United States District Court, S.D. Florida, Miami Division
ORDER DENYING PETITION TO VACATE ARBITRAL
FEDERICO A. MORENO, UNITEET STATES DISTRICT JUDGE.
Sladjana Cvoro, a seafarer, requests the Court vacate an
arbitral award as void against public policy because the
arbitrator applied Panamanian law. In so doing, the
arbitrator precluded Cvoro from asserting a Jones Act claim
against her employer Carnival Corporation for vicarious
liability. Under the Jones Act, Cvoro claims Carnival is
vicariously liable for the negligence of the shore-side
physicians it hired to treat her carpal tunnel syndrome.
Panamanian law does not recognize that cause of action, and
instead requires she show that Carnival itself was negligent
in hiring the shore-side physicians. Panamanian law also
provides other avenues of relief, such as disability
benefits. The arbitral award indicates that Cvoro did not
pursue those potential avenues and therefore, the arbitrator
did not award her a remedy. Having reviewed the distinctions
between Panamanian and U.S. law, this Court does not find it
necessary to vacate the arbitral award as void as against
CAUSE came before the Court upon Plaintiffs Memorandum in
Support of Petition to Vacate and/or Set Aside Arbitration
Award (D.E. 67) filed on June 6, 2017.
COURT has considered the petition, the response, the
pertinent portions of the record, and being otherwise fully
advised in the premises, it is
that the petition to vacate the arbitral award is DENIED. It
that all other pending motions are DENIED as moot as this
case is closed.
Sladjana Cvoro, is a seafarer from Serbia, who was employed
by the Defendant Carnival Corporation on the Carnival
Dream. Cvoro sustained injuries when she was treated for
carpal tunnel syndrome by a shore-side physician. She
developed carpal tunnel while working on the Carnival
Dream. To comply with its maintenance and cure
obligations under maritime law, Carnival selected the
shore-side physicians in Serbia to treat Cvoro's
condition. Plaintiff is seeking to assert a Jones Act claim
against Carnival for vicarious liability for the
physicians' negligence, i.e. that Carnival is liable for
the negligence of the shore-side doctor in Serbia.
outset, Cvoro did not file her Jones Act claim in U.S. courts
because the parties' seafarer employment agreement
contains mandatory arbitration and forum-selection clauses,
which provide "[t]he place of arbitration shall be
London, England, Monaco, Panama City, Panama, or Manila,
Philippines, whichever is closer to the Seafarer's home
country." The parties' agreement also contains a
choice-of-law clause designating the governing law as the law
of the ship's flag, in this case Panama.
filed an arbitration case in Monaco to recover for her
injuries against Carnival, which included a U.S. Jones Act
claim for vicarious liability. The arbitrator employed the
agreement's choice-of-law provision to apply the law of
Panama, where the Carnival Dream is registered. The
arbitrator dismissed Plaintiffs Jones Act claim finding U.S.
law did not apply to the proceeding. It is undisputed that
Panamanian law does not recognize a cause of action for
vicarious liability. Plaintiff seeks to vacate the arbitral
award claiming that the decision not to apply United States
law deprived her of her Jones Act remedy in violation of
the parties' respective experts at the arbitration
generally agreed on Panamanian law. Panamanian law recognizes
a labor (contractual) cause of action and a tort cause of
action for negligence against an employer. The labor claim
under Panama law is the equivalent of a no-fault maintenance
and cure claim under U.S. law. Plaintiff did not oppose the
Defendant's position that it satisfied the obligations to
provide assistance and medical care (maintenance and cure).
Panamanian law also recognizes an available claim for
disability compensation related to the underlying condition
Plaintiff developed on board, but Plaintiff did not pursue
it. Plaintiff also could have pursued a tort claim against
Carnival for negligent hiring of the physicians. It is
undisputed that Cvoro did not pursue these available avenues
under Panamanian law. Cvoro claims it would have been futile
to do so because she could obtain no record evidence from
Legal Standard and Analysis
to arbitrate are governed by the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards,
popularly known as the New York Convention. The United States
has acceded to the Convention, codified at 9 U.S.C.
§§ 201-28. "Because arbitration is an
alternative to litigation, judicial review of arbitration
decisions is 'among the narrowest known to the
law.'" Bamberger Rosenheim Ltd. v. OA
Development, Inc., 862 F.3d 1284, 1286 (11th Cir. 2017)
(quoting AIG Baker Sterling Heights, LLC. v. Am.
Multicinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007)).
Foreign arbitral awards are vulnerable to attack only on the
grounds expressed in the articles of the Convention,
particularly Article V. Article V states that an arbitral
award "may ... be refused ... [if] [t]he
recognition or enforcement of the arbitral award would be
contrary to the public policy" of the country where
recognition and enforcement is sought. 21 U.S.T. 2517, Art.
V(2)(b). The party defending against the enforcement of an
arbitral award bears the burden of proof. Lindo v. NCL
(Bahamas) Ltd., 652 F.3d 1257, 1263 (11th Cir. 2011).
Convention's public policy defense should be construed
narrowly' and applies where enforcement [of] the award
'would violate the forum state's most basic notions
of morality and justice.'" Costa v. Celebrity
Cruises, Inc.,768 F.Supp.2d 1237, 1241 (S.D. Fla.
2011)(quoting Parsons & Whittemore Overseas Co., Inc.
v. Societe Generale de L'Industrie du Papier, 508
F.2d 969, 974 (2d Cir. 1974)). '"Erroneous legal
reasoning or misapplication of the law is generally not a
violation of public policy within the meaning of the . .