Rodriguez v. NCL (Bahamas) LTD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 24-cv-23695-BLOOM/Elfenbein

MARIA ISABEL RODRIGUEZ,

Plaintiff,

v.

NCL (BAHAMAS) LTD. a Bermuda Company

d/b/a NORWEGIAN CRUISE LINE,

Defendant.

____________________________/

ORDER ON DEFENDANT’S SECOND MOTION TO COMPEL ARBITRATION AND

TO STAY

THIS CAUSE is before the Court upon Defendant NCL (Bahamas) Ltd. d/b/a Norwegian

Cruise Line’s (“Norwegian”) Second Motion to Compel Arbitration and to Stay (“Motion”), ECF

No. [20], to which Plaintiff Maria Isabel Rodriguez (“Plaintiff”) filed a Response in Opposition,

ECF No. [26], and Norwegian filed a Reply, ECF No. [27]. The Court has reviewed the Motion,

the supporting and opposing submissions, the record in the case, and is otherwise fully advised.

For the reasons that follow, Norwegian’s Motion is denied.

I. BACKGROUND

This matter arose while Plaintiff was employed as a massage therapist onboard

Norwegian’s cruise ship, Norwegian Getaway. ECF No. [11] at ¶ 2. Although Plaintiff worked

aboard Norwegian’s ship, she was not employed by Norwegian; instead, Plaintiff had an

employment agreement with OneSpaWorld to provide services aboard the Norwegian Getaway.

ECF No. [1-1]. However, “[w]hile working aboard Norwegian’s ship, Plaintiff repeatedly visited

the ship’s medical facility to seek treatment for symptoms that arose during her service aboard the

vessel. ECF No. [11] at ¶ 15. Norwegian “employed the ship’s doctors and medical personnel

aboard” the vessel whom Norwegian expected to provide “medical and emergency medical

treatment to its crew and passengers.” Id. at ¶ 17. According to Plaintiff, Norwegian’s medical

staff “failed to properly and timely diagnose and treat the illness that Plaintiff developed while

serving as a crewmember,” and as a result, “her medical condition deteriorated.” Id. at ¶¶ 26-27.

Eventually, on December 23, 2022, Plaintiff disembarked the ship, and Defendant arranged

for Plaintiff to receive “a shoreside medical evaluation and treatment at a hospital in New York

City” where she “was diagnosed with serious conditions that prevented her from traveling or

working.” Id. at ¶ 44. However, Plaintiff ultimately returned to the ship, and just three days later,

“disembarked on Defendant’s ship in Port Canaveral, Florida. Once Defendant’s ship arrived in

Port Canaveral, Plaintiff was admitted to Cape Canaveral Hospital and diagnosed with: “(1)

Pancytopenia with severe thrombocytopenia (platelets 26K upon admission)[;] [b]one marrow

biopsy hypocellular and no megakaryocytes; (2) mild anemia; (3) mild leukopenia; and (4)

subclinical PNH/aplastic anemia.” Id. at ¶ 46. Plaintiff was then transferred to Advent Health in

Orlando, Florida “where she was diagnosed with severe aplastic anemia.” Id. at ¶ 47.

Once Plaintiff finally returned to Norwegian’s ship on February 6, 2023, Norwegian

purportedly “refused to provide Plaintiff with the recommended medical treatment” and “required

Plaintiff to return to her home country of Columbia for less expensive (cheaper) medical care.”

ECF No. [11] at ¶ 48. However, the medical team in Columbia was purportedly “substandard,”

and consequently, Plaintiff’s health worsened. Id. at ¶ 56.

Given Norwegian’s failure to provide adequate medical care aboard its ship and its failure

to send Plaintiff to capable shoreside medical providers, Plaintiff filed this action alleging the

following counts against Norwegian: (1) unseaworthiness; (2) vicarious liability based on actual

agency; and (3) vicarious liability based on apparent agency. See generally ECF No. [11].

On October 30, 2024, Norwegian filed the instant Motion contending that this action may

not proceed in federal court because Plaintiff’s claims against Norwegian are subject to the

arbitration clause provided in Plaintiff’s employment agreement (the “Contract”) with

OneSpaWorld LLC (“OneSpaWorld”). ECF No. [20] at 1, 3. While Norwegian acknowledges that

it was not a party to the Contract, Norwegian contends that it should be able to invoke the

arbitration provision of the Contract because (1) Norwegian was an intended third-party

beneficiary of the Contract; and (2) under agency and related principles, Norwegian is so closely

affiliated with OneSpaWorld that Norwegian should be able to enforce the employment agreement

as if it is OneSpaWorld. Id. at 3.1

Plaintiff argues that Norwegian cannot invoke the arbitration clause. ECF No. [26]. Not

only did Plaintiff elect not to bring any claims against the only other signatory to the Contract,

OneSpaWorld, the claims against Norwegian were not brought based on rights or duties provided

in the Contract. Id. at 1. Moreover, even assuming the Contract was relevant to Plaintiff’s claims

against Norwegian, Norwegian was not a signatory to the Contract, nor is it affiliated with

OneSpaWorld in any way. Id. Accordingly, Plaintiff contends there is no legitimate basis to

conclude that Norwegian may enforce the arbitration provision of her Contract.

