Pysarenko v Carnival Corporation, Carnival Cruise Lines, Inc.

March 9, 2015

Pysarenko v Carnival Corporation, Carnival Cruise Lines, Inc.

Brief of Amici Curiae

Our office represents 571 former and current cruise line workers. They allege that they were forced to work without gratuities (leaving them with a salary of $50 per month) and therefore forced to work effectively for free, in violation of the Seaman’s Wage Act and U.S. criminal and civil statutes prohibiting forced labor and peonage. They have filed an Amici Curiae Brief with the United States Supreme Court, in support of a Petition for Writ of Certiorari filed in the case of Pysarenko v. Carnival. The goal of the brief is to alert the Supreme Court of the high human cost of arbitration clauses in seaman’s employment contracts.  The inalienable rights of seafarers promulgated by Congress and the federal courts are under assault. They are being implicitly abolished by courts that ratify foreign arbitration clauses in crewmembers’ employment contracts.

UNITED STATES SUPREME COURT
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Case No. 14-1004
VITALII PYSARENKO,
Petitioner,

v.

CARNIVAL CORPORATION d/b/a
CARNIVAL CRUISE LINES, INC.
Respondent.
________________________________________/

BRIEF OFAMICI CURIAE CONSISTING OF 571 FORMER AND CURRENT CRUISE LINE WORKERS IN SUPPORT OF PETITIONER

TABLE OF CONTENTS

QUESTION PRESENTED …………………………… i

TABLE OF CONTENTS ……………………………… ii

TABLE OF CITED AUTHORITIES ……………….. iii

INTEREST OF THE AMICI CURIAE ……………… 1

SUMMARY OF ARGUMENT ………………………… 8

ARGUMENT …………………………………………… 12

1. The enforcement of foreign arbitration clauses in seafarers’ contracts is greatly compromising the safety of American cruise passengers ….. 12

1. Foreign arbitration provisions in employment contracts allow cruise lines to subject seafarers to sweatshop working conditions and to engage in conduct in violation of U.S. criminal and civil statutes prohibiting forced labor and peonage. Under the ‘Effective Vindication Exception’ reaffirmed by this Court in Italian Colors (and applied the First, Second, And Fifth Circuits), arbitration provisions (requiring the application of foreign law) are void as against public policy, because they prospectively waive seafarers’ American statutory rights………… 15

CONCLUSION ………………………………………… 23

APPENDIX …………………………………………….. 24

TABLE OF CITED AUTHORITIES

Cases

American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) ……………. 8, 10, 11, 15 – 17, 22

Bainbridge v. Merchants’ & Miners’ Transp. Co.,

287 U.S. 278 (1932)………………………… 3, 10, 22, 23

Castillo v. Spiliada Maritime Corp.,

937 F. 2d 240, 243 (5th Cir. 1991) ………………… 4, 10

East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864-64 (1986) …………. 1

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564, 572 (1982)………………………………… 1

Hadnot v. Bay, Ltd.,

344 F. 3d 474, 478 n. 14 (5th Cir. 2003) …………. 9, 18

Isbrandtsen Co. v. Johnson, 343 U.S. 779 (1952)….. 2

Kristian v. Comcast,

446 F. 3d 25, 47-48 (1st Cir. 2006)……………….. 9, 18

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)………………… 8 – 11, 15 – 17

Parisi v. v. Goldman Sachs & Co., et al.,

710 F. 3d 483 (2nd Cir. 2013) ……………………… 9, 17

Paladino v. Avnet Computer Techs., Inc., 134 F. 3d 1054, 1062 (11th Cir. 1998) ……………………….. 9, 18

U.S. Bulk Carriers, Inc. v. Arguelles,

400 U.S. 351, 355 (1971)………………………………… 1

Statutes

Seaman’s Wage Act, 46 U.S.C. §10313…1, 3, 7, 19, 21

Jones Act, 46 U.S.C. §688 ……….……………………… 4, 12

18 U.S.C. §1589 …………………………………………. 1, 6, 8

18 U.S.C. §1595…………………………………….…….. 1,6, 8

Foreign Statutes

Norway’s “Seamen’s Act of 30 May 1975 ………. 20, 21

Secondary Sources

Rory Bahadur, Constitutional History, Federal Arbitration and Seamen’s Rights Sinking in a Sea of Sweatshop Labor, Journal of Maritime Law and Commerce, 39 J. Mar. L. & Com. 157 (April, 2008)… 2

INTEREST OF THE AMICI CURIAE [1]

Amici curiae are 571 current and former cruise line workers. Like thousands of other seafarers employed by cruise lines based in the United States, the seafarers’ employment was governed by contracts containing arbitration clauses.

