occurred it is also not even about applying panamanian law in general instead the issue in this case is very narrow whether the separate choice of law provision inserted by carnival into  renders the resulting arbitration award in violation of public policy under article five of the convention if carnival had not opposed savor as attempt to have her are have her there would have been no case filed and we wouldn't be here as such this case is precisely the one that the supreme court warned about in mitsubishi when it stated that if going to caution they would have little hesitation in condemning us against public policy choice of law and arbitration clauses which operate in tandem to deprive a litigant of their statutory remedies in epic systems versus lewis exactly did they mean by that and what i'm wondering is it seems to me that what they may have meant was that there has to be some type of not necessarily equivalent but some type of other remedy available under the foreign law that would make it so that it's not fundamentally unfair not to offer the statutory remedy and i wonder what your thoughts are well to respond st of all  although that quote has been referred from it's a b she has been referred to as dicta the supreme court has pointed out in our braves has repeated it time and time again most recently in the in colors case and therefore it seems that they're serious about meaning what it says since they keep repeating it i think it's also very significant and note that in the cases in which it is a they have all occurred at the war at the arbitration enforcement stage before the arbitration and as one of the things that was significant as pointed out in the modern some of the other supreme court cases and actually lindo recognize this as well it's that it's important to st go ahead and give the arbor the chance to consider which law will be a political and then to see how the arbiter rules to avoid speculation and i guess that's probably what turns perspective waiver into effect of indication and we're at that latter stage i mean we're at the stage now where there is no  arbitration she repeatedly raised her jones act case urged claim based upon make any other claims that i mean you know the it appears that there were other claims that might have been available under the panamanian law and she did not make those claims if she had made those claims and they were it turned out that they weren't available and it seems to me she might have been in a different position coming before us now well with all due respect your honor what happened is that carnival is taking the position that there were two claims that could have been asserted under panamanian law one was based upon disability and the other was based upon negligent hiring the problem is that and the court seemed to record seem to confus conflate the two and in contrary to the district court statement that's forty did not pursue a remedy for disability the arbiter expressively ruled in paragraphs thirty through thirty three of the award which is part of the record on appeal in this case that's four was not entitled to assert a claim for disability benefits for the exact same reason panamanian law did not recognize the claim for vicarious liability and that is that anything that occurred after she left the ship was considered to be a new injury for which the employer cannot be held vicariously liable so how big of a honor and i think one of the points that was also addressed in limbo although i think was decked in that case because lindo primarily dealt with the timing that one could assert the public policy defense was that for example but using that as a as an example and window the choice of law clause called for arbitration under bahamian law and as the court pointed out in lindo under bahamian law the plain of how to cause of that action for negligence that was a  the facts of the case and had the same damages the only difference was that the plaintiff did not have the reduced burden of causation in that case but that's not our case i mean our case was severe we had no remedy whatsoever the jones act very clearly provides a remedy for vicarious liability against an employer for the negligence of the shoreside doctors it selects to treat would like for us to set well what's the rule that's going to apply in all cases well st of all i'm not sure that that is necessary to address in all you know in this case because in this case the facts are very clear that the plaintiff did not have any remedy and what we're asking the court to do is to allow us to proceed forward to effectively vindicate the jones act remedy just in the remedy for the vicarious liability claim but she did have remedies for other claims related to this incident right she had a claim well none that were political as the two claims that were pointed out by a carnival and that were  addressed in the district court's opinion was the st was a claim for disability which is pointed out the arbiter expressly ruled upon and said was not a political to the facts of this case for the same reason the vicarious liability claim was not a the nd was a claim based upon negligent hiring which is completely different claim which is clearly even recognized by the district court itself for example on page four of the district court's opinion  the court says the employer's vicarious liability under the jones act for the negligence of the shoreside physician is completely distinct and separate from its liability for its own direct negligence  how the act caused the damages that the real issue in this case is liability and in this case unlike under unlike lindo under panamanian law the plaintiff had no cause of action for liability her