Case: 13-11189   Date Filed: 11/25/2013   Page: 1 of 6


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 13-11189
                      Non-Argument Calendar
                    ________________________

                 D.C. Docket No. 1:12-cv-22287-JAL



AGNELO GONSALVEZ,
RALPH BARRETO,
ALEX MENEZES,
VIANO RODRIGUEZ,
ALBINO FERNANDNES,
CAETANO M. FERNANDES,
CASTANO DIAS,
PHILIP RODRIGUES,
JOSE BONIFACIO ESTEVES,
PIEDADE CAETANO FERNANDES,
MARCELINO FERNANDES,
ANTONY MARIO LOBO,
ANTONIO PEDRO FERNANDES,
PEDRO RODRIGUEZ,
RAMES CHITNISIS,
UMAKANT CHODANKAR,
ATANASIO MENEZES,
CIRILO SILVEIRA,
REGINALDO PEREIRA,
BRAZIHNO D'SOUZA,
CAETANO P. FERNANDES,

                                                      Plaintiffs - Appellants,
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versus

CELEBRITY CRUISES INC.,

                                                                 Defendant - Appellee.

                              ________________________

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

                                  (November 25, 2013)

Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         The plaintiffs in this appeal are former stateroom attendants who worked

aboard cruise ships operated by the defendant. The conflict between the parties

arose over the plaintiffs’ claim that the defendant unlawfully withheld some of

their wages in violation of the Seaman’s Wage Act, 46 U.S.C. § 10313. After the

plaintiffs demanded arbitration to resolve the dispute, the defendant moved to

dismiss the demand because the plaintiffs had not complied with their collective

bargaining agreement’s grievance procedure, which was a precondition to

submitting a dispute for arbitration. On January 22, 2011, the arbitrator granted

the defendant’s motion to dismiss.

         Unsatisfied with this outcome, the plaintiffs brought suit in federal court on

June 19, 2012. They sought to vacate the arbitration award as contrary to United


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States public policy under the Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (Convention), June 10, 1958, 21 U.S.T. 2517. The

district court dismissed their suit under Fed. R. Civ. P. 12(b)(6) as barred by the

statute of limitations. The plaintiffs now appeal.

                                                I.

       We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6). Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 

, 1359 (11th Cir. 2011). A Rule 12(b)(6) dismissal on statute of limitations

grounds is appropriate “if it is apparent from the face of the complaint that the

claim is time-barred.” La Grasta v. First Union Sec., Inc., 

, 845 (11th

Cir. 2004) (quotation marks omitted).

       The parties dispute the applicable statute of limitations for an action to

vacate an arbitration award under the Convention. The Convention does not

mention vacatur actions or what the relevant limitations period might be.1 It does,

however, expressly authorize actions to “confirm” arbitration awards and provides

for a three-year statute of limitations for such actions. 9 U.S.C. § 207. The

plaintiffs argue that this three-year limitations period should apply to vacatur

actions under the Convention as well.

       1
         The district court observed that there is conflicting authority on whether the Convention
actually authorizes actions to vacate arbitration awards. Because resolution of that issue is not
necessary for the disposition of this appeal, we assume without deciding that the Convention
permits such actions.
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      The Convention also contains a residual clause which provides that Chapter

1 of the Federal Arbitration Act (FAA) applies to actions brought under the

Convention, so long as it does not conflict with the Convention or its implementing

legislation. 9 U.S.C. § 208. Under Chapter 1 of the FAA a party may seek to have

a court vacate an award up to three months after the award is filed or delivered. 9

U.S.C. §§ 10, 12. Because the Convention does not expressly provide a statute of

limitations for vacatur actions, the defendant argues that this three-month

limitations period applies via the residual clause to any such actions brought under

the Convention.

      We find the defendant’s argument persuasive. The Convention provides for

a three-year limitations period only for suits to “confirm” an award. 9 U.S.C.

§ 207. It does not state a limitations period for vacatur actions. As a result, the

FAA’s three-month limitations period for vacatur actions, which is not in conflict

with the Convention, applies through the residual clause. See 9 U.S.C. § 208. The

plaintiffs’ suit to vacate the arbitration award was brought more than a year after

that award was entered. We conclude it was barred by the statute of limitations,

and the district court properly dismissed the plaintiffs’ claim.

      The defendant has requested that we sanction the plaintiffs for pursuing a

baseless appeal under our decision in B.L. Harbert International, Inc. v. Hercules

Steel Co., 

(11th Cir. 2006), abrogated on other grounds by Frazier v.


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Citifinancial Corp., 

(11th Cir. 2010). In Hercules Steel we

expressed frustration with “those who attempt to salvage arbitration losses through

litigation that has no sound basis in the law applicable to arbitration awards” and

stated that we were “ready, willing, and able to consider imposing sanctions in

appropriate 

.

      We conclude that sanctions are not appropriate in this case because the

plaintiffs’ appeal was not baseless. At the time the plaintiffs filed their appeal, we

had not addressed the appropriate limitations period for vacatur actions under the

Convention and there is at least some authority supporting the plaintiffs’ position.

Cf. Jam. Commodity Trading Co. v. Connell Rice & Sugar Co., No. 87 Civ. 6369

(JMC), 

, at *2–3 (S.D.N.Y. July 3, 1991) (applying three-year

limitations period to motion to vacate arbitration award brought under the

Convention in opposition to an action to confirm the award). The plaintiffs also

cited relevant legal precedent to argue on the merits that the Convention’s public

policy defense should apply on these facts. See 9 U.S.C. § 207 (“The court shall

confirm the award unless it finds one of the grounds for refusal or deferral of

recognition or enforcement of the award specified in the said Convention.”);

Convention, art. V(2)(b) (permitting signatory countries to refuse to recognize or

enforce foreign arbitration awards if “recognition or enforcement of the award




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would be contrary to the public policy of that country”). Under these

circumstances, we conclude that sanctions are not warranted.

      AFFIRMED.




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