Ralph Jonathan Alvarado Vera v. Cruise Ship Catering and Services International, N v.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12494
Non-Argument Calendar
________________________
D.C. Docket No. 0:13-cv-62022-RNS
RALPH JONATHAN ALVARADO VERA,
Plaintiff-Appellant,
versus
CRUISE SHIPS CATERING AND SERVICES INTERNATIONAL, N.V.,
COSTA CROCIERE S.P.A.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 3, 2014)
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Ralph Alvarado Vera (“Plaintiff”) appeals the district court’s order
compelling him to arbitrate his complaints against his employer, Cruise Ships
Catering and Services International, N.V. (“CSCS International”), and the owner
of the ship upon which he worked, Costa Crociere S.P.A. (collectively “the
Defendants”) for Jones Act negligence, unseaworthiness, maintenance and cure,
and failure to treat claims. After careful review, we affirm.
I. Background
Plaintiff, a Peruvian citizen, alleges that, while working as a galley steward
aboard the cruise ship M/V Costa Atlantica, he was injured by repeatedly lifting
heavy items, and then having to twist while holding these heavy items, in order to
accomplish the work tasks assigned to him. He filed suit in a Florida state court,
asserting claims under United States statutory and general maritime law. The
Defendants removed the case to federal court and filed a motion to compel
arbitration based on the collective bargaining agreement between CSCS
International and Plaintiff’s trade union.
In so moving, the Defendants relied on the provisions of the collective
bargaining agreement requiring that:
Any questions that may arise concerning the application of laws, or of
the terms and conditions of this Agreement or of the [seafarer’s
employment agreement], shall be subject to the arbitrate [sic] of a
Board of Arbitration in accordance to Italian law.
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The district court granted the motion, dismissed Plaintiff’s complaint, and
ordered the parties to proceed to arbitration. This appeal followed.
II. Discussion
Plaintiff challenges the district court’s order compelling arbitration on two
grounds. First, Plaintiff argues that the Defendants have failed to meet one of the
jurisdictional prerequisites for arbitration. Specifically, Plaintiff contends that the
Defendants failed to present copies of a written arbitration agreement signed by
Plaintiff. Second, Plaintiff argues that the arbitration agreement at issue should be
declared void as being against public policy in that it prospectively waives his right
to pursue United States statutory remedies.
We review de novo a district court’s order to compel arbitration. Bautista v.
Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005).
A. The Jurisdictional Prerequisites for Arbitration Were Present.
The Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (the “Convention”) requires courts of signatory nations to give effect to
private arbitration agreements and to enforce arbitral awards made in other
signatory nations. United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, art. I(1), June 10, 1958, 21 U.S.T. 2517,
330 U.N.T.S. 3. The United States is a signatory to the Convention, and it enforces
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its agreement to the terms of the Convention through Chapter 2 of the Federal
Arbitration Act. See 9 U.S.C. §§ 201-208. Italy is likewise a signatory to the
Convention.
In determining a motion to enforce an arbitration agreement under the
Convention, a district court conducts a “very limited inquiry.” Bautista, 396 F.3d
at 1294. An agreement to arbitrate is governed by the Convention if the four
jurisdictional prerequisites are present. Id. Those prerequisites are that: (1) the
agreement is “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) one of the parties to
the agreement is not an American citizen. Id. at 1294 n.7. If the agreement
satisfies those four jurisdictional prerequisites, the district court must order
arbitration unless any of the Convention’s affirmative defenses apply. Id. at 1294-
95. Further, the Convention Act “generally establishes a strong presumption in
favor of arbitration of international commercial disputes.” Id. at 1295.
Here, Plaintiff does not dispute that the second through fourth jurisdictional
prerequisites are satisfied. Instead, he challenges only the first prerequisite, which
requires an agreement in writing. Specifically, Plaintiff argues that there was no
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such written agreement because the only document he signed was his employment
contract, which did not include an arbitration agreement. He further contends that
the collective bargaining agreement could not serve as such a written agreement
because it was not signed by him and the plain language of the former did not
encompass his claims against the Defendants.
