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Mitsubishi</Em>'S Footnote 19 and the Validity of Arbitration C University of Miami Law Review Volume 67 Number 4 Volume 67 Number 4 (Summer 2013) Article 8 7-1-2013 The Eleventh Circuit's Interpretation of Mitsubishi's Footnote 19 and the Validity Of Arbitration Clauses in Union-negotiated Collective Bargaining Agreements Caitlin E. Burke Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the Law Commons Recommended Citation Caitlin E. Burke, The Eleventh Circuit's Interpretation of Mitsubishi's Footnote 19 and the Validity Of Arbitration Clauses in Union-negotiated Collective Bargaining Agreements, 67 U. Miami L. Rev. 893 (2013) Available at: https://repository.law.miami.edu/umlr/vol67/iss4/8 This Note is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. The Eleventh Circuit's Interpretation of Mitsubishi's Footnote 19 and the Validity of Arbitration Clauses in Union-Negotiated Collective Bargaining Agreements CAITLIN E. BURKE* I. INTRODUCTION ...................................................... 893 II. B ACKGROUND . ...................................................... 895 A. The Federal Arbitration Act Conflicts with the Eleventh Circuit's Holding in Bautista v. Star Cruises ......................................... 896 B . The Jones A ct ................................................... 897 C. The Eleventh Circuit Reinterprets Footnote 19 ........................ 898 D. The Eleventh Circuit Deviated from Prior Circuit Precedent ............ 899 E. Other Courts' Reliance on Thomas ................................. 901 II. THE SUPREME COURT'S PERSPECTIVE ON PROSPECTIVE WAIVER .............. 902 A. Alexander v. Gardner-Denver Co ................................... 903 B. Scherk v. Alberto-Culver Co. and Wilko v. Swan ..................... 904 C. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc ............... 905 D. Vimar Seguros y Reaseguros, S.A. v. MV Sky Reefer ................ 908 E. W right v. Universal Mar. Serv. Corp ................................ 910 F. Circuit City Stores, Inc. v. Adams .................................. 912 G. 14 Penn Plaza LLC v. Pyett ....................................... 913 IV. LNDo v. NCL (BAHAMAS), LTD ........................................ 917 V. THE JONES ACT, THE FAA, AND THE FUTURE ............................ 920 A. History Surrounding the Jones Act and its Applicability to Foreign Seamen ........................................................ 920 B. "American" Cruise Lines ......................................... 923 C. The Eleventh Circuit Ignores the Nature of the Claims ................. 925 D. Abusive Business Practices by the Maritime Industry is Not Ancient H istory ......................................................... 926 E. The Direction of the Supreme Court and Congress on Union-Negotiated W aiver ......................................................... 926 F. Fictions of the FederalArbitration Act .............................. 928 G. Advocation of Future Direction .................................... 930 V I. C ONCLUSION ........................................................ 932 I. INTRODUCTION The Eleventh Circuit Court of Appeals deviated from the Circuit's prior precedent in announcing its decision in Lindo v. NCL. I The holding innuendo overruled Thomas v. Carnival Cruise Lines, decided by Judge Barkett on the Eleventh Circuit in 2009.2 Rather than explicitly overrule Thomas, the Court of Appeals acrobatically differentiated Lindo by rein- * In memory of my Father, Michael P. Burke. 1. Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1277-80 (1 1th Cir. 2011). 2. Id. UNIVERSITY OF MIAMI LAW REVIEW [Vol. 67:893 terpreting the United States Supreme Court decision in Mitsubishi's Footnote 19.1 This novel interpretation allowed the Eleventh Circuit to compel arbitration of a foreign seaman's claim while holding that such procedu- ral manipulation did not prospectively waive the seaman's United States statutory rights.4 Even though Lindo's holding conflicts with the Supreme Court's analysis in Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth Inc.,' the Eleventh Circuit extended Lindo in Henriquez v. NCL to include seamen's common law maintenance and cure claims.6 Thus, within one month, the Eleventh Circuit overruled its holding in Thomas and substantially altered seamen's rights and remedies in con- flict with the Jones Act7 and recent Supreme Court decisions regulating the enforcement of arbitration provisions.8 This Casenote analyzes the holding announced in Lindo v. NCL. It begins with an overview of Lindo and