Malin v. Osprey Underwriting Agency Limited

• Court: District Court, D. Alaska
• Decided: March 30, 2022
• Docket: 3:20-cv-00119
• Status: Unknown

Opinion

3 IN THE UNITED STATES DISTRICT COURT

4 FOR THE DISTRICT OF ALASKA 5

6 HEATHER MALIN; and MARIYA 7 MCNEESE, Case No. 3-20-CV-00119-JWS 8 Plaintiffs, 9 vs. ORDER ON MOTION TO DISMISS 10 OR STAY AND COMPEL 11 OSPREY UNDERWRITING ARBITRATION AGENCY LIMITED, a foreign (Docket 40) 12 unincorporated entity and/or corporation; and CERTAIN 13 UNDERWRITERS AT LLOYD’S, a 14 foreign unincorporated entity and/or corporation, 15

16 Defendants.

18 I. MOTION PRESENTED 19 20 At docket 40, Defendants Osprey Underwriting Agency Limited, and its 21 certain underwriters (“Osprey Underwriting”), and Certain Underwriters at Lloyd’s 22 (“Lloyd’s”; collectively “Defendants”) move the court to dismiss or stay this matter 23 24 and compel Plaintiffs Heather Malin and Mariya McNeese (“Plaintiffs”) to pursue their 25 claims against Defendants through arbitration in London, England, in accordance with 26 the terms of an arbitration clause in the applicable insurance policy. Plaintiffs oppose 27 28 1 the motion at docket 50. Defendants reply at docket 53. Oral argument was not 2 requested and would not be of assistance to the court. 3 II. BACKGROUND 4 5 Underlying Plaintiffs’ complaint is an incident that occurred aboard the 6 F/V AMERICAN BEAUTY on August 6, 2015, in which the captain of the vessel 7 allegedly assaulted Plaintiffs, who were crewmembers aboard the vessel. The vessel 8 9 was owned by F/V AMERICAN BEAUTY, LLC (“American Beauty”). American Beauty 10 was an assured under a maritime protection and indemnity policy (the “Policy”) 11 obtained through the London marine insurance market. The Policy was underwritten 12 by Osprey Underwriting and brokered by Wells Fargo Insurance Services USA, with 13 14 Osprey Underwriting reinsuring the risk through Lloyds. 15 In 2016 Plaintiffs filed suit against American Beauty, the vessel’s 16 captain, and others, raising a claim under the Jones Act, 46 U.S.C. § 30104, claims for 17 18 negligence and intentional tortious acts, and a claim under general maritime law for 19 payment of maintenance and cure benefits. Defendants refused to defend the action or 20 indemnify American Beauty under the Policy. The parties settled the underlying case, 21 22 stipulating to an entry of judgment in favor of Plaintiffs solely against American 23 Beauty. American Beauty and the other defendants also agreed to assign Plaintiffs any 24 claims they might have against Osprey and Lloyd’s related to coverage under the 25 Policy. 26 27 Plaintiffs subsequently filed this lawsuit, alleging Defendants 28 wrongfully denied coverage for their claims against American Beauty in the underlying 1 lawsuit. They assert a claim for breach of contract and a claim for bad faith based upon 2 Defendants’ failure to defend and indemnify the defendants in the underlying civil 3 action. 4 5 Despite the fact that the Policy contains a “Osprey Law and Practice 6 Clause” requiring arbitration in London, England, and the application of English law, 7 Plaintiff brought suit in this court. They rely on the “Service of Suit Clause” in the 8 9 Policy: 10 It is agreed that in the event of the failure of the Underwriters severally subscribing this insurance (the 11 Underwriters) to pay any amount claimed to be due 12 hereunder, the Underwriters, at the request of the Assured, will submit to the jurisdiction of a court of competent 13 jurisdiction within the United States of America.1 14 Plaintiffs argue the parties’ inclusion of the Service of Suit Clause at least creates an 15 16 ambiguity that should be resolved in favor of judicial resolution, or, alternatively, that 17 the foreign forum and choice of law aspect of the arbitration provision renders is it 18 unenforceable because it unreasonably deprives Plaintiffs of their bad faith claim and 19 20 remedies and because it has the effect of waiving their statutory rights. 