We disagree. Parties have an “agreement in writing” under the Convention
if there is “an arbitral clause in a contract or an arbitration agreement, signed by
the parties.” Convention, art. II(2). Here, the arbitral clause is found in the
collective bargaining agreement, which is incorporated by reference into Plaintiff’s
signed employment contract. The first page of Plaintiff’s signed employment
contract expressly states that “[t]his sailor’s labor contract is subject to the
conditions set forth in the collective bargaining agreement.” Because of this
incorporation by reference, Plaintiff, as an individual, and the Defendants have an
agreement in writing as defined by the Convention. See Doe v. Princess Cruise
Lines, Ltd., 657 F.3d 1204, 1214-15 (11th Cir. 2011) (concluding that parties had
an arbitration agreement when document containing such an agreement was
incorporated by reference into the employment agreement); Brisentine v. Stone &
Webster Eng’g Corp., 117 F.3d 519, 526-27 (11th Cir. 1997) (requiring parties to
have agreed individually to a contract containing an arbitration clause).
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Moreover, the language of the collective bargaining agreement’s arbitral
clause does encompass Plaintiff’s claims. The collective bargaining agreement
provides that “any questions” concerning “the terms and conditions of this
Agreement” are subject to arbitration. While Plaintiff is bringing Jones Act
negligence, unseaworthiness, maintenance and cure, and failure to treat claims, the
underlying basis for each of these claims relate to the terms and conditions of the
collective bargaining agreement. Plaintiff’s complaint reflects that his claims are
based on the Defendants’ alleged failure to provide a reasonably safe place to
work; adequate equipment, such as a lifting belt, manpower, or mechanical lifting
device; prompt, proper, and adequate medical care; adequate work hours and rest
periods; adequate instruction and supervision; and the failure to promulgate
reasonable rules to ensure health and safety. The collective bargaining agreement
specifically includes terms and conditions relating to hours of duty, overtime, rest
periods, leave, medical attention, and personal protective equipment. Accordingly,
we conclude that the jurisdictional prerequisites have been met.
B. Plaintiff’s Claimed Public Policy Affirmative Defense Does Not
Invalidate the Arbitration Agreement.
Once the four jurisdictional prerequisites are met, a court must enforce an
arbitration agreement unless one of the Convention’s affirmative defenses applies.
See Bautista, 396 F.3d at 1294-95. Plaintiff cites, as his affirmative defense, an
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argument that the arbitration agreement violates public policy because it
potentially deprives Plaintiff of a statutory claim under the Jones Act that he would
have had under American law. Unfortunately for Plaintiff, a challenge based on
public policy cannot be made at the stage of proceedings in which a court is
considering whether to compel the parties to arbitrate, which is the stage at which
this case finds itself. At this present arbitration-enforcement stage, the only
affirmative defense that a reviewing court can accept is a defense that demonstrates
the arbitration agreement to be null and void, inoperative, or incapable of
performance, under Article II of the Convention. See Lindo v. NCL (Bahamas),
Ltd., 652 F.3d 1257, 1276 (11th Cir. 2011) (citing Bautista, 396 F.3d at 1301-02).
And, as to a “null and void” challenge, which is essentially what a public policy
argument is, such a challenge must be grounded in standard breach-of-contract-
type defenses, such as fraud, mistake, duress, and waiver, which defenses can be
applied neutrally before international tribunals. Id. at 1276-77. A public policy
defense is not that type of defense.
Instead, if Plaintiff wishes to pursue a public policy defense, he can do so
only at a proceeding to enforce the arbitration award (otherwise known as the
“award-enforcement” stage), and an award-enforcement proceeding necessarily
occurs after the arbitration proceeding has concluded. Id. at 1276-77, 1280-82,
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1284-85. Indeed, as Lindo noted, Article V, which applies to the award-
enforcement stage, is the article of the Convention dealing with the way in which
public policy defenses should be treated.1 Id. at 1280.
Plaintiff recognizes that Lindo dooms his present challenge to the
Defendants’ motion to compel arbitration. His response is that we should not
follow Lindo because it is not good law. To support that contention, he argues that
Lindo overlooked an earlier Eleventh Circuit decision, Thomas v. Carnival Corp.,
573 F.3d 1113 (11th Cir. 2009), thereby running afoul of this Court’s prior-panel
precedent rule. That rule holds that when a later panel decision contradicts an
earlier one, the earlier panel decision controls. See 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.”)