II. LEGAL STANDARD

A. Motion to Compel Arbitration

1 While Norwegian’s Motion originally asserted a third argument involving equitable estoppel, Norwegian

has since withdrawn the estoppel argument in its Reply brief. See ECF No. [27] at 11-12.

When a court reviews a motion to compel arbitration, “a summary judgment-like standard

is appropriate.” Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016). A

court “may conclude as a matter of law that parties did or did not enter into an arbitration agreement

only if ‘there is no genuine dispute as to any material fact’ concerning the formation of such an

agreement.” Id. “A factual dispute is ‘material’ if it would affect the outcome of the suit under the

governing law, and ‘genuine’ if a reasonable trier of fact could return judgment for the non-moving

party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). “This court has consistently

held that conclusory allegations without specific supporting facts have no probative value” for a

party resisting summary judgment. Bazemore, 827 F.3d at 1333.

Still, “[t]he party opposing a motion to compel arbitration or to stay litigation pending

arbitration has the affirmative duty of coming forward by way of affidavit or allegation of fact to

show cause why the court should not compel arbitration.” Sims v. Clarendon Nat’l Ins. Co., 336

F. Supp. 2d 1311, 1324 (S.D. Fla. 2004); see also Citi Cars, Inc. v. Cox Enterprises, Inc., No. 1:17-

CV-22190-KMM, 2018 WL 1521770, at *4 (S.D. Fla. Jan. 22, 2018). “This burden is not unlike

that of a party seeking summary judgment” because “the party opposing arbitration should identify

those portions of the pleadings, depositions, answers to interrogatories, and affidavits which

support its contention.” Sims, 336 F. Supp. 2d at 1324; Bertram v. Beneficial Consumer Discount

Co., 286 F. Supp. 2d 453, 456 (M.D. Pa. 2003) (finding that in the context of a motion to compel

arbitration or to stay litigation pending arbitration, “the court may consider the pleadings,

documents of uncontested validity, and affidavits or depositions submitted by either party”).

B. The United Nations Convention on the Recognition and Enforcement of Foreign

Arbitration Agreements

When confronted with an arbitration agreement that involves foreign entities, courts turn

to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(“Convention”) to determine if the arbitration agreement is enforceable. June 10, 1958, 21 U.S.T.

2517, 330 U.N.T.S. 3. The Convention requires courts of signatory nations, such as the United

States, to give effect to private arbitration agreements and to enforce arbitral awards made in

signatory nations. Convention, art. I(1); see also Sierra v. Cruise Ships Catering & Servs. Int’l,

N.V., 631 F. App’x 714, 715-16 (11th Cir. 2015); Suazo v. NCL, (Bahamas), Ltd., 822 F.3d 543,

546 (11th Cir. 2016) (“The purpose of the New York Convention, and of the United States’

accession to the Convention, is to ‘encourage the recognition and enforcement of international

arbitral awards.”’) (quoting Bergesen v. Joseph Muller Corp., 710 F.2d 928, 932 (2nd Cir 1983)).

The United States enforces the Convention through Chapter 2 of the Federal Arbitration Act

(“FAA”). See 9 U.S.C. § 201-208.

Under both the FAA and the Convention, “‘the first task of a court asked to compel

arbitration of a dispute is to determine whether the parties agreed to arbitrate’ it.” Doe v. Princess

Cruise Lines, Ltd., 657 F.3d 1204, 1213 n.9 (11th Cir. 2011) (quoting Mitsubishi Motors Corp. v.

Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 626 (1985)). In other words, “the parties will not be

required to arbitrate when they have not agreed to do so.” Id. at 1214 (quoting Goldberg v. Bear,

Stearns & Co., 912 F.2d 1418, 1419 (11th Cir. 1990)). Beyond that threshold consideration, “[i]n

deciding a motion to compel arbitration under the Convention, a court conducts ‘a very limited

inquiry.’” Bautista v. Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005) (citations omitted). The

primary focus of the inquiry is jurisdictional. “An arbitration agreement is governed by the New

York Convention if the following four jurisdictional requirements are met:

(1) [T]he agreement is in writing within the meaning of the New York Convention;

(2) [T]he agreement provides for arbitration in the territory of a signatory of the

New York Convention;

(3) [T]he agreement arises out of a legal relationship, whether contractual or not,

which is considered commercial; and

(4) [O]ne of the parties to the agreement is not an American citizen.”

Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279, 1286 (11th Cir. 20215)

(quoting Bautista, 396 F.3d at 1294 n.7). If the agreement satisfies those jurisdictional

prerequisites, the district court must order arbitration unless any of the Convention’s affirmative

defenses apply. Bautista, 396 F.3d at 1294-95 (citing DiMercurio v. Sphere Drake Ins. PLC, 202

F.3d 71, 74 (1st Cir. 2000); Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286, 1292 n.3 (11th

Cir. 2004)). The Convention requires that courts enforce an agreement to arbitrate unless the

agreement is “null and void, inoperative or incapable of being performed.” Convention, art. II(3).

“The limited scope of the Convention’s null and void clause ‘must be interpreted to encompass

only those situations—such as fraud, mistake, duress, and waiver—that can be applied neutrally

on an international scale.’” Id. at 1302 (quoting DiMercurio, 202 F.3d at 80). Outside of these

limited defenses, a jurisdictionally sound arbitration agreement must be enforced against parties

who have agreed to arbitrate.

III. DISCUSSION

The Employment Agreement (“Contract”) Plaintiff entered into with OneSpaWorld

contains an arbitration clause which states:

(a) This Agreement shall be governed by the laws of The Bahamas.

(b) Except as provided in the last two sentences of Section 16(b), any and

all disputes, claims, or controversies whatsoever, whether in contract,

regulatory, tort or otherwise, including but not limited to,

constitutional, statutory, common law, intentional tort and equitable

claims, as well as Jones Act and Wage Act claims, claims for

negligence, unseaworthiness, maintenance and Cure, failure to provide

prompt, proper and adequate medical care, personal injury, death, or

property damage and whether accruing prior to, during or after the

expiration of this Agreement (collectively “Disputes”), shall be

resolved by final and binding arbitration. In addition, Employee agrees

to arbitrate any and all disputes regarding the existence, validity,

termination or enforceability of any term or provision in this

Agreement. All arbitration between the parties shall be referred to and

finally administered and resolved in Nassau, The Bahamas and

administered by the American Arbitration Association (“AAA”) under

its international dispute resolution procedures. The Company and

Employee may initiate arbitration by the appropriate filing with the

AAA. The number of arbitrators shall be one. The Arbitrator shall be a

member of the bar of The Bahamas and mutually acceptable to

Employee and the Company. If the Company and Employee cannot

agree on an arbitrator, the AAA shall select the arbitrator pursuant to

its applicable procedures, provided that the arbitrator so selected must

be a resident of the Bahamas and a member of the Bar of the Bahamas.

The language of the arbitral proceedings shall be English. Each Party

shall bear its own attorney’s fees and costs regardless of any laws to the

contrary. At Company’s request, Employee agrees to appear at

Employee’s expense for medical examinations by doctors designated

by the Company in specialties relevant to any disputes between the

Parties. If Employee is from the Philippines, all Disputes shall be

governed by the terms of the Standard Philippine Overseas

Employment Administration Contract of Employment (“POEA

Contract”) and the POEA Contract jurisdictional and venue terms shall

supersede and take precedent over any conflicting terms set forth in this

Agreement. If Employee is a United States citizen and the Company

cannot mandate that a Dispute be subject to arbitration, Employee

agrees that such Dispute shall be litigated, if at all, in the United States

District Court for the Southern District of Florida, to the exclusion of

the courts of any other state, territory or country or elsewhere in the

State of Florida, including state court. Employee specifically waives

any venue or other objection that Employee may have to any such

action or proceeding being brought in the United States District Court

of the Southern District of Florida.

ECF No. [1-1] at 14.

Norwegian contends that all of Plaintiff’s claims are covered by the Contract’s arbitration

clause and that Norwegian has the authority to enforce the arbitration clause, notwithstanding

Norwegian was not a party to the Contract. ECF No. [20] at 6. Norwegian points out three

requirements necessary to enforce a contract’s arbitration clause: “(1) a written agreement exists

between the parties containing an arbitration clause; (2) an arbitrable issue exists within the scope

of the arbitration clause; and (3) the movant has waived its right to arbitration.” Id. at 7. Norwegian

insists that elements two and three are not seriously in dispute, and that the only question to resolve

is whether a written agreement containing an arbitration clause exists between the parties.2 While

Norwegian acknowledges the general rule that only signatories to a contract may enforce a

contractual provision, Norwegian maintains that two generally recognized exceptions apply here.3

See id. at 9.

