No. 15-305 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

LITO MARTINEZ ASIGNACION,

Petitioner, v.

RICKMERS GENOA SCHIFFAHRTSGESELLSCHAFT mbH & CIE KG,

Respondent.

--------------------------------- ---------------------------------

On Petition For A Writ Of Certiorari To The United States Court Of Appeals

For The Fifth Circuit

--------------------------------- ---------------------------------

BRIEF OF THE SEAMEN’S CHURCH INSTITUTE OF NY & NJ AS AMICUS CURIAE IN SUPPORT OF PETITIONER

--------------------------------- ---------------------------------

JAMES M. MALONEY 33 Bayview Avenue Port Washington, NY 11050 (516) 767-1395 maritimelaw@nyu.edu Counsel of Record

Of Counsel

DOUGLAS B. STEVENSON Director, Center for Seafarers’ Rights THE SEAMEN’S CHURCH INSTITUTE OF NY & NJ 50 Broadway, 26th Floor New York, NY 10004 (212) 349-9090

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . ii

STATEMENT OF INTERESTOF THE AMICUS . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE FACTS . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . 5

REASONS FOR GRANTING THE PETITION . . 6

A. The Petition for Certiorari Should BeGranted Because the PhilippineArbitration Scheme Violates the PublicPolicy of the United States. . . . . . . . . . . . . 6

B. The Prospective-Waiver Doctrine IsApplicable in the Context of Non-Statutory Rights.. . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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TABLE OF AUTHORITIES

CASES

Aggarao v. MOL Ship Management Co., Ltd.,Civ. No. 09-3106, 2015 A.M.C. 444,2014 WL 3894079 (D. Md. 2014) . . . . . . . 13

Aguilar v. Standard Oil Co. of New Jersey,318 U.S. 724 (1943) . . . . . . . . . . . . . . . . . 11

Atlantic Sounding Co., Inc. v. Townsend,557 U.S. 404 (2009) . . . . . . . . . . . . . . . . . 10

Bank Melli Iran v. Pahlavi,58 F.3d 1406 (9th Cir. 1995) . . . . . . . . . . 13

Calmar S.S. Corp. v. Taylor,303 U.S. 525 (1938) . . . . . . . . . . . . . . . . . . 8

Commonwealth Coasting Corp. v. ContinentalCasualty Co.,

393 U.S. 145 (1968) . . . . . . . . . . . . . 14 n.15

Cortes v. Baltimore Insular Lines,287 U.S. 367 (1932) . . . . . . . . . . . . . . . . . 10

DeZon v. American President Lines, Ltd.,318 U.S. 660 (1943) . . . . . . . . . . . . . . . . . 10

Generica Ltd. v. Pharmaceutical Basics, Inc.,125 F.3d 1123 (7th Cir. 1997) . . . . . 14 n.16

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TABLE OF AUTHORITIES (cont’d)

Harden v. Gordon,11 F. Cas. 480 (2 Mason 541),2000 A.M.C. 893 (C.C.D. Me. 1823) . . . . 8-13

Hilton v. Guyot, 159 U.S. 113 (1895) . . . . . . . . . 13

Karaha Bodas Co. v. Perusahaan PertambanganMinyak Dan Gas Bumi Gefara,

364 F.3d 274 (5th Cir. 2004) . . . . . . . . . . . 6

Miles v. Melrose,882 F.2d 976 (5th Cir. 1989) . . . . . . . . 7 n.5

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,473 U.S. 614 (1985) . . . . . . . . . . . . . 19 n.28

N.L.R.B. v. Sea-Land Service, Inc.,837 F.2d 1387 (5th Cir. 1988) . . . . . . . . . 11

NYK Cool A.B. v. Pacific Fruit, Inc.,507 Fed. Appx. 83 (2d Cir. 2013) . . . 14 n.15

Reed v. Canfield,20 F. Cas. 426 (1 Sumn. 195)(C.C.D. Mass. 1832) . . . . . . . . . . . . . . . 8 n.9

Sunshine Mining Co. v. United Steelworkers,823 F.2d 1289 (9th Cir. 1987) . . . . . 14 n.17