These arbitration clauses deprived them of their United States statutory rights by forcing them to arbitrate their claims under foreign law.

In the case of the amici curiae, arbitration under foreign law emboldened their cruise line employer to violate with impunity the Seaman’s Wage Act, 46 U.S.C. §10313, and U.S. criminal and civil statutes prohibiting forced labor and peonage,[2] for conduct occurring, in part, in the United States.

The maritime industry employs in excess of 1.2 million crew members. These seafarers are at the heart of today’s globalization. They assist with the transportation of approximately 90% of global trade. From the passenger cruise ships that transport millions of American tourists around the Caribbean, to the cargo vessels that bring merchandise from China’s factories to the American consumer; the work of these men and women is the main engine that drives economic activity in ports across the United States.

The work of a seaman has always been difficult and extremely dangerous, requiring long stays away from home and exposure to the perils of the sea. In fact, the existence of the seafarer has been described as a jail with the chance of drowning.[3] Working far from home, they are vulnerable to exploitation and abuse, non-payment of wages, non-compliance with contracts, exposure to poor diet and living conditions, and even abandonment at foreign ports.[4] Thus, from the earliest times, special protections have been enacted relating to seamen. In both the United States and Britain, these protections go back over 200 years.[5]

In Isbrandtsen Co. v. Johnson, 343 U.S. 779 (1952), this Court explained why our historic national policy, both legislative and judicial, has made seafarers a ‘protected class’ for over two centuries:

Whenever congressional legislation in aid of seamen has been considered since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen … Our historic national policy, both legislative and judicial, points the other way (from burdening seamen). Congress has generally sought to safeguard seamen’s rights. The maritime law, by inveterate tradition has made the ordinary seaman a member of a favored class. He is a ‘ward of the admiralty,’ often ignorant and helpless, and so in need of protection against himself as well as others … The ancient characterization of seamen as ‘wards of admiralty’ is even more accurate now than it was formerly.

Since the foundation of the Republic, therefore, “[t]he policy of Congress, as evidenced by its legislation, has been to deal with [seamen] as a favored class.” Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278 (1932).

The First Congress enacted laws to prevent shipowners from indiscriminately withholding a seafarer’s wages in 1790.[6] These laws were subsequently strengthened in scope for the benefit of seafarers in amendments passed in 1872, 1898 and 1915.

Congress also enacted the Jones Act, 46 U.S.C. §688, in 1920 to give seafarers a cause of action for negligence against employers and shipowners who fail to provide a safe work environment to their crewmembers. The Jones Act also explicitly provides that a seaman has the right to a jury trial. Congress also enacted civil and criminal statutes prohibiting “badges and incidents of slavery.”[7]

Like Congress, from the beginning, federal courts have remained guardians of seamen.[8] As the Fifth Circuit explained in Castillo v. Spiliada Maritime Corporation:[9] “[w]e are convinced that federal courts must remain vigilant in protecting the rights of seamen, whether foreign or domestic, in their relationship with their employer. This protection comports with our nation’s long history of concern and solicitude for seamen with employment disputes.”

In their historic role as guardians of seamen, federal courts have produced a rich body of common law rights and privileges specifically applicable to seafarers, under the general maritime law of the United States. As this Court has stated, “[d]rawn from state and federal sources, the general maritime law is an amalgam of traditional common law rules, modifications of those rules, and newly created rules.”[10] This includes an employer’s duty to pay maintenance and cure and the shipowner’s duty to provide a seaworthy vessel.

The inalienable rights of seafarers promulgated by Congress and the federal courts are under assault. They are being implicitly abolished by courts that ratify foreign arbitration clauses in crewmembers’ employment contracts.

