

2. Motion to Compel Arbitration

As noted above, this Court must compel arbitration if four elements are met: (1) there is an agreement in writing to arbitrate the dispute, (2) the agreement provides for arbitration in the territory of a Convention signatory, (3) the agreement arises out of a commercial legal relationship, and (4) a party to the agreement is not an American citizen; or, where all parties to the agreement are American citizens, the relationship between the parties involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.177 Here, Johnson does not dispute that the first three elements are satisfied.178 Furthermore, NCL does not contest that both it and Johnson are U.S. citizens for purposes of the Convention.179 Therefore, the only question remaining for the Court to decide is whether the Employment Agreement envisaged performance abroad or had some other reasonable relation with one or more foreign states.

The parties urge the Court to focus on different facts they deem to be relevant. For instance, NCL emphasizes that Plaintiff was hired to work as a casino pit supervisor on a cruise ship that entered 10 different countries’ ports and sailed constantly on the seas.180 NCL argues that, from the date that Johnson signed the Employment Agreement to the date he ultimately signed off on November 80, 2015, the Dawn spent more than 80% of her time abroad, and that during that time period, onboard gaming could only occur when the Dawn was beyond three nautical miles from U.S. land.181 NCL notes also that the Dawn sails under the flag of the Bahamas.182 Furthermore, NCL contends, the Employment Agreement’s plain language required Johnson to be able to obtain the necessary documents and visas required for travel to and from the vessels located worldwide and repeatedly referenced repatriation of the seafarer at the end of his employment.183 Finally, NCL *357points to the fact that, pursuant to the Employment Agreement, Plaintiff was subject to being transferred to any other ship owned or operated by NCL, and NCL notes that it operates 12 ships containing casinos, which regularly call at ports in more than 70 countries.184

Johnson, on the other hand, both disputes the weight of the facts presented by Defendant and contends that the Court should consider other factors that weigh in his favor. Plaintiff argues that he signed the Employment Agreement in Boston, Massachusetts, and that it is silent as to a place of performance other than mentioning the Dawn as the initial vessel on which he would serve, subject to being reassigned to other unnamed vessels.185 Johnson alleges that there was no itinerary attached to the contract and that he was not informed of or aware of the Dawn’s itinerary at the time he signed the contract.186 He further argues that he performed all of his work as a casino pit supervisor within the vessels’ casino and never worked onshore in a foreign country while serving on the vessel, and that generally the vessels’ casino was closed whenever the vessel was in foreign territorial waters, except for the waters of Bermuda.187

Johnson and NCL both quote ample authority — mostly from the Southern District of Florida and the Eleventh Circuit— whose language favors their positions, and which generally contradict one another. The Court, therefore, is essentially being asked to choose between two lines of district court cases from another Circuit. In one, district courts in cases such as Matabang v. Carnival Corp., 188 Armstrong v. NCL (Bahamas) Ltd., 189 and Hines v. Carnival Corp., 190 read the Convention narrowly and reason that the term “abroad” in the Convention requires that work take place on foreign soil, not aboard a vessel, thereby limiting arbitration.191 In another line of cases, including Odom v. Celebrity Cruises, Inc., 192 D’Cruz v. NCL (Bahamas) Ltd., 193 and Rutledge v. NCL (Bahamas) Ltd., 194 the district courts generally reject the reasoning of Matabang and its ilk. *358Focusing on the strong federal policy in favor of arbitration, those courts have required arbitration where employees perform their duties aboard ships that sail constantly on the seas and frequently enter foreign ports, generally relying on the plain meaning of the Convention and finding that the term “abroad” applies to more than just those instances where the relationship envisages performance in foreign states.195

The diverging outcomes in district court cases are generally based more on statutory interpretation than on the specific facts in each case. District courts that have compelled arbitration in facts similar to the instant case have often relied, as this Court must, on the Fifth Circuit’s holding in Freudensprung v. Offshore Technical Services. 196 In Freudensprung, the Fifth Circuit affirmed a district court decision compelling arbitration where an employer, a U.S. citizen, assigned its employee, also a U.S. citizen, to work on a barge off the coast of Nigeria.197 There, the Fifth Circuit distinguished a contrary holding in, Jones v. Sea Tow Services, Inc., 198 a Second Circuit Decision, noting that, despite an arbitration clause providing for arbitration in England under English law, the case in question involved U.S. citizens hired by a U.S. salvor to rescue a yacht that had grounded in U.S. waters off Long Island, New York.199 By contrast, Freudensprung held, the case before it envisaged the performance of pipefitting services on barges in West African waters.200

