Cakerevic v. Royal Caribbean Cruises, LTD.

United States District Court

for the

Southern District of Florida

Miodrag Cakarevic, Plaintiff, )

)

v. ) Civil Action No. 23-21536-Civ-Scola

)

Royal Caribbean Cruises, LTD., )

Defendant. )

Order Granting Motion to Dismiss and Compelling Arbitration

This matter is before the Court on Defendant Royal Caribbean Cruises,

LTD.’s motion to dismiss and compel arbitration. (Mot. Dismiss, ECF No. 4.)

Plaintiff Moidrag Cakarevic responded in opposition and included in his response

a motion to remand. (Mot. Remand, ECF No. 7.) The Defendant responded in

opposition and replied in support of its own motion. (Def.’s Resp., ECF No. 14.)

The Plaintiff has not submitted a reply in support of his motion to remand, and

the time to do so has passed. After careful consideration of the briefing, the

record, and the relevant legal authorities, the Court grants the Defendant’s

motion to dismiss and compel arbitration. (ECF No. 4.)

1. Background

Plaintiff Moidrag Cakarevic originally filed his complaint against Defendant

Royal Caribbean Cruises, LTD. (“Royal Caribbean”) in Florida state court.

(Compl., ECF No. 1-4.) Cakarevic seeks damages against Royal Caribbean, the

owner of the vessel M/V Horizon, on which Cakarevich worked as a seaman,

through one count for unseaworthiness under maritime law (Count I) and one

count for failure to provide maintenance and cure, also under maritime law

(Count II). (Id. ¶¶ 2, 6-7, 28-39.) Cakarevic’s claims center around his contracting

of COVID-19 during a cruise he worked on in March of 2020. (Id. ¶ 8.) He claims

that Royal Caribbean created a dangerous situation for him (and other

crewmembers) when it allowed passengers to board the Horizon on March 14,

2020, despite the various international warnings then present about the dangers

of the nascent COVID-19 pandemic. (Id. ¶¶ 18-24.)

Royal Caribbean removed this matter from state court and subsequently

moved to dismiss and compel arbitration under the United Nations Convention on

the Recognition and Enforcement of Foreign Arbitral Awards (the “New York

Convention”). Royal Caribbean argues that Cakarevic’s employment agreement

with Pullmantur Ship Management, Ltd (“Pullmantur”) contains an arbitration

agreement that covers the claims at issue here and that is enforceable under the

New York Convention. (Mot. Dismiss at 2-3 ¶¶ 5-6; Mot. Dismiss Ex. 2 ¶ 12(a),

ECF No. 4-2.) Although Cakarevich and Pullmantur are the parties to this

agreement, Royal Caribbean argues that its language addresses the claims at

issue here and that Royal Caribbean may enforce the agreement under principles

of equitable estoppel. (Mot. Dismiss at 6-12.) Cakarevic, in turn, argues that

Royal Caribbean, as a non-party, may not enforce the agreement, and that his

claims are not related to the employment agreement because they are common-

law maritime claims. (Mot. Remand at 5-17.) Therefore, Cakarevic argues, the

Court lacks subject-matter jurisdiction under the New York Convention and must

remand. (Id.)

The employment agreement’s arbitration clause contains the following

language, on which the Court must rely in addressing both parties’ motions:

12. JURISDICTION AND ARBITRATION

A. All grievances and any other dispute whatsoever, whether in contract,

regulatory, statutory, common law, tort or otherwise relating to or in any

way “connected with the Employee’s service for the Owners/Company

under the present Agreement, including but not limited to claims for

personal injury/disability or death, no matter how described, pleaded, or

styled, and whether asserted against the Owners/Company, Master,

Employer, Ship Owner, vessel or vessel operator shall be referred to and

resolved exclusively by mandatory binding arbitration pursuant to the

United Nations Conventions on the Recognition and Enforcement of Foreign

Arbitral Awards (New York 1958), 21 U.S.T. 2517, 330 U.N.T.S., (“The

Convention”), except as provided by any government mandated contract.

(Mot. Dismiss Ex. 2 ¶ 12(a).)