facts didn't meet the requirements for negligent hiring or the disability time i had a question about under the since the doctor was from serbia did she have a cause of action for negligence just against the doctor and is in that country a separate thing from carnival understand i honestly don't know the you know that question i have no i don't know what some then i was confused to know she got paid her medical expenses and she got paid the travel back to her home country in there were something about cure and maintenance well did she recovered a cure and initially there was some issue as to whether or not she had received all of the maintenance that she was entitled to but it was subsequently determined that she had received it all ok i got the lesson about jurisdiction although i don't think it's going to affect your case but in the district court at the beginning of the case when carnival moved to dismiss the compliant and as pointed out in the magistrate's rather extensive order which was adopted in full by the district court there is some conflict on the  law on that issue so although this court i think in gaseous and probably mispronouncing it indicated i think in that that would be the rule that you know would have followed is this recovery of medical expenses and care and maintenance because carnival just because the cruise line just did that i was that pursuant to some claim she had on a panamanian law i think that there was an issue at the time the claim was made as to whether the medical expenses have been paid in full or they were continuing them until she had reached the point of maximum medical cure and it was subsequently determine the number was that pursuant to to some type of climb on the panamanian are are was it just because they that's what they do for their employees to be honest with you i'm not sure about that if i can just go back to judge grant d your question there sorry i forgot the question it was about over the jurisdiction yes i as pointed out those further point out it doesn't really matter in this case because or in part and really were traveling on the latter issue although we played both alternatively i guess as a prophylactic measure and frankly it's not even necessary i don't believe for the court to refuse to recognize the entire article award it's not our intent to go and litigate issues that were decided to many in law and do all that again to our requests for relief is very narrow and that is  are asking the court for the opportunity to go ahead and effectively vindicate our jones act remedy based upon vicarious liability for the negligent grade hampshire arbitration award while because the award the part that we're challenging there was never a determination on the merits the as pointed out by the district court specifically on page five of his opinion where he says here however the arbiter chose not to adjudicate the jones act claim finding that united states law did not apply under the seafarers agreement the question in this case is whether the decision violates this nation's public policy as embodied  symbol and fitzgerald so the court never warned or determined you know that issue and so we're just you would pursue that claim and district court the jones act claim based upon vicarious liability if you were just pursue it as a stash charge cause of action  failed to sustain her brood burden of proving that recognition or enforcement the arbitration award here would be contrary to an established public policy of the united states reaching this conclusion the district court properly recognised that because arbitration is an alternative to litigation judicial review of arbitration decisions is among the narrowest known to the law or over the district court properly recognized that the arbitration conventions public policy defense should be construed narrowly and with the required presumption to enforce the award to overcome that presumption the challenging party must prove in foresman of the award would violate the for states most what basic notions of morality and justice what do you make of the mitsubishi motors but no i think it's dicta i think your honour's comment that the supreme court hasn't acted on it is is counsel does braise a point that it has been repeated in recent years by the supreme court so it must mean something so what do you think it means i think it means that where by virtue of insertion of an arbitration clause there it's virtually renders any remedy for the claimant would know what the in just in terms of there's nothing there and that would be invalidated which is not what we have operating here to go to judge polls question to mr peltz ms oral was paid made to its in cure benefits pursuant to the panamanian law the panamanian law pretty much mirrors what american law has four crew claims it has a negligence claim for direct negligence it has a maintenance and care claim just like united states law does and the only thing that it lacks is this notion of claim is in the united states so in addition in panama this of oro potentially qualified for another remedy and that's called it's a vocational disability remedy by virtue of her proof of an inability to return to work she would qualify without respect to fault for certain benefits now the distinction it operates here and i think judge paul recognized it is the facts of this case may not in terms of what went on with may not she may not qualify for those remedies by virtue of the facts but in contrast to miss a bishop as a matter of law she had access to them whereas i think that's a big issue was contemplating a scenario where there wouldn't even be any access at all to put it in terms of judge grants question do you think that