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Cvoro v. Carnival Corp.

United States Court of Appeals, Eleventh Circuit

October 17, 2019

SLADJANA CVORO, Serbia, Plaintiff-Appellant,
v.
CARNIVAL CORPORATION, d.b.a. Carnival Cruise Lines, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:16-cv-21559-FAM

          Before ROSENBAUM, GRANT and HULL, Circuit Judges.

          HULL, CIRCUIT JUDGE

         Plaintiff Sladjana Cvoro appeals the district court's denial of her petition to "vacate and/or alternatively to deny recognition and enforcement" of the foreign arbitral award in favor of her employer, defendant Carnival Corporation d.b.a. Carnival Cruise Lines ("Carnival"), on Cvoro's claims brought under the Jones Act, 46 U.S.C. § 30104, and U.S. maritime law for injuries related to the carpal tunnel syndrome she developed while working on a Carnival cruise ship. The district court denied Cvoro's petition because, even though the arbitrator did not apply U.S. law during arbitration, enforcing the foreign arbitral award did not violate U.S. public policy. After careful review of the unique factual circumstances of this case and with the benefit of oral argument, we must affirm.

         I. FACTUAL BACKGROUND

         A. Seafarer's Employment Agreement

         In August 2012, Cvoro, who is a citizen and resident of Serbia, signed a seafarer's employment agreement (the "seafarer's agreement") to work for Carnival. Carnival is a Panamanian corporation that operates cruise ships with its principal place of business in Miami, Florida. Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1357 (11th Cir. 1990).

         In her seafarer's agreement, as a condition of her employment, Cvoro agreed to resolve all legal disputes with Carnival by arbitration. Specifically, Cvoro's seafarer's agreement contains mandatory-arbitration and forum-selection clauses, which provide that "[t]he place of arbitration shall be London, England, Monaco, Panama City, Panama or Manila, Philippines whichever is closer to the Seafarer's home country." Her seafarer's agreement also contains a choice-of-law clause designating the governing law for disputes as the laws of the flag of the cruise ship on which Cvoro was assigned:

Governing Law. This Agreement shall be governed by, and all disputes arising under or in connection with this Agreement of Seafarer's service on the vessel shall be resolved in accordance with, the laws of the flag of the vessel on which Seafarer is assigned at the time the cause of action accrues, without regard to principles of conflicts of laws thereunder. The parties agree to this governing law notwithstanding any claims for negligence, unseaworthiness, maintenance, cure, failure to provide prompt, proper and adequate medical care, wages, personal injury, or property damage which might be available under the laws of any other jurisdiction.

         Cvoro does not dispute that she entered into this seafarer's agreement or what its terms say.

         B. Cvoro's Employment on the Carnival Dream

         Beginning in August 2012, Carnival employed Cvoro as a seaman to work as an assistant waitress aboard the cruise ship Carnival Dream, which sails under the flag of Panama. During her employment, Cvoro developed pain and swelling in her left wrist. On March 28, 2013, Cvoro reported to the shipboard medical center, complaining of pain and swelling in her left wrist, and "pins and needles" in her wrist and hand. The ship's physician gave Cvoro a splint and prescribed her prednisone to stop the swelling.

         The next day, Cvoro returned to the medical center with the same left wrist pain, which was getting worse. This time, the physician prescribed her ketorolac and naproxen to treat the pain. Despite this treatment, Cvoro's condition did not improve. On March 31, 2013, Cvoro went to the medical center a third time for her wrist pain, at which point the ship's physician determined that she could no longer carry out her duties aboard the ship. Cvoro was taken off duty the next day.

         On April 1, 2013, Cvoro was examined by an orthopedic specialist ashore in Cozumel, Mexico, who diagnosed her as having carpal tunnel syndrome. Thereafter, Cvoro stopped working on the Carnival Dream, and upon her own request, defendant Carnival repatriated her home to Serbia.

         To comply with its maintenance and cure obligations under maritime law, Carnival selected shore-side physicians in Serbia to continue treating Cvoro's condition. On May 28, 2013, a doctor selected by Carnival performed surgery on Cvoro for her carpal tunnel syndrome. According to Cvoro, shortly after her surgery, she began experiencing horrific symptoms due to the negligence of the Serbian doctors, and she was eventually diagnosed with complex regional pain syndrome. After further treatment from a variety of specialists in Europe, on June 30, 2014, Cvoro's physicians declared her to have reached maximum medical improvement. But to date, Cvoro suffers from gross motor deficits in her left hand and wrist, frozen shoulder, tendonitis of the wrist, and other permanent problems with her left arm.

         C. Arbitration in Monaco

         Pursuant to her seafarer's agreement, Cvoro filed an arbitration proceeding against Carnival in Monaco-the venue closest to her home country Serbia-in an attempt to recover for her injuries. She asserted two claims based on U.S. law. First, Cvoro brought a claim under the Jones Act, 46 U.S.C. § 30104, asserting that Carnival was vicariously liable for the alleged negligence of the shore-side doctors it selected to treat her carpal tunnel syndrome. Second, Cvoro asserted a claim under general maritime law, that is, the doctrine of maintenance and cure, for Carnival's alleged failure to provide her with medical treatment and to pay for her medical bills and room and board. This second claim was later dropped because Carnival had in fact paid for all of Cvoro's medical bills and expenses for room and board.

