Doe v. Princess Cruise Lines, Ltd.

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10809 ELEVENTH CIRCUIT
________________________ SEP 23, 2011
JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-23005-JLK
JANE DOE,
lllllllllllllllllllll Plaintiff,
lllllllllllllllllllll Counter Defendant,
lllllllllllllllllllll Appellee,
versus
PRINCESS CRUISE LINES, LTD.,
a foreign corporation,
d.b.a. Princess Cruises,
lllllllllllllllllllll Defendant,
lllllllllllllllllllll Counter Claimant,
lllllllllllllllllllll Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 23, 2011)
Before CARNES, FAY and SILER,* Circuit Judges.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
CARNES, Circuit Judge:
On its website, Princess Cruise Lines proclaims to the world, as one of its
“core values,” that: “The safety and security of our passengers and employees is
our most important responsibility.”1 The cruise line says that it recognizes crew
members as its “greatest asset,” and shows its appreciation to them by making
their “life onboard the best it can be.”2 It boasts of making “every effort possible
to offer its crew members an enjoyable environment and a rewarding career.”3
All of those statements are but empty words, and cynical ones at that, if the
allegations in the complaint that is before us are to be believed. Those allegations
tell a story of a woman, working for Princess Cruise Lines on one of its ships, who
was drugged by other employees, raped and physically injured while she was
unconscious, and when she reported to officials of the cruise line what had
happened to her they treated her with indifference and even hostility, failed to
provide her with proper medical treatment on board, and interfered with her
1
http://www.princess.com/employment/core_values/index.html (last visited Sept. 13,
2011).
2
http://www.princess.com/employment/onboard_employment/information/working_at_sea/worki
ng_at_sea.html (last visited Sept. 13, 2011).
3
Id.
2
attempts to obtain medical treatment and counseling ashore.4
This case is not here, however, for us to determine whether the allegations
in the complaint are true. Instead, it comes to us in an appeal by the cruise line
from the district court’s denial of its motion to compel arbitration of the dispute
between it and the plaintiff. The legal issues involve the scope of the arbitration
4
Unfortunately, if congressional reports are to be believed, sexual assaults and other
violent crimes on cruise ships are a serious problem. The House Subcommittee on Coast Guard
and Maritime Transportation Staff has reported that:
At a hearing in March 2006 convened by the Committee on Government Reform, cruise
industry executives testified that 178 passengers on North American cruises reported
being sexually assaulted between 2003 and 2005. During that same period, 24 people
were reported missing and four others reported being robbed.
Crimes Against Americans on Cruise Ships: Hearing Before the Subcomm. on Coast Guard and
Mar. Transp. of the H. Comm. on Transp. and Infrastructure, 110th Cong. 2 (2007). From fiscal
year 2000 through June 2005, the FBI opened 305 case files involving “crime on the high seas,”
and during those five years about 45% of those cases were sexual assaults that occurred on cruise
ships. International Maritime Security: Joint Hearing Before the Subcomm. on Nat’l Sec.,
Emerging Threats, and Int’l Relations and the Subcomm. on Crim. Justice, Drug Policy, and
Human Res. of the H. Comm. on Gov’t Reform, 109th Cong. 8 (2005) (statement of Rep.
Souder, Chairman of the Subcomm. on Crim. Justice, Drug Policy, and Human Res., Member, H.
Comm. on Gov’t Reform).
Salvador Hernandez, Deputy Assistant Director of the FBI, testified before Congress in
2007 about sexual and other physical assaults that have taken place on cruise ships: “Sexual
assault and physical assaults on cruise ships were the leading crime reported to and investigated
by the FBI on the high seas over the last five years, 55 percent and 22 percent respectively . . . .
Employees were identified as suspects in 37 percent of the cases, and 65 percent of those
employees were not U.S. citizens.” Crimes Against Americans on Cruise Ships: Hearing Before
the Subcomm. on Coast Guard and Mar. Transp. of the H. Comm. on Transp. and Infrastructure,
110th Cong. 12 (2007) (statement of Hernandez, Deputy Assistant Director of the FBI).
3
clause in the crew agreement, and we review de novo the district court’s
interpretation of that clause to determine whether the allegations of the complaint
fall within its scope. See Hemispherx Biopharma, Inc. v. Johannesburg Consol.
Invs., 553 F.3d 1351, 1366 (11th Cir. 2008) (stating that “[w]e review the district
court’s interpretation of the arbitration clause de novo” and consider “whether the
facts alleged in the amended complaint fall within the arbitration clause”); see also
Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109, 1114 (11th Cir.
2001) (“Whether a party has agreed to arbitrate an issue is a matter of contract
interpretation . . . .”).
I.
The alleged facts are that for twelve hours a day, seven days a week, Jane
Doe5 worked as a bar server on Princess Cruise Lines’ M/S Star Princess. On June
20, 2009, in the early morning hours after she had worked a full shift serving
drinks to passengers, Doe was returning to her cabin when a fellow crew member
invited her to a birthday party. Some crew members gathered for the party in
cabin number 3342, which is a double cabin with a bathroom in the middle.
Because of that cabin’s size, crew members often used it for parties. Those who
5
The plaintiff is using the pseudonym “Jane Doe” to protect her confidentiality.
4
were there on that occasion included: Christopher Ugay, Ian Capito, Mark
Anchuela, Lou Vivero, and Arnold de Vera. One of those men handed Doe an
open beer and, not suspecting anything, she drank it. The beer contained a drug,
which rendered her unconscious in the cabin with Ugay and the four other men.
When Doe came to later that morning, she was in one of the beds in cabin
3342. Someone had removed her pants and underwear, and she realized that she
had been raped while she was unconscious. She also had a severe headache, was
dizzy, disoriented, and weak, all of which are after-effects of a date rape drug.
