396 F.3d 1289 (11th Cir. 2005), 03-15884, Bautista v. Star Cruises

Docket Nº:03-15884.
Citation:396 F.3d 1289
Party Name:Rizalyn BAUTISTA, Individually and as Personal Representative of the Estate of Mari-John Bautista, and all claiming by and through her, Plaintiff-Appellant, v. STAR CRUISES, Norwegian Cruise Line, Ltd., Defendants-Appellees. Paul Peralta, Plaintiff-Appellant, v. Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees. Raymond Lovino, Plaint
Case Date:January 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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396 F.3d 1289 (11th Cir. 2005)

Rizalyn BAUTISTA, Individually and as Personal Representative of the Estate of Mari-John Bautista, and all claiming by and through her, Plaintiff-Appellant,

v.

STAR CRUISES, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Paul Peralta, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Raymond Lovino, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Ronaldo Marcelino, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Rolando Tejero, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Abdi Comedia, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Cristina L. Valenzuela, Individually and as Personal Representative of the Estate of Candido S. Valenzuela, Jr. and all those claiming through her, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Marilen S. Bernal, Individually and as Personal Representative of the Estate of Ramil G. Bernal, and all those claiming by and through her, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Willy I. Villanueva, Individually and as Personal Representative of the Estate of Rene Villanueva, and all those claiming through him, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

Maria Garcia L. Rosal, Individually and as Personal Representative of the Estate of Ricardo B. Rosal, III, and all those claiming by and through her, Plaintiff-Appellant,

v.

Star Cruises, Norwegian Cruise Line, Ltd., Defendants-Appellees.

No. 03-15884.

United States Court of Appeals, Eleventh Circuit

January 18, 2005

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[Copyrighted Material Omitted]

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Bruce Rogow, Beverly A. Pohl, Bruce S. Rogow, P.A., Ft. Lauderdale, FL, for Plaintiffs-Appellants.

Christopher John Bailey, Curtis J. Mase, Mase & Gassenheimer, P.A., Miami, FL, for Defendants-Appellees.

Jeffrey Robert White, Center for Constitutional Litigation, P.C., Washington,

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DC, for Association of Trial Lawyers of America and Trial Lawyer, Amicus Curiae.

David W. Robertson, Dripping Springs, TX, for Apostleship of the Sea of the United States of America, Amicus Curiae.

Benjamin Warren Pope, King & Spalding, LLP, Atlanta, GA, for Dept. of Labor and Employment of the Republic, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and RESTANI [*], Judge.

RESTANI, Chief Judge:

The S/S NORWAY's steam boiler exploded on May 25, 2003, while the cruise ship was in the Port of Miami. Six of the crewmembers represented in this action were killed and four were injured. 1 Each crewmember's employment agreement with Defendant NCL includes an arbitration clause, which the district court enforced pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (the "Convention"), and its implementing legislation, 9 U.S.C. §§ 202-208 (2002) (the "Convention Act"). See Bautista v. Star Cruises, 286 F.Supp.2d 1352 (S.D.Fla.2003). Plaintiffs' appeal presents an issue of first impression in this Circuit: whether the crewmembers' employment agreements were shielded from arbitration by the seamen employment contract exemption contained in section 1 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2002) (the "FAA"). 2 Because the FAA seamen exemption does not apply and the district court had jurisdiction to compel arbitration, we affirm.

BACKGROUND

I. THE SUITS AGAINST STAR CRUISES AND NCL

Following the explosion aboard the NORWAY, Plaintiffs filed separate but nearly identical suits in Florida circuit court against Defendant-Appellee NCL, owner of the NORWAY, and Defendant-Appellee Star Cruises, alleged by Plaintiffs to be the parent company of NCL. The complaints sought damages for negligence and unseaworthiness under the Jones Act, 46 U.S.C.App. § 688, and for failure to provide maintenance, cure and unearned wages under the general maritime law of the United States.

NCL removed the ten cases to federal district court pursuant to section 205 of the Convention Act, which permits removal before the start of trial when the dispute relates to an arbitration agreement or arbitral award covered by the Convention. See 9 U.S.C. § 205. 3 In the notices of

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removal filed with the district court, NCL described how the crewmembers were bound by employment agreements that include an arbitration provision covered by the Convention.

