          Case: 13-12391   Date Filed: 11/18/2013   Page: 1 of 6


                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-12391
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:11-cv-21948-MGC



NORRIS ANTHONY BROWN,

                                            Plaintiff,

KENNETH DOWNER,
RICHARD GRAHAM YOUNG,
ROAN DRUMOND SCOTT,
CLIFF FITZ PATRICK,
AUZZIE DUANE DABRELL,
FITZROY LLOYD JOHNSON,
STANLEY ARMANDO MULLINGS,
GREGORY HUGHES,

                                            Plaintiffs - Appellants,

versus

ROYAL CARIBBEAN CRUISES, LTD.,

                                            Defendant - Appellee.
              Case: 13-12391    Date Filed: 11/18/2013   Page: 2 of 6


                           ________________________

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

                               (November 18, 2013)

Before WILSON, ANDERSON, and DUBINA, Circuit Judges.

PER CURIAM:

      Appellants are eight individuals who work or worked as stateroom

attendants (“Attendants”) aboard cruise ships operated by Appellee Royal

Caribbean Cruises, Ltd. In this putative class action, the Attendants allege Royal

Caribbean unlawfully withheld or delayed paying wages in violation of the Seamen

Wage Act, 46 U.S.C. § 10313 (“Wage Act”). When Royal Caribbean sought to

enforce the mandatory arbitration provisions in the employment and collective

bargaining agreements between the Attendants and Royal Caribbean, the

Attendants raised an affirmative defense: They argued that because the arbitration

provisions required the application of Norwegian law to any dispute between the

Attendants and Royal Caribbean, they were contrary to public policy.

      The district court found that the United Nations Convention on Recognition

and Enforcement of Foreign Arbitral Awards (“the Convention”) and its

implementing legislation required enforcement of the agreement to arbitrate. See 9

U.S.C. §§ 201–208 (mandating enforcement of the Convention and incorporating


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its provisions into federal law). The Attendants attempted to appeal, but this court

dismissed their appeal for lack of jurisdiction, as the district court had not

dismissed the Attendants’ claims. Brown v. Royal Caribbean Cruises, Ltd., No.

12-13001-DD (11th Cir. Oct. 10, 2012) (per curiam). The Attendants then asked

the district court to dismiss their claims so they could seek appellate review of the

district court’s order compelling arbitration. The district court obliged, and this

appeal followed.

                                            I.

      When reviewing a district court’s order to compel arbitration, we review

questions of law de novo but accept findings of fact that are not clearly erroneous.

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947–48, 115 S. Ct. 1920,

1926 (1995); Bautista v. Star Cruises, 396 F.3d 1286, 1294 (11th Cir. 2005). A

district court must compel arbitration pursuant to an international commercial

arbitration agreement so long as the jurisdictional prerequisites under the

Convention are met and no affirmative defense applies. Bautista, 396 F.3d at 1294

n.7 (listing four jurisdictional prerequisites).

                                            II.

      First, we conclude that the district court’s determination that the Attendants

admitted to the existence of a written arbitration agreement, establishing the only

questionable jurisdictional prerequisite, was not a clear error. In Count I of their

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complaint, the Attendants seek a declaratory judgment that the arbitration

provisions of the agreements were unenforceable. That request presupposed both

that the arbitration agreements existed and that they bound the Attendants. While

parties may not stipulate to federal jurisdiction, Travaglio v. American Express

Co., – F.3d —, 2013 WL 4406389, at *3 (11th Cir. 2013), they can admit facts

establishing jurisdictional elements. In re CP Ships Ltd. Sec. Litig., 578 F.3d

1306, 1311 (11th Cir. 2009), abrogated on other grounds by Morrison v. Nat’l

Australian Bank Ltd., – U.S. —, 130 S. Ct. 2869, 2877 (2010). The district court

found that the Attendants’ factual allegations established the existence of a written

agreement binding the Attendants, and that finding was not clearly erroneous. See

Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1178 (“[F]acts judicially admitted

are facts established not only beyond the need of evidence to prove them, but

beyond the power of evidence to controvert them.” (internal quotation marks

omitted)).

      Second, the Attendants may not raise their affirmative defense at this stage.

A party opposing arbitration pursuant to an international commercial agreement

may not seek to avoid arbitration on the basis that it is contrary to public policy.

Lindo v. NCL (Bahamas) Ltd., 652 F.3d 1257, 1276 (11th Cir. 2011). At the

arbitration-enforcement stage, parties may raise certain “standard breach-of-

contract defenses” that “can be applied neutrally on an international scale.”

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Bautista, 396 F.3d at 1302 (internal quotation marks omitted). These include

“fraud, mistake, duress, and waiver,” id., but not public policy defenses, which “by

definition cannot be applied neutrally on an international scale.” Lindo, 652 F.3d

at 1276.

                                         III.

      The Attendants’ attempt to invoke Thomas v. Carnival Corp., 573 F.3d 1113

(11th Cir. 2009), to support their public policy argument is unavailing. There, a

panel of this court held that an arbitration provision requiring application of

foreign law constituted a waiver of seafarers’ rights under the Wage Act and was

therefore unenforceable as contrary to public policy. Id. at 1124. But in Lindo, the

majority made clear that Thomas’s expansion of defenses available against

enforcement of an international arbitration agreement violated the terms of the

Convention and the holding of Bautista, an earlier precedent. Lindo, 652 F.3d at

1278. The public policy argument is appropriate only at the arbitration-

enforcement stage. Id. at 1263. Thomas, therefore, violated the prior panel

precedent rule. Id. at 1278; see also United States v. Smith, 122 F.3d 1355, 1359

(11th Cir. 1997) (setting out prior panel precedent rule, whereby earlier panel

holdings bind this court “unless and until they are overruled en banc or by the

Supreme Court”). This court has since confirmed Lindo’s holding multiple times.

E.g., Quiroz v. MSC Mediterranean Shipping Co. S.A., – F. App’x —, 2013 WL

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3185470, at *6 (11th Cir. 2013); Arauz v. Carnival Corp., 466 F. App’x 815, 816–

17 (11th Cir. 2012); Fernandes v. Carnival Corp., 484 F. App’x 361, 362 (11th Cir.

2012); Henriquez v. NCL (Bahamas), Ltd., 440 F. App’x 714, 716 (11th Cir.

2011); Maxwell v. NCL (Bahamas), Ltd., 454 F. App’x 709, 710 (11th Cir. 2011).

To the extent the Attendants ask us to undermine it, we decline the invitation and

affirm the district court’s order.

      AFFIRMED.




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