21 III. DISCUSSION 22 Arbitration agreements between parties of different countries are subject 23 24 to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 25 26 27 28 1 Dockets 41-9 at 1; 41-4 at 26. 1 (the “Convention”).2 The Convention requires signatory nations, such as the United 2 States, to recognize international arbitration agreements and to recognize and enforce 3 arbitral awards made in other contracting countries.3 The United States implemented 4 5 the Convention through the enactment of Chapter 2 of the Federal Arbitration Act 6 (“FAA”).4 Any agreement covered under the Convention is subject to the FAA’s 7 general provisions and its “liberal federal policy favoring arbitration.”5 Indeed, the 8 9 Supreme Court has noted that “the emphatic federal policy in favor of arbitral dispute 10 resolution . . . applies with special force in the field of international commerce.”6 11 Provided that a court is satisfied with the arbitration agreement’s formation, it is 12 required to enforce arbitration on issues covered under that agreement.7 13 14 For a motion to compel arbitration based upon an international 15 agreement, the court conducts a “very limited inquiry.”8 This inquiry consists of four 16 factors: (1) there must be an agreement to arbitrate in writing; (2) the agreement must 17 18 provide for arbitration in the territory of a signatory of the Convention; (3) the 19 agreement must arise out of legal relationship, whether contractual or not, which is 20 considered commercial (including a transaction, contract or agreement described in the 21 22 2 The United Nations Conventions on Recognition and Enforcement of Foreign 23 Arbitral Awards, June 20, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997 (entered into force with 24 respect to the United States Dec. 29, 1970) (the “Convention”). 3 Id., art. II(1). 25 4 9 U.S.C. §§ 201–208. 5 9 U.S.C. § 208; Blair v. Rent-A-Ctr., Inc., 928 F.3d 819, 825 (9th Cir. 2019) 26 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). 27 6 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985). 28 7 9 U.S.C. § 4. 8 Bautista v. Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005). 1 Section 2 of the FAA, 9 U.S.C. § 2); and (4) one of the parties to the agreement must 2 not be a U.S. citizen, or the commercial relationship underpinning the agreement must 3 have some reasonable relation with a foreign state.9 If these four requirements are 4 5 satisfied, the Convention applies and arbitration must be enforced. The court can deny 6 arbitration only by finding the agreement “null and void, inoperative or incapable of 7 being performed.” 10 That is to say, at the arbitration-enforcement stage, the 8 9 Convention only recognizes a limited number of defenses—ones that “can be applied 10 neutrally on an international scale.”11 11 Here, there is no dispute as to three of the factors requiring the 12 application of the Convention and its mandate to enforce the agreement. The Policy is 13 14 commercial in nature;12 there is an arbitration provision in the Policy that provides for 15 arbitration in London, England; and Defendants are not U.S. citizens. As to the 16 threshold issue of whether there is a written agreement between the parties, Plaintiffs 17 18 do not dispute that there is a written insurance agreement between the assureds and 19 Defendants, nor do they dispute its application to them here. Instead, Plaintiffs assert 20 that the scope of the arbitration agreement in the Osprey Law and Practice Clause is 21 22 narrowed by Service of Suit Clause to exclude this type of case, where Defendants are 23 24