Ugay was in the cabin when Doe awoke, and she asked him who had done
this to her. He blamed Ian Capito. When Doe got back to her own cabin, she felt
so sick and weak that she could not climb the ladder to her bunk and instead fell
asleep on the floor. Her cabin mate awoke her later, and Doe returned to work
early that afternoon. She felt so sick, however, that she had to go back to her
cabin to sleep.
Doe returned to work the next morning, June 21, feeling “humiliated,
ashamed, and traumatized” because she had been raped while unconscious in a
cabin with five men. She could not recall how many men had participated in the
rape or had watched it occur or whether any of them had taken photographs or a
5
video of her being assaulted.
Doe told her work supervisor that she had been raped while unconscious in
cabin 3342. She wanted to report the rape to a personnel manager then so that she
could ask permission to miss work and get medical treatment, but her supervisor
refused to permit her to leave, telling her that she could wait until the next
morning to report it. After she got off work the next morning, which was June 22,
2009, Doe went to the personnel manager and reported that she had been raped
and explained the circumstances in which it had happened. The personnel
manager told her to write a report and then go back to work.
That afternoon, Doe was interrogated by ship officers and required to
repeatedly recount the details of the rape in the presence of male officers and
supervisors. That same afternoon the cruise line had her prepare another statement
and tape recorded her account. As a result Doe, who had not eaten all day, felt
“weak and traumatized.” She had not been given any medical attention.
Doe was finally allowed to go to the ship’s infirmary on the afternoon of
June 22, more than 24 hours after she had reported the rape. After examining her,
the ship’s doctor concluded that Doe had a torn labia, which could have been a
result of “forced entry.” The doctor drew blood and tested Doe’s urine for the
6
presence of date rape drugs. The test was positive, although the ship doctor
characterized the results as “‘weak,”’ which Doe asserts was attributable to the
“length of time since the rape.”6
On June 23, crew member Ugay admitted to “ship personnel” that he had
engaged in “sex” with Doe while she was unconscious, and that he did so without
using a condom. The ship’s doctor reported in Doe’s medical records that she had
been raped, but the doctor did not administer anti-retroviral medication in order to
counteract the risk of HIV/AIDS or other sexually transmitted diseases. The
ship’s officers and officials did not allow Doe to disembark for emergency medical
treatment in a United States port. Instead, she was instructed to return to work.
By the time she was finally allowed off the ship and was treated at a hospital’s
sexual assault center in Seattle on July 13, 2009, more than three weeks after the
rape, it was too late for antiretroviral treatment.
The cruise line did report the incident to the FBI, and agents boarded the
ship but they did not arrest anyone. That often happens, Doe alleges, when crimes
6
According to Doe, the presence of date rape drugs is not detectable for very long:
Rohypnol for 72 hours and GHB for only 12 hours. Doe alleges that the rape occurred in the
early morning hours of June 20, and she did not receive medical attention from the ship’s doctor
until the afternoon of June 22, more than 48 hours after the rape.
7
are committed on foreign flagged cruise ships by one or more foreign nationals
(Ugay is Filipino) against another foreign national (Doe is Russian).7 Doe’s
medical records with the cruise line note that her blood and rape kit samples were
then destroyed by dumping them in the incinerator: “29 June 09 17:00
FBI/Bermuda: no case to be made. All forensic evidence taken in waste bags to
incinerator.” The cruise line did fire Ugay, after he admitted to “engaging in sex”
with Doe while she was unconscious, and then it flew him back to the Phillipines.
It allowed the other four crew members, who had been in the cabin at the time and
may also have raped Doe, to keep their jobs.
After Doe reported that she had been raped, an official from the cruise line
told her that she could not leave the ship at a United States port to receive medical
treatment or counseling. She had, she was told, only two options: She could go
to a clinic in Alaska and return immediately to work, or she could return to Russia.
Even though she had a valid tourist visa, a representative of the cruise line told
Doe that immigration officials would not allow her to enter the United States for
medical treatment. No one from the cruise line informed Doe about her rights as a
7
Salvador Hernandez, Deputy Assistant Director of the FBI, testified before Congress in
2007 that the majority of cruise ship sexual assault cases are not prosecuted. Crimes Against
Americans on Cruise Ships: Hearing Before the Subcomm. on Coast Guard and Mar. Transp. of
the H. Comm. on Transp. and Infrastructure, 110th Cong. 12 (2007) (statement of Hernandez,
Deputy Assistant Director of the FBI).
8
seaman, allegedly “including the right to obtain medical treatment and counseling
ashore in the U.S. and the right to choose her own doctors and receive
maintenance and cure until she recovered from the trauma.”
Seeking advice about her legal rights, Doe emailed James Walker, an
attorney in Florida, about her plight. On July 2, 2009, Walker communicated by
email and fax with the cruise line’s general counsel, Mona Ehrenreich. He told
Ehrenreich that he represented Doe, who wanted to leave the ship immediately to
get emergency medical treatment, antiretroviral medication, and counseling.
Ehrenreich’s secretary left a message on Walker’s answering machine, stating that
the cruise line would respond to Doe’s request in the next four or five days.
That same day Walker replied to the message from Ehrenreich’s secretary.
He emailed and faxed Ehrenreich that any delay in addressing the matter was
“unacceptable,” and he told her that Doe would “be disembarking the cruise ship
once it arrives in Seattle” to obtain “medical and psychological treatment.”
Walker also informed Ehrenreich that he would be flying from Miami to Seattle to
meet with Doe and to ensure that she received emergency medical treatment and
counseling. Ehrenreich responded by telling Walker that the situation was not an
emergency and that Doe’s only option was to leave the ship and return to Russia.
9
The next day, July 3, 2009, Walker emailed and faxed Ehrenreich again, warning
her that if the cruise line “refuse[d] to permit [Doe] to leave the cruise ship for
medical reasons on Sunday morning [July 6, 2009], we will consider this conduct
to constitute false imprisonment.”
