Seaman On U.S.-Flagged Vessel Forced to Arbitrate Jones Act Claim Because Not a U.S. Citizen
By John Merriam
Arbitration clauses in employment contracts are increasingly being enforced by the courts, eroding the rights of workers, including seamen, to a jury trial.
Yacouba Diarra is a citizen of Mali in West Africa who is in the U.S. on a green card. Until he was injured, he worked as a seafood processor for Coastal Alaska Premier Seafoods aboard the U.S.-flagged F/V Deep Pacific. In 2016, he suffered a severe head injury and has not worked since. A lawsuit was filed in the Western District of Washington for Jones Act injury pursuant to 46 U.S.C. § 30104.
Mr. Diarra’s employment contract with Coastal Alaska contained a section that required all disputes, including injury claims, to be submitted to arbitration. The fishing company filed a motion to enforce the arbitration clause. The motion was granted. Mr. Diarra lives in New York City and now awaits the COVID-19 crisis to abate before he comes to Seattle to participate in arbitration ordered by the federal court.
The Federal Arbitration Act states that "… nothing herein contained shall apply to contracts of employment of seamen …" 9 U.S.C. § 1. The Jones Act states: "A seaman injured in the course of employment … (has) the right to trial by jury." 46 U.S.C. § 30104. What happened?
The Federal Arbitration Act was codified into law in 1947. 9 U.S.C. §§ 1–14. In 1970, a second section was added, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). 9 U.S.C. §§ 201–208. When first enacted, it was assumed that the Convention meant what its title implied and "involves foreign property abroad or envisions performance abroad." Meslin, Sinking Seamen’s Claims: The Perils of Arbitration to Seamen’s Rights and the Second Look Doctrine’s Failure to Rescue Them, 92 Tul. L. Rev. 1147, 1153 (2018). It was thought that the Convention required that "either no party to the agreement may be a U.S. citizen, or the agreement must have a significant foreign connection." Id. at 1152. Using gymnastics of logic, courts began broadening the reach of the Convention to apply to seamen’s employment contracts, reasoning that "the Convention does not exclude seamen’s employment contracts from its application." Id.
Arbitration clauses had already been enforced for foreign seamen injured on foreign-flagged vessels with venue-selection clauses for arbitration abroad in collective bargaining agreements. See, e.g., Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005) (enforcing venue-selection clause requiring that all disputes be arbitrated in the Philippines). The Ninth Circuit ruled that the Convention applies to all contracts that are considered "commercial" per 9 U.S.C. § 202. The court reasoned that employment contracts of seamen are "commercial," and therefore the Convention applies to seamen’s contracts because 9 U.S.C. § 202 (the Convention) does not include the exemption of §1 (for contracts of seamen). Rodgers v. Royal Caribbean Cruise Line, 547 F.3d 1148 (9th Cir. 2008). Section 1 of the Federal Arbitration Act does not apply "to arbitration agreements that would, in the absence of the exemption clause, be covered by the Convention." Id. at 1155. Huh? What the Ninth Circuit is saying, basically, is that § 202 of the Arbitration Act sub silentio repeals § 1. Go figure.
The Rodgers case was a wage claim against a foreign-flagged vessel, brought by a cabin boy from Trinidad and one of his shipmates, both members of the Norwegian Seamen’s Union. The union’s collective bargaining agreement specifically referenced the Convention in language requiring arbitration of all disputes and claims. 547 F.3d at 1156. Venue in a U.S. court was invoked by Rodgers under 46 U.S.C. § 10313, the wage penalty statute for seamen on foreign voyages (aboard ships of any flag). The Supreme Court in an earlier case held that U.S. courts are open to foreign seamen asserting wages claims under 46 U.S.C. § 10313. Arguelles v. U.S. Bulk Carriers, 400 U.S. 351 (1971). The Ninth Circuit nevertheless enforced the arbitration clause in the collective bargaining agreement. The Rodgers court reasoned (rationalized?): "The Court’s decision (in Arguelles) was published just weeks after the Convention entered into force in the United States, and there is no indication that the Court considered the effect of the Convention on Section 10313." 547 F.3d at 1156. What the Ninth Circuit is saying, in other words, is that the Supreme Court was not properly informed when it ruled that seamen could not be forced to arbitrate wage claims.
