Eleventh Circuit Reiterates Its Rejection of Public Policy Defenses To the Compelled Arbitration of Federal Claims in Non-U.S. Arbitrations Applying Non-U.S. Law

Fernandes v. Carnival Corp., No. 09-15675 (11th Cir. 2012), provides a concentrated refresher of several international practice principles that the courts, especially in the Eleventh Circuit, have applied in increased rigor and consistency.  In a short decision, the Eleventh Circuit addressed claims by an injured fitter mechanic complaining of the alleged failure by Carnival to provide adequate medical care and the alleged wrongful forcing of the plaintiff to continue working in a post of employment that allegedly aggravated his injury.  The plaintiff asserted claims under federal law, the Jones Act.  He also asserted claims for maintenance and cure, which, he alleged, did not arise out of his employment contract but rather from his employment relationship.  The plaintiff worked on two Carnival ships, one in 2005 and one beginning in 2007.  One of the contracts the plaintiff had with Carnival, the one relating to the 2007 employement, contained an arbitration provision.  The former did not.  Plaintiff sued in state court.  After removal, the District Court compeled arbitration of the claims relating to the later contract and remanded to state court the claims relating to the former contract.  The arbitration had to be in the Philippines applying Bahamian law. 

The Eleventh Circuit reaffirmed the holdings of earlier decisions of the Eleventh Circuit, which we have posted on (e.g., here and here), and affirmed the decision below.  The federal claim was not entitled to a federal forum.  The removed claim was not entitled to stay in federal court. And the plaintiff’s noncontractual claims for maintenance and cure were also compelled to be arbitrated.   The Court would recognize no public policy defense under the New York Convention; rejected the argument that a 2008 amendment to the Jones Act changed earlier law; and without explanation

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