Accordingly, the outcome of this case will affect the lives of tens of thousands of seafarers, including the amici curiae, who work onboard cruise ships mostly in Florida and U.S. ports, for American-based cruise lines. The Eleventh Circuit’s decision in Pysarenko v. Carnival Corporation, allowing arbitration of claims under foreign law, leaves these seafarers vulnerable to exploitation such as substandard wages, sweatshop-like working conditions, forced labor and modern forms of slavery.

In the case of amici curiae, foreign arbitration clauses allowed their employer to implement two schemes. Under the first scheme, the seafarers were victims of forced labor and were deprived of thousands of dollars of their wages every week, in violation of U.S. criminal and civil statutes prohibiting modern “badges and incidents of slavery.”[11] The second scheme consisted in depriving seafarers of their ability to bring any claims against their employer to hold it accountable for these policies.

Amici curiae worked as Stateroom Attendants for their employer, a Miami, Florida based cruise line with a fleet of 21 ships, controlling 17 percent share of the world cruise market. As Stateroom Stewards, they were responsible for hundreds of tasks, including but not limited to the cleaning and sanitation of rooms, and distribution of luggage to passengers. Typically, they provided these services to approximately forty-five (45) passengers daily.

Their compensation under the employment agreements with their employer consisted almost entirely of tips received from passengers. Under the contract, their employer only paid $50 per month to them directly as wages.[12] The rest of their compensation was comprised of gratuities provided by passengers. The employment contract required the cruise line employer to charge passengers the gratuities to be paid to Stateroom Attendants.

At the end of every cruise, the cruise line collected Stateroom Attendant gratuities from the passengers. These collected gratuities were in turn distributed to the Stateroom Attendants. In total, amici curiae were entitled to receive gratuities amounting to $3.50 per passenger, per day. Thus, for a seven-day cruise, they were entitled to receive in wages approximately $1,102.50 for forty-five 45 passengers served, or $24.50 per passenger.

Starting on 2008, the cruise line employer implemented a scheme consisting in requiring and/or forcing them to work, effectively without pay, in other sections of its ships. At that time, the cruise line implemented a program to save money at the expense of the Stateroom Attendants.

As part of the scheme the cruise line created a rating system for Stateroom Attendants. Under the rating system, every two weeks, the cruise line scored and/or graded the work performance of stateroom attendants. The Stateroom Attendants with the lowest ranking scores were punished, temporarily demoted and forced to work, effectively without pay, for two weeks or more.

During the demotion period, referred to as working at the “back of the house,” the cruise line required amici curiae to clean and sanitize the rooms of other crewmembers. Because, unlike passengers, crewmembers are not required to tip or give gratuities to people cleaning their rooms; during the entire time that Stateroom Attendants were sent to work on the “back of the house” they received no gratuities and/or tips – and were thus effectively deprived of their wages. The implementation of this scheme was motivated solely to save the cruise line money, by having people clean crew cabins effectively for free.

As a result of the Eleventh Circuit’s enforcement of foreign arbitration clauses in cruise line employment contracts, the 571 amici curiae, like thousands of other seafarers working for American-based cruise lines in United States ports, have been deprived of their Congressional statutory rights to bring claims for illegal deduction of wages under the Seaman’s Wage Act, 46 U.S.C. §10313,[13] and for violation of the Forced Labor and Peonage statute under 18 U.S.C. §1595.[14]

For these reasons, cetiorari review of the Eleventh Circuit’s decision in Pysarenko v. Carnival Corporation is warranted. Amici curiae, consisting of 571 current and former cruise line workers, urges this Court to grant Petitioner, Vitalii Pysarenko’s Petition for A Writ of Certiorari.

SUMMARY OF THE ARGUMEN

First, the Eleventh Circuit’s ruling conflicts with recent United States Supreme Court precedent under American Express Co. v. Italian Colors Restaurant, __ U.S. ___ (2013), 133 S.Ct. 2304 (2013) and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). These cases hold that arbitration agreements that include foreign choice-of-law clauses are void as against public policy because they prospectively waive a litigant’s right to pursue U.S. statutory remedies.

In the case of the amici curiae, their employment contracts included clauses requiring arbitration under Norwegian law. Similarly, in the case of Petitioner, Vitalii Pysarenko, his employment contract requires arbitration under Panamanian law. Under this Court’s decisions in Mitsubishi Motors and American Express, these clauses are unenforceable.

