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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-23621-SEITZ

ELIO ELISEO HODGSON CUNNINGHAM,

 Plaintiff, 

v.

CELEBRITY CRUISES, INC.;

 Defendant.

________________________________/ 

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

AND COMPEL ARBITRATION

THIS MATTER is before the Court on Defendant Celebrity Cruises, Inc.’s, Motion to 

Dismiss Plaintiff’s Complaint [DE 1] and Compel Arbitration. DE 11. Plaintiff’s Complaint 

alleges one count of unseaworthiness arising from a series of unfortunate health 

complications he experienced onboard a vessel Defendant operated. DE 1 ¶ 68. 

Defendant argues that dismissal is warranted because this Court lacks jurisdiction 

due to an arbitration clause in a Collective Bargaining Agreement (the “CBA”) incorporated 

by reference into Plaintiff’s Employment Contract. DE 11 at 2. Plaintiff asserts the 

jurisdictional prerequisites to enforce arbitration are not met, that Defendant, as a nonsignatory to the Employment Contract, cannot enforce the arbitration clause, and that the 

unseaworthiness claim is not governed by the arbitration clause. DE 16. The Court has 

reviewed the record, Defendant’s Motion [DE 11], the supporting affidavit [DE 11-1], 

Plaintiff’s Response [DE 16], and Defendant’s Reply [DE 18]. Because there is an 

enforceable arbitration agreement which encompasses Plaintiff’s allegations of 

unseaworthiness, Defendant’s Motion to Dismiss and Compel Arbitration must be granted. 

I. FACTUAL BACKGROUND

On December 17, 2019, Plaintiff, a Nicaraguan citizen, signed a one-page

Employment Contract with Sea Chefs Cruises Ltd, a Cypriot entity and non-party to this 

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action. DE 1-1. The Employment Contract contains six boxes.1 Only Boxes 4, 5, and 6 are 

relevant to this action. 

Box 4 is titled “Benefits and Terms, Complaints Procedure and Arbitration 

Agreement.” Id. Specifically, the second sentence of the two-sentence box states:

The CBA contains a complaints procedure and an arbitration agreement which 

exclude the jurisdiction of national courts and tribunals. 

Id. 

Box 5 lists Defendant as the entity undertaking the duties under the Maritime 

Labour Convention (2006) (the “MLC”), specifically “ship safety, human security, and 

quality ship management.” DE 1 ¶ 14; DE 1-1. In Box 6, Plaintiff signed his name directly

underneath a clause stating he acknowledged, read, understood, and agreed to be bound by 

the terms and conditions in the CBA. DE 1-1. 

The CBA, comprised of twenty-four articles and six annexes, was attached to the 

Employment Contract when Plaintiff signed it. DE 11-1 at 3 ¶ 9. Article 1 of the CBA 

specifies “the MLC-responsible-company for purposes of this Agreement is Celebrity 

Cruises, Inc.” Id. at 8. Article 24 of the CBA specifically excludes the jurisdiction of United 

States courts and states the Employment Contract is subject to the arbitration agreement 

contained in Annex 5. Id. at 24. Annex 5, paragraph 5 states: 

[A]ll claims, grievances, and disputes of any kind relating to . . . the Seafarer’s 

service to the Company . . . whether asserted against the Seafarer, Company, 

Master, Ship Owner, Vessel, Vessel Operator or their agents, shall be referred to 

and resolved exclusively by binding arbitration . . . . 2

Id. at 39. 

1 Box 1 contains Plaintiff’s information. Box 2 lists Plaintiff’s next of kin. Box 3 is “Employment 

Details.” DE 1-1. 2 The arbitration agreement provides arbitration will occur in a place where either Cyprus law or 

Maltese law applies. DE 11-1 at 39. 

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Plaintiff joined the crew on January 17, 2020 as an assistant housekeeper. DE 1 ¶ 

25. Shortly after Plaintiff’s employment began, the COVID-19 pandemic caused all 

operations to cease. DE 1 ¶ 26. Plaintiff alleges that Defendant’s negligent actions began

when he was forced to work on the vessel at the outset of the pandemic in “enclosed areas” 

which “lacked circulated air,” thus exposing Plaintiff to COVID-19. DE 1 ¶ 28. Plaintiff 

alleges that he was forced to “overexert himself” in “sauna like conditions” due to the 

reduced staff. DE 1 ¶¶ 27-29. At some point in March 2020, Plaintiff visited the infirmary 

complaining of a cough, congestion, and headaches, for which he was prescribed 

medication.3 DE 1 ¶ 32. Not long after, while carrying and transporting king size 

mattresses and sheets to the laundry, Plaintiff collapsed. DE 1 ¶¶ 38-39. Following this 

incident, Plaintiff was hospitalized, received rehabilitative treatment, and continued to 

suffer from health complications. DE 1 ¶¶ 45-51. Plaintiff’s single count of 

unseaworthiness is based on the vessel’s “unsafe conditions” and the medicine prescribed, 

which caused his injuries. DE 1 ¶ 58. 