Yet as Lindo explained, Thomas, itself, did not follow a prior circuit
precedent: Bautista. Bautista, which interpreted the types of defenses available to
counter a motion to compel arbitration, had held that Article II’s “null and void”
clause applied only to traditional breach-of-contract defenses, such as fraud or
mistake. Lindo, 852 F.3d at 1278. Thomas, which neither cited nor acknowledged
1
“Article V expressly provides, ‘Recognition and enforcement of an arbitral award may also be
refused if the competent authority in the country where recognition and enforcement is sought
finds that . . . [t]he recognition or enforcement of the award would be contrary to the public
policy of that country.’” Lindo, 652 F.3d at 1280.
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Bautista’s governing principles, therefore imported an Article V defense into
Article II, in contravention of prior Eleventh Circuit precedent. Id. Accordingly,
as it was required to do under the prior-panel precedent rule, Lindo correctly
followed the earlier controlling decision: Bautista. 2
Plaintiff also contends that Lindo was inconsistent with Supreme Court
precedent: both before and after Lindo’s issuance. As to the earlier Supreme
Court case relied on by Plaintiff, Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346 (1985), Lindo explained in some
detail why Mitsubishi’s dicta, that is found in a footnote and that is now relied on
by Plaintiff, was not inconsistent with its holding. Lindo, 652 F.3d at 1265-68,
1281-82.
As to the Supreme Court case subsequently issued after Lindo, Am. Express
Co. v. Italian Colors Rest., 570 U.S. ___, 133 S. Ct. 2304 (2013), we likewise
conclude that Lindo did not conflict with it. In Italian Colors, the Supreme Court
2
Plaintiff also argues that Lindo disregarded another earlier Circuit precedent, Paladino v. Avnet
Computer Tech., Inc., 134 F.3d 1054 (11th Cir. 1998), which held that an arbitration clause was
unenforceable under the Federal Arbitration Act because it did not permit relief equivalent to the
federal statutory remedies sought by the plaintiff. But Plaintiff ignores the fact that Paladino
interpreted the Federal Arbitration Act, not the Convention, unlike Lindo, which interpreted the
same law that Plaintiff concedes must govern this case. Accordingly, Paladino does not
constitute a prior precedent that is contradictory to Lindo.
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acknowledged the “effective vindication” doctrine,3 which it noted had originated
as dictum in Mitsubishi Motors (where it had not been applied to invalidate the
arbitration agreement at issue there) and had been discussed in two other Supreme
Court cases, (but again not applied to invalidate the arbitration agreements there).
See Italian Colors, 570 U.S. at ___, 133 S. Ct. at 2310. Likewise, notwithstanding
its mention of this doctrine on which Plaintiff seeks to rely, the Supreme Court in
Italian Colors gave no further guidance on the doctrine’s application that would
alter our previous understanding of it. The opinion in Italian Colors likewise
declined to apply that doctrine, or any other rationale, to invalidate the arbitration
agreement at issue. Id. at ___, 133 S. Ct. at 2310-11. Because Italian Colors does
not conflict with our decision in Lindo, and because we determined in Lindo that
the decision announced there was consistent with Mitsubishi Motors, we likewise
conclude that Lindo remains good law.
III. Conclusion
Properly relying on binding precedent, the district court correctly granted the
Defendants’ motion to compel arbitration.
3
“The ‘effective vindication’ exception . . . originated as dictum in Mitsubishi Motors, where
we expressed a willingness to invalidate, on ‘public policy’ grounds, arbitration agreements that
‘operat[e] . . . as a prospective waiver of a party’s right to pursue statutory remedies.’ . . .
Subsequent cases have similarly asserted the existence of an ‘effective vindication’ exception . . .
but have similarly declined to apply it to invalidate the arbitration agreement at issue.” Italian
Colors, 570 U.S. at ___, 133 S. Ct. at 2310 (internal citations omitted).
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AFFIRMED.
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