The Eleventh Circuit’s ruling also conflicts with the precedent of the First, Second and Fifth Circuits, invalidating arbitration agreements that deprive a party of their U.S. statutory rights. See Parisi v. Goldman Sachs & Co., et al., 710 F. 3d 483 (2nd Cir. 2013):

In line with Mitsubishi, this Court and other Circuit courts have found two circumstances in which motions to compel arbitration must be denied because arbitration would prevent plaintiffs from vindicating their statutory rights … Second, a number of circuits have altered or invalidated arbitration agreements where they interfered with the recovery of statutorily authorized damages. See, e.g. Kristian v. Comcast, 446 F. 3d 25, 47-48 (1st Cir. 2006) (severing as unenforceable a provision of an arbitration agreement limiting availability of treble damages under the Sherman Act); Hadnot v. Bay, Ltd., 344 F. 3d 474, 478 n. 14 (5th Cir. 2003) (severing a restriction on available remedies from an arbitration agreement after finding that a “ban on punitive and exemplary damages is unenforceable in a Title VII case.”); Paladino v. Avnet Computer Techs., Inc., 134 F. 3d 1054, 1062 (11th Cir. 1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute … the arbitration is not enforceable” and that the language insulating an employer from damages and equitable relief renders the clause unenforceable”).

The public policy concerns raised by the Supreme Court in Mitsubishi Motors and Italian Colors are particularly relevant to seafarers. As noted above, since the foundation of the Republic, “[t]he policy of Congress, as evidenced by its legislation, has been to deal with [seamen] as a favored class.” Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278 (1932). Further, as the Fifth Circuit explained in Castillo v. Spiliada Maritime Corp., 937 F. 2d 240, 243 (5th Cir. 1991), “[h]istorically, seamen have enjoyed a special status in our judicial system. They enjoy this status because they occupy a unique position. A seaman isolated on a ship on the high seas is often vulnerable to the exploitation of his employer. Moreover, there exists great inequality in bargaining position between large ship-owners and unsophisticated seamen.” Id. at 243. Thus, “[t]o shield seamen against unfair conduct by ship-owners, Congress enacted special protection statutes. Congress did not limit this statutory coverage to American seamen; rather, Congress extended protection to seamen who serve on a foreign vessel when located in a United States harbor. 46 U.S.C. §10313.” Id.

Now, suddenly, two hundred years of Congressional statutory rights are being wiped-out. To circumvent their obligations under United States law, cruise lines are drafting mandatory arbitration provisions that prohibit seafarers from filing claims under U.S. law, and require them to arbitrate under the laws of a foreign jurisdiction. In the case of the amici curiae, their cruise line employer’s arbitration clause provides that all causes of action must be brought under Norwegian law “without regard to any conflict of laws principles.” This is the type of “prospective waiver of statutory rights” described by the Supreme Court in Mitsubishi Motors and Italian Colors. Put simply, arbitration cannot take from the seafarers, the rights that Congress specifically vested on them.

Most troubling is the fact that their employer selected foreign law, which does not apply to the amici curiae Seafarers. As shown below, Norway’s Seaman’s laws expressly provide that they do not apply to “foreign cruise line workers.” Rather, they only apply to Norwegian citizens and residents (Petitioners are neither). Therefore, if the amici curiae arbitrate their claims they will get no protections under either U.S. law or Norway’s Seaman’s laws.

All in all, under the Eleventh Circuit’s decision, cruise lines, such as the amici curiae’s employer, have carte blanche to willfully violate U.S. laws and to exploit its labor force with impunity in the United States. This inevitably leads to the creation of an underclass of workers, who now find themselves in legal limbo and without recourse. The Eleventh Circuit’s decision leaves these seafarers vulnerable to their employer’s abuse, and opens the door to continued exploitation such as substandard wages, sweatshop-like working conditions, forced labor and peonage. Such an end result is contrary to public policy, in light of the special protections afforded to seafarers for over two hundred years in this country.

          Second, the outcome of this case will affect millions of American citizens who travel on board cruise ships. The safety of these passengers has been greatly compromised by enforcement of foreign arbitration clauses in seaman’s contracts. In particular, these clauses allow cruise lines to regulate their labor relations under non-U.S. law. This has emboldened cruise lines to understaff their vessels and overwork their poorly trained crewmembers, to the point of putting millions of American passengers’ lives at risk.

