           Case: 14-12494   Date Filed: 12/03/2014   Page: 1 of 11


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12494
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:13-cv-62022-RNS


RALPH JONATHAN ALVARADO VERA,

                                                            Plaintiff-Appellant,

                                  versus

CRUISE SHIPS CATERING AND SERVICES INTERNATIONAL, N.V.,
COSTA CROCIERE S.P.A.,

                                                        Defendants-Appellees.

                       ________________________

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

                            (December 3, 2014)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Ralph Alvarado Vera (“Plaintiff”) 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.

                                   I. Background

      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.

      In so moving, the Defendants relied on the provisions of the collective

bargaining agreement requiring that:

      Any questions that may arise concerning the application of laws, or of
      the terms and conditions of this Agreement or of the [seafarer’s
      employment agreement], shall be subject to the arbitrate [sic] of a
      Board of Arbitration in accordance to Italian law.
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      The district court granted the motion, dismissed Plaintiff’s complaint, and

ordered the parties to proceed to arbitration. This appeal followed.

                                    II. Discussion

      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.

      We review de novo a district court’s order to compel arbitration. Bautista v.

Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005).

      A.     The Jurisdictional Prerequisites for Arbitration Were Present.

      The Convention on the Recognition and Enforcement of Foreign Arbitral

Awards (the “Convention”) requires courts of signatory nations to give effect to

private arbitration agreements and to enforce arbitral awards made in other

signatory nations. United Nations Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, art. I(1), June 10, 1958, 21 U.S.T. 2517,

330 U.N.T.S. 3. The United States is a signatory to the Convention, and it enforces
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its agreement to the terms of the Convention through Chapter 2 of the Federal

Arbitration Act. See 9 U.S.C. §§ 201-208. Italy is likewise a signatory to the

Convention.

      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 1294-

95. 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

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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.

      We disagree. 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).

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      Moreover, the language of the collective bargaining agreement’s arbitral

clause does encompass Plaintiff’s claims. The collective bargaining agreement

provides that “any questions” concerning “the terms and conditions of this

Agreement” are subject to arbitration. While Plaintiff is bringing Jones Act

negligence, unseaworthiness, maintenance and cure, and failure to treat claims, the

underlying basis for each of these claims relate to the terms and conditions of the

collective bargaining agreement. Plaintiff’s complaint reflects that his claims are

based on the Defendants’ alleged failure to provide a reasonably safe place to

work; adequate equipment, such as a lifting belt, manpower, or mechanical lifting

device; prompt, proper, and adequate medical care; adequate work hours and rest

periods; adequate instruction and supervision; and the failure to promulgate

reasonable rules to ensure health and safety. The collective bargaining agreement

specifically includes terms and conditions relating to hours of duty, overtime, rest

periods, leave, medical attention, and personal protective equipment. Accordingly,

we conclude that the jurisdictional prerequisites have been met.

      B.     Plaintiff’s Claimed Public Policy Affirmative Defense Does Not
             Invalidate the Arbitration Agreement.

      Once the four jurisdictional prerequisites are met, a court must enforce an

arbitration agreement unless one of the Convention’s affirmative defenses applies.

See Bautista, 396 F.3d at 1294-95. Plaintiff cites, as his affirmative defense, an
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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. 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,

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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


1
   “Article V expressly provides, ‘Recognition and enforcement of an arbitral award may also be
refused if the competent authority in the country where recognition and enforcement is sought
finds that . . . [t]he recognition or enforcement of the award would be contrary to the public
policy of that country.’” Lindo, 652 F.3d at 1280.
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Bautista’s governing principles, therefore imported an Article V defense into

Article II, in contravention of prior Eleventh Circuit precedent. Id. Accordingly,

as it was required to do under the prior-panel precedent rule, Lindo correctly

followed the earlier controlling decision: Bautista. 2

       Plaintiff also contends that Lindo was inconsistent with Supreme Court

precedent: both before and after Lindo’s issuance. As to the earlier Supreme

Court case relied on by Plaintiff, Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346 (1985), Lindo explained in some

detail why Mitsubishi’s dicta, that is found in a footnote and that is now relied on

by Plaintiff, was not inconsistent with its holding. Lindo, 652 F.3d at 1265-68,

1281-82.

       As to the Supreme Court case subsequently issued after Lindo, Am. Express

Co. v. Italian Colors Rest., 570 U.S. ___, 133 S. Ct. 2304 (2013), we likewise

conclude that Lindo did not conflict with it. In Italian Colors, the Supreme Court




2
  Plaintiff also argues that Lindo disregarded another earlier Circuit precedent, Paladino v. Avnet
Computer Tech., Inc., 134 F.3d 1054 (11th Cir. 1998), which held that an arbitration clause was
unenforceable under the Federal Arbitration Act because it did not permit relief equivalent to the
federal statutory remedies sought by the plaintiff. But Plaintiff ignores the fact that Paladino
interpreted the Federal Arbitration Act, not the Convention, unlike Lindo, which interpreted the
same law that Plaintiff concedes must govern this case. Accordingly, Paladino does not
constitute a prior precedent that is contradictory to Lindo.

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acknowledged the “effective vindication” doctrine,3 which it noted had originated

as dictum in Mitsubishi Motors (where it had not been applied to invalidate the

arbitration agreement at issue there) and had been discussed in two other Supreme

Court cases, (but again not applied to invalidate the arbitration agreements there).

See Italian Colors, 570 U.S. at ___, 133 S. Ct. at 2310. Likewise, notwithstanding

its mention of this doctrine on which Plaintiff seeks to rely, the Supreme Court in

Italian Colors gave no further guidance on the doctrine’s application that would

alter our previous understanding of it. The opinion in Italian Colors likewise

declined to apply that doctrine, or any other rationale, to invalidate the arbitration

agreement at issue. Id. at ___, 133 S. Ct. at 2310-11. Because Italian Colors does

not conflict with our decision in Lindo, and because we determined in Lindo that

the decision announced there was consistent with Mitsubishi Motors, we likewise

conclude that Lindo remains good law.

                                        III. Conclusion

       Properly relying on binding precedent, the district court correctly granted the

Defendants’ motion to compel arbitration.


3
  “The ‘effective vindication’ exception . . . originated as dictum in Mitsubishi Motors, where
we expressed a willingness to invalidate, on ‘public policy’ grounds, arbitration agreements that
‘operat[e] . . . as a prospective waiver of a party’s right to pursue statutory remedies.’ . . .
Subsequent cases have similarly asserted the existence of an ‘effective vindication’ exception . . .
but have similarly declined to apply it to invalidate the arbitration agreement at issue.” Italian
Colors, 570 U.S. at ___, 133 S. Ct. at 2310 (internal citations omitted).
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AFFIRMED.




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