A. Third Party Beneficiary Exception

Regarding the first exception, Norwegian argues it may enforce the Contract’s arbitration

provision because Norwegian “is an intended beneficiary of the Employment Agreement generally

and the arbitration provision specifically.” Id. at 10. Norwegian first notes that the Contract

“repeatedly references Norwegian and the vessel that Plaintiff worked upon.” Id. at 11. Norwegian

asserts that throughout the Contract, it is referred to “as ‘the Cruise Line,’ as ‘owner of the Vessel,’

and as the Vessel operator.” Id. Additionally, Norwegian points out that its ship—the Norwegian

Getaway—is specifically “referenced by name in the addendum.” Id. According to Norwegian,

that specific reference, along with the more generalized references to the vessel, satisfy the “de

facto threshold requirement” that any intended beneficiary be specifically referenced by name in

the governing contract. Id. at 11-12.

2 Although Norwegian’s Motion explains why the second and third elements are satisfied, there is no need

to discuss Norwegian’s argument on these issues as Plaintiff does not dispute that those two elements have

been satisfied.

3 As explained above, Norwegian originally argued equitable estoppel was a third exception, however,

Norwegian subsequently withdrew that argument in its Reply brief. See ECF No. [27] at 11-12.

Norwegian also argues that it is an intended beneficiary of the Contract given the

substantial rights and responsibilities the contracting parties conferred upon the company. See id.

at 12. Norwegian asserts that the Contract provided the Cruise Line the right to demand medical

exams, drug testing, and determine whether an employee was a danger to the health and safety of

other people aboard the ship. Norwegian also possessed the power “to demand that Plaintiff’s

employment [on the ship] be terminated,” and ultimately bar Plaintiff from staying aboard the

vessel. Id. Given these purportedly substantial rights Norwegian was able to assert pursuant to the

Contract, Norwegian contends it is necessarily an intended third-party beneficiary. Id.

Norwegian argues the scope of the Contract’s arbitration clause further suggests that

Norwegian is an intended beneficiary. Norwegian points out that the arbitration clause itself

specifically covers “shipowner-related claims, such as unseaworthiness and failure to properly

treat.” Id. According to Norwegian, the Contract’s coverage of such claims demonstrates the

signatories’ intent to provide Norwegian with the benefits of arbitration because such claims can

only be brought against a shipowner. ECF No. [20] at 11-13. Therefore, since the arbitration clause

covered claims that would arguably exclusively involve a cruise ship owner’s conduct, Norwegian

argues the contracting parties contemplated that the Contract be, at least in part, for Norwegian’s

direct benefit. Id. at 13.

Furthermore, Norwegian contends that the arbitration clause, unlike other provisions of the

Contract, “does not specify that it relates only to the ‘Parties,’ the ‘Employee,’ or the ‘Company.’

Instead, it states,’ any and all disputes, claims, or controversies, whatsoever . . . shall be resolved

by binding arbitration’ without any limiting language as to who shall or can be involved in those

disputes, claims or controversies.” ECF No. [20] at 13 (quoting ECF No. 1-1 at ¶ 16(b)). Since the

Contract is specific in other portions of the agreement but broad in defining the scope of arbitrable

issues, Norwegian argues the Court should construe the arbitration clause’s generality as the

contracting parties’ intent to include Norwegian as an intended beneficiary of the Contract. Id.

Plaintiff agrees the only question in dispute is whether Norwegian, a non-signatory to the

Contract, may enforce the Contract’s arbitration provision. Plaintiff points out that “an arbitration

clause ‘is a contractual provision that cannot ordinarily be invoked by or against one who was not

a party to the agreement in which the clause appears.”’ ECF No. [26] (quoting Usme v. CMI

Leisure Mgmt., Inc., 10 F.4th 1079, 1087 (11th Cir. 2024)). Given this presumption, Plaintiff

argues that Norwegian could theoretically only compel arbitration under a narrow and limited set

of exceptions; none of which are applicable here.