NCL and Johnson dispute the meaning and applicability of Freudensprung. NCL correctly notes that, although Johnson seemingly argues that the Convention requires performance on foreign soil, Freu-densprung contained no indication that the plaintiff ever set foot on foreign soil.201 Johnson, on the other hand, points out that the agreement in Freudensprung called for work to be performed in Nigerian waters.202 NCL contends that “the quotations from the applicable contracts in Freuden-sprung did not expressly state that plaintiff would be working on the waters or soil of a particular foreign state.”203 The Court notes, however, that the applicable contract in Freudensprung incorporated any work orders issued to the plaintiff, and the plaintiff later agreed to a work order to “work...as a barge leaderman in West Africa.”204 Therefore, while it appears clear *359that Freudensprung does not require an employee to literally work on foreign soil in order for a relationship agreement to “envisage[] performance or enforcement abroad, or ha[ve] some other reasonable relation with one or more foreign states,” the Court also considers Johnson’s observation that the contracts in Freuden-sprung apparently called for performance within the waters of a foreign state.

The Court notes, however, that as NCL argues, the Convention Act will apply even to relationships entirely between citizens of the United States if the relationship “envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.”205 In Freudensprung, the Fifth Circuit held that the agreement between the two U.S. citizens “envisage[d] performance abroad— the performance of pipefitting services on WWAI’s barges in West Africa.”206 The Fifth Circuit also went on to say that there was “a reasonable connection between the parties’ commercial relationship and a foreign state,”207 but it did not in any way appear to require that an employee’s work or performance take place on the soil of a foreign state in order to constitute “performance abroad.”

As noted above, courts finding that contracts such as the one in the instant matter are covered by the Convention favorably cite Freudensprung for the proposition that work performed off the coasts of other nations may meet the criteria of the Convention.208 In response to this analysis of Fifth Circuit authority, Johnson cites Ensco Offshore Co. v. Titan Marine L.L.C., 209 a Texas district court ease, which Johnson characterizes as explaining that Freudensprung held only that a contract specifically calling for performance in a foreign state envisages performance abroad.210 In Ensco, a court in the Southern -District of Texas held that an arbitration clause calling for arbitration in London, England was unenforceable under the Convention in a case involving a contract to salvage a rig located 90 miles south of the coast of Louisiana in the Gulf of Mexico.211 The court in Ensco acknowledged the strong policy in both the United States and the Fifth Circuit in particular in favor of árbitration, stating that:

To say that it is the public policy of the United States and the Fifth Circuit to enforce contractually agreed-upon arbitration provisions would be an understatement. It is hard to imagine a topic in recent years in which the Fifth Circuit has written more frequently and more consistently. Its statements are clear and concise. If there is an agreement in writing to arbitrate, it is the public policy of the federal courts to enforce that provision.212

Ensco nevertheless held that such a policy could not compel arbitration where there was no connection with a foreign nation.213 Furthermore, Ensco engaged in an analysis of the legislative history of § 202 and found “some indication” that the language of § 202 was taken from the Uniform *360Commercial Code, and that the term “abroad” specifically referred to a connection with a foreign state.214

NCL argues that Ensco is inapplicable because the case involved a contract between two American companies for delivery of oil rig pieces from a rig located on the Outer Continental Shelf just off the Gulf Coast to the state of Texas.215 NCL distinguishes Ensco as involving no foreign states,216 a distinction that this Court finds is relevant to the analysis here. In Ensco, the court emphasized that the rig in question was just offshore from the coast of Louisiana and found the mere fact that the rig sat in international waters “more than twelve miles off the coast of the United States .. .insufficient in and of itself to qualify this agreement under the exceptions outlined in § 202.'’ 217 Ensco further noted that the envisaged performance in the case before it would take place in Texas.218 In other words, in Ensco, two American companies agreed to a contract whereby a rig considered to be U.S. property would be towed to the United States from international waters just offshore from the Gulf Coast and repaired in Brownsville, Texas,219 and the court found that the mere provision of an arbitration clause requiring arbitration in England did not create a sufficient foreign element to compel arbitration pursuant to the Convention.220

