2014 WL 6790710

United States Court of Appeals,

Eleventh Circuit.

Ralph Jonathan Alvarado VERA, Plaintiff–Appellant,



No. 14–12494 | Non–Argument Calendar. | Dec. 3, 2014.

PROCEDURAL POSTURE: Ralph Alvarado Vera 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.

OVERVIEW: 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. The district court granted the motion, dismissed Plaintiff’s complaint, and ordered the parties to proceed to arbitration. This appeal followed. 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. 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 129495. 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 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. The Court disagreed and held that 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). Accordingly, court concluded that the jurisdictional prerequisites have been met. As to the public policy argument, Plaintiff cites, as his affirmative defense, an 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. Court held that 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, 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 Bautista’s governing principles, therefore imported an Article V defense into Article II, in contravention of prior Eleventh Circuit precedent. Id. Accordingly, court held that Lindo correctly followed the earlier controlling decision: Bautista.2

OUTCOME: Motion to Compel Arbitration was affirmed.



2014 WL 6998083

Only the Westlaw citation is currently available.

United States District Court,

N.D. California,

San Jose Division.

Abraham Portnov, Plaintiff,


Carnival Corporation, Defendant.

Case No. 5:14–cv–02887–PSG | Signed December 11, 2014

PROCEDURAL POSTURE: Plaintiff cruise ship passenger filed suit in California against Defendant Carnival Corporation. Carnival moved to dismiss based for improper based on forum selection clause requiring suit to be arbitrated in Florida.

OVERVIEW: Portnov purchased a cruise ticket from Defendant Carnival Corporation just over a month before his cruise was set to embark. Based on a dispute over whether Portnov needed a visa in order to board the cruise in Argentina, Portnov claims that Carnival discriminated against him by intentionally giving him the run-around. In his complaint, Portnov alleges that this series of events caused him significant stress and lasting physical harm. Carnival seeks to dismiss the complaint on, inter alia, the grounds that venue is improper. Under Fed. R. Civ. P. 12, “[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: … (3) improper venue.” “[I]n the context of a Rule 12(b)(3) motion based upon a forum selection clause, the trial court must draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party. In response to Portnov’s claims, Carnival brings a jurisdictional challenge under Rule 12(b)(3). Specifically, Carnival asserts that this suit has been filed in the improper venue because of the existence of a binding arbitral clause requiring adjudication in Florida. Portnov counters that the agreement—and thus the arbitration requirement—does not apply to him because he never boarded the cruise ship and therefore was never a “guest” as that term is defined in the contract. The primary question is whether the arbitration clause contained in the ticket contract is valid and enforceable. In relevant part, the ticket contract specifies arbitration in Miami–Dade County, Florida as the exclusive forum for resolution of “[a]ny and all disputes, claims, or controversies whatsoever, other than for personal injury, illness or death.” Carnival points out that this provision specifically contemplates claims of alleged discrimination—the precise claim that Portnov brings before this court. As a pure matter of contract interpretation, it is abundantly clear that Portnov’s claim falls within the language of the arbitration contract. The only thing left for the court to determine is whether the clause is enforceable given the circumstances. “[A]n agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum selection clause that posits not only the situs of the suit but also the procedure to be used in resolving the dispute.” Forum selection clauses are presumptively valid. The party challenging enforcement of the forum selection clause must “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or over-reaching.” In the narrower context of cruise ship contracts, reasonable forum selection clauses are considered prima facie valid even if not freely negotiated. The only argument Portnov makes to challenge the arbitration clause is that the contract does not apply to him as a guest because he had not yet boarded the ship. But the contract itself defines “guest” as “all persons or entities booking or purchasing passage and/or traveling under [the] [c]ontract.” In other words, Portnov was bound by the contract as soon as he purchased the ticket. Further, there is no indication that the contract itself was unenforceable. In Bremen, the Supreme Court held that forum selection clauses should be held valid absent a showing that “enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” There are no indications that the transaction between Carnival and Portnov was untoward in any way.

OUTCOME: Motion to dismiss was granted.



2014 WL 7179379

United States District Court,

W.D. Louisiana,

Lafayette Division.

Gloria BLAND, et al. v.


Civil Action No. 14–0127. | Signed Dec. 15, 2014.

PROCEDURAL POSTURE: Pending before the Court is the “Motion for Judgment on the Pleadings to Dismiss Claims for Punitive Damages and Claims for Loss of Society (Consortium)” filed by Omega Protein, Inc. Omega Protein argues Author Bland’s claim for punitive damages is not recoverable in an unseaworthiness action under the general maritime law, nor are the spouse and children of Author Bland, and injured seaman, entitled to damages for loss of society under the general maritime law as a matter of law.

OVERVIEW: The litigation arises from an incident which occurred on or about May 3, 2013 aboard the F/V RACOON POINT, a fishing vessel owned and operated by Omega. Plaintiff Author Bland was employed by Omega Protein as a member of the crew of the F/V RACOON POINT. Mr. Bland alleges that while engaged in fishing operations on the vessel, he was struck in the face with a metal ring and injured. Mr. Bland alleges (and Omega does not dispute) he was a Jones Act seaman at the time of the incident. Mr. Bland and his wife, Gloria Bland, individually, and on behalf of their minor child, Y.B., filed the present lawsuit against Omega. In addition to the usual elements of damages under the Jones Act and for unseaworthiness, Mr. Bland seeks punitive damages. Also, in the Complaint, Gloria Bland and the minor child, Y.B., asserted independent claims for damages for loss of society, consortium, services, and support. Court looked to the recent Fifth Circuit case of McBride v. Estis Well Service, Inc., 768 F.3d 382, 384 (5th Cir.2014) (en banc ) as dispositive of the issue. In McBride, the Fifth Circuit, in an en banc decision, held neither an injured seaman nor the personal representative of a deceased seaman can recover punitive damages under either the Jones Act or the general maritime law, which limits a seaman’s recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness. Nevertheless, to the extent plaintiffs seek punitive damages for wanton failure of Omega Protein to pay maintenance and cure—and review of the complaint shows plaintiffs are, indeed, alleging entitlement to such damages—the jurisprudence shows plaintiffs may be entitled to such damages. In Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561 (2009), the United States Supreme Court held a seaman is entitled, as a matter of general maritime law, to seek punitive damages for his employer’s alleged wilful and wanton disregard of the employer’s maintenance and cure obligation. Thus, to the extent the plaintiffs are seeking punitive damages for Omega Protein’s wanton and reckless failure to pay maintenance and cure, and to the extent the instant motion seeks a dismissal of all of plaintiffs’ claims for punitive damages, the motion is overbroad. Plaintiffs’ claim for punitive damages for failure to pay maintenance and cure is not defective as a matter of law, and, therefore, should not be dismissed. As to claims for damages for “loss of society, consortium, services and support,” Omega Protein argues all of the foregoing damages are unrecoverable as a matter of law under Murray v. Anthony J. Bertucci Construction Co., 958 F.2d 127 (5th Cir.1992), which held only that damages for loss of society are unavailable to the wife and child of an injured Jones Act seaman under the general maritime law. The Court concluded that based upon Murray, and reaffirmed in McBride, the wife and minor child of Author Bland are not entitled to an independent claim of loss of society under the general maritime law or Jones Act.

OUTCOME: Omega Protein, Inc.’s “Motion for Judgment on the Pleadings to Dismiss Claims for Punitive Damages and Claims for Loss of Society (Consortium)” was GRANTED IN PART AND DENIED IN PART.