the difference between what is offered and what is offered by foreign law and what is statutorily available under united states law has to be there has to be nothing offered by foreign law is that right i just want to make sure i'm understanding your position i think the nothing in the sense of your honor that it would be a total futility it would be a nonexistent remedy not driven by facts but by legal availability and the reason why it's important i think mitsubishi's further distinguishable for the claimant here is the notion that it's a and there's a very good reason because he can the jones act by its term does not create this vicarious liability of the employer for the shore side negligence of the treating doctor that's nowhere in the act the district court recognized that that notion that extension came about judicially in one thousand nine hundred and sixty eight when same bluish decided and the court extended the jones act remedy and in doing so utilize common law concepts that we're just talking about with judge hall about the maintenance and cure in the duty of the employer to provide medical treatment and i ask you question if if the dicta should be construed as meaning there must be no remedy available why would the supreme court not just say that which is a lot simpler to say then fundamentally unfair well fundamentally unfair connotes the notion because the other the other dynamic that's in play to answer your question is this notion of you know just because there's a foreign law aspect it doesn't have to be equivalent to to the united states law you know that the cases talk about this concept that you know the u s shouldn't be exporting its law on its expectations to to you know to to foreign countries so you have to balance that statement in the midst of vishy against the notion that just because it's foreign doesn't necessarily mean it it's no good so i think the reason why they left that don't use the language they did is because there still has to have the concept of the result that comes about in the foreign form applying foreign can't be so fundamentally unfair that it you know that there wasn't anything what is the cause of action gives you fifty percent of whatever damages you again here and i think it under the under the cases and of the percentage i think it's a case of availability so and i think as an ac own address itself to that going to the notion of the adequacy of remedy question and the public policy aspect of  you know whether plaintiff has proven that he or appellant has proven that here where a public policy defense to an arbitrary award is in question the u s supreme court instructs the courts to consider the source of the policy to determine whether a static statutorily protected right actually exists the supreme court and shirk recognize the distinction between when federal case law implied the right of action at issue or whether the legislation itself establishes the special right sherk recognize that when it's a case of a judicial interpretation of a statute implying around maty that that doesn't rise to the level of public policy where the statutory terms in of themselves specify the right then that would be a public policy if you think about it it harmonizes it spins right out of the basic civics of our tripartite system of government we have three branches we have legislative which creates the law executive which carries it out judicial which interprets it the law and so in this instance public policy spins out of what the congress declares is the public policy in this case the jones act there's no declaration about the jones act excrete ating this notion of vicarious liability for shoreside physicians that spawns simply assembly so if you look at epic systems the supreme court very recently recognized the need for respect for congress and respect for separation of powers and the judicial restraint that this counsel so the current judicial philosophy you know that the supreme court specifically cautioned that judges should be in terms of what the law is not what the  and maintenance can you tell me that does the record tell me what that constituted in this case the actual numbers yes it does is it in the record i'm not so sure that it's in the record because the undergoing made treatment ok and i think there was a limited by virtue of the terms of the contract wage recovery ok and then if you are disabled after all of this like american certain disability right you can get in employment situations does panamanian law have any disability and you said they did have them do disability but the problem is is you know we're not as opposed to the doctor what the doctor see here's the thing that's what mr potts is arguing now at the but at the arbitration phase the plaintiff never the claimant never put forth any proof about any of that the ok it was just that we just what we had was statements from the lawyers saying that we don't think we can you know we don't think we can make that claim or we don't want to make that claim because the claim we want to make is the case the claim under the jones act for vicarious liability so instead of focusing on the claims that were available and investigating analyzing the evidence and making a presentation to try to qualify for those technically the claimants lawyers made the choice that they wanted to focus on what was not a lot part of the record from the arbitration what we have here to see what was argued about vocational disability or not argued i don't know that we have the arbitration record here i think you have the arbitrators order and i think it's just the discussion is in there you know ok all right so go back to go back to the point that i was making about epic