Balancing Bargaining Power: The Eleventh Circuit Overreaches To Destroy the Public Policy Defense at the Initial Enforcement Stage of Arbitration in Lindo v. NCL (Bahamas), Ltd.

Nicholas A. Machen | Note

This dispute arose from the Jones Act negligence claim of Harold Leonel Pineda Lindo, a Nicaraguan citizen and resident, after he sustained injury while working for Norwegian Cruise Line (Bahamas) Ltd. (NCL) on its private island in the Bahamas. Lindo’s employment contract with NCL included a collective bargaining agreement and contained an arbitration clause, which provided that all claims were subject to binding arbitration under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Lindo’s contract further provided that “[t]he place of the arbitration shall be the Seaman’s country of citizenship, unless arbitration is unavailable under The Convention in that country, in which case, and only in that case, said arbitration shall take place in Nassau, Bahamas” and that “[t]he substantive law to be applied to the arbitration shall be the law of the flag state of the vessel.” Thus, pursuant to Lindo’s contract, any claim would be subject to arbitration in Nicaragua under Bahamian law.

Lindo initially filed suit in Florida state court. NCL removed the action to the United States District Court for the Southern District of Florida, seeking to dismiss the complaint and compel arbitration pursuant to 9 U.S.C. § 205. Lindo subsequently opposed NCL’s motion to dismiss and moved for remand, arguing that the arbitration clause was void as against public policy because it operated as a prospective waiver of his Jones Act claim. The district court denied Lindo’s motion to remand and granted NCL’s motion to compel arbitration. The United States Court of Appeals for the Eleventh Circuit held that the arbitration clause in Lindo’s employment contract must be enforced pursuant to the New York Convention and that a public policy defense is unavailable to parties at the initial enforcement stage of arbitration, despite the Supreme Court of the United States’ acknowledgement of such a defense. Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1260 (11th Cir. 2011), aff’g No. 09-22926-CIV, 2009 WL 7264038 (S.D. Fla. Dec. 23, 2009).