Case 205cv05019EEFDEK Document 16 Filed 040506 Page 2 of 1 - PDF document

1 Case 2:05-cv-05019-EEF-DEK Document 16
Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 2 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 8 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 1 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 9 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 5 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 4 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 10 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 6 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 3 of 10 Case 2:05-cv-05019-EEF-DEK Document 16 Filed 04/05/06 Page 7 of 10 and conditions” of employment contain specific references to “employment” and “seafarers.” , Bright Balkan Agreement, cl. 5 (“The ordinary12 (“The seafarer shall be entitled to repatriation . . . .”); cl. 14 (“The principal has the rightforthwith and without notice to terminate the employment of any seafarer . . . .”). ent of any seafarer . . . .”). this agreement” (emphasis added) subjects the “parties” to arbitration. Theclause is silent respecting whether disputes between seafarers and their employers are subject toarbitration. Considering the forego

2 ing review of the relevant agreements an
ing review of the relevant agreements and, to the extentnot one that governs employment of seafarers. the Bright Balkan Agreement–to binding arbitration.Accordingly, there is no agreement in writing to arbitrate the dispute between Tuca andfederal jurisdiction other than the Jones Act. Thus, the matter must be remanded to state court. For the foregoing reasons, Plaintiff’s Motion to Remand is GRANTED. IT IS day of April, 2006._____________________________United States District Judge Here, although Ocean Freighters did not draft the agreement, its agent, Bright BalkanMaritime did. (“[W]hen a contract provision is subject to opposing, yet reasonable interpretation, aninterpretation is preferred which operates more strongly against the party from whom the words, No. 88-4503, 1989 WL 50908, *1 (E.D. La. 5/3/89). Thus, to theextent there are reasonable, yet opposite, interpretations of Tuca’s employment contract and theBright Balkan Agreement, any doubt should favor Tuca.However, a review of the relevant contracts leaves little to doubt. Tuca’s employmentcontract, while broad in one sense because it incorporates the “full terms and conditions”contained in the Bright Balkan Agreement is also narrow in that it only purports to incorporatethose terms and conditions “govern

3 ing the employment of the seafarer.” Th
ing the employment of the seafarer.” This specific limitinglanguage begs the question: which clauses in the Bright Balkan Agreement govern theemployment of the seafarer?The Bright Balkan Agreement contains a total of twenty sections, seventeen of whichpertain to the terms and conditions governing the employment of seafarers and the last three ofwhich pertain to the relationships between the parties to the Bright Balkan Agreement. It is inthese last three clauses where the agreement to arbitrate can be found, between a clausepertaining to amending the Agreement and one pertaining to cancelling it. Conspicuously absentfrom the arbitration clause (and its neighbors) is any reference to “seafarer” or “employment,”e Bright Balkan Agreement pertaining to “terms Generally, agreements that incorporate agreements with arbitration clauses can satisfythe agreement in writing requirement. 5880, 1996 WL 913180, at *4-*5 (E.D.N.Y. 5/1/96) (holding that a commercial order slip thatwas “subject to” an agreement containing an arbitration clause was an agreement in writing); , 286 F.Supp.2d at 1361-64 (holding that an agreement that incorporated anagreement that incorporated a third agreement containing an arbitration clause was an agreementso long as the agreement to arbitrate is an a

4 rbitral clause in a contract.Agreement d
rbitral clause in a contract.Agreement does not prevent federal jurisdiction.Defendants argue that there is an agreement in writing to arbitrate this dispute becausethe Bright Balkan Agreement contains an arbitratiemployment agreement. The incorporation clause states that “[t]he full terms and conditionsare stated in the [Bright Balkan Agreement]”(emphasis added). At oral argument, Plaintiapplicable by arguing that only the terms and conditions of the Bright Balkan AgreementAccording to the plain language of both Tuca’s employment contract and the BrightBalkan Agreement, the arbitration clause is not incorporated into Tuca’s employment contract,and, accordingly, there is no agreement in writing to arbitrate the dispute.The language of a contract should be interpreted against the party from whom the words According to the website of the United Nation Commissions on International Tradewww.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html. The Convention’s requirement that the agreement must provide for arbitration(holding that the Convention’s signatory requirement was satisfied where the employmentagreement stated that the plaintiff’s claims weThe Convention’s third requirement is also satisfied. That is, the agreement to arbitratearose out of

