Plaintiff brought an action against a cruise line, claiming to have suffered injuries while working on the defendant’s ship. Pursuant to the removal provision of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”), 9 U.S.C. § 205, the defendant removed the action and moved to compel arbitration. The plaintiff claimed that the arbitration agreement was void as against public policy because its choice of law provision would preclude U.S. common law and statutory claims. In a prior Order the court granted the defendant’s motion to compel arbitration, noting that such a public policy defense could only be made after an arbitral award was ordered and expressing skepticism at the ultimate efficacy of the argument. The court later upheld its arbitration order upon new motion by the plaintiff, in which she claimed that her inability to afford the initial costs associated with arbitration justified vacating the previous order or requiring the defendant to pay those costs. The court found that because the plaintiff had the option of pursuing her claims through union representation, in which case the defendant would bear the initial costs, she failed to show the arbitration agreement was incapable of being performed. The parties later reached an amicable settlement. Tomevska v. NCL Bahamas Ltd., Case No. 10-23665 (USDC SD Fla. May 18, 2012).
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Court upholds order compelling arbitration despite plaintiff’s claim of inability to pay initial costs
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