Malin et al v. Osprey Underwriting Agency Limited et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
HEATHER MALIN; and MARIYA
MCNEESE,
Plaintiffs,
vs.
OSPREY UNDERWRITING
AGENCY LIMITED, a foreign
unincorporated entity and/or
corporation; and CERTAIN
UNDERWRITERS AT LLOYD’S, a
foreign unincorporated entity and/or
corporation,
Defendants.
Case No. 3-20-CV-00119-JWS
ORDER ON MOTION TO DISMISS
OR STAY AND COMPEL
ARBITRATION
(Docket 40)
I. 	MOTION PRESENTED
At docket 40, Defendants Osprey Underwriting Agency Limited, and its
certain underwriters (“Osprey Underwriting”), and Certain Underwriters at Lloyd’s
(“Lloyd’s”; collectively “Defendants”) move the court to dismiss or stay this matter
and compel Plaintiffs Heather Malin and Mariya McNeese (“Plaintiffs”) to pursue their
claims against Defendants through arbitration in London, England, in accordance with
the terms of an arbitration clause in the applicable insurance policy. Plaintiffs oppose
Case 3:20-cv-00119-JWS Document 54 Filed 03/30/22 Page 1 of 13

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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
the motion at docket 50. 	Defendants reply at docket 53. 	Oral argument was not
requested and would not be of assistance to the court.
II. 	BACKGROUND
Underlying Plaintiffs’ complaint is an incident that occurred aboard the
F/V A MERICAN BEAUTY on August 6, 2015, in which the captain of the vessel
allegedly assaulted Plaintiffs, who were crewmembers aboard the vessel. 	The vessel
was owned by F/V A MERICAN BEAUTY , LLC (“American Beauty”). American Beauty
was an assured under a maritime protection and indemnity policy (the “Policy”)
obtained through the London marine insurance market. The Policy was underwritten
by Osprey Underwriting and brokered by Wells Fargo Insurance Services USA, with
Osprey Underwriting reinsuring the risk through Lloyds.
In 2016 Plaintiffs filed suit against American Beauty, the vessel’s
captain, and others, raising a claim under the Jones Act, 46 U.S.C. § 30104, claims for
negligence and intentional tortious acts, and a claim under general maritime law for
payment of maintenance and cure benefits. Defendants refused to defend the action or
indemnify American Beauty under the Policy. The parties settled the underlying case,
stipulating to an entry of judgment in favor of Plaintiffs solely against American
Beauty. American Beauty and the other defendants also agreed to assign Plaintiffs any
claims they might have against Osprey and Lloyd’s related to coverage under the
Policy.
Plaintiffs 	subsequently 	filed 	this 	lawsuit, 	alleging 	Defendants
wrongfully denied coverage for their claims against American Beauty in the underlying
Case 3:20-cv-00119-JWS Document 54 Filed 03/30/22 Page 2 of 13

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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
lawsuit. They assert a claim for breach of contract and a claim for bad faith based upon
Defendants’ failure to defend and indemnify the defendants in the underlying civil
action.
Despite the fact that the Policy contains a “Osprey Law and Practice
Clause” requiring arbitration in London, England, and the application of English law,
Plaintiff brought suit in this court. 	They rely on the “Service of Suit Clause” in the
Policy:
It 	is 	agreed 	that 	in 	the 	event 	of 	the 	failure 	of 	the
Underwriters severally subscribing this insurance (the
Underwriters) to pay any amount claimed to be due
hereunder, the Underwriters, at the request of the Assured,
will submit to the jurisdiction of a court of competent
jurisdiction within the United States of America.1
Plaintiffs argue the parties’ inclusion of the Service of Suit Clause at least creates an
ambiguity that should be resolved in favor of judicial resolution, or, alternatively, that
the foreign forum and choice of law aspect of the arbitration provision renders is it
unenforceable because it unreasonably deprives Plaintiffs of their bad faith claim and
remedies and because it has the effect of waiving their statutory rights.
III. 	DISCUSSION
Arbitration agreements between parties of different countries are subject
to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1 Dockets 41-9 at 1; 41-4 at 26.
