USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13442
Non-Argument Calendar
________________________
D.C. Docket No. 0:19-cv-62878-KMW
NORTHROP AND JOHNSON YACHTS-SHIPS, INC.,
a Florida Corporation,
Plaintiff - Appellant,
versus
ROYAL VAN LENT SHIPYARD, B.V.,
a Netherlands Corporation,
FEADSHIP AMERICA, INC.,
a Florida Corporation,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 26, 2021)
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 2 of 13
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Northrop and Johnson Yachts-Ships, Inc. (“Northrop”) appeals the district
court’s order dismissing its complaint and compelling arbitration under the New
York Convention. Northrop sued Feadship America, Inc. (“Feadship America”)
and Royal Van Lent Shipyards, B.V. (“Royal Van Lent”) for an allegedly unpaid
commission on the construction of a luxury yacht. The sole question in this appeal
is whether Northrop agreed in writing to arbitrate its claims—if it did, then the
motion to compel arbitration was properly granted. Because we conclude that
Northrop did agree in writing to arbitrate its claims, we affirm.
I
Northrop is a brokerage company that negotiates deals between buyers and
sellers of yachts. In February 2014, Northrop entered into an agreement with two
private clients to sell their current yacht and purchase a new and larger yacht.
Shortly thereafter, and at the request of Feadship America (acting as an agent of
Royal Van Lent), Northrop introduced the clients to the Feadship America brand
and one of its 217-foot yacht models called “Project F809.” The clients soon
agreed to purchase Project F809, which would be built by Royal Van Lent. Two
directors from Royal Van Lent, the director of Feadship America, and the CEO and
2
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 3 of 13
a broker from Northrop negotiated the sale at the Lauderdale Yacht Club in
Broward County, Florida.
Because the clients wished eventually to buy a larger yacht than Project
F809, Northrop alleges that the “negotiations culminated in a confidential
commission agreement for Project F809 on or about May 21, 2015, which
specifically contemplated the Clients’ purchase of another Royal Van Lent yacht in
the future.” That understanding was memorialized in a Commission Agreement
between Northrop and Royal Van Lent. The Commission Agreement established
that:
[Northrop] is to receive a commission of [€2,000,000] for the sale of
[Project] [F]809. If the client will build one new yacht in the future with
Royal van Lent Shipyard, [Northrop] is entitled to a minimum additional
commission of [€1,200,000] on top of the standard negotiated commission.
This additional commission is understood to be a bonus for accepting a
reduced commission with project [F]809.
It is understood by both parties that this commission will be the only
commission to be paid by [Royal Van Lent], any other or additional claim
for commission will be the sole responsibility of [Northrop]. [Northrop] will
use its best efforts during the build and warranty periods to moderate
between parties when necessary.
The Commission Agreement also contained an arbitration clause, which provided
that “[a]ny dispute arising out of or in connection with this Agreement shall be
finally settled in accordance with The Arbitration Rules of the Netherlands
Arbitration Institute (NAI).”
3
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 4 of 13
After Project F809 was delivered to the clients in April 2016, Northrop,
Feadship America, and Royal Van Lent continued to discuss the construction of
the second contemplated yacht. And Northrop continued to mediate between the
clients and Feadship America and Royal Van Lent. For example, at the request of
the clients, Northrop recommended other shipyards for the construction of the
second yacht. At the same time, Northrop kept Feadship America and Royal Van
Lent apprised of the situation in the hopes that they would compete for the project.
As late as November 2017, Northrop met with the clients to discuss the potential
purchase of a second Royal Van Lent yacht.
Northrop alleges that in January 2018, it learned that the clients had entered
into an independent agreement with Royal Van Lent for the construction of a
second yacht called “Project F819.” According to Northrop, Royal Van Lent and
Feadship America “intentionally and surreptitiously excluded Northrop . . . from
the negotiations on the deal.” Northrop then unsuccessfully sought to recover from
Royal Van Lent and Feadship America the commission that Northrop believed it
was due for the second yacht project. At some point, Royal Van Lent and
Feadship America disclosed the confidential Commission Agreement to the clients,
which caused the clients to engage a different broker to sell the first yacht—Project
F809. As a result of these events, Northrop alleges, among other things, that it lost
4
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 5 of 13
out on the “the industry standard commission . . . of 5% of the contracted sales
price of Project F819.”
