Carnival Corporation v Estibeiro

• Jurisdiction: Bermuda
• Judgment Date: 26 March 2013
• Date: 26 March 2013
• Docket Number: Civil Jurisdiction 2013 No 85
• Court: Supreme Court (Bermuda)

2013 Bda LR 20

In The Supreme Court of Bermuda

Civil Jurisdiction 2013 No 85

In the matter of the Bermuda International Conciliation and Arbitration Act 1993

Between:

Carnival Corporation

Carnival Plc

Fleet Maritime Services International Ltd

Applicants

and

Alexio Estibeiro

Respondent

Mr R Attride-Stirling and Mr S Dyer for the Applicants

The following case was referred to in the judgment:

Princess Cruise Lines Ltd v MatthewsBDLR [2011] Bda LR 63

Appointment of third arbitrator — Anti-suit injunction

EX TEMPORE RULING of Kawaley CJ

Decision

1. In this matter the Applicants seek an Order under article 11(3)(a) of the UNCITRAL Model Law which is incorporated into Bermuda law by the Bermuda International Conciliation and Arbitration Act 1993 for the appointment of a third arbitrator in relation to a dispute between the Applicants and the Respondents. In addition, the Applicants seek an injunction restraining the Respondent from bringing or pursuing any proceedings other than in the Bermuda proceedings the claims which form the subject of the present dispute.

2. I am minded to grant an Order in the terms sought by the Applicants, with one modification. The Applicants have left it to the Court to signify who the third arbitrator should be. They have proposed both before me and in the arbitration appointment process various members of the Bermuda Bar. In my judgment, having regard to the disputed nature of this appointment process, the appropriate person to appoint is Mr Geoffrey Bell QC who was a judge of this Court between 2005 and 2010. He is clearly of a higher order of seniority altogether than the party-appointed arbitrator chosen by the Applicants1 and in my judgment that appointment should go some way to allay the concerns expressed by the Respondents in correspondence with this Court.

Background to the dispute

3 .The background to this matter can be summarised as follows. It appears to be common ground between the parties that the present dispute is governed by Article 14 in the Contract, that the dispute is subject to the substantive and procedural law of Bermuda and that the Contract provides in unequivocal terms that arbitration is the dispute resolution mechanism to the exclusion of all other fora.

4. The present dispute is a negligence dispute arising out of the Respondent's employment with the 3^rd Applicant. The nationality of the Applicants can be summarised as follows. The 1^st Applicant is a Panamanian corporation, the 2^nd Applicant is a British corporation and the 3^rd Respondent is a Bermudian company. The

Respondent is Indian and the business activities in which the Respondent is employed have strong connections with the United States but are largely international in nature involving the Respondent's work on cruise ships.

5. The present dispute arose in this way. The Respondent in or about the summer of 2012 commenced proceedings in the Circuit Court for the Judicial District of Miami Dade County in Florida in respect of the negligence complained of. The Applicants in the present proceedings responded with a Notice to Compel Arbitration filed on July 31, 2012 and that application was granted by the United States District Court for the Southern District of Florida by Her Honour Judge Patricia Seitz dated October 2, 2012.

6. The parties then proceeded to commence arbitration. The Respondent served a Notice of arbitration on or about January 30, 2013 and appointed a retired (US) judge as his party-appointed arbitrator. On or about February 20...