         D. Panamanian Law Governed Arbitration

         As a preliminary matter, the arbitrator determined that Panamanian law governed the arbitration proceeding because, in the choice-of-law clause of the seafarer's agreement, the parties agreed that the law of Panama would apply. Panama is where the Carnival Dream is flagged. The arbitrator concluded further that Cvoro did not establish that U.S. law should apply, notwithstanding the choice-of-law clause, because there was not a sufficiently close connection between the dispute and the United States. In reaching this conclusion, the arbitrator noted that: (1) Cvoro was in Serbia; (2) Carnival is incorporated in Panama; (3) the Carnival Dream was flagged in Panama at all relevant times; (4) the parties chose Panamanian law to govern the dispute; (5) the seat of the arbitration was Monaco; (6) there was no evidence that the Carnival Dream was in U.S. territorial waters when the alleged cause of action accrued; and (7) Cvoro did not allege that the United States was the only venue for enforcing an arbitral award against Carnival in the event that she prevailed. In fact, the only connection between the dispute and the United States was that Carnival's principal place of business is in Miami, which the arbitrator deemed insufficient to disregard the parties' valid agreement to apply Panamanian law.

         Despite this ruling, Cvoro persisted in arguing that her claim was based solely on U.S. law-that is, a Jones Act claim that Carnival was vicariously liable for the negligence of the shore-side physicians in Serbia that it selected to treat her carpal tunnel syndrome. Cvoro even invited the arbitrator to find in favor of Carnival because, she contended, she had no cause of action under Panamanian law. On that score, it is undisputed that Panamanian law does not recognize a claim based on vicarious liability for shore-side malpractice occurring after a seaman leaves the vessel.

         As the parties' experts at arbitration generally agreed, Panamanian law recognizes that Cvoro, as a seafarer who was injured aboard a vessel, has a labor (contractual) cause of action and a tort cause of action for negligence against Carnival. The labor claim under Panamanian law is akin to a no-fault maintenance and cure claim under U.S. law. Panamanian law also recognizes a claim related to disability compensation for any occupational injury or illness irrespective of fault, but Cvoro did not pursue this remedy. In addition, Panamanian law recognizes a seafarer's action for the negligence of her employer or the shipowner, such as a claim for Carnival's negligent hiring of the shore-side physicians. But Cvoro did not pursue a direct negligence claim against Carnival either.

         E. Arbitrator's Final Award

         Even though Cvoro conceded that she had not pursued any cause of action under Panamanian law, in its final award, the arbitrator examined Cvoro's possible claims under Panamanian law, based on both labor and tort law. First, as to a claim for maintenance and cure, the arbitrator found that such a claim failed because Cvoro did not contest that Carnival satisfied its obligations to provide assistance, room and board, and medical care. As to a disability claim, the arbitrator determined that, because Cvoro's claim was based solely on the medical negligence of the shore-side physicians in Serbia, which occurred after she signed off the Carnival Dream, Carnival had no obligation to pay any disability. Moreover, the arbitrator concluded that Cvoro's tort-based claim failed because she did not establish that Carnival was directly negligent in any way. Accordingly, the arbitrator dismissed Cvoro's claims.

         II. PROCEDURAL HISTORY

         A. District Court Proceedings

         In May 2016, Cvoro filed the instant suit in the district court in the United States District Court for the Southern District of Florida, seeking to (1) "vacate and/or alternatively to deny recognition and enforcement" of the arbitral award under Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention" or the "Convention")[1] (Count I) and (2) then litigate the merits of her Jones Act claim based on Carnival's alleged vicarious liability for the malpractice of the shore-side doctors it selected to treat her (Count II) and an overlapping claim under general maritime law for damages caused by the doctors' malpractice (Count III).[2] After preliminary motions, the district court bifurcated the proceeding to adjudicate first the threshold and potentially dispositive issue of Cvoro's request that the district court refuse to enforce the arbitral award.

         In further briefing on the issue, Cvoro argued that the arbitral award was void as being against U.S. public policy because the arbitrator applied Panamanian law, not U.S. law, which deprived her of the opportunity to assert a Jones Act claim against Carnival for vicarious liability. The arbitrator's final award, therefore, refused to give her the Jones Act remedy available in the United States, to which she was entitled as a seafarer. On this basis, Cvoro argued that enforcing the final arbitral award violated U.S. public policy and thus must be vacated under Article V(2)(b) of the New York Convention.

         In response, Carnival contended, inter alia, that the district court should deny the petition to vacate the arbitral award because: (1) Cvoro had a meaningful remedy in arbitration under Panamanian law; and (2) Cvoro's arguments did not overcome the clear ...


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