II. THE CREWMEMBERS' EMPLOYMENT AGREEMENTS INCORPORATE AN ARBITRATION PROVISION

At the time of the explosion, each crewmember's employment was governed by the terms of a standard employment contract executed by the crewmembers and representatives of NCL in the Philippines between August 2002 and March 2003. The Philippine government regulated the form and content of such employment contracts, as well as other aspects of the seamen hiring process, through a program administered by the Philippine Overseas Employment Administration ("POEA"), a division of the Department of Labor and Employment of the Republic of the Philippines ("DOLE").

Each crewmember signed a one-page standard employment agreement created by the POEA, with some variations according to the position for which the crewmember was hired. Each agreement sets forth the basic terms and conditions of the crewmember's employment, including the duration of the contract, the position accepted, and the monthly salary and hours of work. Additional terms and conditions are incorporated by reference: Paragraph 2 provides that the contract's terms and conditions shall be observed in accordance with POEA Department Order No. 4 and POEA Memorandum Circular No. 9. Department Order No. 4, in turn, incorporates the document containing the arbitration clause: The Standard Terms and Conditions Governing the Employment of Filipino Seafarers On Board Ocean-Going Vessels (the "Standard Terms"). 4 Section 29 of the Standard Terms requires arbitration "in cases of claims and disputes arising from [the seaman's] employment," through submission of the claims to the National Labor Relations Commission ("NLRC"), voluntary arbitrators, or a panel of arbitrators. Standard Terms, sec. 29; R.3.60, p. 1. 5

A POEA official verified and approved the execution of the employment contract by the crewmembers and NCL representatives. Although Plaintiffs dispute that the crewmembers saw the arbitration provision or had it explained to them, see Pls.' Mot. for Remand, Exs. 1-8, copies of the Standard Terms provided to the district court by NCL indicate the crewmembers initialed or signed the Standard Terms. See Defs.' Resp. to Pls.' Mot. for Remand, Exs. D-F; R-3-60. NCL also provided affidavits from managers at various manning agencies licensed by the POEA to

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recruit seamen. In the affidavits, the managers attest that (1) they explained the employment documents to the seamen in their native language; (2) the seamen had an opportunity to review the documents; and (3) the seamen were required to attend a Pre-Departure Orientation Seminar for seamen, which was conducted in both the English and Filipino languages and which reviewed, among other subjects, the Standard Terms and the dispute settlement procedures provided for in the employment contract. Id. at Exs. C-F; R-3-60.

III. THE DISTRICT COURT COMPELS ARBITRATION

In an order issued on October 14, 2003, the district court granted NCL's motion to compel arbitration and denied Plaintiffs' motion to remand the case to state court. In disposing of the case, the district court ordered that the parties submit to arbitration in the Philippines pursuant to Section 29 of the Standard Terms and retained jurisdiction to enforce or confirm any resulting arbitral award. Plaintiffs appeal.

JURISDICTION

A case covered by the Convention confers federal subject matter jurisdiction upon a district court because such a case is "deemed to arise under the laws and treaties of the United States." 9 U.S.C. § 203. Defendants removed these cases from state court pursuant to 9 U.S.C. § 205, which permits removal of disputes relating to arbitration agreements covered by the Convention. See, e.g., Notice of Removal, R1-1-3. Plaintiffs claim that this case is not covered by the Convention, and thereby challenge the district court's jurisdiction. We discuss this challenge below. Assuming the district court exercised jurisdiction appropriately, its order is final and appealable because, by compelling arbitration of the dispute, it "dispos[ed] of all the issues framed by the litigation and [left] nothing for the district court to do but execute the judgment." See Employers Ins. v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1321 (11th Cir. 2001). 6

STANDARD OF REVIEW

We review de novo the district court's order to compel arbitration. Employers Ins., 251 F.3d at 1321.

DISCUSSION

In deciding a motion to compel arbitration under the Convention Act, a court conducts "a very limited inquiry." Francisco v. STOLT ACHIEVEMENT MT, 293 F.3d 270, 273 (5th Cir. 2002), cert. denied, 537 U.S. 1030, 123 S.Ct. 561, 154 L.Ed.2d 445 (2002); DiMercurio v. Sphere Drake Ins.' PLC, 202 F.3d 71, 74 (1st Cir. 2000); Ledee v. Ceramiche Ragno, 684 F.2d 184, 186 (1st Cir. 1982). A district court must order arbitration unless (1) the four jurisdictional prerequisites are not met, Std. Bent Glass Corp. v. Glassrobots Oy, 333 F.3d 440, 449 (3d Cir. 2003); 7 or (2)

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one of the Convention's affirmative defenses...

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