                                                                   [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                               JULY 9, 2012
                             No. 11-12150                       JOHN LEY
                         Non-Argument Calendar                   CLERK
                       ________________________

                   D.C. Docket No. 1:10-cv-22046-JAL



ST. HUGH WILLIAMS,

                                                          Plaintiff - Appellee,

                                  versus

NCL (BAHAMAS) LTD.,
d.b.a. NCL,

                                                       Defendant - Appellant.

                      ________________________

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

                              (July 9, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      This appeal concerns our authority to review an order remanding an action

based on an antecedent and erroneous ruling that an agreement to arbitrate was

unenforceable. St. Hugh Williams filed in a Florida court a complaint that, while

working onboard the M/V Norwegian Sky, he was injured as a result of the

negligence and other tortious conduct of the owner of the ship, NCL (Bahamas)

Ltd. See 46 U.S.C. § 30104. NCL removed the action to the district court on the

ground that Williams was contractually bound to arbitrate his complaint under the

United Nations Convention on Recognition and Enforcement of Foreign Arbitral

Awards, 9 U.S.C. § 205, but Williams moved to remand the action to state court.

The district court ruled that the arbitration clause was unenforceable, see Thomas

v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), and then the district court

granted Williams’s motion to remand. NCL appealed, and this Court later held, in

Lindo v. NCL (Bahamas) Ltd., 652 F.3d 1257 (11th Cir. 2011), that an agreement

to arbitrate under the Convention is enforceable. Williams argues that this Court

lacks jurisdiction, 28 U.S.C. § 1447(d), but we have jurisdiction to review the

denial of the motion to compel under City of Waco v. U.S. Fidelity & Guaranty

Co., 293 U.S. 140, 55 S. Ct. 6 (1934). We reverse the order denying the motion to

compel of NCL, vacate the order remanding Williams’s complaint to state court,

and remand with instructions to compel arbitration.


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      We may review the denial of the motion of NCL to compel arbitration under

an exception to section 1447(d). In Waco, the Supreme Court held that an

appellate court may review a decision of the district court that “in logic and in fact

. . . preceded that of remand” and that, “if not reversed or set aside, is conclusive

upon” the appellant. 293 U.S. at 143, 55 S. Ct. at 7. Waco “allows [an appellate

court] to review district court orders that lead to, but are separate from, orders of

remand and have a conclusive effect upon the ensuing state court action.”

Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1286 (11th

Cir. 1999). The ruling that the arbitration clause was unenforceable was separate

from and led to the order of remand. The district court resolved the merits of the

motion to compel and then ruled that it lacked jurisdiction to adjudicate the

dispute between Williams and NCL. The ruling also “changes the contours of the

state court action after remand.” Id. Under Florida law, collateral estoppel applies

when the identical issue has been “fully litigated” between the identical parties

and “determined in a contest that result[ed] in a final decision of a court of

competent jurisdiction.” City of Oldsmar v. State, 790 So. 2d 1042, 1046 n.4 (Fla.

2001). On remand to a Florida court, NCL would be barred from compelling

Williams to arbitrate his complaint.

      The district court erred when it denied the motion of NCL to compel


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Williams to arbitrate his complaint. The district court based its ruling on our

decision in Thomas v. Carnival, 573 F.3d at 1122–24, where we refused to enforce

an agreement to arbitrate under the United Nations Convention on the ground that

it was “null and void as a matter of public policy” because the complainant could

not assert statutory claims for relief. We have since ruled in Lindo that Thomas is

inconsistent with our prior precedent in Bautista v. Star Cruises, 396 F.3d 1289,

1302 (11th Cir. 2005). “To the extent Thomas was applying Article II” of the

Convention, Thomas “failed to follow our precedent in . . . Bautista” by

recognizing public policy as an additional defense to enforcement of an arbitration

agreement. Lindo, 652 F.3d at 1277–78. Our precedent dictates that a court must

enforce an agreement to arbitrate under the Convention unless that agreement is

“null and void” as being “obtained through those limited situations, such as ‘fraud,

mistake, duress, and waiver,’ constituting ‘standard breach-of-contract defenses’

that ‘can be applied neutrally on an international scale.’” Id. at 1276 (quoting

Bautista, 396 F.3d at 1302). Williams did not assert any of these grounds in

response to the motion to compel, and NCL was entitled to compel Williams to

arbitrate.

       We REVERSE the order denying the motion to compel of NCL, VACATE

the order remanding this action to state court, and REMAND with instructions to


                                          4
compel Williams to arbitrate his dispute with NCL.




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