The Ninth Circuit soon followed with Balen v. Holland America Line, 583 F.3d 647 (2009), a case where Filipino seamen sued for wages, again pursuant to 46 U.S.C. § 10313. The Balen court quoted the Ninth Circuit panel in Rodgers, ruling that 9 U.S.C. § 202 (the Convention) trumped 9 U.S.C. § 1, and adopted a four-part test to determine whether an arbitration agreement should be enforced under the Convention:
(1) There is an agreement in writing to arbitrate the dispute; (2) the agreement provides for arbitration in the territory of a signatory to the Convention; 3) the agreement to arbitrate arises out of a commercial legal relationship; and 4) there is a party to the agreement who is not an American citizen. 583 F.3d at 654-55.
It was the fourth part of the test that was disputed in Yacouba Diarra’s case. The federal judge ruled that Diarra’s lack of U.S. citizenship satisfied the "foreign" element of the Foreign Arbitral Awards Convention. This despite the fact that neither Coastal Villages nor the court could cite a single case where the Convention was held to apply to a Jones Act seaman of any nationality injured aboard a U.S.-flagged vessel. I argued, unsuccessfully, that the Convention did not trump the Jones Act, and that the fourth Balen factor, supra, referred to the citizenship of the vessel owner, not the injured seaman. I cited Schoenbaum to assert that the fourth factor meant that: "(4) the matter must not be entirely domestic in scope." Admiralty and Maritime Law § 6–18 (6th ed. 2018).
This ruling, if followed, will change the legal landscape that has existed since the Jones Act was enacted into law 100 years ago. As maritime practitioners in this area are well aware, a large proportion of seafood processors in the Washington and Alaska fisheries are immigrants. Many, if not most, of those immigrants are not U.S. citizens. This decision will prompt every fishing company in Seattle and Alaska to insert arbitration clauses into their contracts of employment.
No appeal is allowed from an order compelling arbitration. 9 U.S.C. § 16. Appeal is allowed only from an order confirming an arbitration award, after the arbitration has taken place, i.e. only from "a final decision with respect to arbitration that is subject to this title." 9 U.S.C. § 16(a)(3). Despite this prohibition I filed a motion, in the alternative to requesting reconsideration, for interlocutory appeal per FRCP 54(b) or 28 U.S.C. § 1292(b) – the statute allowing interlocutory appeal in admiralty cases. My motion was denied in all respects.
This inability to appeal until after a case is arbitrated, creates a difficult situation for me, in particular in this case, and for all maritime plaintiff practitioners and some of their clients in general. I want to appeal this decision to prevent precedential effect. But what if I get a good award at arbitration? I cannot appeal, to advance the interest of a host of future clients – non-U.S. citizen seamen who suffer injury – at the expense of Yacouba Diarra, my client at bar. Other practitioners, representing "foreign" seamen injured on vessels with arbitration clauses in their contracts of employment, will face a difficult situation of a different stripe. Some fishing companies and their lawyers cut off maintenance and cure benefits early, as a means to obtain tactical advantage and pressure injured seamen to settle cheap. If arbitration is compelled, the seaman will have to wait until the arbitration-award-enforcement stage to appeal the wrongful denial of benefits – long after the seaman’s hour of need – rather than seeking immediate relief on the motion calendar, had the court retained jurisdiction of the case.
Think about the practical ramifications of this decision with an example: Two processors are working side-by-side on the slime line of a U.S.-flagged fish factory ship. One is a U.S. citizen from Puyallup; the other is from Tijuana, working with a green card. A box falls from above them and the two processors suffer identical injuries at the same time. They both file Jones Act claims. The U.S. citizen gets a jury trial; the immigrant does not. Legal? Fair?
This decision goes too far and must not stand! In the 50 years since the Convention on Foreign Arbitral Awards was adopted, to say nothing of the 100 years since the Jones Act was enacted, not one case has held that a seaman, of any nationality, injured aboard a U.S.-flagged vessel was not entitled to a jury trial. The Convention does not repeal the Jones Act!
The case is Yacouba Diarra v. Coastal Alaska Premier Seafoods, No.2:19-cv-01070 (W.D. Wash. 2019). Plaintiff is represented by John Merriam. Defendants are represented by Mike and Daniel Barcott of Holmes, Weddle and Barcott.
EAGLE John Merriam is a former merchant seaman, now a sole practitioner at Fishermen’s Terminal in Seattle, who restricts his practice to the representation of claimants for maritime wages and injury.