25 9 Balen v. Holland Am. Line Inc., 583 F.3d 647, 654–55 (9th Cir. 2009) (quoting Bautista, 396 F.3d at 1294 n.7). 26 10 Convention, art. II(3); Balen, 583 F.3d at 654. 27 11 Bautista, 396 F.3d at 1302 (quoting DiMercurio v. Sphere Drake Ins. PLC, 202 F.3d 71, 79 (1st Cir. 2000)). 28 12 A marine insurance policy is a maritime contract covered under Section 2 of the FAA. Galilea, LLC v. AGCS Marine Ins. Co., 879 F.3d 1052, 1057–61 (9th Cir. 2018). 1 alleged to have failed to pay amounts due under the Policy, or that the conflict between 2 the two clauses renders arbitration unenforceable as to their claims against Defendants. 3 The court finds Plaintiffs’ argument unavailing. The Service of Suit 4 5 Clause does not vitiate the arbitration requirement, and there is no conflict in the Policy 6 between the Osprey Law and Practice Clause and the Service of Suit Clause. The plain 7 terms of the Osprey Law and Practice Clause makes this clear: 8 9 Notwithstanding anything else to the contrary, this insurance is subject to English law and practice and any 10 dispute under or in connection with this insurance is to be referred to Arbitration in London, . . . . In the event of a 11 conflict between this clause and any other provision of this 12 insurance, this clause shall prevail and the right of either part to commence proceedings before any Court or 13 Tribunal in any other jurisdiction shall be limited to the 14 process of enforcement of any award hereunder.13

15 By its own terms, this provision prevails over any allegedly conflicting terms. Indeed, 16 the Service of Suit Clause itself makes clear that it is “[s]ubject, in all respects, to the 17 18 Osprey Law and Practice Clause . . . .”14 Taken together, it is clear that the Osprey 19 Law and Practice Clause and the Service of Suit Clause work harmoniously, with the 20 purpose of the Service of Suit Clause being to “provide[ ] a means to compel arbitration 21 22 or enforce any arbitration award.”15 23 Other courts have found as much when analyzing agreements with 24 similar service of suit provisions: “It is well-established that such service of suit 25 26 27 13 Dockets 41-9 at 3; 41-4 at 28. 14 Dockets 41-9 at 1; 41-4 at 26. 28 15 See Security Life Ins. Co. v. Hannover Life Reassurance Co. of Am., 167 F. Supp. 2d 1086, 1089 (D. Minn. 2001). 1 clauses do not abridge an agreement to arbitrate all disputes arising out of a 2 relationship.”16 These courts recognize that the purpose of service of suit clauses is to 3 provide a judicial forum in which a party may enforce arbitration or an arbitration 4 5 award.17 The plain language in the Policy makes this intent clear here, as it expressly 6 states that any right to seek judicial review is “limited to the process of enforcement of 7 any award” granted through the arbitration process.18 This language, along with the 8 9 language in both clauses stating that the Osprey Law and Practice Clause prevails in 10 all respects, is sufficient to distinguish the cases relied upon by Plaintiffs. 11 Another section in the Policy supports a finding that the parties agreed 12 to arbitration of the type of dispute presented here. The “Choice of Law and 13 14 Jurisdiction” section states that “[a]ny dispute concerning the interpretation of this 15 Policy shall be governed by the Law and Jurisdiction of England and Wales in 16 accordance with the Osprey Law [and] Practice Clause.”19 Under this section, a 17 18 dispute which turns what the Policy required of Defendants with regard to the 19 20