At some point, Doe personally asked officers or agents of the cruise line
who were on the ship to help her get medical treatment in Seattle. They responded
by berating her, interrogating her again, and attempting to force her to choose
between remaining on the ship or going back to Russia. They told her she had no
other options.
On July 3, 2009, Walker contacted the Russian Embassy in Washington
D.C. and the Russian Consulate in Seattle. The Consulate agreed to send a
representative to meet Walker at the port in case officers on board prohibited Doe
from leaving the ship. On July 4, 2009, Ehrenreich informed Walker that he
could not see or speak to Doe and that she would not be permitted to leave the
ship. Doe was told the same thing and was required to continue working. Doe did
get off the ship in Seattle but only after the representative of the Russian
Consulate went on board, spoke with Doe, and then escorted her off.
In Seattle Doe met with immigration officials of this country, who granted
10
her a medical parole so that she could receive treatment and counseling at a rape
crisis facility in the United States. Even so, someone from the cruise line reported
to immigration officials that Doe was absent from the ship without leave, allegedly
“in an effort to have her arrested and deported.” Meanwhile, representatives from
the cruise line’s claims department tried to talk with Doe without her lawyer being
present. Despite the cruise line’s obligation to provide Doe with maintenance and
cure, its officials refused to provide her with food and delayed paying for her
Seattle hotel for two months.
On August 31, 2009, the cruise line flew Doe back to Russia. It did not
provide her with money, food, or transportation from the Russian airport to her
home. And it did not arrange for medical treatment or counseling in Russia.
After Walker demanded that the cruise line provide maintenance and cure,
Ehrenreich informed Walker that Doe was required to report directly to the cruise
line’s agent in Switzerland, who handles those matters. But someone from the
cruise line instructed that agent to refuse to provide maintenance and cure, and the
agent followed those instructions. As of the date Doe’s first amended complaint in
this case was filed on October 8, 2009, Princess Cruise Lines had not provided
Doe with any maintenance and cure after she was sent to Russia—no medical care
11
or treatment, no counseling, no assistance of any kind.
II.
In her first amended complaint, which is the relevant one for purposes of
this appeal, Doe asserted ten claims against Princess Cruise Lines. The first five
of those claims fall under either the Jones Act, 46 U.S.C. § 30104, or the general
maritime law applicable to seamen, or the Seaman’s Wage Act, 46 U.S.C. §
10313. Those claims are: (1) a “Jones Act negligence” claim, alleging that
Princess Cruise Lines breached its “duty to provide a safe place to work such that
[Doe] could perform the job obligations in a reasonably safe manner and live
aboard the vessel free from sexual violence and/or sexual harassment”; (2) an
unseaworthiness claim, alleging that the cruise line breached its “non-delegable
duty to provide [Doe] with a seaworthy vessel upon which to work and live free
from sexual battery and/or sexual harassment”; (3) a Jones Act claim, alleging that
the cruise line breached its duty under that act to provide Doe with prompt,
adequate, and complete medical treatment for “injuries sustained while in the
service of the vessel”; (4) a maintenance and cure claim, alleging that the cruise
line “purposefully refused to arrange for and pay [for] timely and complete
medical cure” despite its obligation to do so under “the General Maritime Law”;
12
and (5) a Seaman’s Wage Act claim that the cruise line breached its “duty to
timely pay all of [Doe’s] wages as a seaman.” Those claims are contained, in that
order, in Counts I–V of the complaint.8
The remaining five claims that Doe asserted against Princess Cruise Lines
are common law tort claims : (6) a false imprisonment claim, alleging that the
cruise line had “purposefully and intentionally restrained [Doe] against her will on
the cruise ship and did not permit her to leave the cruise ship to go ashore for
medical treatment” in Seattle; (7) an intentional infliction of emotional distress
claim, alleging “separate and independent torts committed by” the cruise line, its
agents, and its employees related to Doe’s rape and the way that they handled the
situation and treated her after learning of the rape; (8) a spoliation of evidence
claim, alleging that the cruise line breached its duty to preserve evidence after one
of its crew members sexually assaulted and battered Doe; (9) an invasion of
privacy claim, alleging that the cruise line, though its agents, breached its duty to
protect Doe’s confidentiality and privacy as a rape victim by repeatedly disclosing
her real name in an effort to intimidate and embarrass her; and (10) a fraudulent
misrepresentation claim, alleging that officers of the cruise line who were on the
8
Count IV, a claim alleging a breach by Princess Cruise Lines of its duty to provide Doe
with maintenance and cure, is misnumbered as Count V in the complaint, resulting in two Count
V’s. In order to avoid confusion, we will refer to it throughout this opinion as Count IV.
13
ship repeatedly and falsely told Doe after she had been drugged and raped that she
could not disembark the ship to get medical treatment and counseling by doctors
of her own choosing. Those claims are, in that order, contained in Counts VI–X of
the complaint.
Princess Cruise Lines filed a motion to compel arbitration of all ten counts
of the complaint. The district court denied that motion in its entirety. Finding no
binding authority on point, the district court was persuaded by the decision in
Jones v. Halliburton, 583 F.3d 228 (5th Cir. 2009). The Fifth Circuit held in Jones
that some of the claims arising from the sexual assault of the plaintiff were outside
the scope an arbitration provision that covered claims “related to” her
employment. Id. at 239. The district court found that the alleged facts of this case
were quite similar to those in the Jones case. It recounted how: “All of the facts
important to the Jones decision are present here: the rape occurred at an after-
hours party, in a crew member’s stateroom, while Plaintiff was off-duty, following
a social gathering, in a place removed from Plaintiff’s working location, and
where guests were not allowed.” The district court reasoned that Doe’s “[b]eing
drugged and raped at an after-hours party in a crewmember’s stateroom does not
relate to, arise out of, or have a connection with the crew agreement, the
14
employment terms, or the services [plaintiff] performed for [the cruise line],” as it
would have to in order to be within the scope of the arbitration agreement between
the parties. For those reasons, the court ruled that the dispute between Doe and
Princess Cruise Lines was beyond the scope of the arbitration provision in the
crew agreement.