5 a commercial legal relationship. Seafa
a commercial legal relationship. Seafarers’ employment contracts, like the onesigned by Tuca here, are considered commercial. at 274 (concluding that a seaman’semployment contract arose out of a commercial legal relationship and that the ConventionThe Convention’s fourth requirement is also met because no party is an American citizen. There is no dispute that Plaintiff is Romanian. Accordingly, Defendants have met the fourth requirement. requirement).However, Defendants have failed to satisfy the first requirement of the Convention: thatan agreement to arbitrate the dispute be in writing. At the outset, and though not raised by theparties, it should be noted that the Fifth Circuit does recognize that an agreement to arbitrate canmeet the Convention’s definition of agreement in writing even though the parties did not sign it at 667-69 (holding that an arbitration agreementrelated to plaintiff’s claim despite the argument could not be compelled to arbitrate); , No. 04-584, 2004 WL 2984327,tion agreement related to plaintiff’s claim when, 284 F.3d at 670-71. Instead, Defendants merely must showarbitration clause in the Bright Balkan Agreement is at least arguably applicable. Tuca did signthe employment contract; the employment contract incorporates from the Bright B

6 alkanAgreement the “full terms and condi
alkanAgreement the “full terms and conditions governing the employment of the seafarer”; and theBright Balkan Agreement contains an arbitration clause.Accordingly, the arbitration clause relates to plaintiff’s claim..and Defendant has failed to satisfy the four-part Lim test.Aside from the agreement in writing requirement, which is discussed below, theConvention’s remaining requirements are easily satisfied.The Convention’s second requirement is met. The arbitration clause provides that Where the subject matter of an action or proceeding pending in a State court relates to anarbitration agreement or award falling under the Convention, the defendant or thedefendants may, at any time before the trial thereof, remove such action or proceeding tor the district and division embracing the placewhere the action or proceeding is pending. The procedure for removal of causesotherwise provided by law shall apply, except that the ground for removal provided inthis section need not appear on the face of the complaint but may be shown in the petitionfor removal.When a defendant seeks federal jurisdiction pursuant to the Convention, the Fifth Circuitprovides that that defendant must prove that that a four-part test is satisfied. must be an agreement in writing to arbitrate the disput

7 e. agreement must provide for arbitrati
e. agreement must provide for arbitration in the territory of a Convention signatory. agreement to arbitrate must arise out of a commercial legal relationship.the agreement must not be an American citizen. The Court will discuss in turn (1) whether the arbitration clause relates to Plaintiff’sclaim and, if so, (2) whether it falls under the Convention.Defendants have demonstrated that the arbitrdespite Plaintiff’s argument that the Special Agreement governs rather than Tuca’s employmentF.3d 665, 669 (5th Cir. 2002). In that spirit, courts have rejected arguments that the arbitrationclause did not relate to plaintiff’s claim when the arbitration clause ground for removal provided in this section need not appear on the face of the complaint but maybe shown in the petition for removal.” 9 U.S.C. § 205. Thus, the well-pleaded complaint rule, 108 F.Supp.2d 651, 653 n.5 (E.D. La. 2000) (“[T]he well-pleaded complaint rule and itsindependent corollary, the artful pleading doctrine, have no bearing on cases removed under the1996) (noting the Convention’s explicit exception to the well-pleaded complaint rule).“notwithstanding the saving to suitors clause,” if the claim falls under the Convention, thedefendant may remove); (holding that personal injury claim was removable und

