           Case: 13-11850   Date Filed: 10/29/2013   Page: 1 of 10


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                      __________________________

                             No. 13-11850
                         Non-Argument Calendar
                      __________________________

                   D.C. Docket No. 1:13-cv-20414-RSR

MAHAVEER SINGH,

                                                            Plaintiff-Appellant,

                                  versus

CARNIVAL CORPORATION,
a Panama Corporation,

                                                           Defendant-Appellee.

                      __________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                     __________________________
                            (October 29, 2013)

Before MARTIN, KRAVITCH, and COX, Circuit Judges.

PER CURIAM:
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      At bottom, this appeal is about whether the district court erred by compelling

arbitration of claims by Mahaveer Singh, a seaman, against his employer, Carnival

Corporation. We hold that the district court did not err.

      Singh, a citizen of India, worked for Carnival Corporation, a Panama

corporation, as a crewmember aboard its Panamanian flagged cruise ship, the

Dream. On May 30, 2012, while participating in a lifeboat drill, the wire rope used

to hoist Singh’s lifeboat to the cruise ship suddenly parted, plunging Singh and

several other crewmembers sixty-five feet to the sea below. Singh’s fall inflicted

serious injuries.

      Singh’s employment contract calls for the mandatory arbitration of any

claims Singh might have arising out of his employment with Carnival and selects

the Philippines as the arbitration forum. It chooses Panamanian law to govern the

contract. Over the course of four and a half years working for Carnival, Singh

signed six employment agreements containing the same, or a similar, arbitration

clause.

      Nevertheless, Singh contends that he did not know he was signing a contract

containing an arbitration clause.       It appears that Carnival presented the

employment contract to Singh and his fellow seamen on a “take it or leave it

basis.” Carnival provided the contract to Singh as he was boarding the ship to

report for work, and Singh hurriedly signed it in order to avoid being late to his

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duty station. Additionally, Singh contends that even if he had been aware of the

arbitration clause, he would not have understood it, because his employment

contract was in English. His language is Hindi.

       Singh filed suit in a Florida state court for injuries he sustained alleging four

claims: (1) Jones Act negligence; 1 (2) failure to provide maintenance and cure; 2 (3)

unseaworthiness; and (4) declaratory relief seeking a determination that his claims

are not subject to arbitration. Pursuant to 9 U.S.C. § 205, Carnival promptly

removed Singh’s action to the United States District Court for the Southern District

of Florida3. The district court granted Carnival’s motion to compel arbitration and

denied Singh’s motion to remand the case to state court.4 Singh appeals the district

court’s decision.

       Singh “acknowledges that several issues presented in [his] brief have been

decided adversely to him by panels of this Court . . . [but] nonetheless makes the


       1
        The Jones Act confers on seamen the statutory right to sue their employers in an
American court for the negligence of fellow crew members. 46 U.S.C. § 30104.
       2
          “Maintenance and cure” is an ancient common-law maritime remedy for seamen who
are injured while in the service of a vessel. Basically, it is designed to place a seaman in the
same position as if he had not been injured. See Flores v. Carnival Cruise Lines, 47 F.3d 1120,
1127 (11th Cir. 1995).
       3
          9 U.S.C. § 205 provides: “Where the subject matter of an action or proceeding pending
in a State court relates to an arbitration agreement or award falling under the Convention [on the
Recognition and Enforcement of Foreign Arbitral Awards], the defendant or defendants may, at
any time before the trial thereof, remove such action or proceeding to the district court …where
the action or proceeding is pending.” See 9 U.S.C. § 205.
       4
        See 9 U.S.C. § 206 (“A court having jurisdiction under this chapter [9 USCS §§ 201 et
seq.] may 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.”).
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arguments in order to preserve them for further review.” (Appellant’s Reply Br. at

21-22). While Singh presents six separate issues in his brief, the underlying issue

in this case is whether the district court erred by compelling arbitration. The six

issues that Singh presents, as outlined in his statement of the issues in his brief, are

as follows: (1) whether the arbitration agreement is valid under Panamanian law;