The Costa Concordia shipwreck and the Carnival Triumph engine fire are two recent examples of tragedies which resulted from cruise lines failure to properly train their crewmembers, provide them adequate rest periods, and maintain seaworthy vessels; basic requirements under U.S. law. If nothing is done to remedy this situation, more of these maritime disasters are bound to occur.

ARGUMENT

1. The enforcement of foreign arbitration clauses in seafarers’ contracts is greatly compromising the safety of American cruise passengers.

 For over two hundred years, federal statutes and common law doctrines applicable to seafarers have served two complementary goals: adequate working conditions for seafarers and passenger safety. For instance, both the Jones Act, 46 U.S.C. §30104 and the common law ‘duty of seaworthiness,’ require shipowners who visit U.S. ports (such as Respondent Carnival) to provide seafarers a reasonable safe place to work. This translates into requiring shipowners to provide their crew reasonable work and rest hours, maintaining proper and adequate safety equipment, adequately training crew, having enough crew members to be able to safely complete assigned tasks on board ships, etc. Having these U.S. legal standards in place, ensures that shipowners do not understaff their vessels and overwork poorly trained crewmembers. Otherwise, as recent events have shown, a ship’s crew would be unable to handle maritime disasters, placing passengers in harm’s way.

The enforcement of foreign arbitral provisions in seaman’s employment contracts (allowing cruise lines to regulate their labor relations under foreign law), has emboldened shipowners to significantly reduce worker safety on board their vessels, translating into poor safety conditions for passengers.

On January 13, 2012 the cruise ship Costa Concordia partially sank when it ran aground at Isla del Giglio, Tuscany. The ship, carrying 4,253 people, hit a reef during an unofficial near-shore salute to the local islanders. To perform this maneuver, the captain deviated from the ship’s computer-programmed route. Notably, during the sinking, the Concordia crew (overworked and understaffed) were unable to properly manage the evacuation of passengers. The end result: 31 people are known to have died and 64 other were injured.

Shortly thereafter, on February 10, 2013, the Carnival Triumph suffered a fire in its engine room, resulting in the ship’s loss of power and propulsion. This left the ship adrift 150 miles of the coast of Mexico. Over the next four days, 3,143 passengers and 1,086 crew were forced to make do with cold food, no hot water, sweltering indoor temperatures, and few working toilets (leading to what passengers described as overrun sewage running down the walls across the ship). Reportedly, the thousands of souls on board had to endure these precarious conditions primarily because the ship’s understaffed and overworked crew never got around to fixing a generator not working for about one year.

So long as these foreign arbitration agreements continue to be enforced, cruise lines will continue to feel emboldened to understaff their vessels and overwork their poorly trained crewmembers, to the point of putting millions of passengers’ lives at risk. If nothing is done to remedy this situation, more of these maritime disasters are bound to occur.

By way of analogy, the Federal Aviation Administration (“FAA”) sets strict rules for all airlines (foreign and domestic) that fly planes to and from the United States. One of such rules, limits the flying time of pilots and co-pilots on commercial planes. As recent airline disasters have shown, pilots who are overworked and tired, represent a danger not only to themselves, but also to every passenger on the plane. To that end, the FAA has rules in place limiting working hours. If tomorrow airlines did not have to comply with these U.S. laws, but rather were able to regulate the working hours of pilots under foreign law, there is no question that American passengers’ lives would be at risk.

1. Foreign arbitration provisions in employment contracts allow cruise lines to subject seafarers to sweatshop working conditions and to engage in conduct in violation of U.S. criminal and civil statutes prohibiting forced labor and peonage. Under the ‘Effective Vindication Exception’ reaffirmed by this Court in Italian Colors (and applied the First, Second, And Fifth Circuits), arbitration provisions (requiring the application of foreign law) are void as against public policy, because they prospectively waive seafarers’ American statutory rights.