systems if you can mentally bookmark and come back with that well the reason i interrupt you it's not going to about on dicta to try to apply a pick systems here but go ahead the current judicial philosophy as expressed in epic systems contrasts markedly with the climate of judicial legislation which was going on in the question appeared to be that thorough could have had some sort of some sort of occasional viability under panamanian law but chose not to pursue that correct correct and late the claim existed in technically she didn't pursue it is there anything else that you that you all suggest that she could have pursued and didn't yes or panama in the negligence claim against the employer for direct negligent acts of the employer or the agents very similar to the jones act she had a maintenance inc your claim which she conceded carnival had satisfied so there was you know nothing further to claim there and then in addition she had this what panamanian vocational disability claim which she elected in the arbitration and you read it in the order not to submit any proofs on its own fate basically she put all of her eggs figurative least speaking in the vicarious liability jones act basket and what's the differential between the remedies available for the two claims that she that she is lego under panamanian law that she's trying to pursue another jones act when you say the differential judge i'm not sure i understand what's the obviously she had some strategic reason for wanting to do one and not the other i would think i can't account for that i mean like i said before the notion of opting to focus on what's not available versus what is it doesn't time to make her a large human is those two vocational liability and direct negligence claims were not available because it was a doctor who did the damage and so principle of vicarious liability recognized as opposed to direct negligence that's that's that's their argument right but we submit that as i point out the judge grant that under the panamanian law she did have claims she jest elected not to not to pursue them in the arbitration process and quickly what's your response to the jurisdictional question about jurisdiction of the united states to  from a different jurisdiction that would be under that would be controlled by the convention so i what do you think the conventions i think in this instance article five in theory where there's been where there is a breach of u s public policy i think the united states is as a nd they're not the primary jurisdiction they're a secondary so they can only invoke i think it's article five to be that that provision of a statute it's a statutory mechanism that congress is an act which is also very important concept here we have you know the the treaty powers of the united states congress enacted this act in all of that supersedes domestic legit legislation last point very quickly i know i'm flirting with being left first of all i'd like to go back to one of the questions that judge grant asked before about really what is the past for trying to determine whether there's been an effective indication of callers the court said that it would certainly cover a provision in an arbitration agreement for forbidding the assertion of certain statutory rights it later went on to talk about the application of coggs in the  case in which coggs a has a provision that prohibits any agreement relieving or lessening the liability of the carrier and then it went on to say that describing that such a provision is as close to a c of the effective indication exception as possible so the best answer i can give is that that would be the standard that's been set forth by the supreme court and clearly not having any remedy that fit the facts falls in there into that category i mean to follow carnivals argument in this case if say they adopted a choice of law provision that allowed a seaman to sue an employer for intentional torts only the they would be under their argument that they various today they would say that's an alternative remedy even though the seamen would be deprived of as his or her jones act negligence remedy i mean it's a remedy it's just a remedy that doesn't fit the facts of the case and i think what's important is that the under the facts of this case savor how to jones act remedy now judge hall it asked about there is about whether this remedy for vicarious liability is protected by the explicit public policy that the supreme court has recognized probably for longer than one hundred years of  same and i think it's important to go back to the jones act unlike sure which was the case that involved the claim wonder the nine hundred and thirty four dollars securities act which expressly did not include a civil cause of action for individual investors the jones act does two things which are significant for our discussion one is it explicitly provides a civil remedy at law for same and that are injured through the negligence of their employer secondly action against an employer based upon vicarious liability for the negligence of an agent and it was on that backdrop that the court in sam concluded that there was a cause of action for negligence under the jones act for vicarious liability one of their point on this that i think is important and that is that under the pre born or case of i v v security barge which is also binding precedent in this court court held that there is no cause of action under general maritime law for negligence by a seaman against his employer that it only arises by virtue of the jones act and that's the status of  so on that note since my time is up i'll sit down thank you very much thank you 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