(2) whether unconscionability based on gross disparity of bargaining power and

attendant circumstances is a standard breach of contract defense that can be applied

neutrally on an international scale and is, therefore, a defense to a motion to

compel arbitration under Article II of the United Nations Convention on the

Recognition and Enforcement of Foreign Arbitral Awards; (3) whether the district

court properly compelled arbitration pursuant to an arbitration agreement in a

seaman’s contract with a mandatory choice-of-law clause that required Singh, an

Indian seaman, to arbitrate in the Philippines, under Panamanian law, and

prospectively waive his Jones Act and Maintenance and Cure claims; (4) whether

the arbitration and foreign choice of law clauses which eliminate Carnival’s Jones

Act liability and Plaintiff’s right to choose the forum violate the Jones Act; (5)

whether Singh’s claims for maintenance and cure are not subject to arbitration; and

(6) whether the case must be remanded to state court for lack of subject matter

jurisdiction. (Appellant’s Initial Br. at 1).




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       We review de novo a district court’s order to compel arbitration pursuant to

the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,

opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (the

“Convention”) (codified as 9 U.S.C. §§ 202-208 (2012)). See Bautista v. Star

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

       When deciding a motion to compel arbitration, a court conducts a very

limited inquiry. This limited inquiry generally consists of a two-step process:

First, the court looks to see whether the Convention’s jurisdictional perquisites are

met. See Bautista, 396 F.3d at 1294. If these perquisites are met, it then looks to

see whether any of the Convention’s Article II affirmative defenses apply. 5 The

Convention’s four jurisdictional prerequisites are: (1) That there is an agreement in

writing to arbitrate the dispute; (2) That the agreement provides for arbitration in

the territory of a signatory of the convention; (3) That the agreement arises out of a

legal relationship, whether contractual or not, that is considered commercial; and

(4) That one party to the agreement is not a United States citizen, or that the

commercial relationship at issue has some reasonable relation with a foreign state.

       5
          The Convention mentions affirmative defenses in two places that are relevant to this
case: Article II and Article V. A party seeking to resist arbitration may raise only Article II
defenses when a court is deciding whether to compel arbitration. Article II defenses are limited
to standard breach-of-contract defenses, which can be applied neutrally on an international scale.
Bautista, 396 F.3d at 1302 (citing DiMercurio v. Sphere Drake Ins. PLC, 202 F.3d 71, 79 (1st
Cir. 2000))(discussing Article II’s “null and void” language). A party may raise Article V
defenses only at the post-arbitration enforcement stage of proceedings. The Article V category
of defenses is broader and includes unconscionability and violation of public policy as valid
defenses.
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Id. at 1294-95. The party seeking to compel arbitration, Carnival, bears the burden

of proving each of these jurisdictional prerequisites. See generally Lindo v. NCL

(Bahamas), Ltd., 652 F.3d 1257 (11th Cir. 2011).

      The only jurisdictional prerequisite Singh disputes is the first one. Singh

asserts two affirmative defenses, which the district court properly characterized as

unconscionability and violation of public policy. The district court properly held

that our decision in Bautista forecloses the argument that Article II includes an

affirmative defense based upon unconscionability. Similarly, the district court

properly held that Singh’s public policy defense (based upon the assertion that the

employment agreement insulated compliance with the Jones Act and the general

maritime law of the United States) “applies only at the arbitral award–enforcement

stage”. (Opinion at p. 10 quoting Lindo, 652 F.3d at 1280.) Singh relies on

Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), and contends that

Lindo is not binding precedent.

      Singh argues that because the parties in Lindo settled after the panel issued

its opinion, but before our mandate issued, the settlement mooted the controversy

and deprived the Court of subject matter jurisdiction to decide the case. Thus,




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according to Singh, Lindo is not valid precedent, and we should have vacated our

opinion in the case. 6 We reject this argument.

       Based on Singh’s logic, anytime a party does not like the outcome in a case,

that party could essentially “buy” the case’s precedential value by settling the case.