The Eleventh Circuit’s order conflicts with United States Supreme Court precedent. In American Express Co. v. Italian Colors Restaurant, __ U.S. ___ (2013), 133 S. Ct. 2304 (2013) this Court held that arbitration agreements that include foreign choice-of-law clauses are void as against public policy when they prospectively waive a litigant’s right to pursue U.S. statutory remedies. This doctrine is referred by the Supreme Court as the “effective vindication exception.” See Italian Colors, at 2310:

The “effective vindication” exception to which respondents allude originated as dictum in Mitsubishi Motors, where we expressed a willingness to invalidate, on “public policy” grounds, arbitration agreements that “operat[e] … as a prospective waiver of a party’s right to pursue statutory remedies.” 473 U.S., at 637, n. 19, 105 S.Ct. 3346 (emphasis added). Dismissing concerns that the arbitral forum was inadequate, we said that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Id., at 637, 105 S.Ct. 3346. Subsequent cases have similarly asserted the existence of an “effective vindication” exception, see, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 273–274, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), but have similarly declined to apply it to invalidate the arbitration agreement at issue.

And we do so again here. As we have described, the exception finds its origin in the desire to prevent “prospective waiver of a party’s right to pursue statutory remedies,” Mitsubishi Motors, supra at 637, n. 19, 105 S. Ct. 3346 (emphasis added). That would certainly cover a provision in an arbitration agreement forbidding the assertion of certain statutory rights. And it would perhaps cover filing and administrative fees attached to arbitration that are so high as to make access to the forum impracticable. See Green Tree Financial Corp.–Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000)

Am. Exp. Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2310-11 (2013) (footnotes omitted: “right to pursue” emphasis in original; other emphasis added).

These two sentences from this Court’s opinion bear repeating: “the [effective vindication] exception finds its origin in the desire to prevent ‘prospective waiver of a party’s right to pursue statutory remedies.’” That would certainly cover a provision in an arbitration agreement forbidding the assertion of certain statutory rights.” Id. (emphasis added).

In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), cited in Italian Colors, the Supreme Court ruled that U.S. district courts should enforce agreements resolving antitrust claims through arbitration when those agreements arise from international, commercial transactions. This Court, however, also noted that “in the event the choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, [it] would have little hesitation in condemning the agreement as against public policy.” Id. at 637 n. 19.

The Mitsubishi Motors ‘effective vindication doctrine’ has been reaffirmed in four subsequent Supreme Court decisions. See American Express Co. v. Italian Colors Restaurant, __ U.S. ___ (2013), 133 S.Ct. 2304 (2013) (“Subsequent cases have similarly asserted the existence of an “effective vindication” exception, see, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 273–274, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009), Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).”)

More importantly, circuit courts around the country have applied the ‘effective vindication doctrine’ to invalidate arbitration agreements that deprive a party of their U.S. statutory rights. See Parisi v. Goldman Sachs & Co., et al., 710 F. 3d 483 (2nd Cir. 2013):

In line with Mitsubishi, this Court and other Circuit courts have found two circumstances in which motions to compel arbitration must be denied because arbitration would prevent plaintiffs from vindicating their statutory rights … Second, a number of circuits have altered or invalidated arbitration agreements where they interfered with the recovery of statutorily authorized damages. See, e.g. Kristian v. Comcast, 446 F. 3d 25, 47-48 (1st Cir. 2006) (severing as unenforceable a provision of an arbitration agreement limiting availability of treble damages under the Sherman Act); Hadnot v. Bay, Ltd., 344 F. 3d 474, 478 n. 14 (5th Cir. 2003) (severing a restriction on available remedies from an arbitration agreement after finding that a “ban on punitive and exemplary damages is unenforceable in a Title VII case.”); Paladino v. Avnet Computer Techs., Inc., 134 F. 3d 1054, 1062 (11th Cir. 1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute … the arbitration is not enforceable” and that the language insulating an employer from damages and equitable relief renders the clause unenforceable”).

In the case of the amici curiae seafarers, their employment contract contains an arbitration clause that calls for arbitration under the laws of Norway. Accordingly, in order to successfully file claims for reimbursement of their wages, these seafarers would have to rely exclusively on Norwegian law.

A thorough review of relevant Norwegian legislation (approximately 367 Parliamentary acts) reveals that Norwegian law does not recognize the same rights and causes of action afforded to seafarers by the United States Seaman’s Wage Act.[15]

Out of the 367 Acts, only one act, Norway’s “Seamen’s Act of 30 May 1975 no. 18,” (“Norway Seamen’s Act”), concerns the rights of seafarers working aboard ships. However, because the amici curiae in this matter are neither residents nor citizens of Norway, the provisions of the Norway Seamen’s Act exclude them.