The cruise line filed a motion for reconsideration, which the district court
denied. Doe v. Princess Cruise Lines, Ltd., 696 F. Supp. 2d 1282, 1289 (S.D. Fla.
2010). In doing so, the court explained that “even though some of Plaintiff’s legal
causes of action depend on her status as a seaman, the facts as pled demonstrate
that the dispute did not arise out of her employment.” Id. at 1288. This is the
cruise line’s appeal from the order denying its motion to compel arbitration.
III.
Princess Cruise Lines contends that we should reverse the district court’s
denial of its motion to compel arbitration for two reasons. One of those reasons is
its contention that the district court should not have decided the arbitrability issue
but instead should have sent that issue, along with the others, to an arbitrator for
15
decision. This contention is a non-starter because, as the cruise line concedes, it
asked the district court to decide for itself whether the dispute was subject to
arbitration. Only when the matter was illuminated by the light of an unfavorable
decision from the district court did the cruise line suddenly see that the court ought
not have answered the question after all.
The invited error doctrine stands for the common sense proposition that
someone who invites a court down the primrose path to error should not be heard
to complain that the court accepted its invitation and went down that path. See,
e.g., Birmingham Steel Corp. v. Tenn. Valley Auth., 353 F.3d 1331, 1341 n.5
(11th Cir. 2003) (“It is a cardinal rule of appellate review that a party may not
challenge as error a ruling or other trial proceeding invited by that party. ”
(quotation marks omitted)). And, in any event, the path down which the cruise
line invited the court did not lead to error. Determining the scope of an arbitration
provision “falls within the category of ‘gateway matters’ which the Supreme Court
has instructed us that courts and not arbitrators should decide.” Anders v.
Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1027 (11th Cir. 2003) (citing
Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct. 2402, 2407 (2003)
(holding that courts must decide “certain gateway matters, such as whether the
16
parties have a valid arbitration agreement at all or whether a concededly binding
arbitration clause applies to a certain type of controversy”)).
IV.
Princess Cruise Lines’ primary contention is that all of Doe’s claims fall
within the scope of the arbitration provision because, contrary to what the district
court decided, all of them are related to, arose out of, or were connected with
Doe’s employment duties as specified by her crew agreement. That contention
turns on interpretation of the arbitration provision, which is a matter that we
decide de novo. Wheat, First Sec., Inc. v. Green, 993 F.2d 814, 817 (11th Cir.
1993) (“Determinations of arbitrability, like the interpretation of any contractual
provision, are subject to de novo review.”) (quotation marks omitted).
A.
“The [Federal] Arbitration Act establishes that, as a matter of federal law,
any doubts concerning the scope of arbitrable issues should be resolved in favor of
arbitration . . . .”9 Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S.
9International arbitration agreements, like the one in this case, are subject to the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. §§
201–208, which is incorporated in and enforced through the FAA. See Thomas v. Carnival
Corp., 573 F.3d 1113, 1116 (11th Cir. 2009) (“The United States, as a signatory to the
Convention, enforces this treaty through Chapter 2 of the U.S. Federal Arbitration Act (FAA),
which incorporates the terms of the Convention . . . .”). “Section 1 of the Federal Arbitration Act
(FAA or Act) excludes from the Act’s coverage ‘contracts of employment of seamen, railroad
17
1, 24–25, 103 S.Ct. 927, 941 (1983). “Because the FAA is at bottom a policy
guaranteeing the enforcement of private contractual arrangements, we look first to
whether the parties agreed to arbitrate a dispute, not to general policy goals, to
determine the scope of the agreement.” E.E.O.C. v. Waffle House, Inc., 534 U.S.
279, 294, 122 S.Ct. 754, 764 (2002) (citation and quotation marks omitted). Even
though there is that presumption in favor of arbitration, “[t]he courts are not to
twist the language of the contract to achieve a result which is favored by federal
policy but contrary to the intent of the parties.” Goldberg v. Bear, Stearns & Co.,
912 F.2d 1418, 1419–20 (11th Cir. 1990). That means “the parties will not be
required to arbitrate when they have not agreed to do so.” Id. at 1419; see also
Waffle House, 534 U.S. at 294, 122 S.Ct. at 764 (“Arbitration under the FAA is a
matter of consent, not coercion.” (quotation marks and alteration omitted));
Telecom Italia, 248 F.3d at 1114 (“‘[A] party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.’” (quoting United
employees, or any other class of workers engaged in foreign or interstate commerce.’” Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 1306 (2001) (quoting 9 U.S.C. §
1). The Convention, however, “precludes application of the exemption for seamen’s
employment agreements set forth in 9 U.S.C. § 1.” Bautista v. Star Cruises, 396 F.3d 1289, 1303
(11th Cir. 2005). Under both the FAA and the Convention “the first task of a court asked to
compel arbitration of a dispute is to determine whether the parties agreed to arbitrate” it.
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346,
3353 (1985). That is the issue we must resolve in this case, and FAA principles guide the
analysis. See id., 105 S.Ct. at 3353.
18
Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80
S.Ct. 1347, 1353 (1960))).
B.
The contractual agreement that Doe signed when she went to work for
Princess Cruise Lines, which is titled “Acceptance of Employment Terms and
Conditions,” contains the following provision, which is itself titled “Arbitration
Notice & Agreement”:
As provided by the Principal Terms and Conditions of Employment, which
are deemed to be incorporated herein by reference, the Company and I
hereby acknowledge and agree that my employment with the Company
constitutes an international commercial relationship between foreign parties,
and we agree that any and all disputes shall be referred to and resolved by
binding arbitration as provided for in the Principal Terms and Conditions of
Employment.