2. Legal Standard

The New York Convention is a “multi-lateral treaty that requires courts of a

nation state to give effect to private agreements to arbitrate and to enforce

arbitration awards made in other contracting states.” Thomas v. Carnival Corp.,

573 F.3d 1113, 1116 (11th Cir. 2009). The Convention is enforced through the

Federal Arbitration Act. 9 U.S.C. §§ 201, et seq. In accordance with the

Convention, “[w]here 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 defendants may, at any time before the trial thereof, remove

such action or proceeding to the district court of the United States.” 9 U.S.C.

§ 205.

The Eleventh Circuit has described the following as the “four jurisdictional

prerequisites” that must be met under the New York Convention: (1) there is an

agreement in writing to arbitrate the dispute within the meaning of the

Convention; (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 that

the commercial relationship has some reasonable relation with one or more

foreign states. Bautista v. Star Cruises, 396 F.3d 1289, 1294, 1295 n. 7 (11th Cir.

2005). Where these jurisdictional requirements are not met, removal is improper.

See Wexler v. Solemates Marine, Ltd., No. 16-CV-62704, 2017 WL 979212, at *3

(S.D. Fla. Mar. 14, 2017) (Bloom, J.) (“If . . . the arbitration clause . . . is not

applicable to some or all of the claims at issue, then the Court does not have

subject matter jurisdiction of those claims and those claims must be remanded.”)

Conversely, where these requirements are met, a “court must enforce [the]

agreement to arbitrate under the Convention.” See Ruiz v. Carnival Corp., 754 F.

Supp. 2d 1328, 1330 (S.D. Fla. 2010) (Cooke, J.).

3. Analysis

The Court finds that the Plaintiff is equitably estopped from disclaiming the

arbitration provision in his employment agreement with Pullmantur. Therefore,

the Court must grant Royal Caribbean’s motion to dismiss and compel the

Plaintiff’s claims to arbitration, consistent with the terms in his employment

agreement. This outcome is compelled by Eleventh Circuit case law and the plain

terms of the arbitration provision itself.

The Plaintiff argues that the Court should not consider the agreement

because it is not referenced in his complaint (nor is his relationship with

Pullmantur addressed at all). (Mot. Remand at 5-6.) He also argues that the

Southern District of Florida has remanded cases on similar grounds. (Id. at 6-7

(citing Pineda v. Oceania Cruises, Inc., 283 F. Supp. 3d 1307, 1310 (S.D. Fla.

2017) (Scola, J.).) Finally, he argues that Royal Caribbean is not entitled to

enforce the arbitration provision because it is not a party to the employment

agreement, it is not a specifically identified third-party beneficiary, and because

the Plaintiff’s claims here are common-law maritime claims, not contractual

claims. (Id. at 8-17.)

But each of these arguments ignores the Eleventh Circuit’s clear guidance

on these matters. Equitable estoppel is available to allow a nonsignatory to

compel arbitration in two circumstances: (1) “when the signatory to a written

agreement containing an arbitration clause must rely on the terms of the written

agreement in asserting its claims against the nonsignatory”; and (2) “when the

signatory to the contract containing the arbitration clause raises allegations of

substantially interdependent and concerted misconduct by both the nonsignatory

and one or more of the signatories to the contract.” MS Dealer Serv. Corp. v.

Franklin, 177 F.3d 942, 947 (11th Cir. 1999) (quotations and alterations omitted).

Under binding Eleventh Circuit precedent, the first circumstance is clearly met

here.

Cakarevic’s employment on the Horizon—and therefore his maritime law

claims relating to that employment—was an “immediate, foreseeable result of his

contractual duties” with Pullmantur. Martinez v. Carnival Corp., 744 F.3d 1240,

1246 (11th Cir. 2014). His claims for unseaworthiness and failure to provide

maintenance and cure “clearly arose out of or in connection with” that contract:

without Pullmantur’s employing Cakarevic as a seaman, he would not have been

a seaman on Royal Caribbean’s vessel and therefore would not be eligible for the

maritime remedies he seeks. Id. at 1246-47 (holding that Jones Act and maritime

claims against non-signatory shipowner were required to be arbitrated under

terms of seaman’s arbitration agreement with employer); Doe v. Princess Cruise

Lines, Ltd., 657 F.3d 1204, 1220-21 (11th Cir. 2011) (holding that seaman’s

claims relating to shipboard sexual assault must be arbitrated against non-

signatory shipowner under terms of seaman’s arbitration agreement with

employer).

