Javier Fredy Paucar v. MAS Crociere S.A. ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11881
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-20235-PCH
JAVIER FREDY PAUCAR,
Plaintiff - Appellant,
versus
MSC CROCIERE S.A.,
XYZ CORP.,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 8, 2014)
Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
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Javier Paucar appeals the district court’s order dismissing his lawsuit and
compelling arbitration under an employment contract he signed to work on a ship
owned by MSC Crociere, S.A. (MSC). After careful review, we affirm.
While working aboard the MSC Sinfonia, a cruise ship sailing under the flag
of Panama, Paucar, a Brazilian citizen, allegedly was injured. He filed suit in a
Florida state court, asserting claims under United States statutory and general
maritime law. MSC removed the case to federal court and filed a motion to
compel arbitration based on a provision of the collective bargaining agreement
(CBA) it had entered into with Paucar’s trade union, which was incorporated into
Paucar’s employment contract. The provision stipulated that any claim of a
seafarer, expressly including the claims Paucar alleged in this case, “must be
referred to arbitration [in Panama] to the exclusion of any other legal or court
proceedings.” Further, the provision specified, “[t]he law of the vessel’s flag state
shall govern any such dispute.” The district court granted the motion, dismissed
Paucar’s case, and ordered the parties to proceed to arbitration. This is Paucar’s
appeal.
District courts are obliged to enforce arbitration clauses governed by the
United Nations Convention on the Recognition and Enforcement of Arbitral
Awards. A district court deciding a motion to enforce an agreement to arbitrate
under the Convention and its implementing legislation conducts only a “very
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limited inquiry” to decide (1) if jurisdictional prerequisites demonstrate that the
Convention applies and (2) whether one of a limited set of affirmative defenses
precludes enforcement of the agreement. Bautista v. Star Cruises, 396 F.3d 1289,
1294-95 (11th Cir. 2005) (internal quotation marks omitted).
To answer the first question, we ask whether there is a commercial
agreement in writing within the Convention’s meaning reasonably related to
foreign commerce or to which at least one party is not an American citizen that
provides for arbitration in a signatory country. Id. at 1294-95 n.7. With respect to
this inquiry, Paucar contends only that there was no validly formed agreement to
arbitrate because MSC systematically deprived him of the opportunity to review
the arbitration provision and seek the advice of counsel before he signed it, in
violation of the Seaman’s Articles of Agreement Convention and Panamanian
legislation implementing it.
We need not decide whether the problems Paucar identifies would result in a
void arbitration agreement, however, because the factual underpinnings of his
challenge are squarely belied by his own sworn testimony. The operative language
of the arbitration provision is contained in the CBA between Paucar’s trade union,
and MSC incorporated the CBA into the contracts Paucar signed, according to his
affidavit, “[e]very time [he] boarded a MSC vessel . . . .” Although Paucar may
have been hurried “every time [he] signed on,” he does not dispute that the same
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arbitration provision was in each contract, including several before the one at issue
here. Therefore, he had an adequate opportunity both to review the agreement to
arbitrate and to seek the advice of counsel before signing. Cf. id. at 1301 (“In the
limited jurisdictional inquiry prescribed by the Convention Act, we find it
especially appropriate to abide by the general principle that one who has executed
a written contract and is ignorant of its contents cannot set up that ignorance to
avoid the obligation absent fraud and misrepresentation.” (internal quotation marks
and alteration omitted)).
Second, in the alternative, Paucar argues that he has a defense that precludes
enforcement of the arbitration agreement because it is void as against public
policy. Specifically, he contends enforcing it would prevent him from effectively
vindicating rights secured under United States law. This argument, however, is
squarely foreclosed by binding precedent. In Lindo v. NCL (Bahamas), Ltd., we
rejected an identical contention and held a cruise ship crewmember could not raise
a public-policy defense to enforcement of an arbitration clause, but could assert the
contention only later, after arbitration had concluded. 652 F.3d 1257, 1276-77,
1280-82, 1284-85 (11th Cir. 2011). Paucar’s contentions about the impediments
that application of Panamaian law may pose to his claims are, likewise, unavailing
in light of Lindo. There, we held a seafarer’s contention that the choice-of-law
clause contained in his arbitration agreement would foreclose all meaningful relief
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under U.S. statutory law was premature and provided no defense to the
enforcement of an arbitration clause. Id. at 1283-85.
