Milton Escobal v. Celebration Cruise Operator, Inc. , 482 F. App'x 475 ( 2012 )

Case: 11-14022 Date Filed: 07/20/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14022
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-21791-UU
MILTON ESCOBAL,
Plaintiff-Appellant,
versus
CELEBRATION CRUISE OPERATOR, INC.,
CELEBRATION CRUISE LINE, LLC,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 20, 2012)
Before HULL, MARTIN, and COX, Circuit Judges.
PER CURIAM:
Case: 11-14022 Date Filed: 07/20/2012 Page: 2 of 5
The Plaintiff, Milton Escobal, appeals the district court’s order compelling
arbitration of his claims against Celebration Cruise Operator, Inc. and Celebration
Cruise Line, LLC. No reversible error has been shown. We affirm.
Escobal, a Peruvian seaman, injured his back while working for Celebration
Cruise Operator aboard the vessel Bahamas Celebration. His employment contract
with Cruise Operator required that all disputes arising out of the contract be arbitrated
in one of three foreign forums (in this case, the Bahamas). The contract also included
a litigation choice-of-forum provision designating a Bahamian court.
Still, Escobal sued Celebration Cruise Operator, Inc. and Celebration Cruise
Line, LLC in a Florida state court. He asserted a claim for Jones Act negligence
against Cruise Operator. He also asserted an unseaworthiness claim against both
Defendants. The Defendants removed the case to the Southern District of Florida and
agreed to allow the application of U.S. law to Escobal’s statutory claims. The
Defendants then moved to compel arbitration under the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards.1 The district court granted
that motion. Escobal appeals.
We review an order compelling arbitration de novo. Bautista v. Star Cruises,
396 F.3d 1289, 1294 (11th Cir. 2005) (citation omitted).
1
The Convention is incorporated into the United States Code at 9 U.S.C. § 201.
2
Case: 11-14022 Date Filed: 07/20/2012 Page: 3 of 5
Escobal raises four issues on appeal. He first contends that the arbitration
provision is ambiguous, and therefore must be construed as permissive rather than
mandatory. We disagree. The litigation choice-of-forum provision cited by Escobal
does not render the arbitration provision ambiguous.2 See Bank Julius Baer & Co.,
Ltd. v. Waxfield Ltd., 424 F.3d 278, 283–85 (2d Cir. 2005); Personal Sec. & Safety
Sys. Inc. v. Motorola, Inc., 297 F.3d 388, 395–96 (5th Cir. 2002).
Escobal next contends that he cannot be compelled to arbitrate his claim
against Celebration Cruise Line because it is not a signatory to the arbitration
agreement. Again, we disagree. Escobal’s claim against Cruise Line is inextricably
intertwined with his claims against the contract signatory Celebration Cruise
Operator. Thus, the district court properly applied equitable estoppel in requiring
Escobal to arbitrate his claim against Cruise Line. See MS Dealer Serv. Corp. v.
Franklin, 177 F.3d 942, 947–48 (11th Cir. 1999), abrogated on other grounds, Arthur
Anderson LLP v. Carlisle, 556 U.S. 624, 631, 129 S. Ct. 1896, 1902 (2009) (holding
that state law governs whether an arbitration clause is enforceable against a non-
signatory under the FAA).3
2
The arbitration provision clearly states that “any and all disputes arising out of or in
connection with this agreement . . . shall be referred to and finally resolved by arbitration.” (Dkt.
1-3 at 3.)
3
We need not decide whether federal substantive law or state law controls this issue in this
case; Carlisle involved the FAA rather than the Convention. See Todd v. S.S. Mut. Underwriting
3
Case: 11-14022 Date Filed: 07/20/2012 Page: 4 of 5
Escobal next contends that if he must arbitrate, he must be allowed to do so in
a forum where venue is proper under § 6 of the Federal Employer’s Liability Act
(“FELA”). We reject this contention as foreclosed by our precedent. Before 2008,
the Jones Act contained a separate venue provision. In 2008, Congress deleted that
provision entirely. This deletion might suggest that Congress wanted to change the
law and make the venue provision in § 6 of the FELA applicable to Jones Act cases.
See Harrington v. Atl. Sounding Co., Inc., 602 F.3d 113, 120 n.2 (2d Cir. 2010). We
rejected this contention in Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1286–87
(11th Cir. 2011), and held that the 2008 amendment did not change the law. Thus,
under our prior panel precedent rule, we must conclude that § 6 of the FELA does not
apply to Jones Act claims. See United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.
1997) (citing Fla. League of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th
Cir. 1996)).4
Ass’n (Bermuda) Ltd., 601 F.3d 329, 333–34 (5th Cir. 2010). But, Escobal does not contend that any
state’s law would render the arbitration agreement unenforceable against Cruise Line. And, under
Florida law, we would reach the same result we reach here. See Kolsky v. Jackson Square, LLC, 28
So. 3d 965, 969 (Fla. Dist. Ct. App. 2010) (citing MS Dealer, 177 F.3d at 947); Armas v. Prudential
Sec., Inc., 842 So. 2d 210, 212 (Fla. Dist. Ct. App. 2003).
4
Contrary to Escobal’s contention (Appellant’s Br. at 11), Sea-Land Serv., Inc. v. Sellan, 231
F.3d 848 (11th Cir. 2000) did not hold that § 5 of the FELA (which limits a common carrier’s power
to limit its employer liability) applies to Jones Act claims. And, in Lindo, we specifically held that
§ 5 of the FELA does not apply to Jones Act claims. 652 F.3d at 1286-87.
4
Case: 11-14022 Date Filed: 07/20/2012 Page: 5 of 5
Finally, Escobal invites us to revisit Bautista v. Star Cruises, 396 F.3d 1289(11th Cir. 2005) and Lindo, 652 F.3d 1257, arguing that these decisions conflict with
Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731 (1970) (holding that a
U.S.-based company was an employer under the Jones Act). We find no conflict
between Bautista or Lindo and Hellenic Lines, and we cannot revisit Bautista and
Lindo unless and until we are sitting en banc.5
AFFIRMED.
5
Escobal also contends that Bautista and Lindo are distinguishable because those cases
involved collective bargaining agreements and this case does not. Escobal did not present this
argument in the district court so we decline to consider it. See, e.g., Dean Witter Reynolds, Inc. v.
Fernandez, 741 F.2d 355, 360–61 (11th Cir.1984).
5