The Osceola, 189 U.S. 158 (1903) . . . . . . . . . . 7 n.8

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TABLE OF AUTHORITIES (cont’d)

Vaughan v. Atkinson,369 U.S. 527(1962) . . . . . . . . . . . . . . . . . 10

Vella v. Ford Motor Co.,421 U.S. 1 (1975) . . . . . . . . . . . . . . . . . . . . 8

Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,515 U.S. 528 (1995) . . . . . . . . . . . . . 19 n.29

STATUTES

9 U.S.C. § 10 . . . . . . . . . . . . . . . . . . . . . . . . 14 n.15

9 U.S.C. § 205 . . . . . . . . . . . . . . . . . . . . . . . . . 6 n.4

OTHER AUTHORITIES

Convention on the Recognition and Enforcementof Foreign Arbitral Awards,

21 U.S.T. 2517, 330 U.N.T.S. 3 . . . . . passim

Statement of the President (October 7, 2015)regarding the sinking of EL FARO . . . . . . . 8 n.10

The National Strategy for Maritime Security (September 2005) . . . . . . . . . . . . . . . 11 n.11

United States Department of Transportation,Maritime Administration

2013 Annual Report . . . . . . . . . . . . . 12 n.12

1 The parties were timely notified of amicus curiae’sintention to file this brief. The parties have consented to thefiling of this brief. No counsel for a party authored this brief inwhole or in part, and no counsel or party made a monetarycontribution intended to fund the preparation or submission ofthis brief. No person other than amicus curiae, its members, orits counsel made a monetary contribution to its preparation orsubmission.

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STATEMENT OF INTEREST OF THE AMICUS

The Seamen’s Church Institute of NY & NJ(“SCI” or the “Institute”),1 founded in 1834, cares forthe personal, professional, and spiritual needs ofseafarers around the world. It is the largest, mostcomprehensive seafarers’ service agency in NorthAmerica. SCI’s Center for Seafarers’ Rights is theworld’s only free legal-aid service devoted exclusivelyto the needs of merchant mariners. On a daily basis,it assists seafarers with concerns regarding workingconditions, compensation, and rights in variouscircumstances. Through education, SCI’s Center forSeafarers’ Rights empowers seafarers, global portchaplains, and others with information and trainingthey need on current issues affecting seafarers’rights. Attorneys for the Center for Seafarers’ Rightsteach and write materials for chaplains’ schools,seafarers’ ministries, and international conferences.On a global scale, SCI monitors and works towardslegislation to improve seafarers’ legal protections.Over the years, SCI has helped pass important lawsto ensure safety in the maritime workplace and thefair treatment of seafarers. SCI attorneys regularly

2 Respondent is the vessel owner, Rickmers GenoaSchifffahrtsgesellschaft mbH & Cie KG (“Rickmers”). (It isacknowledged that the compound German word in thecompany’s name is properly spelled with the letter “f” repeatedthree times consecutively as shown above, but that the casecaption omits one “f” consistently with English spelling norms.)

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participate in International Maritime Organization,International Labour Organization, United StatesCongressional and other countries’ legislativedeliberations relating to seafarers’ issues.

This case is important to SCI because itinvolves the Institute’s longstanding belief thatseafarers, shipowners, and the United States allbenefit from according seafarers their basic right tomaintenance and cure created under the generalmaritime law. Protecting seafarers’ rights under thegeneral maritime law is a critically important publicpolicy of the United States.

SUMMARY OF THE FACTS

Petitioner Lito Martinez Asignacion(“Asignacion”), a Filipino seafarer, was grievouslyinjured when working aboard the Respondent’s2

vessel M/V RICKMERS DALIAN while it was dockedat New Orleans, Louisiana, in 2010. Asignacioncommenced an action in a Louisiana state court torecover damages for his injuries. That action wasstayed, and he was directed to arbitrate his claims inthe Philippines pursuant to an arbitration clause ina standard-form written seafarer’s contract that the

3 Appendix to Petition at App. 57.

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Philippines Overseas Employment Administration(“POEA”), an agency of the Philippine government,forces all Filipino seafarers to sign as a condition ofemployment on a foreign-flagged ship. The StandardTerms of that adhesive agreement required disputesfor all claims arising out of the seafarers’employment, wherever they arose, to be arbitratedexclusively by the Philippines’ National LaborRelations Commission (“NLRC”) and required waiverof all claims whatsoever under any foreign lawarising out of that employment, including damagesfor injuries, as well as maintenance and cure.

