Background:
Plaintiff, Courtney Lawrence ("Lawrence") brought this action in Florida seeking damages and other relief against defendant, Royal Caribbean ("Royal") for damages arising out of alleged injuries sustained during the course of his employment while aboard the Voyager of the Seas.

Lawrence brought this action under the Jones Act, unseaworthiness, maintenance and cure, and Jones Act negligence, and failure to treat unearned and overtime wages.

Lawrence alleged he sustained injuries to his hands and wrists while performing his assigned duties as an assistant cook. Specifically, he was ordered to go to freezer and grab a large amount of produce, during the process he injured his hands and wrists while maneuvering a fully loaded trolley of produce over a raised threshold located on the floor.

Lawrence further alleged that Royal aggravated his injuries by failing to provide proper medical treatment and has since undergone three surgeries on his hands and is permanently disabled.

Lawrence signed an Employment Agreement which incorporated terms of a Collective Bargaining Agreement. The agreement contained an arbitration clause pursuant to the United Nations Convention on Recognition and Enforcement of Foreign Artbitral Award ("The Convention").

After filing this case in state court, both Lawrence and Royal conducted discovery back and forth, Royal answered including 25 affirmative defenses.

Now, Royal, defendant, moves to remove the case pursuant to the arbitration agreement. The plaintiff, Lawrence, argued that the (1) maintenance and cure claims are not subject to the seaman's agreement and that (2) nevertheless, Royal waived arbitration by conducting pre-trial discovery.

Issue:
Did this Court find that Royal's participation in pre-trial discovery effectively waived the mandatory arbitration clause within the employment agreement entered into by Lawrence?

Held:
Lawrence asserted that Royal waived any right it may have had to claim arbitration because they engaged in pre-trial discovery, inconsistent with the right to arbitration, thereby prejudicing Lawrence in the process.

A waiver of the right to arbitration is appropriate where the court finds, after reviewing the totality of the circumstances, that a party has acted inconsistently with the right to arbitrate.

While the use of pre-trial discovery procedures by  party seeking arbitration may sufficiently prejudice the legal position as to constitute a waiver, any party arguing a waiver of arbitration, bears a heavy burden of proof.  

Here, this Court found that Lawrence met the heavy burden of proof by showing that Royal actively litigated this case in state court for seven months and coincidentally filed a motion to remove in favor of arbitration on the same day the jury trial was scheduled by the state court.

Accordingly, this Court granted plaintiff's motion to remand to state court.

Comment:
Notwithstanding a compulsory arbitration clause in an employment agreement, a party may show that the other party effectively waived their right to arbitration under the agreement.

Courts have found various pretrial activities, including extensive discovery requests, to be a waiver. Also courts have found where the party moving for arbitration, that have litigated in state court for over a year and 15 months respectively had waived their right.

In finding a waiver, the courts are ultimately trying to avoid prejudice to the non-moving party by causing more delay and incurred litigation expenses as a result of moving the action to arbitration.

Steve Gordon