II. LEGAL STANDARD

Motions to compel arbitration are treated as motions to dismiss for lack of subject 

matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When a motion to dismiss challenges subject 

matter jurisdiction, the Court may consider affidavits. Murphy v. Secretary, U.S. 

Department of Army, 769 F. App’x 779 (11th Cir. 2019) (citing Menchaca v. Chrysler Credit 

Corp., 613 F.2d 507, 511 (5th Cir. 1980)). The Court has considered Defendant’s supporting 

affidavit, signed by Defendant’s counsel in Cyrpus. DE 11-1 at 1. 

The United States Supreme Court has expressed a liberal federal policy favoring the 

enforcement of arbitration provisions. See Mitsubishi Motors Corp. v. Soler Chrysler3 Plaintiff was given Novaminsulfon and Moxifloxacin Hexal, an anti-inflammatory and antibiotic, 

respectively. DE 1 ¶ 32.

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Plymouth, Inc., 473 U.S. 614, 625 (1985). This strong presumption in favor of arbitration

“applies with special force in the field of international commerce.” Id. at 631. Because this 

is a contract between two foreign entities and Defendant is seeking to enforce arbitration in 

a foreign jurisdiction, the Court applies the framework set forth in The Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”). The United 

States enforces the Convention through Chapter 2 of the Federal Arbitration Act (“FAA”). 9 

U.S.C. §§ 201-208. The Supreme Court has expressed the Convention’s goal is to recognize 

and enforce commercial arbitration agreements in international contracts. Scherk v. 

Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974).

The issues the Court must consider are whether the jurisdictional prerequisites 

required under the Convention are met, whether Defendant can enforce the arbitration 

clause as a non-signatory to the underlying agreements, and whether Plaintiff’s 

unseaworthiness claim is subject to the arbitration clause. 

III. ANALYSIS

a. The jurisdictional prerequisites required under the Convention are 

met.

In light of the strong federal policy favoring arbitration, courts are to conduct “a very 

limited inquiry” in deciding whether to enforce an arbitration agreement pursuant to the 

Convention. Bautista v. Star Cruises, 396 F.3d 1289, 1294-95 (11th Cir. 2005). The four 

jurisdictional prerequisites are: (1) there is an agreement in writing to arbitrate the 

dispute; (2) the agreement provides for arbitration in the territory of a signatory to the 

Convention; (3) the agreement to arbitrate arises out of a commercial legal relationship; 

and (4) there is a party to the agreement who is not an American citizen.4 Id. at 1294, n.7. 

4 The analysis under the Convention also requires a finding that affirmative defenses do not apply, 

however Plaintiff did not raise any affirmative defenses in his Response. Bautista, at 1295. 

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Here, all jurisdictional requirements are met. There is a written, one-page

agreement which specifically calls for arbitration and excludes the jurisdiction of national 

courts and tribunals, evinced by the Employment Contract attached to Plaintiff’s 

Complaint. DE 1-1. Plaintiff signed his name acknowledging that he read and understood 

the terms of the applicable CBA. The CBA provides for arbitration in Cyprus, a signatory 

of the Convention. DE 11-1. The arbitration agreement arises out of a commercial legal 

relationship.5 Neither party to the Employment Contract is an American citizen. DE 1-1. 

As such, the arbitration clause in the CBA is enforceable because all four jurisdictional 

prerequisites are met.

b. Defendant can enforce the arbitration clause as a non-signatory to 

the Employment Contract and CBA. 

Interpretation of arbitration agreements is governed by state contract law.6

Physician Consortium Services, LLC v. Molina Healthcare, Inc., 414 F. App’x 240, 242 (11th 

Cir. 2011) (citing Arthur Andersen LLP v. Carlisle, 129 S.Ct. 1896, 1902 (2009)). Under 

Florida contract law, a party cannot simultaneously “take advantage of contract provisions” 

to impose liability while at the same time avoiding another contract term or provision. 

Giller v. Cafeteria of South Beach, Ltd., LLP, 967 So. 2d 240, 242 (Fla. 3d DCA 2007) (citing 

to United Contractor’s Inc. v. United Construction Corp., 187 So. 2d 695, 701-02 (Fla. 2d 

DCA 1966)). As such, a plaintiff who is a signatory to a contract outlining the duties of the 

parties and containing an arbitration clause cannot seek to recover against a non-signatory 

on the basis of that contract while avoiding the arbitration clause. Kroma Makeup EU, 

LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351, 1354 (11th Cir. 2017) (citing 

5 The Eleventh Circuit has held an employment contract constitutes a commercial legal relationship 

under the Convention. Bautista, 396 F.3d at 1300.