Asignacion submitted his claim to the NLRCseeking damages under the general maritime law ofthe United States and/or the Marshall Islands (law ofthe vessel’s flag.) The arbitral tribunal foreclosedany possible consideration of Asignacion’s claim byruling that Section 20(G) of the POEA agreementprevented it from considering the application of anylaw other than Philippine law.3 Under that section,the tribunal was required to award only the POEAscheduled damage award at the level determined byAsignacion’s adversary, i.e., the employer’sdesignated physician. The employer’s physiciandetermined that Asignacion’s damages should beconsidered “Grade 14” damages, i.e., 3.74% of amaximum award of $50,000. Thus, the tribunalawarded Asignacion only $1,870 for his injuries,incapacity, disability, lost wages, past and futuremaintenance and cure, moral, compensatory and

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punitive damages.

Before the award, the Philippine SupremeCourt had approved the POEA practice of requiringthe NLRC arbitrator to award only the scheduledbenefit in the POEA, as determined by the company-designated physician, and to preclude any otherremedy, award or payment to injured seafarers underany country’s law. Thus, the POEA, Philippine law,the Philippine Supreme Court, and the NLRCarbitrators are all aligned to deny an injured seafarerthe minimum level of maintenance and cure, and toaward only a fraction of damages traditionallyrecognized under the general maritime law of theUnited States and of many other nations (includingthat of the Marshall Islands, the vessel’s flag state).Moreover, the maximum award of damages is set bythe seafarer’s adversary, i.e., the company-designatedphysician, and adopted by the arbitration panel as amatter of Philippine law.

Following the NLRC’s award of $1,870,Asignacion brought a motion in Louisiana state courtto void the arbitral award as violative of the publicpolicy of the United States. Rickmers removed thecase to the United States District Court for theEastern District of Louisiana and counterclaimed,asking the District Court to recognize and enforce thearbitral award. The District Court declined toenforce the arbitral award, finding that it violatedthe strong, well-defined and dominant public policyof providing seafarers a minimum remedy under thegeneral maritime law of the United States (whichprotects the rights of seafarers regardless of

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nationality) to maintenance and cure. The FifthCircuit reversed, in a decision that runs counter tothe established public policy of the United States infavor of a legalistic analysis of the Philippine systemimposed on injured seafarers, even while tacitlyrecognizing that the system was one-sided, riggedagainst injured seafarers by design.

SUMMARY OF THE ARGUMENT

The availability of maintenance and cure, anancient doctrine that requires shipowners to care forseafarers injured in the course of their employment,has been the public policy of the Unites States sincethe earliest years of the Republic, for reasons that areas applicable today as they were in the EighteenthCentury. Petitioner’s award completely denied himthe benefit of this doctrine and thus, consistentlywith the U. N. Convention for the Enforcement ofForeign Arbitral Awards, should not be recognizedand enforced in the Courts of the United States.

The denial of this basic right by means of asystem that forecloses it at the outset and eschewsany meaningful adjudicative process—deferring tothe findings of a company-appointed physician todetermine an award based on a “scale” that does noteven consider the prospective costs of the seafarer’srecovery—amounts to nothing less than a denial ofdue process.

4 Under the Federal Arbitration Act, the district courtshall confirm foreign arbitral awards “unless it finds one of thegrounds for refusal or deferral of recognition or enforcement ofthe award specified in the said Convention.” 9 U.S.C. § 207.

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REASONS FOR GRANTING THE PETITION

A. The Petition for Certiorari Should Be GrantedBecause the Philippine Arbitration SchemeViolates the Public Policy of the United States.

