Aggarao v. Lines

• Decision Date: 30 September 2010
• Docket Number: Civil Action No. CCB–09–3106.
• Citation: 741 F.Supp.2d 733
• Parties: Potenciano L. AGGARAO, Jr.v.MITSUI O.S.K. LINES, LTD., et al.
• Court: U.S. District Court — District of Massachusetts

741 F.Supp.2d 733

Potenciano L. AGGARAO, Jr.

v.MITSUI O.S.K. LINES, LTD., et al.

Civil Action No. CCB–09–3106.

United States District Court, D. Maryland.

Sept. 30, 2010.

David W. Skeen, Meighan Griffin Burton, Wright Constable and Skeen LLP, Baltimore, MD, Joseph P. Moschetta, Stephen Patrick Moschetta, The Moschetta Law Firm P.C., Washington, PA, Paul Thomas Hofmann, Hofmann and Associates, New York, NY, for Potenciano L. Aggarao, Jr.Carla Napier Murphy, M. Hamilton Whitman, Jr., Ober Kaler Grimes and Shriver P.C., Baltimore, MD, for Mitsui O.S.K. Lines, Ltd., et al.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Plaintiff Potenciano Aggarao, Jr. has sued Mitsui O.S.K. Lines, Ltd.; MOL Ship Management Co., Ltd.; Nissan Motor Car Carrier Co., Ltd.; World Car Carriers, Inc.; and World Marine Co., Ltd. (“the defendants”) for negligence pursuant to general maritime law and the Jones Act, 46 U.S.C. § 30104; unseaworthiness; maintenance and cure; and violation of the Seaman's Wage Act, 46 U.S.C. § 10313. Now pending before the court is the defendants' motion to dismiss based on a forum selection clause or, in the alternative, for summary judgment. For the reasons stated below, the defendants' motion to dismiss will be granted.

BACKGROUND

On June 2, 2008, Mr. Aggarao, a Filipino citizen, entered into a Philippine Overseas Employment Administration Contract of Employment (“POEA Contract”) with Magsaysay Mitsui O.S.K. (“Magsaysay Mitsui”) for employment aboard the M/V ASIAN SPIRIT, an oceangoing cargo ship. Magsaysay Mitsui is a Philippine crewing company that acted as an agent on behalf of MOL Ship Management Co., Ltd. (“MOL”), a Japanese company that managed the ASIAN SPIRIT,¹ and World Car Carriers, Inc. (“World Car”), a Liberian company that owned the ASIAN SPIRIT.² At the time of Mr. Aggarao's employment on the ASIAN SPIRIT, Nissan Motor Car Carriers (“Nissan”) was the time charterer of the ship. ³

The POEA Contract signed by Mr. Aggarao incorporated the Standard Terms and Conditions Governing the Employment of Filipino Seafarers On–Board Ocean Going Vessels (“POEA Terms”). The Philippine Overseas Employment Administration (“POEA”), a government agency, drafted both the POEA Contract and POEA Terms to ensure minimum employment standards for Filipino seamen employed by foreign corporations. The POEA Terms included a mandatory arbitration clause providing that “[i]n cases of claims and disputes arising from this employment, the parties covered by a collective bargaining agreement shall submit the claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators.” (Pl.'s Opp'n to Defs.' Mot. to Dismiss, Ex. 10 at Section 29). The POEA Terms also included a choice of law clause providing that “[a]ny unresolved dispute, claim or grievance arising out of or in connection with this Contract ... shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory.” ( Id. at Section 31).

On June 3, 2008, one day after he signed the POEA Contract, Mr. Aggarao entered into a Seafarers Employment Contract (“Seafarers Contract”) with MOL that incorporated terms of the IBF Collective Bargaining Agreement (“CBA”). Both World Car, the manager of the ASIAN SPIRIT, and Nissan, the time charterer, were bound to the CBA through the IBF Special Agreement. On or about June 3, 2008, the POEA approved the Seafarers Contract as enforceable. ⁴

On August 13, 2008, the ASIAN SPIRIT was proceeding in the Chesapeake Bay towards the Port of Baltimore where it was scheduled to load a cargo of motor vehicles. Mr. Aggarao was assigned to the task of raising floor panels within the ship in preparation for the loading of cargo. Tragically, as his crew began raising certain floor panels, Mr. Aggarao was crushed between a deck lifting machine and a pillar. Mr. Aggarao was taken to University of Maryland Shock Trauma Center, where he was treated for injuries to his spinal column and cord, his chest cavity, and his abdomen. Mr. Aggarao was then sent to Kernan Rehabilitation Hospital for follow-up treatment. On December 4, 2008, Kernan Hospital advised Mr. Aggarao that he had completed his course of rehabilitation and that he could be discharged to return to the Philippines. The defendants informed Mr. Aggarao that they would arrange for his repatriation and would provide further benefits and appropriate medical care in the Philippines pursuant to the POEA Contract and Philippine law. Mr. Aggarao refused these offers for repatriation.