Our 1993 decision in Key Enterprises of Delaware, Inc. v. Venice Hospital, 9 F.3d

893 (11th Cir. 1993) (en banc), while not factually on point, appears to agree with

Singh. Key Enters., 9 F.3d at 894-95. There we said: “Because the case became

moot after the panel published its decision but before the mandate issued, we

dismiss the appeal, vacate the district court’s judgment, and remand to the district

court with instructions to dismiss the case.” Key, 9 F.3d at 899. Singh relies

heavily on this case to press his point that the Lindo panel should have vacated its

decision and that its failure to do so renders Lindo ineffectual as precedent.

(Appellant’s Br. at 44-45, 47-48).

       In 1994, however, the Supreme Court decided U.S. Bancorps Mortgage Co.

v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386 (1994), which modified its

precedent in United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104 (1950).

We relied on Munsingwear in formulating our decision in Key.

       The Supreme Court acknowledged that it had established a broad rule

regarding vacatur in Munsingwear, which required dismissal and vacatur if a case

       6
        This means that our decision in Thomas, which is more favorable to Singh’s positions,
would purportedly control the analysis in this instance.
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was mooted at any point in the appellate process. Bancorp, 513 U.S. at 390. It

recognized that Munsingwear made no distinction between categories of mooted

cases and that its rule even applied to cases mooted by reason of settlement. Id.

(citing Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S.Ct. 553

(1985) (per curiam)). The Bancorp Court narrowed this rule and specifically

addressed whether courts must vacate an opinion where subsequent mootness

resulted from settlement. Bancorp, 513 U.S. at 23-24. The Court held that the

opinion need not be vacated. It explained that “[t]his is not to say that vacatur can

never be granted when mootness is produced [by reason of settlement] . . . . [T]he

determination is an equitable one, and exceptional circumstances may conceivably

counsel in favor of such a course.” Id. at 29.

      Lindo was mooted by settlement of the parties after the opinion issued, so

the determination became an equitable one where the panel was free to not vacate

its opinion. The panel exercised this discretion when it denied the parties’ motion

to dismiss with prejudice due to their settlement. The Lindo panel’s decision to not

vacate its opinion appears especially correct in light of the Supreme Court’s

pronouncement that “[j]udicial precedents are presumptively correct and valuable

to the legal community as a whole. They are not merely the property of private

litigants and should stand unless a court concludes that the public interest would be

served by a vacatur.” Bancorp, 513 U.S. at 26-27 (quoting Izumi Seimitsu Kogyo

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Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40, 114 S.Ct. 425, 428 (1993)

(Stevens, J., dissenting)). Since Lindo was correcting and clarifying the law and

the precedential value of our earlier decisions in Bautista and Thomas, it was

certainly valuable to the legal community as a whole, and its vacatur would not

have served the public interest.

      And 11th Cir. R. 36-3, IOP 2 supports our result. It reads as follows:

       Effect of Mandate on Precedential Value of Opinion. Under the law
of this circuit, published opinions are binding precedent. The issuance or
non-issuance of the mandate does not affect this result. See Martin v.
Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992) . . . .

See 11th Cir. R. 36-3, IOP 2. Singh challenges the validity of 11th Cir. R. 36-3,

IOP 2 when applied in this instance. He states, “The fact that 11th Cir. Rule 36

grants precedential authority to a published opinion before the mandate issues does

not change [the conclusion that the Lindo panel should have vacated its decision] .

. . [and that] Carnival’s reliance on 11th Cir. Rule 36 to provide precedential effect

to Lindo must be rejected.” (Appellant’s Reply Br. at 12, 14).

      Singh is correct that, at first blush, our decision in Key and Rule 36-3, IOP 2

are inconsistent. But, this inconsistency disappears in this case when both are

interpreted in light of the Supreme Court’s decision in Bancorp.

      The district court correctly analyzed and decided, based on our decisions in

Bautista and Lindo, the other issues Singh presents. We find no reversible error in

the district court’s analysis and its order granting Carnival’s motion to compel
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arbitration and denying Singh’s motion to remand. (See opinion and order at Dkt.

22, pps. 1-14). The district court properly compelled arbitration of Singh’s claims,

and we affirm its order.

      AFFIRMED.




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