Article V(2)(b) of the U. N. Convention for theEnforcement of Foreign Arbitral Awards (the“Convention”) allows a signatory country to refuse torecognize a foreign arbitral award if “recognition orenforcement of the award would be contrary to thepublic policy of [the forum] country.”4 Although the“public policy” defense is narrowly construed, theenforcement of a foreign arbitral award may bedenied where enforcement would violate the forumstate’s most basic notions of morality and justice.See, e.g., Karaha Bodas Co. v. PerusahaanPertambangan Minyak Dan Gas Bumi Gefara, 364F.3d 274, 306 (5th Cir. 2004). Here, the arbitralaward was contrary to the public policy of the UnitesStates because it deprived the seafarer of theminimum maintenance and cure remedy under thegeneral maritime law, as well as denying the seafarerfundamental due process of law as recognized in theUnited States.

The United States long has had an “explicitpublic policy that is well defined and dominant” withrespect to seafarers. The general maritime law is

5 This was recognized, albeit without practical effect, by

the court below. Appendix to Petition at App. 11 (quoting Miles

v. Melrose, 882 F.2d 976, 987 (5th Cir. 1989)).

6 Appendix to Petition at App. 11-12.

7 The earliest codifications of the law of the sea providedfor medical treatment and wages for mariners injured or fallingill in the ship’s service. Article VI of The Roll d’Oleron, the firstcode addressing maintenance and cure, was most likely writtenin the late 1100s. See 30 Fed. Cas. 1171, 1174 (reprinting samein English translation with commentary).

8 The Osceola, 189 U.S. 158, 168-69 (1903) (examiningthe many ancient codes as well as legal codes of variousnations).

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said to provide a “special solicitude to seamen.”5

Seafarers have long been treated as the “wards ofadmiralty” with special causes of action and remediesavailable only to them to reflect this special status.6

The Fifth Circuit abrogated its duty to seafarersunder these established principles, and erred infinding that this public policy did not require refusalto recognize the award in the United States.

The obligation of the vessel owner to providemaintenance and cure to a seafarer who falls ill or isinjured while in the service of the ship can be foundin ancient codes.7 Indeed, the right to maintenanceand cure for seafarers was recognized by seafaringnations long before the United States came intoexistence.8

The general maritime law of the United Stateshas similarly fashioned special remedies for those

9 11 F. Cas. 480 (2 Mason 541), 2000 A.M.C. 893 (C.C.D.Me. 1823); see also Reed v. Canfield, 20 F. Cas. 426 (C.C.D.Mass. 1832).

10 As this amicus brief was being finalized, an

American-flag container vessel had recently sunk during

Hurricane Joaquin, and the hope of finding any survivors

had become untenable. On October 7, 2015, after the Coast

Guard ceased its search efforts, the President issued a

statement noting that “[t]his tragedy also reminds us that

most of the goods and products we rely on every day still

move by sea. As Americans, our economic prosperity and

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who face the unique perils of life at sea. Harden v.Gordon9 was the first case to recognize formally theright to maintenance and cure in the United States.“Maintenance” is the right of a sick or injuredseafarer, wherever located in the world, to receive asum of money from his employer to provide mealsand lodging comparable to the kind and quality hewould receive aboard the ship. See Calmar S.S.Corp. v. Taylor, 303 U.S. 525, 528 (1938). “Cure” isthe seafarer’s right to payment for medical treatmentuntil he has reached the point of “maximum cure” orhas been diagnosed as incurable, as determined by aphysician. See Vella v. Ford Motor Co., 421 U.S. 1,4-5 (1975).

Justice Story noted the venerable history andthe necessity of providing for maintenance and curebased on the seafarer’s unique circumstances:

Seamen are by the peculiarity of theirlives liable to sudden sickness fromchange of climate, exposure to perils,10

quality of life depend upon men and women who serve

aboard ships like the El Faro.” The full statement is at

https://www.whitehouse.gov/the-press-office/2015/10/07/sta

tement-president-el-faro-cargo-ship. The “exposure to perils”

faced by today’s seafarers remains as real and immediate as

it was two or more centuries ago.