As that provision indicates, the “Acceptance of Employment Terms and
Conditions” incorporates a document called the “Principal Terms and Conditions
of Employment.” The “Crew Agreement” incorporates by reference both the
Acceptance of Employment Terms and Conditions and the Principal Terms and
Conditions of Employment. The arbitration provision is contained in a section of
the Principal Terms and Conditions of Employment that is titled “Governing Law,
Arbitration, Venue and Examinations.” (That whole section, unlike the rest of the
19
agreement, appears in all capital letters.) The arbitration provision in it states:
. . . [T]he Company and crew member agree that any and all disputes,
claims, or controversies whatsoever (whether in contract, regulatory,
tort or otherwise and whether pre-existing, present or future and
including constitutional, statutory, common law, admiralty,
intentional tort and equitable claims) relating to or in any way arising
out of or connected with the Crew Agreement, these terms, or
services performed for the Company, including but not limited to
wage and benefit matters, employment applications, wrongful
termination or discrimination claims, property loss or damage,
personal injury, death or any other claim, no matter how described,
pleaded or styled [collectively, “Disputes”] between the crew member
and the Company or others, including against the master, shipowner,
vessel, vessel operator, charterer, or any other third party, including
also, but not limited to, Princess Cruises, P&O Cruises Australia, and
Cunard Line, shall be referred to and resolved exclusively by binding
arbitration . . . .
(capitalization altered; brackets in original; emphasis added) Doe admits that she
signed the Acceptance of Employment Terms and Conditions document which
incorporates by reference that arbitration provision as set forth in the Principal
Terms and Conditions of Employment.
C.
As the district court recognized, the Fifth Circuit’s Jones case involved an
arbitration provision and factual allegations similar to those in the present case.
See Jones, 583 F.3d 228. For that reason, and because it is the only published
federal court of appeals decision on point that the parties have directed us to or
20
that we could find, we will consider the facts of the Jones case in some detail.10
Jamie Leigh Jones went to work for Halliburton as an administrative
assistant in Houston, Texas. Id. at 230. She asked to be transferred because she
was allegedly being sexually harassed by her supervisor, and later she signed a
contract to serve as a clerical worker for a Halliburton subsidiary in Baghdad, Iraq.
Id. at 230–31. The agreement she signed included a provision stating that any
claim she might have against her employer that was “related to [her] employment,”
including a “personal injury claim arising in the workplace” would be subject to
arbitration. Id. at 231 (alteration omitted). An incorporated agreement referred to
and swept into the arbitration clause any claims of “personal injury allegedly
incurred in or about a Company workplace.” Id.Jones’ job assignment was in “the Green Zone” in Baghdad, which “is a
ten-square-kilometer area that was initially the center of the Coalition Provisional
Authority after the Iraqi invasion, and continues to remain the center of the
10
Princess Cruise Lines relies on Doe v. Royal Caribbean Cruises, Ltd., 180 Fed. App’x
893 (11th Cir. 2006) (unpublished), which held “that the District Court did not err in compelling
arbitration in the Philippines because there was an enforceable arbitration agreement between the
parties, and it is not apparent that Doe is precluded from having her claims arbitrated in the
Philippines.” Id. at 894. The cruise line’s reliance fails. That opinion contains no factual details
and no discussion of the scope of the arbitration provision, and we are not bound by this Court’s
unpublished decisions anyway. See 11th Cir. R. 36–2; see also Bravo v. United States, 532 F.3d
1154, 1163 n.5 (11th Cir. 2008).
21
international presence in the city.” Id. Housing was provided there as part of her
employment agreement, and Jones was assigned to barracks that were located
“some distance from her workplace.” Id. Despite her earlier request for private
lodging in an area shared only with other women, she was assigned to live in
barracks that were occupied mostly by men. Id. Two days after she arrived, she
complained about a “sexually-hostile living environment” and asked to be housed
in a safer location. Id.The next night, after a social gathering outside her barracks where people
were drinking alcohol, Jones was allegedly drugged, beaten, and gang raped by
several co-workers in her barracks bedroom. Id. Similar to Doe’s experience in
the present case, Jones woke up without her clothes on, and one of the perpetrators
was lying in a lower bunk. Id. He allegedly admitted to having engaged in
“unprotected sex” with her. Id. Also similar to the present case, Jones sustained
physical injuries. See id. at 231–32. Yet another similarity is that Halliburton
allegedly mishandled Jones’ rape kit and did not permit her to leave the premises,
despite her request to do so. Id. at 232. Jones, like Doe, asserted that company
officials interrogated her for several hours. Id. With congressional assistance,
Jones’ father eventually secured her return to the United States. Id. Arguably
22
unlike Doe, “Jones was not continuously on call” during her employment.11 Id. at
239. In any event, neither Jones nor Doe was “on duty” when the rape occurred.
See id.
The district court in the Jones case denied Halliburton’s motion to compel
arbitration on four of Jones’ claims: assault and battery; intentional infliction of
emotional distress arising from the alleged assault; negligent hiring, retention, and
supervision of employees involved in the alleged assault; and false
imprisonment.12 Id. at 233. It held that those claims were related to the alleged
rape and were not related to Jones’ employment, so they were beyond the scope of
her arbitration provision. Id. It reasoned that even though Jones’ housing was
provided to her by her employer, her bedroom was not her workplace. Id.
The Fifth Circuit agreed. It summarized the factual allegations in the case
11
Princess Cruise Lines asserts that Doe was continuously on call because the crew
agreement provided: “All crew members agree to work any hours necessary in case of emergency
directly affecting the immediate safety or security of the vessel, passengers and crew, of which the
Captain shall be the sole judge . . . .” But it is undisputed that Doe was off duty when the rape
occurred.
