Last week we reported on the case of Lindo v. NCL (Bahamas) Ltd. where the Eleventh Circuit Court of Appeal affirmed the dismissal of a case filed on behalf of a seriously injured NCL crewmember from a U.S. court, leaving him to seek compensation in Nicaragua.
Today the same court entered a similar order in the case of Henriquez v. NCL. Mr. Henriquez was injured when another crew member smashed a glass bottle on his head and stabbed him while they were aboard the NCL cruise ship.
When he filed suit for compensation under the Jones Act and the maintenance and cure doctrine, NCL responded with a motion to send his case to arbitration in Nicaragua where the arbitrator would apply Bahamian law.
The appellate court refused to entertain the crewmember’s argument that arbitration is against public policy because an arbitrator in Nicaragua applying Bahamian law might not recognize his claim under the Jones Act. The court held that Mr. Henriquez "cannot avail himself of the public policy defense at this stage . . . only after arbitration may a court ‘refuse to enforce an arbitral award if the award is contrary to the public policy of the country.’"
The court also rejected the argument that arbitration should not proceed because he signed his employment agreement under duress.
Finally, the Eleventh Circuit dismissed the crewmember’s maintenance and cure award and held that it was subject to arbitration.
This xenophobic decision is unconscionable. The Bahamas has not adopted U.S. statutory law or maintenance and cure. This type of ruling ensures that cruise lines face limit virtually no accountability when they injure a crewmember on their cruise ships and then refuse to provide prompt and adequate medical care. In the process, the Eleventh Circuit has departed from 90 years of Jones Act history and close to 200 years of maintenance and cure decisions.