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and exhausting labour. They aregenerally poor and friendless, andacquire habits of gross indulgence,carelessness, and improvidence. If someprovision be not made for them insickness at the expense of the ship, theymust often in foreign ports suffer theaccumulated evils of disease, andpoverty, and sometimes perish from thewant of suitable nourishment . . . .

Gordon, supra, 11 F. Cas. at 483, 2000 A.M.C. at 899.

Indeed, seafarers have been held to be wardsof the admiralty court entitled to protection againstdeprivation of minimum remedies:

Every court should watch with jealousyan encroachment upon the rights ofseamen, because they are unprotectedand need counsel . . . courts of maritimelaw have been in the constant habit ofextending towards them a peculiar,protecting favor and guardianship. Theyare emphatically the wards of theadmiralty . . . .

11 F. Cas. at 485, 2000 A.M.C. at 903; see also

10

Calmar, supra, 303 U.S. at 529.

This special status of seafarers as admiraltywards has continued to be recognized in the UnitedStates since the concept was first introduced. It iswell settled that the right to maintenance and curecannot be contracted away. Vaughan v. Atkinson,369 U.S. 527, 532-33 (1962) (quoting Cortes v.Baltimore Insular Lines, 287 U.S. 367, 371 (1932));DeZon v. American President Lines, Ltd., 318 U.S.660, 667 (1943). These principles of wardship andsolicitude provided to mariners have been confirmedby this Court as recently as 2009. Atlantic SoundingCo., Inc. v. Townsend, 557 U.S. 404, 413-15 (2009).

Seafarers have merited this special statusbecause of (among other reasons) the historicalimportance of the shipping industry in promotingimportant U.S. policy interests:

[I]t appears to me so consonant withhumanity, with sound policy, and withnational interests, that it commendsitself to my mind quite as much by itsintrinsic equity, as by the sanction of itsgeneral authority . . . . Beyond this, isthe great public policy of preservingthis important class of citizens for thecommercial service and maritimedefence of the nation. Every act oflegislation which secures their healths,increases their comforts, andadministers to their infirmities, bindsthem more strongly to their country;

11 See, e.g., The National Strategy for Maritime Securityhttps://www.ise.gov/sites/default/files/0509%20National%20Strategy%20for%20Maritime%20Security.pdf (September 2005).That document further notes that “[t]he maritime domain forthe United States includes . . . all navigable inland waterwayssuch as the Mississippi River,” page 1 at note 1.

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and the parental law, which relievesthem in sickness by fastening theirinterests to the ship, is as wise in policy,as it is just in obligation.

11 F. Cas. at 483, 2000 A.M.C. 898-99 (emphasisadded).

Beyond ensuring the well-being of seamenaboard ships and in foreign ports, meeting thesebasic human needs encourages maritime commerceby ensuring a capable merchant marine, as well asthe economic and military security of the nation. SeeAguilar v. Standard Oil Co. of New Jersey, 318 U.S.724, 727-28 (1943).

These concerns remain equally relevant today.N.L.R.B. v. Sea-Land Service, Inc., 837 F.2d 1387,1393 (5th Cir. 1988) (explaining that seafarers andtheir welfare were a predominant interest ofCongress in the earliest years of the Republic, andstill are). It is vitally important to Americaninterests that all seafarers, from whatever nationthey may originate, be accorded their rights tomaintenance and cure. The economic well-being ofthe United States depends heavily upon internationalmaritime commerce.11 Merchant ships carry morethan 90% of global trade, and almost all merchant

12 According to the U.S. Maritime Administration, at theend of 2013 there were only 89 U.S. flag merchant vessels ininternational trade, making up less than one percent of theworld’s merchant fleet. United States Department ofTransportation, Maritime Administration 2013 Annual Report,http://www.marad.dot.gov/wp-content/uploads/pdf/2013_ANNUAL_REPORT_-_Final.pdf, at 8.