In fact, Norway’s Seamen’s Act, specifically excludes application of the act to: 1) cruise ship workers, 2) who are neither residents nor citizens of Norway, 3) working for a foreign (non-Norwegian) employer. See §1 “Scope of Act,” Norway Seamen’s Act of 30 May 1975 No. 18:

• 1 The scope of the Act

This Act applies to any person who is employed on board a Norwegian ship, and who does not only work on board while the ship is in port.

Persons who are neither residents in Norway nor Norwegian nationals and who are hired by a foreign employer to serve passengers on board a cruise ship, are only subject to provisions in §4, §18, subsection 1, first and second paragraph, however, with the exception of the right to be transferred under the second paragraph, §18 subsection 3 as well as §27, Chapter II A and Chapter II A and Chapter II B, §§39, 43, 45 and 49. Nationals of countries to which the EEA Agreement applies shall be considered equal to Norwegian Nationals.

Id., (emphasis added). First, the amici curiae seafarers, are neither citizens nor residents of Norway. Second, they worked aboard cruise ships for a non-Norwegian (foreign) employer,[16] on Bahamian flagged vessels. Third, the wage sections of Norway’s Seaman’s Act are §§21, 22, 23, 24, and 25 (neither of which are listed as exceptions to the exclusion in §1 above). Moreover, none of the listed exceptions in §1 above (§§4, 18, 27, 39, 43, 45 and 49)[17] recognize a seaman’s right to sue for an employer’s deprivation of wages or to prevent forced labor. Fourth, the amici curiae are not nationals of a country to which the EEA Agreement applies.[18]

Therefore, as set forth in of §1 the Norway Seaman’s Act, the Amici Curiae do not have remedies for unpaid wages under Norwegian law.

Moreover, these Norwegian provisions do not allow seafarers to sue their employer for penalty wages, an unmistakable and unique statutory right under the U.S. Seaman’s Wage Act, 46 U.S.C. §10313.[19]

Finally, as shown in (Norway Seaman’s Act of 30 May 1975 No. 18), Norwegian law also does not recognize a seafarer’s right to bring civil claims against a perpetrator (or whoever knowingly financially benefits from) forced labor and/or peonage. This right is unique to United States statutory law. 18 U.S.C. §1595.

All in all, by forcing the amici curiae to arbitrate, they will be forced to do so under laws which specifically exempt “cruise line workers” and “non-Norwegian citizens.” To put it more bluntly, if the Petitioners are required to arbitrate under Norwegian law, they get nothing.

Thus, arbitration deprives the amici curiae of their Congressional statutory rights to bring claims against their employer for failure to pay wages and for subjecting them to forced labor. Such deprivation of statutory rights is contrary to this country’s public policy of treating seafarers as a unique and favored class. See, e.g. Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278, 282 (1932) (“The policy of Congress, as evidenced by its legislation, has been to deal with [seamen] as a favored class”).

Arbitration under Norwegian law would undoubtedly deprive the amici curiae of their United States statutory rights, as none of the claims presented by them would be cognizable under Norwegian law. The effective vindication doctrine, therefore, invalidates their employer’s arbitration provisions on public policy grounds. Using the express language of the Supreme Court in Italian Colors at 2310-11, there is no question that the cruise line’s choice-of-law provision (forcing amici curiae to file claims under Norwegian law in the arbitration agreement) is “certainly cover[ed]” under the effective vindication exception because it because it “forbids” amici curiae from asserting “statutory rights” under the Seaman’s Wage Act.

Therefore, under this Court’s precedent these type of arbitration provisions, requiring the application of foreign law, should be declared “void as against public policy.” See, e.g. Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278, 282 (1932) (“The policy of Congress, as evidenced by its legislation, has been to deal with [seamen] as a favored class”).

CONCLUSION

 Cetiorari review of the Eleventh Circuit’s decision in Pysarenko v. Carnival Corporation is warranted. Amici curiae, consisting of 571 current and former cruise line workers, urges this Court to grant Petitioner, Vitalii Pysarenko’s Petition for A Writ of Certiorari.