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
(the “Convention”).2 The Convention requires signatory nations, such as the United
States, to recognize international arbitration agreements and to recognize and enforce
arbitral awards made in other contracting countries.3 The United States implemented
the Convention through the enactment of Chapter 2 of the Federal Arbitration Act
(“FAA”).4 	Any agreement covered under the Convention is subject to the FAA’s
general provisions and its “liberal federal policy favoring arbitration.”5 	Indeed, the
Supreme Court has noted that “the emphatic federal policy in favor of arbitral dispute
resolution . . . applies with special force in the field of international commerce.” 6
Provided that a court is satisfied with the arbitration agreement’s formation, it is
required to enforce arbitration on issues covered under that agreement.7
For 	a 	motion 	to 	compel 	arbitration 	based 	upon 	an 	international
agreement, the court conducts a “very limited inquiry.”8 This inquiry consists of four
factors: (1) there must be an agreement to arbitrate in writing; (2) the agreement must
provide for arbitration in the territory of a signatory of the Convention; (3) the
agreement must arise out of legal relationship, whether contractual or not, which is
considered commercial (including a transaction, contract or agreement described in the
2 The United Nations Conventions on Recognition and Enforcement of Foreign
Arbitral Awards, June 20, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997 (entered into force with
respect to the United States Dec. 29, 1970) (the “Convention”).
3 Id., art. II(1).
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)
(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)).
6 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631
(1985). 7 9 U.S.C. § 4.
8 Bautista v. Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005).
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
Section 2 of the FAA, 9 U.S.C. § 2); and (4) one of the parties to the agreement must
not be a U.S. citizen, or the commercial relationship underpinning the agreement must
have some reasonable relation with a foreign state.9 	If these four requirements are
satisfied, the Convention applies and arbitration must be enforced. The court can deny
arbitration only by finding the agreement “null and void, inoperative or incapable of
being 	performed.” 10 	That 	is to 	say, 	at 	the arbitration-enforcement 	stage, 	the
Convention only recognizes a limited number of defenses—ones that “can be applied
neutrally on an international scale.”11
Here, there is no dispute as to three of the factors requiring the
application of the Convention and its mandate to enforce the agreement. The Policy is
commercial in nature;12 there is an arbitration provision in the Policy that provides for
arbitration in London, England; and Defendants are not U.S. citizens. 	As to the
threshold issue of whether there is a written agreement between the parties, Plaintiffs
do not dispute that there is a written insurance agreement between the assureds and
Defendants, nor do they dispute its application to them here. Instead, Plaintiffs assert
that the scope of the arbitration agreement in the Osprey Law and Practice Clause is
narrowed by Service of Suit Clause to exclude this type of case, where Defendants are
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).
10 Convention, art. II(3); Balen, 583 F.3d at 654.
11 Bautista, 396 F.3d at 1302 (quoting DiMercurio v. Sphere Drake Ins. PLC, 202
F.3d 71, 79 (1st Cir. 2000)).
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).
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
alleged to have failed to pay amounts due under the Policy, or that the conflict between
the two clauses renders arbitration unenforceable as to their claims against Defendants.
The court finds Plaintiffs’ argument unavailing. 	The Service of Suit
Clause does not vitiate the arbitration requirement, and there is no conflict in the Policy
between the Osprey Law and Practice Clause and the Service of Suit Clause. The plain
terms of the Osprey Law and Practice Clause makes this clear:
Notwithstanding 	anything 	else 	to 	the 	contrary, 	this
insurance is subject to English law and practice and any
dispute under or in connection with this insurance is to be
referred to Arbitration in London, . . . . In the event of a
conflict between this clause and any other provision of this
insurance, this clause shall prevail and the right of either
part 	to 	commence 	proceedings 	before 	any 	Court 	or
Tribunal in any other jurisdiction shall be limited to the
process of enforcement of any award hereunder.13
By its own terms, this provision prevails over any allegedly conflicting terms. Indeed,
the Service of Suit Clause itself makes clear that it is “[s]ubject, in all respects, to the
Osprey Law and Practice Clause . . . .”14 Taken together, it is clear that the Osprey
Law and Practice Clause and the Service of Suit Clause work harmoniously, with the
purpose of the Service of Suit Clause being to “provide[ ] a means to compel arbitration
or enforce any arbitration award.”15
Other courts have found as much when analyzing agreements with
similar service of suit provisions: 	“It is well-established that such service of suit
13 Dockets 41-9 at 3; 41-4 at 28.
14 Dockets 41-9 at 1; 41-4 at 26.
15 See Security Life Ins. Co. v. Hannover Life Reassurance Co. of Am., 167 F. Supp.
2d 1086, 1089 (D. Minn. 2001).