The plain terms of Cakarevic’s employment agreement with Pullmantur

cover his claims against Royal Caribbean. The arbitration provision requires that

“[a]ll grievances and any other dispute whatsoever, whether in contract,

regulatory, statutory, common law, tort or otherwise relating to or in any way

‘connected with the Employee’s service for the Owners/Company under the

present Agreement, including but not limited to claims for personal

injury/disability or death, no matter how described, pleaded, or styled, and

whether asserted against the Owners/Company, Master, Employer, Ship

Owner, vessel or vessel operator shall be referred to and resolved exclusively by

mandatory binding arbitration . . . .” (Mot. Dismiss Ex. 2 ¶ 12(a) (emphasis

added).) The arbitration provision contemplates that maritime law claims will be

arbitrated. And it contemplates that claims against the shipowner will be

arbitrated. This language is simple, clear, and straightforward.

This Court’s decision in Pineda is therefore inapplicable to the arbitration

provision at issue here. 283 F. Supp. 3d at 1310-11. In that case, the arbitration

clause stated the following:

Grievances and disputes arising on the [relevant] vessel[] or in

connection with this Agreement which cannot be resolved onboard or

between the parties shall be referred to arbitration . . . .

. . . .

Where a seafarer raises a grievance after leaving the vessel, the

grievance shall be referred to the Unions at Rome and the Company at

Miami, Florida and representatives of the parties shall promptly confer

to resolve the grievance or refer it to arbitration.

Id. at 1309. The Court found that provision was not sufficiently broad enough to

cover claims against the shipowner when the plaintiff asserted claims against the

shipowner. Id. at 1310-11. The arbitration provision at issue here is much more

similar to those provisions that the Eleventh Circuit has held must be arbitrated.

In Martinez, the arbitration provision required that “any and all disputes arising

out of in connection with this Agreement,” including those relating to the

seaman’s “service on the vessel” were subject to arbitration. 744 F.3d at 1245.

Similarly, in Doe, the seaman’s arbitration agreement required that “any and all

disputes ... relating to or in any way arising out of or connected with the Crew

Agreement,” including claims for “personal injury . . . shall be referred to and

resolved exclusively by binding arbitration.” Doe, 657 F.3d at 1214-15 (cleaned

up).!

Because Cakarevic’s claims fall within the scope of his arbitration

agreement, then, he is equitably estopped from avoiding the terms of that

agreement with regards to his claims against Carnival. Doe, 657 F.3d at 1221

(“All five of these claims are based on allegations that are dependent on [the

plaintiffs] status as a seaman employed by the cruise line and the rights that she

derives from that employment status ... . Because these five claims (counts I-V

of the amended complaint fall within the scope of the arbitration provision, the

district court erred by denying [the defendant cruise line’s] motion to compel

arbitration.”). His claims against Royal Caribbean must therefore be resolved

through binding arbitration, consistent with the terms of his employment

agreement.

4. Conclusion

For the reasons stated above, the Court grants the Defendant’s motion to

dismiss and compel arbitration. (ECF No. 4.) The parties are compelled to submit

the claims at issue to arbitration. The Plaintiffs claims are therefore dismissed

with prejudice, and the Court denies the Plaintiff's motion to remand. (ECF No.

7.) The Clerk is directed to close this case. Any pending motions are denied as

moot.

Done and ordered in Miami, Florida, on June 14, 2023.

Robert N. Scola, Jr.

United States District Judge

1 In fact, it appears that Cakarevic’s arbitration provision in his employment agreement with

Pullmantur is nearly word-for-word the same as the provision that the Eleventh Circuit held to be

enforceable by a non-signatory shipowner in Doe. (Mot. Ex. 2 12(a)); 657 F.3d at 1214-15.