12
The district court granted Halliburton’s motion to compel arbitration of Jones’ other
claims, which were apparently based on the same facts but were claims for: negligent
undertaking, sexual harassment and hostile work environment under Title VII, retaliation, breach
of contract, fraud in the inducement to enter the employment contract, and fraud in the
inducement to agree to arbitration. Id. at 232. It stayed litigation of the non-arbitrable claims so
that the parties could complete arbitration of the arbitrable ones. Jones v. Halliburton Co., 625 F.
Supp. 2d 339, 342 (S.D. Tex. 2008). Apparently, Jones did not cross-appeal the part of the
judgment compelling arbitration on those claims. See generally Jones, 583 F.3d 228.
23
before it as follows:
(1) Jones was sexually assaulted by several Halliburton/KBR
employees in her bedroom, after-hours, (2) while she was off-duty,
(3) following a social gathering outside of her barracks, (4) which
was some distance from where she worked, (5) at which social
gathering several co-workers had been drinking (which, notably, at
the time was only allowed in ‘non-work’ spaces).
Id. at 240. The court reasoned:
[I]f non-Halliburton/KBR employees were allowed in the area where
the alleged assault occurred, and Halliburton/KBR employees had
assaulted such a non-employee, that person obviously would have an
actionable claim. That Jones was the victim in the alleged assault,
and that she happened to be a co-worker of the alleged perpetrators,
should not, and does not, change the calculus.
Id. The court held that, in light of Jones’ claims and her factual allegations, “the
outer limits of the ‘related to’ language of the arbitration provision have been
tested, and breached.” Id. at 241. The court refused to interpret the scope of the
arbitration provision “so broadly as to encompass any claim related to Jones’
employer, or any incident that happened during her employment” because “that is
not the language of the contract.” Id. (emphasis omitted).
D.
Princess Cruise Lines tries to sweep all of Doe’s claims into the scope of the
arbitration provision by focusing on the differences between life at sea and life on
24
land. It points to a Supreme Court opinion discussing those differences in the
context of an employer’s liability for providing maintenance and cure to seamen:
Unlike men employed in service on land, the seaman, when he
finishes his day’s work, is neither relieved of obligations to his
employer nor wholly free to dispose of his leisure as he sees fit. Of
necessity, during the voyage he must eat, drink, lodge and divert
himself within the confines of the ship. In short, during the period of
his tenure the vessel is not merely his place of employment; it is the
frame-work of his existence. For that reason among others his
employer’s responsibility for maintenance and cure extends beyond
injuries sustained because of, or while engaged in, activities required
by his employment. In this respect it is a broader liability than that
imposed by modern workmen’s compensation statutes.
Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 731–32, 63 S.Ct. 930, 934
(1943) (citations omitted). The cruise line argues that the Fifth Circuit’s Jones
decision is distinguishable from the present case based on the fact that the ship is
the very “framework” of the seaman’s existence and unlike Jones, Doe was
“continually in the service of the vessel and subject to the call of duty at any time”
simply by virtue of being a seaman. That argument reaches too far and would
effectively erase the arbitration provision’s limiting language.
Under the cruise line’s position, any claim that Doe had against her
employer would be subject to arbitration because the ship was the “frame-work of
[her] existence,” and everything she did related to, arose from, or was connected
25
with her crew agreement or the services she performed for the cruise line. In
making the argument that the ship was Doe’s whole world and that everything
about it related to her employment, the cruise line relies on a number of decisions
that define and describe “scope of employment” for purposes of the remedies of
worker’s compensation or maintenance and cure. See, e.g., Flores v. Carnival
Cruise Lines, 47 F.3d 1120, 1123 (11th Cir. 1995) (“The Supreme Court has
repeatedly declared that the shipowner’s liability for maintenance and cure was
among the most pervasive of all and that it was not to be defeated by restrictive
distinctions nor narrowly confined.”) (quotation marks omitted). The FAA
similarly requires expansive interpretation of arbitration agreements, see, e.g.,
Waffle House, 534 U.S. at 289, 122 S.Ct. at 762 (referring to the “‘liberal federal
policy favoring arbitration agreements’” (quoting Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 1651 (1991))), but not at the expense
of limiting language in contracts, see id. (“Absent some ambiguity in the
agreement, however, it is the language of the contract that defines the scope of
disputes subject to arbitration.”). In the present case, the plain language of the
arbitration provision imposes the limitation that, to be arbitrable, the dispute
between Doe and the cruise line must relate to, arise from, or be connected with
26
her crew agreement or the employment services that she performed for the cruise
line. The arbitration provision is broad, but not limitless.
If the cruise line had wanted a broader arbitration provision, it should have
left the scope of it at “any and all disputes, claims, or controversies whatsoever”
instead of including the limitation that narrowed the scope to only those disputes,
claims, or controversies “relating to or in any way arising out of or connected with
the Crew Agreement, these terms, or services performed for the Company.” That
would have done it, but the company did not do that. Instead, after including that
limiting language, it now argues that we should ignore the limitation and force
Doe to arbitrate any and all disputes, claims, or controversies without regard to
whether they relate to, arise out of, or are connected with her employment or her
service as an employee. That we cannot do. See Becker v. Davis, 491 F.3d 1292,
1298 (11th Cir. 2007), abrogated on other grounds by Arthur Andersen LLP v.
Carlisle, — U.S. —, 129 S.Ct. 1896 (2009), as recognized by Lawson v. Life of
the South Ins. Co., — F.3d —, No. 10-11651, 2011 WL 3476876, *4 (11th Cir.
