# Cakerevic v. Royal Caribbean Cruises, LTD.

> District Court, S.D. Florida · June 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10122065

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** June 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10122065

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122065. Public record. Not legal advice.