13 Opinion below, Appendix to Petition at App. 11.

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shipping to and from United States ports is viaforeign-flag ships with foreign crews.12 Today, theUnited States depends upon foreign-flag merchantvessels and foreign seafarers for its security and forits continuing prosperity. We must treat foreignseafarers serving these vital needs with no lessrespect for human dignity than we have historicallyafforded to our own citizens-seafarers in the past.

Consistently with the obligation to treatforeign seafarers equitably, it is unsurprising thatthe longstanding public policy of the United Statesfavoring the welfare of seafarers of any nationalitythrough the doctrine of maintenance and cure(notwithstanding any adverse terms contained intheir employment contracts) is “well defined anddominant.”13 This established public policy must notbe disturbed, for the humanitarian concerns relatingto the well-being of seafarers, together with thesynergistic benefit of promotion of healthy globalmaritime commerce that inevitably results from sucha policy, continue to be as relevant today as theywere in 1823 when Justice Story considered thesesame timeless factors in rendering his decision in

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Harden v. Gordon.

Although the Fifth Circuit acknowledged theimportance of these policies, it erroneously over-valued what it identified as a countervailing publicpolicy: that favoring arbitration over litigation ininternational commerce. Balancing that moderncase-dispostive public policy consideration (suitablefor purely commercial disputes) against the moreancient and vital one aimed at achieving justice forhuman beings harmed through no fault of their ownin the service of maritime commerce, it becomes clearthat this Court has a duty to ensure that the remedyof maintenance and cure is available to all injuredseafarers in the courts of the United States. SeeAggarao v. MOL Ship Management Co., Ltd., Civ. No.09-3106, 2015 A.M.C. 444, 2014 WL 3894079 (D. Md.Aug. 7, 2014). Simply put, when an arbitral awardis rendered that deprives a seafarer of the minimumremedy of maintenance and cure for grievous injuriesreceived in maritime service aboard a vessel, itshould not be recognized in the United States.

Relatedly, the method for determining theamount of the award ($1,870) to Asignacion in thePhilippines is wholly at odds with that which can beviewed as “moral and just” in the United States. “[A]foreign judgment cannot be enforced if it wasobtained in a manner that did not accord with thebasics of due process.” Bank Melli Iran v. Pahlavi, 58F.3d 1406, 1410 (9th Cir. 1995) (citing Hilton v.

14 The Bank Melli Iran court further noted that thisprinciple has been expressly incorporated into the UniformForeign Money-Judgment Act adopted by the majority of U.S.states. Id. at 1410.

15 See 9 U.S.C. §10(a)(2)& (3); see also CommonwealthCoasting Corp. v. Continental Cas. Co., 393 U.S. 145 (1968)(invalidating an arbitration award because the commercialdealings between the arbitrator and the prevailing partypresented an inherent conflict that was not disclosed to otherparty); NYK Cool A.B. v. Pacific Fruit, Inc., 507 Fed. Appx. 83,88 (2d Cir. 2013) (holding that an arbitration award may bevacated when under 9 U.S.C. 10(a)(3) when one of the partieswas not afforded an adequate opportunity to present itsevidence and arguments).

16 Generica Ltd. v. Pharmaceutical Basics, Inc., 125 F.3d1123 (7th Cir. 1997).

17 Generica, 125 F.3d at 1130 (citing and quotingSunshine Mining Co. v. United Steelworkers, 823 F.2d 1289,

14

Guyot, 159 U.S. 113, 205-06 (1895).14 It has longbeen the public policy of this nation to vacate (ordeny recognition of) any arbitration award in whichthe arbitral proceedings were fundamentally unfair.15

Under the Convention, foreign arbitral awardsshould be denied or vacated if the party challengingthe award was not afforded the basic requirements ofdue process under American jurisprudence.16 It iswell recognized that arbitrators must provide afundamentally fair hearing, “one that meets minimalrequirements of fairness—adequate notice, a hearingon evidence, and an impartial decision by thearbitrator.”17

1295 (9th Cir. 1987) (internal quotation marks omitted).