Aug. 10, 2011) (“A party cannot be forced to arbitrate any dispute that the party
has not agreed to submit to arbitration.”). If the language about employment and
services as an employee did not limit the scope of the arbitration provision, it
27
would have no purpose, and that is an interpretative no-no. See Golden Door
Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass’n, 117 F.3d 1328,
1338 (11th Cir. 1997) (“[A]n interpretation which gives a reasonable meaning to
all provisions of a contract is preferred to one which leaves a part useless or
inexplicable.” (internal marks and citation omitted)); Restatement (Second) of
Contracts § 203(a) (1981) (“An interpretation which gives a reasonable, lawful,
and effective meaning to all the terms is preferred to an interpretation which
leaves a part unreasonable, unlawful, or of no effect.”); see also In re Hedrick, 524
F.3d 1175, 1189 (11th Cir. 2008) (stating that a statutory interpretation that
“renders one provision superfluous . . . is an interpretative no-no”).
Contrary to Princess Cruise Lines’ position, the terms used in the limiting
language are not unlimited in scope. The term “arising out of” is broad, but it is
not all encompassing. In construing that same term to determine whether a dispute
arises out of a contract, we have explained that the focus is on “whether the tort or
breach in question was an immediate, foreseeable result of the performance of
contractual duties.” Telecom Italia, 248 F.3d at 1116; see also Hemispherx, 553
F.3d at 1367 (“We have previously focused on foreseeability as [the] proper
standard for resolving the scope of an arbitration clause that covers disputes
28
‘arising out of or pursuant to’ the contract between the parties.”). “Arising out of”
requires the existence of some direct relationship between the dispute and the
performance of duties specified by the contract. See Telecom Italia, 248 F.3d at
1116 (“Disputes that are not related—with at least some directness—to
performance of duties specified by the contract do not count as disputes ‘arising
out of’ the contract, and are not covered by the standard arbitration clause.”).
Similarly, “related to” marks a boundary by indicating some direct
relationship; otherwise, the term would stretch to the horizon and beyond. As the
Supreme Court has explained in the ERISA pre-emption context, “related to” is
limiting language and “[i]f ‘relate to’ were taken to extend to the furthest stretch of
its indeterminacy,” it would have no limiting purpose because “really, universally,
relations stop nowhere.” N.Y. State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 1677 (1995)
(quotation marks omitted). The same rationale applies here.
“Connected with” also connotes the necessity of some direct connection; if
it did not, the term would be meaningless. Cf. Ethicon Endo-Surgery, Inc. v. U.S.
Surgical Corp., 93 F.3d 1572, 1578 (Fed. Cir. 1996) (construing a patent claim and
stating that “[i]f, as Ethicon argues, ‘connected to’ should be read broadly to
29
include elements which are connected directly or indirectly, then . . . the
‘connected to’ limitation would be meaninglessly empty”).
E.
Applying our interpretation of the arbitration provision to the allegations,
claims, and counts of the amended complaint leads us to conclude that some of
them are within the scope of the arbitration provision, and some of them are not.
Counts VI, VII, VIII, IX, and X of Doe’s complaint contain allegations and claims
that do not arise from, do not relate to, and are not connected with the parties’
crew agreement or the services that Doe performed for Princess Cruise Lines.
Count VI, a claim for false imprisonment, is based on the allegation that officers
of the cruise ship would not permit Doe to leave the ship and go ashore to get
medical treatment after she was raped. Count VII, a claim for intentional infliction
of emotional distress, is based on allegations that a crew member drugged and
raped Doe as well as allegations about the cruise line’s actions after the rape,
including its refusal to allow Doe to receive prompt and adequate medical care and
its interrogation and intimidation of Doe. Count VIII, a claim of spoliation of
evidence, is based on the allegation that the cruise line breached its duty to
preserve evidence after Doe was raped. Count IX, a claim of invasion of privacy,
30
is based on the allegation that cruise line officials breached their duty to protect
Doe’s confidentiality and privacy as a rape victim by disclosing her real name in
an effort to intimidate and embarrass her. Count X, a claim of fraudulent
misrepresentation, is based on allegations that officers of the cruise line who were
on the ship repeatedly and falsely told Doe after she had been drugged and raped
that she could not disembark the ship to get medical treatment and counseling by
doctors of her own choosing.
All five of those claims involve factual allegations about how the cruise line
and its officials treated Doe after learning that she had been raped, including
allegations that she was kept on the ship against her will, that she was prevented
from getting medical attention off the ship, that her rape kit was destroyed in the
incinerator, and that her confidentiality as a rape victim was intentionally violated.
Nothing about those allegations relate to, arise out of, or are connected with Doe’s
crew agreement or her duties for Princess Cruise Lines as a bar server. The cruise
line could have engaged in that tortious conduct even in the absence of any
contractual or employment relationship with Doe. As a result, those five claims
are not “an immediate, foreseeable result of the performance” of the parties’
contractual duties or Doe’s services as a Princess Cruise Lines employee, and they
31
are not within the scope of the arbitration clause. Hemispherx, 553 F.3d at 1367.
The incidental fact that Doe might not have been on the cruise ship if she
had not been working for the cruise line does not mean that her claims relate to,
arise from, or are connected with the crew agreement and the services that she
performed as an employee. The parties could each have fulfilled all of their duties
under the crew agreement and Doe could have perfectly performed her services for
the cruise line, and the parties still be embroiled in the dispute alleged in Doe’s
common law claims, which are counts VI though X of her complaint. See id. at
1368–69 (“The parties could have performed the arbitrable contract perfectly,
fulfilling all expectations under that contract, and still be embroiled in this
dispute.”) (quotation marks omitted). By way of illustration, a passenger could
have brought these same five claims against the cruise line based on virtually the
same alleged facts: a crew member invited the passenger to a crew party in a
cabin; the crew member gave the passenger an open beer that turned out to contain
a date rape drug; the passenger woke up in the crew cabin and realized she had
been raped; cruise line officials treated the passenger with contempt, delayed her
attempt to report of the rape, would not let her leave the ship, and otherwise
hindered her efforts to meet with an attorney and to get medical treatment onshore.