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
clauses do not abridge an agreement to arbitrate all disputes arising out of a
relationship.”16 These courts recognize that the purpose of service of suit clauses is to
provide a judicial forum in which a party may enforce arbitration or an arbitration
award.17 The plain language in the Policy makes this intent clear here, as it expressly
states that any right to seek judicial review is “limited to the process of enforcement of
any award” granted through the arbitration process.18 This language, along with the
language in both clauses stating that the Osprey Law and Practice Clause prevails in
all respects, is sufficient to distinguish the cases relied upon by Plaintiffs.
Another section in the Policy supports a finding that the parties agreed
to arbitration of the type of dispute presented here. 	The “Choice of Law and
Jurisdiction” section states that “[a]ny dispute concerning the interpretation of this
Policy shall be governed by the Law and Jurisdiction of England and Wales in
accordance with the Osprey Law [and] Practice Clause.” 19 	Under this section, a
dispute which turns what the Policy required of Defendants with regard to the
16 Id. at 1088 (citing supportive cases).
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
arbitration clauses; indeed, they may complement arbitration clauses by establishing a judicial
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
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
for jurisdiction it did not otherwise change other contractual or substantive rights—did not
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).
18 Dockets 41-9 at 3; 41-4 at 28.
19 Dockets 41-8 at 2; 41-4 at 2.
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
underlying lawsuit is subject to English law and the arbitration process outlined in the
Osprey Law and Practice Clause.
Even if there were some ambiguities created by the inclusion of the
Service of Suit Clause in the Policy, under the general principles of the FAA, any
ambiguities related to the scope of arbitrable issues should be resolved in favor of
arbitration.20 	Indeed, arbitration “should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.”21 No such positive assurances can be made here.
Plaintiffs alternatively argue that the court should find the arbitration
provision unenforceable to the extent it requires the application of English law in an
English forum. They argue enforcement of English arbitration would deprive them of
their bad faith claim and its remedies, as well as their underlying statutory rights.
Again, Plaintiffs’ argument is unavailing. As noted above, once the court is satisfied
that there is an arbitration agreement that falls under the Convention, the court,
pursuant to the Convention, must order arbitration unless the agreement is “null and
void, inoperative or incapable of being performed.”22 The “null and void” language
“limits the bases upon which an international arbitration agreement may be challenged
20 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983)
(“Any doubts concerning the scope of arbitrable issues should be resolved in favor of
arbitration.”).
21 Comedy Club, Inc. v. Improv W. Assocs., 553 F.3d 1277, 1284 (9th Cir. 2009)
(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.
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
to standard breach-of-contract defenses” such as fraud, mistake, duress, and waiver.23
Plaintiffs raise no such defenses here.
Plaintiffs instead assert that enforcement would be against public policy.
While other courts have stressed the narrow scope of the Convention’s “null and void”
language, excluding any challenge based on public policy grounds at the arbitration-
enforcement stage,24 the Ninth Circuit has entertained the possibility of such a defense
to arbitration enforcement. 	In Balen, the plaintiff, a seaman, sought to bring a claim
under the Seaman’s Wage Act, 46 U.S.C. § 10313, against a maritime employer. He
argued that foreign arbitration would be against public policy because it would
eliminate 	components 	of 	his 	statutorily 	protected 	wages 	and 	effectively 	void
Congress’s intent to ensure proper treatment of seamen. The court acknowledged the
possibility that an international arbitration agreement could be deemed null and void
if the plaintiff could show that “the public policy regarding the proper treatment of
seafarers is stronger than the public policy favoring the arbitration.”25 Such a showing
would at least require evidence that international arbitration would nullify statutory
rights Congress has provided seafarers.26 	The court ultimately enforced arbitration,
23 Bautista, 396 F.3d at 1202.
24 See Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1277 (11th Cir. 2011) (noting
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 Balen, 583 F.3d at 654.
26 Id. (“Balen has not established what statutory remedy or procedure he could pursue
in the United States that he could not pursue in the Philippines.”); see also Rogers v. Royal
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
international arbitration would nullify any of the statutory rights Congress has conferred on
seafarers.”).