The facts of this case, however, differ sharply from those of Ensco. Here, during Plaintiffs time on the Dawn, the vessel touched ports in ten different countries, sailed constantly, and spent more than 80% of her time abroad.221 NCL claims that at the time that Plaintiff signed the Employment Agreement, the Dawn was scheduled to regularly sail to numerous foreign countries, and that its other vessels sail to more than 70 countries— information readily available online and in NCL’s advertising.222 Moreover, Johnson was hired specifically to oversee the casino, which NCL contends could only operate when the ship was at least three nautical miles from U.S. land or when the ship was in New Orleans but neither docked nor anchored.223

Furthermore, the contractual relationship between Johnson and NCL — the most relevant evidence for the Court to consider in determining whether the commercial relationship between them envisaged performance abroad — has a considerably more international flavor than that in En-sco, even if it may lack, as Johnson notes, an attached itinerary or direct reference to a particular foreign nation. Although Johnson signed the Employment Agreement in Boston and the Agreement did not specifically name a foreign nation where Johnson may be employed, the contract does list the Dawn as the initial vessel on which Plaintiff would serve, subject to being reassigned to other unnamed vessels.224 Plaintiff claims that he was unaware of the Dawn’s itinerary, but whether he knew its precise routes or not, a contract with a cruise line whose ships undisputedly travel *361almost exclusively to foreign ports of call cannot be deprived of its international character solely through the alleged ignorance of its would-be employee.

Moreover, Paragraph 14 of the Employment Agreement states that “[t]he Seafarer guarantees that no circumstances exist which would hinder him/her from obtaining the necessary documents and visas required for travel to and from the vessels located worldwide.”225 The Agreement also states that “the Employer shall be responsible to repatriate the Seafarer at no cost to the Seafarer” and that if a request for early termination is granted, “repatriation costs will be paid by the Company.”226 Thus it is clear from both the documentation requirements and the discussions of repatriation that the Agreement forewarned Johnson that he would be working outside the United States, or “abroad,” even if it did not list each particular nation within the contract.

Therefore, the Court concludes that the Employment Agreement in this case envisaged performance or enforcement abroad or had some other reasonable relation with one or more foreign states.227 Here, the Court is compelled to follow the guidance of the Fifth Circuit in Freudensprung, and emphasizes the strong federal policy in favor of arbitration, particularly international arbitration.228

Finally, Johnson has argued, citing almost no authority, that the application of Bahamian law in place of the Jones Act renders the arbitration clause and its choice of law agreement void.229 NCL characterizes Johnson’s argument as one alleging that the arbitration agreement js against public policy, which NCL correctly notes is improper at this initial enforcement arbitration stage and is reserved as a reason for a court to refuse to enforce an arbitral award.230 Plaintiff may challenge the enforcement of the arbitration clause at this first stage of the proceedings, where a Court conducts “a very limited inquiry” as to whether to order arbitration,231 by invoking the “null and void” defense.232 The “null and void” defense, however, “limits the bases upon which an international arbitration agreement may be challenged to standard breach-of-eon-tract defenses” such as fraud, mistake, and duress.233 Here, Johnson has not made any *362such argument to the Court. Instead, his argument appears to be solely one of “prospective waiver of a plaintiffs statutory right,”234 an argument that has been found to be premature at the initial enforcement stage.235 Accordingly, the Court need not address this argument at the initial enforcement stage.

As noted above, because the Convention applies, the Court need not separately analyze whether removal was appropriate. The Convention allows removal even of Jones Act claims, and the Court therefore has both subject-matter and removal jurisdiction, pursuant to the Convention, to enforce the arbitration clause in the Employment Agreement.

IV. Conclusion

For the reasons set forth above,

IT IS HEREBY ORDERED that NCL’s “Motion to Compel Arbitration and Stay Proceedings”236 is GRANTED.

IT IS FURTHER ORDERED that Johnson “Motion to Remand”237 is. DENIED.

Johnson v. NCL (Bahamas) Ltd.
163 F. Supp. 3d 338

Case Details

Name
Johnson v. NCL (Bahamas) Ltd.
Decision Date
Feb 19, 2016
Citations

163 F. Supp. 3d 338

Jurisdiction
United States

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