Recognizing it supports compelling arbitration despite his arguments, Paucar
protests that Lindo is not good law for two reasons. First, he argues that Lindo
conflicts with our earlier decision in Thomas v. Carnival Corp., 573 F.3d 1113(11th Cir. 2009). As we explained in Lindo, however, to the extent Thomas
acknowledged a public-policy defense to a motion to compel arbitration under the
Convention, it squarely conflicted with this court’s even earlier decision in
Bautista. Lindo, 652 F.3d at 1277-80; see also Burke-Fowler v. Orange Cnty.,
Fla., 447 F.3d 1319, 1323 n.2 (11th Cir. 2006) (“[W]hen a later panel decision
contradicts an earlier one, the earlier panel decision controls.”). Paucar’s
contention that Thomas’s effective-vindication defense can be read consistently
with Bautista is itself foreclosed by Lindo’s conclusion that the two decisions
irreconcilably conflict. Lindo, 652 F.3d at 1277-78; see United States v. Smith,
122 F.3d 1355, 1359 (11th Cir. 1997) (“Under the prior panel precedent rule, we
are bound by earlier panel holdings . . . unless and until they are overruled en banc
or by the Supreme Court.”).1
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Paucar’s reliance on “binding United States Supreme Court precedent” in Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985), does not change the
result. We explained in detail in Lindo why the conclusion we reached in that case, which
governs in this one, was fully consistent with Mitsubishi Motors. Lindo, 652 F.3d at 1265-69,
1281-82. Although American Express Co. v. Italian Colors Restaurant, — U.S. — ,133 S. Ct.
2304 (2013), came after Lindo, it simply discussed the effective-vindication doctrine which
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Second, Paucar correctly notes that the parties to Lindo settled their dispute
before the mandate had issued but after the opinion issued, which, he contends,
required vacatur of the opinion. See Key Enters. of Del., Inc. v. Venice Hospital, 9
F.3d 893, 899-900 (11th Cir. 1993) (en banc). But the Lindo panel chose not to
vacate its opinion, and it therefore remains binding law. See 11th Cir. R. 36-3
(“Under the law of this circuit, published opinions are binding precedent. The
issuance or non-issuance of the mandate does not affect this result.”); see also U.S.
Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25-26 (1994) (holding
mootness by reason of settlement does not require, but merely permits, vacatur of
an opinion because “[j]udicial precedents . . . are not merely the property of private
litigants and should stand unless a court concludes that the public interest would be
served by a vacatur.”). Thus, Thomas provides no basis upon which we could
reverse the district court’s order compelling Paucar to arbitrate his claims.
Paucar also contends that, notwithstanding Lindo’s determination that such
an argument may be raised only at the conclusion of arbitration, our decision in
Paladino v. Avnet Computer Technologies, Inc., means an arbitration clause is
unenforceable if it does not permit relief equivalent to the federal statutory
“originated as dictum in Mitsubishi Motors,” and cases decided afterwards, and declined to apply
it. American Express Co., 133 S. Ct. at 2310-12. The Supreme Court gave no further guidance
on the doctrine’s application that would alter our previous understanding of it. Consequently,
that case does not permit us to ignore Lindo’s conclusion that Mitsubishi provides no basis for
refusing to enforce an agreement to arbitrate. Lindo, 652 F.3d at 1265-69, 1278-82.
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remedies a plaintiff seeks. 134 F.3d 1054, 1062 (11th Cir. 1998). But Paladino
interpreted another statutory scheme, the Federal Arbitration Act, not the
Convention and its implementing legislation. We therefore may not rely upon
Paladino to ignore Lindo, which interpreted the law Paucar concedes governs this
case. We held in Lindo that district courts must enforce arbitration provisions
governed by the Convention, even when coupled with choice-of-law clauses that
might preclude meaningful relief on federal statutory claims, provided they meet
the jurisdictional prerequisites to enforcement, are not inoperative or incapable of
performance, and were not invalid due to fraud, duress, mistake, or wavier. 652
F.3d at 1275-77. We are bound by that holding. Paucar may, if he so chooses,
argue Panamanian law afforded him no meaningful relief at the award-enforcement
stage.
Based upon binding caselaw, the district court correctly granted MSC’s
motion to compel arbitration. Accordingly, we affirm.
AFFIRMED.
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