32
See Jones, 583 F.3d at 240 (“Moreover, if non-Halliburton/KBR employees were
allowed in the area where the alleged assault occurred, and Halliburton/KBR
employees had assaulted such a non-employee, that person obviously would have
an actionable claim. That [the plaintiff] was the victim in the alleged assault, and
that she happened to be a co-worker of the alleged perpetrators, should not, and
does not, change the calculus.”). For these reasons, the district court did not err in
holding that Counts VI, VII, VIII, IX, and X of Doe’s complaint do not fall within
the scope of the arbitration provision.
F.
The allegations and claims in Doe’s five other counts, however, arise
directly from her undisputed status as a “seaman” employed by Princess Cruise
Lines.13 Counts I and III specifically refer to Princess Cruise Lines’ duties under
13
We choose to say “allegations and claims” even though there is language in at least one
of our opinions stating that “[w]hether a claim falls within the scope of an arbitration agreement
turns on the factual allegations in the complaint rather than the legal causes of action asserted.”
Gregory v. Electro-Mech. Corp., 83 F.3d 382, 384 (11th Cir. 1996). What the Gregory decision
actually held, however, was that a plaintiff cannot disguise an arbitrable breach of contract claim
by slapping a tort claim label on it. See id. at 384 (explaining that the so-called tort claims in the
plaintiff’s complaint were all based on facts alleging that the defendants had breached the
contract); see also Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 643
(7th Cir. 1993) (“[A] party may not avoid a contractual arbitration clause merely by casting its
complaint in tort.”) (quotation marks omitted) cited with approval in Gregory, 83 F.3d at 384.
Gregory did not hold that it makes no difference what cause of action is asserted. In analyzing
the scope of an arbitration clause, we consider how the factual allegations in the complaint match
up with the causes of action asserted and measure that against the language of the arbitration
clause. See Mitsubishi Motors Corp., 473 U.S. at 626, 105 S.Ct. at 3353 (explaining that “the
33
the Jones Act, 46 U.S.C. § 30104, alleging as a fact that those duties were
breached. See O’Boyle v. United States, 993 F.2d 211, 213 (11th Cir. 1993) (“[I]n
order to recover damages under the Jones Act, [a plaintiff] must have the status of
a seaman.”); Hurst v. Pilings & Structures, Inc., 896 F.2d 504, 505 (11th Cir.
1990) (“The Jones Act permits a seaman injured in the course of employment to
bring an action against his employer for damages.”). Count II is based on an
assertion of “unseaworthiness,” which is dependent upon Doe’s status as a
seaman. See Offshore Co. v. Robison, 266 F.2d 769, 781 (5th Cir. 1959) (“The
admiralty doctrine of absolute liability for unseaworthiness is based on protection
of seamen who sign articles for a voyage and are then under the absolute control
of a master with power to order seamen to do the ship’s work in any weather,
under any conditions, using such equipment as may be furnished by the
shipowner.”); see also Flores, 47 F.3d at 1123 n.2 (“In addition to the right of
maintenance and cure, an injured seaman has two other possible avenues of
recovery for an injury: (1) an action under general maritime law for
unseaworthiness; and (2) a statutory remedy under the Jones Act for any breach of
first task of a court asked to compel arbitration of a dispute is to determine whether the parties
agreed to arbitrate” it).
34
the employer’s duty, including negligence.”) (citation omitted). Count IV is based
on Doe’s entitlement to maintenance and cure, which is a traditional maritime law
remedy for seamen. See Flores, 47 F.3d at 1123 n.2; see also Thomas v. Carnival
Corp., 573 F.3d 1113, 1115 n.2 (11th Cir. 2009). Count V is brought under the
Seaman’s Wage Act and is dependent on her status as a seaman. See 46 U.S.C. §
10313.
All five of these claims are based on allegations that are dependent on her
status as a seaman employed by the cruise line and the rights that she derives from
that employment status. Although the rape and its aftermath led to these five
claims against the cruise line, Doe could not bring them if she had not been a
seaman and she was a seaman because of her employment with Princess Cruise
Lines. These claims are based on the employment relationship between the
parties, and if Princess Cruise Lines had fully complied with its alleged duties as a
maritime employer, the claims would not exist. Cf. Gregory, 83 F.3d at 384 (“If
the buyer had fully complied with the contract, as interpreted by the plaintiffs,
there would be no tort claims.”). By way of contrast, a non-seaman passenger who
suffered exactly the same factual injuries could not bring any of these five claims
against the cruise line regardless of how it had performed as an employer.
35
Because these five claims (counts I–V of the amended complaint) fall within the
scope of the arbitration provision, the district court erred by denying Princess
Cruise Lines’ motion to compel arbitration on Counts I, II, III, IV, and V.
V.
For these reasons, we affirm the district court’s judgment denying Princess
Cruise Line’s motion to compel arbitration on Counts VI, VII, VIII, IX, and X of
Doe’s complaint. We reverse the district court’s judgment on Counts I, II, III, IV,
and V of Doe’s complaint and remand for proceedings consistent with this
opinion.14
AFFIRMED IN PART, REVERSED and REMANDED IN PART.
14
The district court has not yet addressed the issue of whether Thomas v. Carnival Corp.,
573 F.3d 1113 (11th Cir. 2009), excludes from arbitration Counts I, II, III, IV, or V of Doe’s
complaint. For that reason, we have no occasion to decide that issue in this appeal. See, e.g.,
Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1372 n.5 (11th Cir. 1998) (“We are mindful of
the general rule that a court of appeals will not consider issues not reached by the district court . . .
.”). We imply no view about the issue, except to note that Thomas has recently been interpreted
narrowly in light of prior precedent. See Lindo v. NCL (Bahamas), Ltd., No. 10-10367, — F.3d
—, 2011 WL 3795234, at *19 (11th Cir. Aug. 29, 2011) (“[T]o the extent Thomas allowed the
plaintiff seaman to prevail on a new public policy defense under Article II, Thomas violates
Bautista [v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005)] and our prior panel precedent rule.”).
36