Marine recruiters, especially those who own or operate ships, are always aware of the possibility of litigation for personal injury and accidental death. In the context of personal injury, the use of arbitration clauses is a growing trend in both commercial and employment disputes. It is very common to see an arbitration clause in an employment contract signed by both parties, which explicitly removes disputes from state or federal courts (and juries) and instead (sometimes) submits claims to individually selected arbitrators under completely different rules.
An abundance of scholarly work analyzes the positives and negatives of arbitration in general and in special circumstances. This blog post sheds light on the sleeve of a sliver [1] of arbitration issues: will arbitration agreements be possible for Jones Act dwarfs, and if so, when are they appropriate?
Before analyzing this particular issue, it is important for the reader to understand some of the basic, black-colored principles of law surrounding arbitration clauses, as well as the importance of maritime jurisprudence. So, we start our journey.
Federal Arbitration Act ("FAA")
The FAA [2] requires a trial court to apply the arbitration clause to a private arbitration agreement. [3] The Supreme Court of Texas held in 2018 that there is an estimate of the validity of arbitration agreements under the FAA. [4] Requires a trial court to [[5]
However, the FAA deals with certain types of employment contracts for which this requirement does not apply. [[]] Specifically, Section 1 of the FAA states that the law does not apply to any maritime employment contract as well as to other types of workers involved in foreign or domestic trade. []]
United States General Maritime Law ("GML")
In parallel existence, GML developed the Jones Act as the title of a protected class of workers. The decisions of the United States Supreme Court, as well as lower courts, regularly refer to the soldier as a "ward of the admiralty" and carry the dwarf special protection and honor under the law. [8]
One could argue that the general respect for the Jonas Act sea reveals itself legally in sections 1 and 2 of the FAAA. However, there are some caveats and exceptions to this general rule.
For example, if a maritime workers' union negotiates an arbitration clause in a maritime employment contract, that arbitration clause is generally considered valid, because the maritime owner must be on equal footing with the force (through union action) with the employer 9] but foreign (i.e., It is most common among U.S. citizens.
Another exception to this general rule is the adoption of the United States Convention on the Recognition and Application of Foreign Arbitration Awards ("CREFAA") under Title 9 of the Code. [10] The Fifth Circuit was held in 2004 that allowed the law to apply an arbitration clause where both the employer and the employee were American, but the work was performed outside the territorial waters of the United States. [11]
In contrast, arbitration clauses in employment contracts, as part of the new recruitment process, have been implemented (i) after the start of service or (ii) for American soldiers serving in American waters are generally dissatisfied and rejected. [12]
With these generalities in mind, a safe statement is that any arbitration clause in a maritime employment contract (or other new rental documents) may be invalid, especially if the seafarer and the employer are American, and the incident has occurred in U.S. territorial waters.
However ... if the Navy and its employer enter into an arbitration agreement after an incident, will it cause personal injury?
In this scenario, the employer typically offers to (a) continue to provide maintenance and healing benefits and (b) advance on lost wages while the worker is off work and recovering. In return, the workers relinquish their right to a jury trial and agree to arbitrate while retaining all the minor rights under the GML (i.e., the Jones Act negligence claim, a non-disclosure claim, and a maintenance and healing claim).
In this situation, two questions need to be answered: First, can the agreement not be enforced as a matter of law? Second, is the contract not liable?
Arbitration agreements are usually effective after injury
In 2000, the Fifth Circuit Court of Appeals vs. KC Transportation Corporation held in Terebin that the arbitrator did not violate sections (a) of FAA 1 and 2 after the injury and (b) did not violate the Jose Act [Federal Employers' Liability Act ”. With the inclusion of Section 5 of the FLA "], [[13] the agreement was valid in the case, and the Fifth Circuit directed the district court to refer the matter to arbitration.
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