discusses the Eleventh Circuit's precedent in arbitration under the Federal Arbitration Act ("FAA"). The Casenote then discusses the Supreme Court's arbitration precedent and the ability to waive U.S. statutory rights in contractual agreements. This Part includes various opinions, expressed in dicta, which provide gui- dance to the Court's current stance on union-negotiated collective bar- gaining agreements. After analyzing the Supreme Court's related precedent, the Case- note presents the facts of Lindo and the Eleventh Circuit's rationale in the opinion. This rationale includes a comparison of Eleventh Circuit cases leading up to Lindo. The Casenote concludes with an analysis of the Jones Act, including its legislative history and purpose, and the Supreme Court's interpretation and application. The Jones Act analysis will lead into a discussion of the Supreme Court's interpretation of the FAA and how lower courts have responded. In addition to the precedent on the books, this Casenote will look at the proposed legislative amend- ments to the FAA. The Casenote concludes with the proposed amend- ments, their purpose, and will lead into a public policy discussion of 3. Id. 4. Id. 5. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 636-37 n.19 (1985). 6. Henriquez v. NCL (Bahamas), Ltd., 440 F. App'x 714, 715 (1lth Cir. 2011). 7. See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 311-12 (1970) (stating that the language of the Jones Act by its terms "is not limited to American seaman nor to vessels bearing the American flag"). 8. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 49 (1974) (holding "In sum, Title VlH's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement"). 2013] MITSUBISHI'S FOOTNOTE 19 union-negotiated arbitration clauses contained in collective bargaining agreements. II. BACKGROUND Harold Leonel Pineda Lindo ("Lindo") is a citizen and resident of Nicaragua. 9 Norwegian Cruise Line ("NCL") employed Lindo as a sea- man aboard the M/S Norwegian Dawn.1" The employment contract signed by Lindo stipulated to submission of all claims arising from employment to arbitration. 1I The forum selection clause fixed arbitration in Lindo's home country, 12 Nicaragua, and the choice of law provision dictated that Bahamian law would apply.' 3 During his employment, Lindo sustained back injuries while carrying heavy trash bags, which subsequently required corrective surgery. 4 In 2009, Lindo filed suit in Florida state court asserting violations of the Jones Act, pursuant to 46 U.S.C. § 30104.11 In addition to his Jones Act negligence claims, Lindo claimed: failure to provide mainte- nance and cure, failure to provide adequate medical treatment, unsea- worthiness, and disability benefits under the collective bargaining 16 agreement ("CBA"). NCL removed the case under 9 U.S.C. § 20517 to the United States District Court for the Southern District of Florida and moved to compel arbitration pursuant to the CBA.' 8 Lindo amended his complaint, limit- ing his cause of action to a single claim of Jones Act negligence. 9 Lindo opposed NCL's motion and sought remand to state court.20 Raising the Eleventh Circuit's decision in Thomas, Lindo argued that the arbitration provision, contained in the CBA, was void as a pro- spective waiver of his Jones Act claim.2' In the alternative, Lindo con- tested the validity of the arbitration clause under Florida state law, arguing that the provision failed because it neglected to inform Lindo of the costs associated with arbitration.22 The district court denied Lindo's 9. Lindo, 652 F.3d at 1260. 10. Id. 11. Id. at 1260-61. 12. Id. at 1261. 13. Id. 14. Id. at 1260. 15. Lindo, 652 F.3d at 1261. 16. Id. 17. 9 U.S.C.A. § 205. 18. Lindo, 652 F.3d at 1262. 19. Id. 20. Id. 21. Id. 22. Id. UNIVERSITY OF MIAMI LAW REVIEW [Vol. 67:893 motion for remand, granted NCL's motion to compel arbitration, and dismissed Lindo's amended complaint.23 Lindo appealed." The Eleventh Circuit Court of Appeals held that the contract's arbitration provision was not void as a matter of public policy, did not prospectively waive Lindo's U.S. statutory rights, and thus, compelled arbitration to Nicaragua under the application of Baha- mian law.25 A. The FederalArbitration Act Conflicts with the Eleventh Circuit's Holding in Bautista v. Star Cruises The Eleventh Circuit's holding in Lindo, compelling arbitration of seamen's claims, is unambiguously in conflict with the language and purpose of the Federal Arbitration Act.2 6 The FAA expressly prohibits seamen claims from being submitted to
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