6 As per Defendant’s affidavit, the same conclusion would be reached under Cypriot law. DE 11-1 at 

2 ¶ 5. 

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Allscripts Healthcare Solutions, Inc. v. Pain Clinic of Northwest Florida, Inc., 158 So. 3d 

644, 646 (Fla. 3d DCA 2014)). 

Plaintiff’s Complaint specifically references Box 5 of the Employment Contract and 

identifies Defendant as the entity undertaking the duties under the MLC. DE 1 ¶ 6. 

Defendant is named in this action because Defendant allegedly breached these duties. DE 1 

¶ 59. Thus, Plaintiff’s allegations are rooted in the terms of the Employment Contract.

Further, the Plaintiff does not refute that he signed the Employment Contract or that the 

CBA was attached to the Employment Contract when he signed it. As such, Plaintiff cannot 

circumvent the arbitration clause in the CBA while alleging Defendant breached duties 

specified in the Employment Contract. 

Further, the scope of the arbitration clause encompasses Defendant. DE 11-1 at 8. 

Although Defendant is not a signatory to either the Employment Contract or the CBA, 

Defendant is identified in both documents as the entity responsible for MLC imposed 

duties. DE 1-1; DE 11-1 at 8. Defendant was clearly accounted for in the drafting of these 

documents and contemplated as an entity entitled to arbitration. Thus, Defendant is 

entitled to arbitration even as a non-signatory to the underlying agreements. 

c. Plaintiff’s claim falls under the arbitration clause.

 The Eleventh Circuit has held that a plaintiff’s claims of unseaworthiness arise 

from a plaintiff’s “undisputed status as a ‘seaman.’” Jane Doe v. Princess Cruise Lines, Ltd., 

657 F.3d 1204, 1220 (11th Cir. 2011). Therefore, such claims would be subject to alternative 

dispute resolution when an arbitration agreement specifically includes claims which relate 

to a plaintiff’s employment or service on a vessel. Id; see also Sierra v. Cruise Ships 

Catering and Services Intern., N.V., 631 F. App’x 714, 717 (11th Cir. 2015) (holding that a 

plaintiff’s unseaworthiness claim, which included a claim for inadequate medical care, was 

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subject to an arbitration clause in a collective bargaining agreement which was 

incorporated by reference into an employment contract.)

Plaintiff’s Response argues that his unseaworthiness claim is limited to Plaintiff 

being “prescribed and administered dangerous medications,” and as such does not fall 

within the arbitration clause since it does not relate to Plaintiff’s “service to the Company.” 

DE 16 at 2, 7. However, Plaintiff’s argument loses its sea legs when read in conjunction 

with the Complaint which lists sixteen ways in which the vessel was unseaworthy, not one 

of which refers to the inappropriate administration of medication. DE 1 ¶ 68. Plaintiff only 

finds himself on the vessel because of his employment, i.e., his “service to the Company.” 

The factual essence of Plaintiff’s claim is that he was forced to work in poor conditions and 

the medical treatment he received led to his collapse while performing his duties on the 

vessel. DE 1 ¶ 27; ¶ 39. Plaintiff cannot divorce himself from the allegations in his 

Complaint. As such, Plaintiff’s claim clearly relates to his “service to the Company” and

falls under the arbitration clause.

IV. CONCLUSION

Because the arbitration agreement meets the jurisdictional prerequisites, Defendant 

can enforce the agreement as a non-signatory, and Plaintiff’s claim falls within the 

arbitration clause, dismissal of Plaintiff’s Complaint [DE 1] and arbitration are 

appropriate. Furthermore, because the Employment Agreement and CBA expressly exclude 

the jurisdiction of United States courts, the Court will not retain jurisdiction pending 

arbitration proceedings. As such, it is

ORDERED THAT

(1) Defendant’s Motion to Dismiss Plaintiff’s Complaint and Compel Arbitration [DE 

11] is GRANTED;

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(2) The parties shall submit to arbitration all claims asserted in this matter in 

accordance with the arbitration clause in Box 4 of the Employment Agreement 

and Annex 5 of the Collective Bargaining Agreement incorporated into the 

Employment Agreement;

(3) All motions not otherwise ruled upon are DENIED AS MOOT; and

(4) This case is CLOSED. 

DONE and ORDERED at Miami, Florida, this 31st day of March, 2023.

 

_____________ _ _______________ 

 PATRICIA A. SEITZ 

 UNITED STATES SENIOR DISTRICT JUDGE

Cc: Counsel of Record

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