Closing U.S. Courts to Foreign Seamen: The Judicial Excision of the FAA Seamen's Arbitration Exemption from the New York Convention Act
Nickson, Matthew, Texas International Law Journal
In the recent Francisco and Bautista decisions, the Fifth and Eleventh Circuit Courts of Appeals compelled arbitration of Jones Act tort claims brought by Filipino seamen whose employment contracts included mandatory arbitration clauses falling under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and its implementing Act. Matthew Nickson's note argues that the decisions are flawed because they distort statutory plain meaning and legislative history. It also examines why the decisions run counter to fundamental principles of U.S. admiralty law and the broad remedial policies of the Jones Act, as well as Supreme Court labor law and Federal Employers' Liability Act jurisprudence. The note concludes that both cases work an injustice to foreign seamen and should be overturned.
In 2002 in Francisco v. Stolt Achievement MT1 and again last year in Bautista v. Star Cruises,2 panels of the Fifth and Eleventh Circuit Courts of Appeals compelled arbitration of tort claims brought by plaintiff seamen whose employment contracts contained covenants to arbitrate falling under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention)3 and its implementing Act (the Convention Act).4 Francisco involved a Filipino seaman, Ernesto Francisco, who sued his employer for negligence under the Jones Act5 after sustaining injuries aboard a chemical tanker ship navigating the Mississippi River. Bautista involved consolidated Jones Act negligence and wrongful death claims surrounding a tragic boiler explosion that occurred in the Port of Miami aboard the famous S.S. Norway.
To justify their holdings, both the Francisco and Bautista panels relied upon the ever expanding Supreme Court policy favoring arbitration and forum-selection clauses. The courts discussed Federal Arbitration Act (FAA)6 and Convention Act cases compelling arbitration in the international business context so as to deny the incorporation into the Convention Act of the seamen's arbitration exemption found in FAA section 1.7
The decisions are problematic for two important reasons. The first reason is that they interpret the interaction of the FAA and the Convention Act as producing a result that seems unnatural. Arguably, a unified reading of the two acts provides that the seamen's arbitration exemption is applicable to the Convention Act. At the very least, for a variety of reasons to be explored below, this applicability is ambiguous. It is befuddling that both courts determined so peremptorily that the plain meaning of the Convention Act does not incorporate the exemption.
The second key problem with Francisco and Bautista is their dismissal of legislative history that is favorable to the plaintiffs. The courts discount testimony given before the Senate Foreign Relations Committee by Richard Kearney, a State Department official and the Convention Act's drafter. The decisions also ignore evidence-apparent from questions posed to Mr. Kearney by Senator J. William Fulbright, the Act's principal legislative sponsor-about the Act's intended scope. The impressions that both men had of the Convention Act help to clarify any uncertainty vis-à-vis its interaction with the FAA.
What's more, Francisco and Bautista are hostile to fundamental principles of U.S. admiralty law. Among other things, these holdings violate FAA policy by paving the way for arbitration of U.S. seamen's tort claims; circumvent the liberal policies of the Jones Act and of the Federal Employers' Liability Act (FELA);8 and contravene Supreme Court labor law jurisprudence and especially U.S. Bulk Carriers, Inc. v. Arguelles.9
There can be no doubt that Francisco and Bautista implicate an ongoing debate about the role of human beings in global economic development. To improve the Philippine economy by securing jobs overseas for Filipino citizens and thereby attracting remittances, Philippine law mandates that contracts of employment of seamen be arbitrable. …