18 Appendix to Petition at App. 58-59 (opinion below,noting that the Philippine Supreme Court had recognized that“[b]ecause of the tort claims, our seafarers were perceived as‘Filipinos who complain too much’” and that “ foreign employerswere no longer willing to hire Filipino seafarers in large scaleunless the [POEA-approved Standard Terms and ConditionsGoverning the Employment of Filipino Seafarers on BoardOcean-Going Vessels] is amended in order that better termsand conditions in favor of employers’ sector are inserted . . . .”).

15

Simply put, the system under which the awardwas rendered is fundamentally unfair from theperspective of affording basic rights. The POEAemployment agreement is imposed on Filipinoseafarers by the Philippine government. ThePhilippine Supreme Court has recognized that thesystem has evolved to favor the employer, not theseafarer.18 In order to obtain an exit visa to join aship, a Filipino seafarer must sign the POEA andwaive his rights to any contract and tort claims forinjuries that occur while in the service of the vessel.This forced waiver (absolutely required for theseafarer to make a living at his or her trade) isapplied uniformly by the Filipino arbitrators toinclude relinquishment of any and all rights tomaintenance and cure. Thus, the only remediesavailable to the injured Filipino seafarer are thoseprescribed by the POEA employment agreement, andthe only tribunal available to the Filipino seafarer topursue his remedies is arbitration before the NLRC,and the lack of any maintenance-and-cure remedy ispredetermined by the system itself.

19 Appendix to Petition at App. 60-61 (opinion below,“tak[ing] into consideration only the evidence [consisting of] themedical certificate issued by the company physician, Dr. NatalioC. Alegre”).

20 See id.

21See Convention at Article V(1)(b).

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The sole remedy available under the POEAemployment agreement is based on the grade ofinjury the Filipino seafarer suffers, as determined bythe company-designated physician.19 Under thePOEA, the “grade” of the seafarer’s injury rangesfrom 1 (the most severe) to 14 (the least severe).20

Thus, under Philippine law, the arbitration panel canaward a seafarer damages only on a “scale” set forthin the POEA, with the rating on that scale beingdetermined by the company-designated physician.Under American notions of due process, neither acourt nor an arbitral panel could delegate its fact-finding and decision-making power to one party tothe detriment of the other. Doing so violates thefundamental policy of the United States and of theConvention.21

The Philippine arbitral system intentionallyand unabashedly stacks the deck against the injuredseafarer. In upholding this POEA-based system, thePhilippine Supreme Court explained that the verypurpose of the POEA is to prevent Filipino seafarerswho have become aware of their rights in otherjurisdictions from filing cases for damages in those

22 See Appendix to Petition at App. 58 and note 18,supra.

23 Appendix to Petition at App. 54.

24 Appendix to Petition at App. 61.

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jurisdictions.22 The arbitral awards rendered underthe POEA system are thus inherently suspect, andoffend our most basic notions of morality and justiceand our basic principles of due process. Relatedly,the Philippine POEA-based system flies in the face ofthis nation’s established public policy of protectingseafarers by affording them the minimum recovery ofmaintenance and cure after sustaining injuries in theservice of their ships.

In this case, the company-designated doctordetermined that the Petitioner had a grade 14disability, the lowest grade, even though Petitioner’sown physician determined that he needed furthersurgery.23 The arbitral panel did not engage in anyfact finding regarding the severity of the Petitioner’sinjuries or his need for additional medical care toreach “maximum cure.” This amounts to a denial ofthe basic right of maintenance and cure under thegeneral maritime law. Petitioner had no realopportunity under the POEA system to present hiscase. Rather, the arbitral panel blindly applied thelowest grade to the scheduled amount to set thedamages award.24

Further, Section 20(G) of the POEA preventsthe Petitioner from pursuing any claims arising from

25 Appendix to Petition at App. 57.

26 Appendix to Petition at App. 18-19.

27 Id.

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or in relation to his employment, including anyclaims arising from tort, fault, or negligence.25

Therefore, by design and by practice, the entireextent of remedies available to the Petitioner weredetermined unilaterally by the shipowner’s doctor.