Northrop then sued Royal Van Lent and Feadship America for the alleged
failure of the defendants to pay Northrop a commission for the construction of the
second yacht—Project F819. Northrop brought Florida state-law tort claims
against Royal Van Lent for procuring cause (quantum meruit) and unjust
enrichment. Northrop also brought a Florida state-law claim against Royal Van
Lent and Feadship America for tortious interference with an advantageous business
relationship.
After removing the case to federal court, Royal Van Lent and Feadship
America moved to dismiss and compel arbitration. They argued that the Federal
Arbitration Act (“FAA”) mandated enforcement of the Commission Agreement’s
arbitration provision because the provision was governed by the New York
Convention (“Convention”). 1 Royal Van Lent also argued that the Commission
Agreement’s arbitration provision covered Northrop’s claims and that Feadship
1
“The New York Convention generally requires the courts of signatory nations to give
effect to private arbitration agreements and to enforce arbitral awards made in other signatory
nations.” Escobar v. Celebration Cruise Operator, Inc.,
805 F.3d 1279, 1284 (11th Cir. 2015).
The United States and the Netherlands are signatories to the Convention. And the Federal
Arbitration Act vests federal courts with subject-matter jurisdiction over arbitration claims
arising under the Convention—including in cases removed from state court. See
9 U.S.C. § 203
(“An action or proceeding falling under the Convention shall be deemed to arise under the laws
and treaties of the United States. The district courts of the United States . . . shall have original
jurisdiction over such an action or proceeding, regardless of the amount in controversy.”);
9
U.S.C. § 205 (providing for removal of such actions from state courts).
5
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 6 of 13
America could invoke the arbitration provision under a theory of equitable
estoppel.
Northrop opposed the motion on the grounds that the New York Convention
did not apply because the parties did not have an agreement in writing to arbitrate
the claims at issue. Specifically, Northrop argued that the Commission Agreement
governed only the commission due to Northrop for the sale of the first yacht
(Project F809)—and not the commission due for the construction of the second
yacht (Project F819), and that the latter formed the basis of the suit. Northrop also
argued that its claims arose outside the scope of the arbitration provision. Finally,
Northrop argued that Feadship America could not invoke the arbitration provision
as a non-signatory to the Commission Agreement.
The district court concluded that the parties agreed to arbitrate the dispute
because the Commission Agreement and its arbitration provision governed
Northrop’s claims. Accordingly, it granted Royal Van Lent and Feadship
America’s motion to dismiss and compel arbitration under the New York
Convention. Northrop timely appealed.
II
Northrop argues that the district court erred in dismissing its complaint and
compelling arbitration because the parties did not agree to arbitrate Northrop’s
6
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 7 of 13
claims concerning Project F819.2 Northrop contends that there was no agreement
to arbitrate for two reasons. First, Northrop maintains that the Commission
Agreement governs only the commission fee for the sale of Project F809—and not
the commission fee for the sale of Project F819. Second, and relatedly, Northrop
argues that its claims concern only the commission due on the defendants’ sale of
Project F819 to the clients. Therefore, Northrop submits that its claims for
commission related to Project F819 fall outside the scope of the Commission
Agreement’s arbitration provision and the New York Convention does not apply.
We address these arguments in order.
To determine whether Northrop should be compelled to arbitrate its claims,
we turn first to the applicability of the New York Convention. “The New York
Convention generally requires the courts of signatory nations to give effect to
private arbitration agreements and to enforce arbitral awards made in other
signatory nations.” Escobar v. Celebration Cruise Operator, Inc.,
805 F.3d 1279,
1284 (11th Cir. 2015). Section 201 of the FAA provides for the enforcement of the
Convention in United States courts. Lindo v. NCL (Bahamas), Ltd.,
652 F.3d
1257, 1262 (11th Cir. 2011); see also
9 U.S.C. § 201 (“The [Convention] shall be
enforced in United States courts in accordance with this chapter.”). For purposes
2
We review de novo a district court’s grant of a motion to dismiss and compel
arbitration. Spirit Airlines, Inc. v. Maizes,
899 F.3d 1230, 1232 (11th Cir. 2018).
7
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 8 of 13
of our jurisdiction, “[a]n action or proceeding falling under the Convention shall be
deemed to arise under the laws and treaties of the United States.”
9 U.S.C. § 203.
And defendants may remove “an arbitration agreement or award falling under the
Convention” from state to federal court.
