The Prospective Waiver of a Statutory Claim Invalidates an Arbitration Clause: The Eleventh Circuit Decision in Thomas v. Carnival Corp.* – Vol. 19 No. 2

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Author: Joseph R. Brubaker**

Published: August 2009

United States
Applicable Law
New York Convention



In a slip-and-fall case, the United States Court of Appeals for the Eleventh Circuit partially invalidated an arbitration agreement under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) in favor of a former employee of defendant Carnival Corporation. Addressing an issue of first impression in that circuit, the court held in Thomas v. Carnival Corporation that the employment agreement’s arbitration clause and choice-of-law clause “operated in tandem” to bar the plaintiff from pursuing a United States statutory claim and as a result the court partially invalidated the arbitration clause under Article V(2)(b) of the New York Convention for violating American “public policy.” The Court of Appeals’ decision suggests that parties may bring United States statutory claims in United States courts even if the underlying dispute that forms the basis for such claims is covered by an agreement to arbitrate in a foreign jurisdiction under the laws of a foreign nation.


On November 8, 2004, the plaintiff Puliyurumpil Mathew Thomas slipped and fell in the dining room of the Carnival Corporation’s cruise ship, the Imagination. Thomas, employed as a head waiter, lost his balance on a “wet substance,” fell, and dropped a coffeepot that he was carrying. The fall injured his spine and right shoulder, and the spilt coffee burned his leg. Subsequently, Thomas received treatment for pain relief from the shipboard physician, but he alleged that he could not consistently execute his duties because of neck and shoulder pain. He lost pay for not working on multiple days, was signed off the ship twice, and eventually was discharged by the shipboard physician in December 2005 because his injury rendered him unfit for duty.

Thomas sued Carnival Corporation in a Florida state court for his injuries, his lost pay, and for treble damages for late wage payments under the federal…

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*Arbitral & Judicial Decisions
**Attorney, White & Case LLP, Washington, D.C.; Adjunct Professor, Catholic University, Columbus School of Law, Washington, D.C.