21 16 Id. at 1088 (citing supportive cases). 22 17 Id. at 1088–89; see also Century Indem. Co. v. Certain Underwriters at Lloyd’s, 584 F.3d 513, 554 (3d Cir. 2009) (“But service-of-suit clauses do not negate accompanying 23 arbitration clauses; indeed, they may complement arbitration clauses by establishing a judicial 24 forum in which a party may enforce arbitration); Montauk Oil Transp. Corp. v. Steamship Mut. Underwriting Ass’n (Bermuda) Ltd., 79 F.3d 295 (2d Cir. 1996) (noting that a similar 25 clause—where the insurer agreed to appear in federal court with regard to any civil action to recover for any claim payable or alleged to be payable and where the clause stated that except 26 for jurisdiction it did not otherwise change other contractual or substantive rights—did not 27 vitiate the arbitration provision, but rather resolved the issue of personal jurisdiction of a foreign company in the event of an action to enforce an arbitration award). 28 18 Dockets 41-9 at 3; 41-4 at 28. 19 Dockets 41-8 at 2; 41-4 at 2. 1 underlying lawsuit is subject to English law and the arbitration process outlined in the 2 Osprey Law and Practice Clause. 3 Even if there were some ambiguities created by the inclusion of the 4 5 Service of Suit Clause in the Policy, under the general principles of the FAA, any 6 ambiguities related to the scope of arbitrable issues should be resolved in favor of 7 arbitration.20 Indeed, arbitration “should not be denied unless it may be said with 8 9 positive assurance that the arbitration clause is not susceptible of an interpretation that 10 covers the asserted dispute.”21 No such positive assurances can be made here. 11 Plaintiffs alternatively argue that the court should find the arbitration 12 provision unenforceable to the extent it requires the application of English law in an 13 14 English forum. They argue enforcement of English arbitration would deprive them of 15 their bad faith claim and its remedies, as well as their underlying statutory rights. 16 Again, Plaintiffs’ argument is unavailing. As noted above, once the court is satisfied 17 18 that there is an arbitration agreement that falls under the Convention, the court, 19 pursuant to the Convention, must order arbitration unless the agreement is “null and 20 void, inoperative or incapable of being performed.”22 The “null and void” language 21 22 “limits the bases upon which an international arbitration agreement may be challenged 23 24 25 20 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) 26 (“Any doubts concerning the scope of arbitrable issues should be resolved in favor of 27 arbitration.”). 21 Comedy Club, Inc. v. Improv W. Assocs., 553 F.3d 1277, 1284 (9th Cir. 2009) 28 (quoting AT&T Techs., Inc. v. Commc’ns. Workers, 475 U.S. 643, 650 (1986)). 22 Convention, art. 11(3); Balen, 583 F.3d at 654–55. 1 to standard breach-of-contract defenses” such as fraud, mistake, duress, and waiver.23 2 Plaintiffs raise no such defenses here. 3 Plaintiffs instead assert that enforcement would be against public policy. 4 5 While other courts have stressed the narrow scope of the Convention’s “null and void” 6 language, excluding any challenge based on public policy grounds at the arbitration- 7 enforcement stage,24 the Ninth Circuit has entertained the possibility of such a defense 8 9 to arbitration enforcement. In Balen, the plaintiff, a seaman, sought to bring a claim 10 under the Seaman’s Wage Act, 46 U.S.C. § 10313, against a maritime employer. He 11 argued that foreign arbitration would be against public policy because it would 12 eliminate components of his statutorily protected wages and effectively void 13 14 Congress’s intent to ensure proper treatment of seamen. The court acknowledged the 15 possibility that an international arbitration agreement could be deemed null and void 16 if the plaintiff could show that “the public policy regarding the proper treatment of 17 18 seafarers is stronger than the public policy favoring the arbitration.”25 Such a showing 19 would at least require evidence that international arbitration would nullify statutory 20 rights Congress has provided seafarers.26 The court ultimately enforced arbitration, 21 22 23 Bautista, 396 F.3d at 1202. 23 24 See Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1277 (11th Cir. 2011) (noting 24 that a narrow interpretation of the “null and void” clause in the Convention “is in complete accord with the prevailing authority in other circuits”). 25 25 Balen, 583 F.3d at 654. 26 Id. (“Balen has not established what statutory remedy or procedure he could pursue 26 in the United States that he could not pursue in the Philippines.”); see also Rogers v. Royal 27 Caribbean Cruise Line, 547 F.3d 1148, 1159 (9th Cir. 2008) (enforcing foreign arbitration between a plaintiff seaman and maritime employer “in the absence of any evidence that 28 international arbitration would nullify any of the statutory rights Congress has conferred on seafarers.”). 1 finding that the agreement did not require application of foreign law and plaintiff failed 2 to otherwise establish that the foreign arbitrators could not consider U.S law and 3 provide adequate relief. Moreover, the court explained that if an applicable U.S. 4 5 statutory remedy was not applied or awarded in international arbitration, the plaintiff 6 later could move to set aside the arbitration award in a U.S. federal court under the 7 Convention. Indeed, “at the arbitration-enforcement stage, it is generally premature to 8 9 make findings about how arbitrators will conduct the arbitral process, whether a claim 10 will be heard, or whether the foreign-law remedies will be adequate or inadequate.”27 11 Such questions are more appropriately reserved for any review of the arbitral award. 12 As the Eleventh Circuit concluded after a thorough analysis on the 13 14 applicable Supreme Court law, foreign choice of law clauses may be enforced even if 15 the substantive law applied in arbitration potentially provides reduced remedies or 16 fewer defenses than those available under U.S. law.28 That is to say, international 17 18 arbitration agreements that explicitly require the application of foreign law will not be 19 deemed null and void any time a plaintiff raises a U.S. statutory claim. Instead, issues 20 of public policy would be implicated only at the enforcement stage if foreign 21 22 arbitration not only forces a plaintiff to waive a U.S. statutory claim, but also forecloses 23 the possibility of any relief whatsoever and thus any opportunity for subsequent 24 review. 25 26