Plaintiff first addresses Norwegian’s argument that it may enforce the arbitration clause

under the intended third-party beneficiary exception. Plaintiff contends, despite Norwegian’s

arguments to the contrary, “[t]he Employment Agreement is a 16-page contract that does not once

identify Norwegian by name . . .. The only place the company’s name appears is on a one-page

‘Wage Addendum,’ which is a form document that is filled in to identify the name of the ship on

which [Plaintiff] would be serving during the term of her employment.” Id. at 6. According to

Plaintiff, this, alone, is insufficient to show that Norwegian was a specifically identified intended

beneficiary to the Contract. Furthermore, Plaintiff maintains the Contract’s generic references to

“the Cruise Line,” “the owner of the Vessel,” and the “Vessel operator” do not constitute specific

references, or even implied references, to Norwegian specifically. Id. at 6-7. Plaintiff points out

that OneSpaWorld “operates spas, salon and fitness centers” on “twenty-one (21) different cruise

lines and “bills itself as ‘the world’s no. 1 cruise line spa operator.”’ Id. at 7. (quoting

https://onespaworld.com/at-sea/spas-at-sea/ (last visited [by Plaintiff] on Nov. 13, 2024)).

Therefore, the references to the vessel or the owner of the vessel apply to no cruise ship or cruise

ship operator in particular.

Furthermore, Plaintiff contends that even if Norwegian was specifically identified, there is

still insufficient evidence that the “direct and primary object of the contracting parties was to

confer a benefit on [Norwegian].” Id. at 7. (emphasis removed). According to Plaintiff, there is no

specific or clearly expressed representation by the signatories that they intended to confer legally

enforceable rights onto Norwegian. Rather, the primary purpose of the Contract was to benefit the

signatories—the Plaintiff by way of payment, and OneSpaWorld by way of services rendered. See

id. at 7-8.

Finally, Plaintiff addresses Norwegian’s argument that the “broad scope of the arbitration

agreement also shows that Norwegian was an intended beneficiary of it.” ECF No. [26]. Plaintiff

maintains that while the Contract’s arbitration clause is “quite broad as to the scope or topics that

can be arbitrated, it expressly limits who is entitled to avail themselves of those arbitration rights—

namely, the ‘Parties,’ the ‘Company’ and the ‘Employees.’” Id. at 10. Therefore, the arbitration

clause does not undermine Plaintiff’s argument but rather buttresses the argument that the

signatories understood themselves to be the sole intended beneficiaries of the Contract.

As both parties have pointed out, one important exception to the general rule that only

signatories to a contract may enforce the contract’s provisions is the intended third-party

beneficiary doctrine which “allows a non[-]signatory to compel arbitration when the parties to a

contract agree upon formation to confer certain benefits upon a third party, ‘affording that third

party rights of action against them under the contract.”’ Liu v. Wu, No. 23-21541-CV, 2024 WL

516960, at *5 (S.D. Fla. Jan. 5, 2024) (quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942

(11th Cir. 1999)). However, this doctrine may only be invoked where there is “clear intent” that

“the direct and primary object of the contracting parties was to confer a benefit on the third party.”

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005). “Where the contract is

designed solely for the benefit of the formal parties thereto, a third person cannot maintain an

action thereon, even though such third person might derive some incidental or consequential

benefit from its enforcement.” Blu-J, Inc. v. Kemper C.P.A. Group, 916 F.2d 637, 640 (11th Cir.

1990) (quoting Florida ex rel. Westinghouse Elec. Supply Co. v. Wesley Constr. Co., 316 F. Supp.

490, 495 (S.D. Fla.1970)).

While the Court is to “constru[e] the terms of the contract as a whole” when determining

whether a non-signatory is an intended third-party beneficiary, Cox v. Anesthesia Business

Consultants, LLC, Case No. 3:20-cv-5731, 2020 WL 12279046, at *3 (N.D. Fla. Nov. 25, 2020),

the Court must still find that the parties expressed a clear and specific intent to make the third party

an intended beneficiary to the agreement. See Arias v. Integon Nat’l Ins. Co., Case No. 18-22508-

CIV, 2018 WL 4407624, at *3 (S.D. Fla. Sept. 17, 2018) (“For a contract to intend to benefit a

third party, the intent must be specific and clearly expressed in the contract.”) (citing Heller v.

Carnival Corp., 191 F. Supp. 3d 1352, 1364 (S.D. Fla. 2016)). Therefore, “even though a third

party is referenced in an agreement, the third party is merely an incidental beneficiary absent

express evidence that the contracting parties intended to bestow a direct benefit on the third party.”

Here, Norwegian fails to establish that the direct and primary objective of the Contract was

to confer a benefit onto Norwegian. See Cox, 2020 WL 12279046, at *3 (“A third party is the

intended beneficiary of a contract only if the parties to the contract clearly express, or the contract

itself expresses, an intent to primarily and directly benefit the third party or a class of persons to

which that party claims to belong.”); See Peters v. The Keyes Co., 402 F. App’x 448, 451 (11th

Cir. 2010) (explaining defendant could not claim intended third party beneficiary status because

“[t]o qualify as a third-party beneficiary, the purchase agreement had to be executed ‘for the

primary benefit of’ [the third party].”) (Morgan Stanley DW Inc. v. Halliday, 873 So. 2d 400, 403

(Fla. Dist. Ct. App. 2004)); Rosa v. Hotwire Comms. Ltd., Case No. 0:22-cv-60827, 2023 WL

2917210, at *2 (S.D. Fla. Jan. 18, 2023) (citing Bauman v. Rayburn, 878 So.2d 1273, 1274 (Fla.