8 er the Convention notwithstandingplainti
er the Convention notwithstandingplaintiff’s contention that Jones Act cases cannot be removed), situation. A case may be removed pursuant to the Convention if the subject matter of the claim“relates to an arbitration agreement governed by the Convention.” 665, 669 (5th Cir. 2002) (“[W]henever an arbitration agreement falling under the Conventioncould conceivably affect the outcome of the plaintiff’s case, the agreement ‘relates to’ the Defendants’ contention that there is a written agreement to arbitrate, which is a prerequisite tofederal jurisdiction pursuant to the Convention. Plaintiff argues that the terms and conditions ofTuca’s employment were governed not by Tuca’s employment agreement but by a SpecialAgreement dated August 6, 2004 and made retroactively effective from May 5, 2004, betweenSungleam Maritime, Ltd. and the Federation of Transport, Petroleum and Agricultural Workers Agreement contained no arbitration clause.Plaintiff also argues that Tuca’s employment agreement only incorporated the terms andconditions governing Tuca’s employment and that the arbitration clause in question provided foran Agreement, rather than to a seafarer whoseemployment contract incorporates provisions of the Agreement.Defendants argue that the Convention allows for removal even

9 though the grounds forremoval (e.g., the
though the grounds forremoval (e.g., the arbitration provision) are not present on the face of Plaintiff’s complaint. Furthermore, Defendants argue that the arbitration clause “falls under” the ConventionIII. Law and Discussion, 482 U.S. 386, 392 (1987). Instead, a district court must determine whether federaljurisdiction exists by examining the plaintiff’s well-pleaded complaint. Novemeber [sic] 2001 between ‘BRIGHT BALRomania and ‘BRIGHT MARITIME CORPORATION INC’, Piraeus, Greece . . .” (emphasisadded). The agreement between Bright Balkan Shipping Services SRL and Bright Maritimereement”) included an arbitration clause statingent”) included an arbitration clause statingthis agreement which the parties will not be ableto settle amicably, shall be finally settled by arbicably, shall be finally settled by arbGreece” (emphasis added).alleging negligence and unseaworthiness against Defendants. Defendants removed the case tothis Court on October 20, 2005 arguing that general maritime law confers federal jurisdictionand that the Convention on the Recognition and Enforcement of Foreign Arbitral AwardsOn November 21, 2005, Plaintiff filed the present Motion to Remand, premisingjurisdiction in state court upon the Jones Act, 46 U.S.C. section 688, and general maritime lawIn

10 support of his Motion to Remand, Plaint
support of his Motion to Remand, Plaintiff cites the well-pleaded complaint rule,arguing that his claim falls under the Jones Act and therefore is not removable without anotherimpermissible attempt to invoke the Court’s jurisdiction using a federal defense. GHEROGHE TUCA*CIVIL ACTIONVERSUS*NO. 05-5019OCEAN FREIGHTERS, LTD., ET AL.*SECTION "L"(3) Before the Court is the Plaintiff’s Motion to Remand the above-captioned matter to theState of Louisiana. The motion came for hearingon January 18, 2005 with oral argument. For the following reasons, Plaintiff’s Motion toRemand is GRANTED.while he performed his duties as a seaman aboard the M/V PONTODAMON, a vessel owned bySungleam Maritime, Ltd. Ocean Freighters, Ltd. was Tuca’s employer. While the vesselattempted to berth at the Port of New Orleans, Tuca alleges that he was struck by a line whichand allegedly suffered severe and permanent injuries to his right arm, left wrist, left foot andOn April 30, 2004, one month before the injury, Tuca signed an employment contractwith the manning agent Bright Balkan Shipping Services SRL, who was acting on behalf ofBright Balkan Maritime Corporation, who in tuDefendant Ocean Freighters. The employment contract stated that “[t]he full terms andare stated in the Agreement dated 15