The Fifth Circuit found that the District Courtdid not make findings sufficient to support theconclusion that the public policy of the Unites Statesrequires refusing the enforcement of the Award.26 Inparticular, the Fifth Circuit based its decision on thelack of findings with regard to “the adequacy of theaward vis-a-vis the [Petitioner’s] lasting injuries orunmet medical expenses.”27 By itself, this wouldhave required only a remand to the District Court.But the Fifth Circuit erred by evaluating onlywhether the net result would differ had the awardbeen calculated on different facts, rather thanevaluating whether the award violated public policyon the bases that the POEA scheme under which theaward was rendered (1) failed to comport with thebasic principles of due process and fairness, and/or (2)deprived the seafarer of the minimum remedy ofmaintenance and cure for grievous injuries receivedin maritime service for a vessel.

Thus, the Fifth Circuit erred in reversing theDistrict Court and remanding with instructions for

28 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,Inc., 473 U.S. 614, 629 (1985).

29 Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,515 U.S. 528 (1995).

30 Appendix to Petition at App. 42.

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the District Court to enforce the award, and in doingso created precedent that is at odds both withestablished public policy and with recognition andapplication of basic due-process rights.

B. The Prospective-Waiver Doctrine Is Applicablein the Context of Non-Statutory Rights.

The public-policy and due-process concernsdiscussed above are intertwined conceptually withanother doctrine to which this Court has alluded.The District Court based its decision to deny theshipowner’s motion to recognize the award in part onthe “prospective-waiver” doctrine, which has its rootsin dicta from this Court’s decisions in Mitsubishi28

and Vimar,29 in which this Court noted that foreignarbitration awards may violate public policy whenthe choice-of-forum and choice-of-law clauses operatein tandem as a prospective waiver of a party’s rightto pursue remedies to which he or she is entitledunder law. Applying the prospective-waiver defensehere, the District Court found that the arbitralproceedings and the award did not address thePetitioners’ legitimate interest in the enforcement ofUnited States general maritime law,30 and that the

31 The District Court aptly observed:

The Fifth Circuit has stated [in the past] that publicpolicy is not offended simply because the body of foreign lawupon which the judgment is based is different from the law ofthe forum or less favorable to plaintiff than the law of the forumwould have been. However, in this case, the Philippine lawapplied by the arbitral panel did not simply provide lessfavorable remedies than United States general maritime lawwould have. Instead, the Philippine law provided no suchremedies. Accordingly, the remedies available under Philippinelaw were not less favorable, but rather were nonexistent.

Appendix to Petition at App. 45 (internal citations omitted)(emphasis in the original).

32 Appendix to Petition at 21-22.

33 Id. at note 61 (citation omitted).

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Philippine law applied by the arbitral panelprecluded the enforcement of the remedies to whichthe Petitioner was entitled under United Statesgeneral maritime law.31

The Fifth Circuit held the District Court erredby relying on the prospective-waiver defense, findingthat the defense was limited to statutory rights andremedies and did not apply to the general maritimelaw.32 The Fifth Circuit reasoned that, fromMitsubishi onwards, this Court has referred only tostatutory rights and remedies when discussing thedoctrine,33 although it acknowledged that this Courthas never explicitly held that the prospective-waiverdefense is limited to the protection of statutoryrights. There is no policy-based reason to do so. As

34 Appendix to Petition at App. 48.

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noted by the District Court after it recognized thestrong public policy in favor of seafarers, there is noreason why “the substantive rights provided byUnited States general maritime law should becategorically precluded from the prospective waiverdefense created by the Supreme Court in Mitsubishiand Vimar.”34

Statutory rights clearly reflect public policy,but this truism does not in any way support theconclusion that common-law rights do not.

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CONCLUSION

For the foregoing reasons, the petition for awrit of certiorari should be granted.

Respectfully submitted,

James M. Maloney33 Bayview AvenuePort Washington, NY 11050(516) 767-1395maritimelaw@nyu.edu

Counsel of Record

Of Counsel

Douglas B. StevensonDirector, Center for Seafarers’ RightsThe Seamen’s Church Institute of NY & NJ50 Broadway, 26th FloorNew York, NY 10004(212) 349-9090

October 12, 2015