5th DCA 2004) (finding that a property owner was merely an incidental third party beneficiary of

a contract between a general contractor and subcontractor because neither the contract nor anything

else in the record clearly expressed an intent to primarily benefit the owner)). Although there is a

single passing reference to Norwegian in the wage addendum as well as implied references to

Norwegian’s vessel,4 the primary focus and objective of the parties’ Contract was to establish the

rights and duties owed to the signatories by entering into an employment agreement with one

another. As is made plain by the terms of the Contract, Plaintiff was to be compensated by

OneSpaWorld, and Plaintiff was expected to perform its services for the benefit of OneSpaWorld,

not Norwegian. See ECF No. [1-1] at 1, 8 (“The Company hereby employs Employee and

Employee hereby accepts employment by the Company . . . Employee at all times shall be subject

and directly responsible to the Company’s manager of the Spa on the Vessel in question (the

‘Manager’), who shall designate the hours during which Employee shall perform services, the

specific duties to the be performed by Employee and other details of Employee’s employment on

the Vessel.”). The fact that Norwegian may have benefited from Plaintiff’s services does not mean

that Norwegian became an intended third-party beneficiary. Rosa, 2023 WL 2917210 at *2.

4 The general refences to the ‘“Cruise Line,’ as ‘owner of the Vessel,’ and as the Vessel operator” do not

manifest an intent to make Norwegian an intended beneficiary. Indeed, the Contract states that “[i]n this

Agreement, the term ‘Vessel’ (when capitalized) refers to the vessel on which Employee is serving, or

which Employee is proved to serve, as the case may be, at the time in question pursuant to this Agreement.”

ECF No. [1-1] at 1. Therefore, by its express terms, the Contract could be referring to a number of different

vessels depending on when the contract was sought to be enforced. Accordingly, the Court cannot agree

that those references manifest a clear and specific intent to confer rights or benefits directly to Norwegian.

(“[T]he contracting parties’ knowledge that the contract will ultimately benefit an identifiable third

party is insufficient to transform the third party into an “intended” third-party beneficiary.”).

Norwegian fails to point to any portion of the Contract suggesting that the signatories’

primary purpose was to confer rights onto Norwegian. The fact that “Plaintiff agreed to indemnify

OneSpaWorld’s ‘Affiliates’” is not helpful to Norwegian as it is not an “affiliate” of

OneSpaWorld. ECF NO. [20] at 12. Regarding the contention that the Contract conferred the right

to Norwegian “to demand medical examinations or drug testing” and had the power to demand

Plaintiff’s employment on the vessel be terminated, those rights were not central to the Contract.

OneSpaWorld determined Plaintiff pay, hours, and duties, retained the authority to transfer

Plaintiff to a different vessel should an issue arise, and also retained the ultimate authority to

terminate Plaintiff from working on any vessel OneSpaWorld contracted to provide services for,

not just the Norwegian Getaway. See ECF No. [1-1] at 7-9. As such, to the extent the Contract

conferred limited and incidental rights upon Norwegian, those rights were not the primary object

of the Contract, and thus, fails to establish Norwegian as an intended third party beneficiary.

Turning to the Contract’s arbitration clause, the Court finds that it does not evidence that

the parties contemplated that anyone other than the signatories could compel arbitration. Indeed,

the arbitration clause notes that “All arbitration between the parties shall be referred to and finally

administered and resolved in Nassau, The Bahamas….” Additionally, the clause states only “[t]he

Company and Employee may initiate arbitration” and that the arbitrator must be “mutually

acceptable to Employee and the Company.” The clause also provides that “[i]f the Company and

Employee cannot agree to an arbitrator, the AAA shall select the arbitrator . . ..” ECF No. [1-1].

By only referring to the “parties,” “the Company,” and “the Employee,” the arbitration provision

expresses that the signatories did not contemplate that a third party had the authority to invoke the

arbitration clause given that the clause only provides for what would occur should either Plaintiff

or OneSpaWorld intend to bring a claim falling within the scope of the clause.