9 U.S.C. § 205.
An arbitration agreement falls under the Convention when “four
jurisdictional prerequisites are . . . met”:
(1) there is an agreement in writing within the meaning of the
Convention; (2) the agreement provides for arbitration in the territory
of a signatory of the Convention; (3) the agreement arises out of a
legal relationship, whether contractual or not, which is considered
commercial; and (4) a party to the agreement is not an American
citizen, or that the commercial relationship has some reasonable
relation with one or more foreign states.
Bautista v. Star Cruises,
396 F.3d 1289, 1295, 1295 n.7 (11th Cir. 2005).
Northrop does not assert an affirmative defense under the Convention. And
Northrop challenges only one of the four jurisdictional elements—whether there
exists an agreement in writing to arbitrate this dispute. Accordingly, that question
is the focus of this appeal.
In determining whether the parties agreed to arbitrate the dispute within the
meaning of the Convention, “FAA principles guide [our] analysis.” Doe v.
Princess Cruise Lines, Ltd.,
657 F.3d 1204, 1213 n.9 (11th Cir. 2011); Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 626 (1985) (“The
court is to make this determination by applying the federal substantive law of
8
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 9 of 13
arbitrability, applicable to any arbitration agreement within the coverage of the
Act.” (citation and internal quotation marks omitted)). Under the FAA, we apply a
“presumption in favor of arbitration[.]” Princess Cruise Lines, Ltd., F.3d at 1214.
That presumption is stronger when the Convention is implicated. See Bautista,
396 F.3d at 1295 (“[W]e are mindful that the Convention Act generally establishes
a strong presumption in favor of arbitration of international commercial disputes.”
(citation and internal quotation marks omitted); Lindo,
652 F.3d at 1275(“[U]nder
the Convention and Supreme Court and Circuit precedent, there is a strong
presumption in favor of freely-negotiated contractual choice-of-law and forum-
selection provisions, and this presumption applies with special force in the field of
international commerce.”). Thus, we conduct a “very limited inquiry.”
Id.
(quotation omitted). Under that inquiry, “[i]n the absence of an affirmative
defense, a district court must compel arbitration under the Convention if four
jurisdictional requirements are met.” Alberts v. Royal Caribbean Cruises, Ltd.,
834 F.3d 1202, 1204 (11th Cir. 2016).
Northrop does not dispute that the Commission Agreement set forth the
terms of Northrop’s commission for the sale of Project F809. And Northrop does
not dispute that the arbitration provision would govern “[a]ny dispute arising out of
or in connection with” the sale of Project F809. The question we must answer is
9
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 10 of 13
whether the parties agreed in writing to arbitrate this dispute arising from the sale
of Project F819.
First we consider whether the Commission Agreement governs the second
yacht—Project F819. It plainly does. To begin, the Commission Agreement
expressly contemplates Project F819. In addition to providing that Northrop was
“to receive a commission of [€2,000,000] for the sale of [Project F809,]” the
Commission Agreement provided that “[i]f the client will build one new yacht in
the future with Royal van Lent Shipyard, [Northrop] is entitled to a minimum
additional commission of [€1,200,000] . . . on top of the standard negotiated
commission.” As Northrop’s complaint acknowledges, the Project F809
“negotiations culminated in a confidential commission agreement . . . which
specifically contemplated the Clients’ purchase of another Royal Van Lent yacht in
the future.” And Northrop does not dispute that Project F819 is the “one new
yacht in the future” referenced in the Commission Agreement. Thus, the
Commission Agreement—and its arbitration provision—governs both yachts.
Northrop argues that the Commission Agreement’s reference to “one new
yacht in the future” was merely an “aspirational goal” and that the sole purpose of
the Commission Agreement was to create a two-part payment structure for the sale
of Project F809. Northrop also maintains that the Commission Agreement did not
govern Project F819 because the phrase “on top of the standard negotiated
10
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 11 of 13
commission” meant that the parties would engage in future negotiations. We are
not persuaded by these arguments.
We take Northrop’s complaint at its own word that the Commission
Agreement “specifically contemplated the Clients’ purchase of another Royal Van
Lent yacht in the future.” And the two-part payment structure of the Commission
Agreement confirms that understanding. Under that structure, Northrop would
receive a “bonus” of a specified amount for the construction of a second yacht
because Northrop accepted a “reduced commission” for the construction of the first
yacht. Although it is true that the Commission Agreement speaks of a “standard
negotiated commission” on the second yacht, Northrop’s complaint fails to allege
that the parties would have negotiated the commission on Project F819. To the
contrary, Northrop’s complaint affirmatively asserts that it is “entitled” to the
industry standard of “5% of the sales price for Project F819.”