On June 16, 2009, Mr. Aggarao filed a complaint in the United States District Court for the Eastern District of New York alleging negligence pursuant to the Jones Act and general maritime law, unseaworthiness, maintenance and cure, and violation of the Seaman's Wage Act. On June 29, 2009, the defendants, allegedly unaware that Mr. Aggarao had filed his complaint, settled Mr. Aggarao's bills for all hospitalization and medical treatment in the amount of $944,530.99.

On November 17, 2009, this case was transferred from the Eastern District of New York to this court by stipulated order. On January 21, 2010, the defendants filed a motion to dismiss or, in the alternative, for summary judgment based upon a forum selection clause.

ANALYSIS

A motion to dismiss based on a forum-selection clause is treated under Rule 12(b)(3) as a motion to dismiss on the basis of improper venue. Sucampo Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir.2006). Treating a motion to dismiss based on a forum-selection clause under 12(b)(3) “allows the court to freely consider evidence outside the pleadings.” Sucampo, 471 F.3d at 549–50. The defendants move to dismiss pursuant to Rule 12(b)(3) on the grounds that Mr. Aggarao's POEA Contract contains an arbitration clause that permits him to pursue his claims only in arbitration under the law of the Philippines.

The Supreme Court has consistently emphasized that “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.”). This federal policy favoring arbitration “applies with special force in the field of international commerce.” Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); see also M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (“[I]n light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside.”); Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 220 (5th Cir.1998) ( “Forum selection clauses are important in international cases such as the instant cause because there is much uncertainty regarding the resolution of disputes. Ocean-going vessels travel through many jurisdictions, and could become subject to the laws of a particular jurisdiction solely upon the fortuitous event of an accident.”).

In 1970, Congress formally recognized the federal policy favoring arbitration in the field of international commerce through the implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”). 9 U.S.C. §§ 201–208. The Convention applies to “[a]n arbitration agreement ... arising out of a legal relationship, whether contractual or not, which is considered commercial” and allows a court to “direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States.” Id. at §§ 202, 206. The Fourth Circuit has not established a rule for when courts should compel arbitration pursuant to the Convention. Other federal courts have applied a four-part test requiring a court to compel arbitration if: (1) there is an agreement in writing to arbitrate the dispute; (2) the agreement provides for arbitration in the territory of a Convention signatory; (3) the agreement arises out of a commercial legal relationship; and (4) a party to the agreement is not an American citizen. See, e.g., Balen v. Holland America Line Inc., 583 F.3d 647, 654–55 (9th Cir.2009); Bautista v. Star Cruises, 396 F.3d 1289, 1294–95 n. 7 (11th Cir.2005); Francisco v. STOLT ACHIEVEMENT MT, 293 F.3d 270, 273 (5th Cir.2002). If an arbitration agreement satisfies this four-part test, a court must order arbitration unless one of the Convention's affirmative defenses applies.⁵ See Bautista, 396 F.3d at 1294–95.

The parties do not dispute factors two and four. The arbitration clause at issue provides for arbitration in the Philippines, a signatory of the Convention, and Mr. Aggarao is a citizen of the Philippines. The parties disagree as to whether elements one and three are met in this case. Mr. Aggarao specifically disputes whether a written agreement to arbitrate exists between the parties and whether the employment contract constitutes a commercial legal relationship.

A. A written arbitration agreement exists

For the Convention to apply there must be an agreement in writing between the parties to arbitrate the dispute in question. The one-page POEA Contract signed by Mr. Aggarao does not itself contain an arbitration clause. Instead the contract states that “the terms and conditions in accordance with Department Order No. 4 and Memorandum Circular No. 9 ... shall be strictly and faithfully observed.” ( See Pl.'s Opp'n to Defs.' Mot. to Dismiss at Ex. 9). Department Order No. 4 and Memorandum Circular No. 9 incorporate the POEA Terms, including Section 29's arbitration clause requiring that “claims and disputes arising from [Plaintiff's] employment” be arbitrated...