While Norwegian argues that the inclusion of unseaworthiness claims and failure to treat

claims in the arbitration clause indicate that the signatories intended to make Norwegian a third-

party beneficiary, the Court is unpersuaded. Although it is true that “unseaworthiness claims [and

failure to treat claims] always run directly against the shipowner and cannot be brought against

non-shipowners,” Ward v. M/Y Utopia IV, 674 F. Supp. 3d 1273, 1278 (S.D. Fla. 2023),5 the

inclusion of this type of claim in the arbitration clause does not necessarily mean that the parties

extended the right to arbitre to any individuals or entities that would be liable for such claims.

Indeed, it is possible that the parties were not aware that those claims may not be viable against

non-shipowners, and therefore, Plaintiff might attempt to bring such a claim against OneSpaWorld

in court. In an instance where unseaworthiness and failure to treat claims were brought against one

of the signatories, the arguable meritless nature of the claim would simply be resolved through

arbitration rather than judicial proceedings. In other words, the arbitration clause can be reasonably

read as an attempt to resolve virtually all potential disputes between the signatories (regardless of

merit) through the arbitration process rather than costly and burdensome judicial proceedings.

Accordingly, the Court finds the arbitration clause neither provides nor imposes any clear and

specific rights or obligations on anyone other than the signatories to the Contract. As such,

Norwegian may not rely on the third-party beneficiary doctrine to enforce the arbitration clause of

the Contract.

B. Norwegian Lacks a Sufficiently Close Relationship to OneSpaWorld to Enforce

the Arbitration Clause

5 See Demici v. Holland America Line N.V., LLC, Case No. 20-61033-CIV, 2020 WL 13358612, at *3 (S.D.

Fla. Oct. 20, 2020) (“Liability for unseaworthiness and failure to treat falls directly to the shipowner, not

the employer.”) (citing Baker v. Raymond Intern., Inc., 656 F.2d 173, 185 (5th Cir. 1981)).

Alternatively, even if Norwegian is not an intended third party beneficiary of the Contract,

Norwegian contends it may still enforce the arbitration clause because Norwegian and

OneSpaWorld have a sufficiently close relationship. According to Norwegian, a non-signatory to

a contract may still enforce the contract if the relationship between a signatory and a non-signatory

“is sufficiently close that only by permitting the non[-]signatory to invoke arbitration may

evisceration of the underlying arbitration agreement between the signatories be avoided.” ECF No.

[20] at 14 (quoting MS. Dealer Serv. Corp. v. Franklin, 117 F.3d 942, 947 (11th Cir. 1999)).

Norwegian contends that it and OneSpaWorld have a “symbiotic relationship” given that

“OneSpaWorld has operated amenities aboard Norwegian’s cruise ships for decades.” Id.

Norwegian asserts that the relationship has now evolved such that they now run their respective

businesses together on the ship. Norwegian’s evidence of this symbiotic relationship includes the

following:

1. “Norwegian agreed to supply crew quarters and food for OneSpaWorld employees”

2. “OneSpaWorld agreed that Norwegian can train One Spa World’s employees in boat

drills, among other nautical issues.”

3. “Norwegian agreed to provide onboard medical care to OneSpaWorld’s employees.”

4. “OneSpaWorld agreed that their employees will ‘give prompt obedience to the

instructions and orders’ provided by Norwegian’s officers ‘in regard to health, safety

and discipline aboard the Vessels.”’

5. “OneSpaWorld agreed that ‘its employees will meet such standards of competence,

training and demeanor as [Norwegian] shall from time to time establish’ while granting

Norwegian the right to ‘disapprove the employment’ of OneSpaWorld personnel who

do not meet those standards.”

6. “OneSpaWorld agreed to be the ‘exclusive employer’ for ‘all obligations or liabilities’

to OneSpaWorld’s employees under general maritime law.”

Id. at 15-16.

In light of this purportedly close relationship between the two entities, Norwegian contends

that it was reasonably foreseeable that “Plaintiff would be bound to the arbitration agreement in

litigation against Norwegian for claims of unseaworthiness and failure to properly treat.” Id. at 16.

Accordingly, Norwegian argues that it must be able to enforce the arbitration provision against

Plaintiff to avoid eviscerating the intent of the Contract between the two contracting parties. See

id.

Plaintiff argues the close affiliation exception does not apply here “for the simple reason

that requiring Norwegian to litigate in this Court would not ‘eviscerate’ the arbitration provision

in the [Contract] between Plaintiff and OneSpaWorld.” ECF No. [26] at 11. Plaintiff points out

that she is presently in arbitration with OneSpaWorld pursuant to the arbitration provision in her

Contract. Therefore, the right to arbitration has not been undermined, but instead, is being fully

and freely exercised by the signatories to the Contract. See id.