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
finding that the agreement did not require application of foreign law and plaintiff failed
to otherwise establish that the foreign arbitrators could not consider U.S law and
provide adequate relief. 	Moreover, the court explained that if an applicable U.S.
statutory remedy was not applied or awarded in international arbitration, the plaintiff
later could move to set aside the arbitration award in a U.S. federal court under the
Convention. Indeed, “at the arbitration-enforcement stage, it is generally premature to
make findings about how arbitrators will conduct the arbitral process, whether a claim
will be heard, or whether the foreign-law remedies will be adequate or inadequate.”27
Such questions are more appropriately reserved for any review of the arbitral award.
As the Eleventh Circuit concluded after a thorough analysis on the
applicable Supreme Court law, foreign choice of law clauses may be enforced even if
the substantive law applied in arbitration potentially provides reduced remedies or
fewer defenses than those available under U.S. law.28 	That is to say, international
arbitration agreements that explicitly require the application of foreign law will not be
deemed null and void any time a plaintiff raises a U.S. statutory claim. Instead, issues
of public policy would be implicated only at the enforcement stage if foreign
arbitration not only forces a plaintiff to waive a U.S. statutory claim, but also forecloses
the possibility of any relief whatsoever and thus any opportunity for subsequent
review.
27 Lindo, 652 F.3d at 1277 (discussing the Supreme Court’s holding in Vinmar
Seguros y Veaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 540 (1995)).
28 Lindo, 652 F.3d at 1269.
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
Plaintiffs do not face the risk of foregoing a statutory claim and its
remedies because their complaint raises claims for breach of contract and bad faith.
This is not a Jones Act case. 	Plaintiffs settled their Jones Act claims with the
defendants in the underlying case “in a purported exchange for a different set of rights”
under the defendants’ insurance policy. 29 	Even if the Jones Act remedies were
implicated here, the contractual claim provides Plaintiffs with the possibility of relief
and subsequent court review.
Plaintiffs stress that they will not be able to assert a bad faith claim or
recover punitive damages under English law. Again, however, unless some statutory
right is threatened to be nullified, there is no public policy at stake that could outweigh
“the emphatic federal policy in favor of arbitral dispute resolution” that “applies with
special force in the field of international commerce.” 30 	Moreover, less favorable
remedies or reduced defenses are not adequate justifications for setting aside the
Convention’s mandate to enforce agreed-upon arbitration provisions. That is to say, it
is premature at the enforcement stage to consider the adequacy of any foreign law
remedy. 	To rule otherwise and find an arbitration agreement invalid at the outset
whenever the application of foreign law may be less favorable to a plaintiff would
“effectively eviscerate the mutually binding nature of the Convention.”31 “[I]f every
country refused to recognize arbitration agreements that contemplate the application
29 Docket 53 at 8.
30 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631
(1985).31 Lindo, 652 F.3d at 1284.
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
of foreign law, the multilateral commitment of the Convention” and its goal of ensuring
uniform enforcement of international arbitration agreements would be obstructed.32
Plaintiffs argue that enforcement of English arbitration would otherwise
be unfair given Alaska’s interest in this case and the convenience of resolving this
dispute in Alaska. 	This argument is without support. 	The case they rely upon does
not involve enforcement of a forum-selection clause in an international arbitration
agreement covered under the Convention.33 Plaintiffs have not cited a case to support
its proposition that an arbitration provision requiring foreign arbitration and the
application of foreign law can be found unenforceable under the Convention based
upon general notions of increased fairness, local interest, and convenience.
IV. 	CONCLUSION
Based on the preceding discussion, Defendants’ motion to compel
arbitration at docket 40 is GRANTED. The parties are ordered to arbitrate this dispute
in England as provided for in the Policy. Given arbitration is compelled and all issues
are referred to arbitration, this case is DISMISSED, subject to any action to enforce or
set aside the arbitral award.
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
underlying American adoption and implementation of it, was to encourage the recognition and
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
the signatory countries.”)
33 Boston Telecomms. Grp. v. Wood, 588 F.3d 1201 (9th Cir. 2009).
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Malin, et al. v. Osprey Underwriting Agency Ltd. 	Case No. 3:20-cv-00119-JWS
Order on Motion to Dismiss or Stay and Compel Arbitration (Docket 40) 	Page 2
IT IS SO ORDERED this 30th day of March, 2022, at Anchorage,
Alaska.
/s/ John W. Sedwick
JOHN W. SEDWICK
Senior United States District Judge
Case 3:20-cv-00119-JWS Document 54 Filed 03/30/22 Page 13 of 13