Next, we consider whether Northrop’s claims fall within the scope of the
Commission Agreement’s arbitration provision. They do. The arbitration
provision states that “[a]ny dispute arising out of or in connection with this
Agreement shall be finally settled in accordance with The Arbitration Rules of the
Netherlands Arbitration Institute (NAI).” We have consistently held that such
language is broad in scope. See, e.g., Cooper v. Meridian Yachts, Ltd.,
575 F.3d
1151, 1162 (11th Cir. 2009) (holding that a provision that covered “all disputes
11
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 12 of 13
arising out of or in connection with” an agreement was “clearly meant to be read
broadly”); Gregory v. Electro-Mech. Corp.,
83 F.3d 382, 386 (11th Cir. 1996).
There is no doubt that the arbitration provision covers Northrop’s claims.
Specifically, Northrop’s quantum merit and unjust enrichment claims concern
allegedly unpaid commission for the sale of Project F819, and the Commission
Agreement governed the commissions due to Northrop. Thus, Northrop’s quantum
meruit and unjust enrichment claims go to the heart of the agreement between the
parties. Similarly, Northrop’s claim that the defendants tortiously interfered by
disclosing the terms of the Commission Agreement to the clients falls squarely
within the scope of the arbitration provision. The Commission Agreement
provided that “[b]oth parties will keep this agreement strictly confidential as well
as the final sales price of the yacht.” And Northrop alleges that the defendants
tortiously interfered by disclosing the terms of the Commission Agreement to the
clients.3
In short, the Commission Agreement governs Project F809 and Project
F819, so the arbitration provision applies to both projects. And Northrop’s claims
3
Even if there were some doubt about the scope of an arbitration provision, under the
FAA, “any doubts concerning the scope of arbitral issues should be resolved in favor of
arbitration.” Solymar Invs., Ltd. v. Banco Santander S.A.,
672 F.3d 981, 988 (11th Cir. 2012)
(quoting First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 945 (1995)).
12
USCA11 Case: 20-13442 Date Filed: 03/26/2021 Page: 13 of 13
fall within the scope of the arbitration provision. 4 Accordingly, the parties agreed
in writing to arbitrate Northrop’s claims, and Northrop cannot avoid the express
terms of the agreement it signed by bringing equitable tort claims rather than
breach of contract claims. McBro Plan. & Dev. Co. v. Triangle Elec. Const. Co.,
741 F.2d 342, 344 (11th Cir. 1984), abrogated on other grounds by Lawson v. Life
of the S. Ins. Co.,
648 F.3d 1166, 1171 (11th Cir. 2011) (“[I]t is well established
that a party may not avoid broad language in an arbitration clause by attempting to
cast its complaint in tort rather than contract.”). Accordingly, the district court did
not err in compelling arbitration under the Convention.
AFFIRMED.
4
Northrop argues that the district court erred when it allowed Feadship America to
invoke the arbitration provision because it was not a signatory to the Commission Agreement. A
party who is a non-signatory to an arbitration agreement may nevertheless compel arbitration
under the doctrine of equitable estoppel in two circumstances: (1) “when the plaintiff-signatory
must rely on the terms of the written agreement in asserting its claims,” or (2) “when the
plaintiff-signatory alleges substantially interdependent and concerted misconduct by the
signatories and non-signatories, and such alleged misconduct is founded in or intimately
connected with the obligations of the underlying agreement[.]” Lavigne v. Herbalife, Ltd.,
967
F.3d 1110, 1118–19 (11th Cir. 2020) (cleaned up); see also GE Energy Power Conversion
France SAS, Corp. v. Outokumpu Stainless USA, LLC,
140 S. Ct. 1637, 1642 (2020) (holding
that the New York Convention does not prohibit the application of domestic equitable estoppel
doctrines). Here, Feadship America may invoke the Commission Agreement’s arbitration
provision under the second theory of equitable estoppel. Northrop alleged that “Royal Van Lent
and Feadship America intentionally and unjustifiably interfered with the business relationship
[between] Northrop . . . and its Clients by unilaterally disclosing the confidential commission
agreement for Project F809[.]” Thus, Northrop’s tortious interference claim alleges
interdependent and concerted misconduct between Royal Van Lent and Feadship America that
violated express obligations in the Commission Agreement.
13