The Court agrees there is not a sufficiently close relationship between Norwegian and

OneSpaWorld such that enforcement of the arbitration clause as to Norwegian is necessary to

preserve the rights guaranteed by the Contract. Norwegian and OneSpaWorld are not the same

entity, operating a joint venture, nor are they even affiliated entities. As courts in this district have

explained, “[a]t the ‘heart’ of the definition of affiliate is ‘a person who, or entity which owns or

exercises control over or is controlled by, directly or indirectly another person or entity.” Taylor

Group, Inc. v. Industrial Distributors Int’l. Co., 506 F. Supp. 3d 1256, 1272 (S.D. Fla. 2020)

(quoting League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298, 1317 (S.D. Fla.

2008)). As such, the relevant inquiry to determine whether an entity is an affiliate of another is a

question of control.

Here, Norwegian makes no serious argument that Norwegian or OneSpaWorld exercises

control over the other or that a common entity controls both companies. To show affiliation,

Norwegian merely relies on the fact that it provided crew quarters and medical care to

OneSpaWorld Employees, trained the employees on certain boat drills, and had the right to

disapprove of certain OneSpaWorld employees aboard its ship. However, simply agreeing to work

together and provide training and resources to one another is not sufficient evidence of control,

but rather evidence of a normal symbiotic business relationship; particularly here, where one party

is a steward of all the passengers on board.6

Moreover, district courts have found that a mere agency relationship between a signatory

and a non-signatory is insufficient to allow the non-signatory to compel arbitration. See Lieu v.

Wu, Case No. 23-21541, 2024 WL 516960, at *5 (S.D. Fla. Jan. 5, 2024) (“However, ‘a non-

signatory cannot compel arbitration merely because he is an agent of one of the signatories.”’)

(quoting Koechli v. BIP Int’l, Inc., 870 So. 2d 940, 943 (Fla. 1st Dist. Ct. App. 2004)). “A non-

signatory agent should be permitted to compel arbitration [only] ‘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 . . . [or] when the signatory to the contract containing

a[n] arbitration clause raises allegations of substantially interdependent and concerted misconduct

by both the nonsignatory and one or more of the signatories to the contract.’” Koechli, 870 So. 2d

6 To the extent Norwegian argues that it exercises control over OneSpaWorld given its “right to ‘disapprove

the employment’ of OneSpaWorld personnel,” the Court is unpersuaded that demonstrates control. First,

all that evidences is that Norwegian can keep certain employees from working on its ship, not that they

have to right to terminate OneSpaWorld employees outright. Moreover, even if they could fire employees,

that would merely demonstrate control over the employees and not OneSpaWorld.

at 943 (quoting Westmoreland v. Sadoux, 299 F.3d 462, 466 (5th Cir. 2002)). Plaintiff does not

rely on the terms of the Contract to bring claims against Norwegian. Indeed, the Complaint does

not even mention the Contract, let alone the rights contained therein. Additionally, the claims in

the Complaint are not dependent on the conduct of OneSpaWorld.

Most importantly, however, neither OneSpaWorld nor Plaintiff’s right to arbitration has

been undermined by the fact that Plaintiff has brought her claims against Norwegian before this

Court. Plaintiff and OneSpaWorld are presently arbitrating their claim and Norwegian has offered

no evidence to suggest that OneSpaWorld’s ability to arbitrate the claims will be impacted by the

Court’s resolution of this case. See Lieu, 2024 WL 516960, at *5 (“This Court does not eviscerate

the underlying arbitration agreement between Plaintiff and [the other signatory] by not allowing

the nonsignatory defendant to compel arbitration, as the Purchase Agreement’s arbitration clause

would still control between Plaintiff and [the other signatory]. Accordingly, Defendant cannot rely

on the agency principles exception to compel arbitration in this case.”). Therefore, Norwegian may

not rely on the agency or related principles exception to compel arbitration here.

IV. CONCLUSION

Because Norwegian, as a non-signatory, has failed establish any exception that would

allow it to enforce the arbitration agreement between Plaintiff and OneSpaWorld against Plaintiff,

the case will proceed forward as scheduled.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Second Motion to Compel Arbitration and To Stay, ECF No. [20], is

DENIED.

2. In light of the Court’s instant Order, Defendant’s Motion to Stay Discovery Pending

its Motion to Compel Arbitration and to Stay, ECF No. [28], is DENIED AS MOOT.

Case No. 24-cv-23695-BLOOM/Elfenbein

DONE AND ORDERED in Chambers at Miami, Florida, on February 12, 2025.

BET i

UNITED STATES DISTRICT JUDGE

ce: counsel of record

20