Kenneth Downer v. Royal Caribbean Cruises, LTD. , 549 F. App'x 861 ( 2013 )

Case: 13-12391 Date Filed: 11/18/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12391
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-21948-MGC
NORRIS ANTHONY BROWN,
Plaintiff,
KENNETH DOWNER,
RICHARD GRAHAM YOUNG,
ROAN DRUMOND SCOTT,
CLIFF FITZ PATRICK,
AUZZIE DUANE DABRELL,
FITZROY LLOYD JOHNSON,
STANLEY ARMANDO MULLINGS,
GREGORY HUGHES,
Plaintiffs - Appellants,
versus
ROYAL CARIBBEAN CRUISES, LTD.,
Defendant - Appellee.
Case: 13-12391 Date Filed: 11/18/2013 Page: 2 of 6
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 18, 2013)
Before WILSON, ANDERSON, and DUBINA, Circuit Judges.
PER CURIAM:
Appellants are eight individuals who work or worked as stateroom
attendants (“Attendants”) aboard cruise ships operated by Appellee Royal
Caribbean Cruises, Ltd. In this putative class action, the Attendants allege Royal
Caribbean unlawfully withheld or delayed paying wages in violation of the Seamen
Wage Act, 46 U.S.C. § 10313 (“Wage Act”). When Royal Caribbean sought to
enforce the mandatory arbitration provisions in the employment and collective
bargaining agreements between the Attendants and Royal Caribbean, the
Attendants raised an affirmative defense: They argued that because the arbitration
provisions required the application of Norwegian law to any dispute between the
Attendants and Royal Caribbean, they were contrary to public policy.
The district court found that the United Nations Convention on Recognition
and Enforcement of Foreign Arbitral Awards (“the Convention”) and its
implementing legislation required enforcement of the agreement to arbitrate. See 9
U.S.C. §§ 201–208 (mandating enforcement of the Convention and incorporating
2
Case: 13-12391 Date Filed: 11/18/2013 Page: 3 of 6
its provisions into federal law). The Attendants attempted to appeal, but this court
dismissed their appeal for lack of jurisdiction, as the district court had not
dismissed the Attendants’ claims. Brown v. Royal Caribbean Cruises, Ltd., No.
12-13001-DD (11th Cir. Oct. 10, 2012) (per curiam). The Attendants then asked
the district court to dismiss their claims so they could seek appellate review of the
district court’s order compelling arbitration. The district court obliged, and this
appeal followed.
I.
When reviewing a district court’s order to compel arbitration, we review
questions of law de novo but accept findings of fact that are not clearly erroneous.
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947–48, 115 S. Ct. 1920,
1926 (1995); Bautista v. Star Cruises, 396 F.3d 1286, 1294 (11th Cir. 2005). A
district court must compel arbitration pursuant to an international commercial
arbitration agreement so long as the jurisdictional prerequisites under the
Convention are met and no affirmative defense applies. Bautista, 396 F.3d at 1294
n.7 (listing four jurisdictional prerequisites).
II.
First, we conclude that the district court’s determination that the Attendants
admitted to the existence of a written arbitration agreement, establishing the only
questionable jurisdictional prerequisite, was not a clear error. In Count I of their
3
Case: 13-12391 Date Filed: 11/18/2013 Page: 4 of 6
complaint, the Attendants seek a declaratory judgment that the arbitration
provisions of the agreements were unenforceable. That request presupposed both
that the arbitration agreements existed and that they bound the Attendants. While
parties may not stipulate to federal jurisdiction, Travaglio v. American Express
Co., – F.3d —, 2013 WL 4406389, at *3 (11th Cir. 2013), they can admit facts
establishing jurisdictional elements. In re CP Ships Ltd. Sec. Litig., 578 F.3d
1306, 1311 (11th Cir. 2009), abrogated on other grounds by Morrison v. Nat’l
Australian Bank Ltd., – U.S. —, 130 S. Ct. 2869, 2877 (2010). The district court
found that the Attendants’ factual allegations established the existence of a written
agreement binding the Attendants, and that finding was not clearly erroneous. See
Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1178 (“[F]acts judicially admitted
are facts established not only beyond the need of evidence to prove them, but
beyond the power of evidence to controvert them.” (internal quotation marks
omitted)).
Second, the Attendants may not raise their affirmative defense at this stage.
A party opposing arbitration pursuant to an international commercial agreement
may not seek to avoid arbitration on the basis that it is contrary to public policy.
Lindo v. NCL (Bahamas) Ltd., 652 F.3d 1257, 1276 (11th Cir. 2011). At the
arbitration-enforcement stage, parties may raise certain “standard breach-of-
contract defenses” that “can be applied neutrally on an international scale.”
4
Case: 13-12391 Date Filed: 11/18/2013 Page: 5 of 6
Bautista, 396 F.3d at 1302 (internal quotation marks omitted). These include
“fraud, mistake, duress, and waiver,” id., but not public policy defenses, which “by
definition cannot be applied neutrally on an international scale.” Lindo, 652 F.3d
at 1276.
III.
The Attendants’ attempt to invoke Thomas v. Carnival Corp., 573 F.3d 1113
(11th Cir. 2009), to support their public policy argument is unavailing. There, a
panel of this court held that an arbitration provision requiring application of
foreign law constituted a waiver of seafarers’ rights under the Wage Act and was
therefore unenforceable as contrary to public policy. Id. at 1124. But in Lindo, the
majority made clear that Thomas’s expansion of defenses available against
enforcement of an international arbitration agreement violated the terms of the
Convention and the holding of Bautista, an earlier precedent. Lindo, 652 F.3d at
1278. The public policy argument is appropriate only at the arbitration-
enforcement stage. Id. at 1263. Thomas, therefore, violated the prior panel
precedent rule. Id. at 1278; see also United States v. Smith, 122 F.3d 1355, 1359
(11th Cir. 1997) (setting out prior panel precedent rule, whereby earlier panel
holdings bind this court “unless and until they are overruled en banc or by the
Supreme Court”). This court has since confirmed Lindo’s holding multiple times.
E.g., Quiroz v. MSC Mediterranean Shipping Co. S.A., – F. App’x —, 2013 WL
5
 Case: 13-12391 Date Filed: 11/18/2013 Page: 6 of 6
3185470, at *6 (11th Cir. 2013); Arauz v. Carnival Corp., 466 F. App’x 815, 816–
17 (11th Cir. 2012); Fernandes v. Carnival Corp., 484 F. App’x 361, 362 (11th Cir.
2012); Henriquez v. NCL (Bahamas), Ltd., 440 F. App’x 714, 716 (11th Cir.
2011); Maxwell v. NCL (Bahamas), Ltd., 454 F. App’x 709, 710 (11th Cir. 2011).
To the extent the Attendants ask us to undermine it, we decline the invitation and
affirm the district court’s order.
AFFIRMED.
6