Submitted on March 9th, 2015.
Carlos Felipe Llinás Negret
LIPCON MARGULIES
ALSINA & WINKLEMAN P.A.
Counsel for Amici curiae

2 South Biscayne Boulevard
Suite 1776
Miami, Florida 33131
(305) 373 – 3016

[1] Under Rule 37(2), counsel of record received timely notice of intent to file this brief. Counsel for Petitioner and counsel for Respondent consented to this filing. No counsel for a party authored this brief in whole or part, and no counsel or party made a monetary contribution to fund the preparation or submission of this brief. No person other than the amici curiae and their counsel, made any monetary contribution to its preparation and submission.

[2] See 18 U.S.C. §1589 and §1595 (a).

[3] Rory Bahadur, Constitutional History, Federal Arbitration and Seamen’s Rights Sinking in a Sea of Sweatshop Labor, Journal of Maritime Law and Commerce, 39 J. Mar. L. & Com. 157 (April, 2008), p. 158.

[4] International Labor Organization. https://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/seafarers

[5] Thomas J. Schoenbaum, Admiralty and Maritime Law, 4^th Edition, p. 198. For a review of these laws, see The Osceola, 189 U.S. 158 (1903).

[6] See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 572 (1982), analyzing the history of the Seaman’s Wage Act, which owes its origins to the Act of July 20, 1790, passed by the First Congress.

[7] 18 U.S.C. §1595

[8] See U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 355 (1971) (“Seamen from the start were wards of admiralty. The federal courts remained as the guardians of seamen, the entities chosen by Congress, to enforce their rights-a-guardian concept which, so far as wage claims are concerned, is not so much different than what it was in the 18th century”)

[9] 937 F. 2d 240, 243 (5th Cir. 1991).

[10] East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864-64 (1986).

[11] See 18 U.S.C. §1589; 18 U.S.C. §1595.

[12] This averages to one-dollar and 67 cents ($1.67) per day.

[13]         The Seaman’s Wage Act, 46 U.S.C. §10313, focuses on ensuring wage payment to seamen via a treble-damages wage-penalty provision assessed on employers for late wages. The purpose of the penalty wage statutes is to secure prompt payment of seaman’s wages and thus protect them from the harsh consequences of arbitrary and unscrupulous action by their employers. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 572 (1982).

[14] Under 18 U.S.C. §1589 “[w]hoever provides or obtains the labor or services of a person by … means of serious harm or threat of serious harm to that person … shall be punished … Whoever violates this section shall be fined under this title, imprisoned not more than 20 years, or both. Additionally, under 18 U.S.C. §1595 (a) an individual who is a victim of “forced labor” and/or “peonage” may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act of forced labor and/or peonage)

[15]          For a list of Norway’s 367 parliamentary acts, see www.ub.uio.no/cgi-bin/ujur/ulov/sok.cgi?type=LOV. The list includes each act in chronological order. Under the name of each act, there is a web link to access a copy each Act in English.

[16]         The amici curiae’s employer is a Liberian corporation, with its principal place of business (corporate headquarters), in Miami, Florida.

[17]          Section 4 deals with “minimum working age”; section 18 deals with a seafarer’s rights and duties upon loss of a ship, in connection with maritime accident;” section 27 deals with the “care of sick or injured seafarers;” section 39 deals with a seafarer’s “duty to comply with orders;” section 43 deals with a seafarer’s right to hold religious services aboard the vessel; section 45 deals the personal effects that a seafarer is allowed to carry on board the vessel; and section 49 deals with the masters duties if felonies are committed while the vessel is abroad.

[18]         The EEA agreement applies only to citizens of European Union nations, citizens of Sweden, Norway, Iceland and Liechtenstein. Amici curiae are not European Union nationals, and are not citizens of Sweden, Norway Iceland or Liechtenstein.

[19]          The U.S. Seaman’s Wage Act penalty wage provisions, 46 U.S.C. §10313, 46 U.S.C. §10504, provide: (g) (1) Subject to paragraph (2), when payment is not made as provided under subsection (f) of this section without sufficient cause, the master or owner shall pay to the seaman 2 days’ wages for each day payment is delayed. This “chief tool” is a U.S. statutory right, not recognized by Norwegian law.