27 27 Lindo, 652 F.3d at 1277 (discussing the Supreme Court’s holding in Vinmar 28 Seguros y Veaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 540 (1995)). 28 Lindo, 652 F.3d at 1269. 1 Plaintiffs do not face the risk of foregoing a statutory claim and its 2 remedies because their complaint raises claims for breach of contract and bad faith. 3 This is not a Jones Act case. Plaintiffs settled their Jones Act claims with the 4 5 defendants in the underlying case “in a purported exchange for a different set of rights” 6 under the defendants’ insurance policy.29 Even if the Jones Act remedies were 7 implicated here, the contractual claim provides Plaintiffs with the possibility of relief 8 9 and subsequent court review. 10 Plaintiffs stress that they will not be able to assert a bad faith claim or 11 recover punitive damages under English law. Again, however, unless some statutory 12 right is threatened to be nullified, there is no public policy at stake that could outweigh 13 14 “the emphatic federal policy in favor of arbitral dispute resolution” that “applies with 15 special force in the field of international commerce.”30 Moreover, less favorable 16 remedies or reduced defenses are not adequate justifications for setting aside the 17 18 Convention’s mandate to enforce agreed-upon arbitration provisions. That is to say, it 19 is premature at the enforcement stage to consider the adequacy of any foreign law 20 remedy. To rule otherwise and find an arbitration agreement invalid at the outset 21 22 whenever the application of foreign law may be less favorable to a plaintiff would 23 “effectively eviscerate the mutually binding nature of the Convention.”31 “[I]f every 24 country refused to recognize arbitration agreements that contemplate the application 25 26 27 29 Docket 53 at 8. 30 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 28 (1985). 31 Lindo, 652 F.3d at 1284. 1 of foreign law, the multilateral commitment of the Convention” and its goal of ensuring 2 uniform enforcement of international arbitration agreements would be obstructed.32 3 Plaintiffs argue that enforcement of English arbitration would otherwise 4 5 be unfair given Alaska’s interest in this case and the convenience of resolving this 6 dispute in Alaska. This argument is without support. The case they rely upon does 7 not involve enforcement of a forum-selection clause in an international arbitration 8 9 agreement covered under the Convention.33 Plaintiffs have not cited a case to support 10 its proposition that an arbitration provision requiring foreign arbitration and the 11 application of foreign law can be found unenforceable under the Convention based 12 upon general notions of increased fairness, local interest, and convenience. 13 14 IV. CONCLUSION 15 Based on the preceding discussion, Defendants’ motion to compel 16 arbitration at docket 40 is GRANTED. The parties are ordered to arbitrate this dispute 17 18 in England as provided for in the Policy. Given arbitration is compelled and all issues 19 are referred to arbitration, this case is DISMISSED, subject to any action to enforce or 20 set aside the arbitral award. 21 22 23 24

25 32 Id. (citing Mitsubishi, 473 U.S. at 639 n.21); see also Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974) (“The goal of the Convention, and the principal purpose 26 underlying American adoption and implementation of it, was to encourage the recognition and 27 enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in 28 the signatory countries.”) 33 Boston Telecomms. Grp. v. Wood, 588 F.3d 1201 (9th Cir. 2009). 1 IT IS SO ORDERED this 30th day of March, 2022, at Anchorage, 2 Alaska. 3

4 /s/ John W. Sedwick 5 JOHN W. SEDWICK Senior United States District Judge 6

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