HULL, Circuit Judge:
Plaintiff-Appellant Harold Leonel Pineda Lindo ("Lindo") appeals the district court's enforcement of the arbitration agreement in his employment contract with Defendant-Appellee NCL (Bahamas) Ltd. ("NCL"). Lindo sues NCL on a single count of Jones Act negligence, pursuant to 46 U.S.C. § 30104. He claims that NCL breached its duty to supply him with a safe place to work. The district court granted NCL's motion to compel arbitration and dismissed Lindo's complaint.
Given the New York Convention and governing Supreme Court and Circuit precedent, we must enforce the arbitration clause in Plaintiff Lindo's employment contract, at least at this initial arbitration-enforcement stage. After review and oral argument, we affirm the district court's order compelling arbitration of Lindo's Jones Act negligence claim.
Plaintiff Lindo is a citizen and resident of Nicaragua. Defendant NCL is a Bermuda corporation that operates cruise ships, with its principal place of business in Miami, Florida. See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 126, 125 S.Ct. 2169, 2175, 162 L.Ed.2d 97 (2005) (referring to NCL as "a Bermuda corporation with a principal place of business in Miami, Florida").
NCL employed Lindo to serve as a crewmember on the M/S Norwegian Dawn, which flies a Bahamian flag of convenience.
Lindo alleges that in December 2008, while acting in the scope of his employment on NCL's private island in the Bahamas,
Lindo's employment with NCL was governed by (1) a collective bargaining agreement ("CBA") negotiated by NCL and the Norwegian Seafarers' Union, and (2) an employment contract (the "Contract"), which Lindo executed in January 2008.
Lindo's Contract provides that the "[e]mployee and the employment relationship established hereunder shall at all times be subject to and governed by the CBA." Lindo's Contract also provides that, notwithstanding whether he is a union member, he "understands and agrees that with respect to the Employer's obligations under general maritime law in the event of injury or illness, the terms of the CBA control and the Employee will be provided with benefits, including unearned wages, maintenance, cure and medical care and will be compensated in accordance with said CBA." Lindo's Contract "acknowledges that he[] has had an opportunity to review said CBA."
Paragraph 12 of Lindo's Contract specifies that all Jones Act claims will be resolved
The Convention requires courts in signatory nations to give effect to private international arbitration agreements and to recognize and enforce arbitral awards entered in other contracting states. See The United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3. The CBA likewise provides that Jones Act claims will be resolved by binding arbitration pursuant to the Convention.
As to the place of arbitration, Lindo's Contract states that "[t]he place of the arbitration shall be the Seaman's country of citizenship, unless arbitration is unavailable under The Convention in that country, in which case, and only in that case, said arbitration shall take place in Nassau, Bahamas." As to the choice of law, Lindo's Contract provides, "The substantive law to be applied to the arbitration shall be the law of the flag state of the vessel." This entailed that any claim, including Lindo's Jones Act claim, would be arbitrated in Nicaragua (Lindo's country of citizenship) under Bahamian law (the law of the flag state of the vessel).
Lindo does not challenge the place of arbitration. Rather, Lindo challenges having arbitration at all because Bahamian negligence law, not U.S. statutory negligence law under the Jones Act,
In 2009, Lindo filed suit in Florida state court. He asserted various claims: (1) Jones Act negligence, pursuant to 46 U.S.C. § 30104 (Count I); (2) failure to provide entire maintenance and cure (Count II); (3) failure to treat and provide adequate medical cure (Count III); (4) unseaworthiness (Count IV); and (5) an unnumbered count for disability benefits under the CBA. NCL filed a motion to dismiss and compel arbitration.
Pursuant to 9 U.S.C. § 205, NCL also removed the action to the U.S. District Court for the Southern District of Florida and sought to compel arbitration. Lindo filed a second amended complaint alleging a single count of Jones Act negligence. Lindo's related motion stated that "NCL has to date met its maintenance and cure obligations."
The district court denied Lindo's motion to remand, granted NCL's motion to compel arbitration, and dismissed Lindo's second amended complaint. See Lindo v. NCL (Bahamas) Ltd., No. 09-22926-CIV, 2009 WL 7264038, at *4, 2009 U.S. Dist. LEXIS 129452, at *10 (S.D.Fla. Dec. 23, 2009); see also 9 U.S.C. § 206 ("A court having jurisdiction under this chapter 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."). Lindo timely appealed.
We start with the New York Convention referenced in Lindo's Contract. In 1958, the United Nations Economic and Social Council adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more commonly known as the New York Convention. In 1970, the United States acceded to the treaty, which was subsequently implemented by Chapter 2 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 201 et seq.
The Convention requires contracting states, such as the United States, to recognize written arbitration agreements concerning subject matter capable of settlement by arbitration:
New York Convention, art. II(1) (emphasis added). Both Nicaragua (where Lindo is a citizen) and the Bahamas (whose law Lindo agreed to in his Contract) are also signatories to the Convention.
Section 201 of the FAA provides that the Convention shall be enforced in U.S. courts: "The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter." 9 U.S.C. § 201 (emphasis added); see also Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1440 (11th Cir.1998) ("As an exercise of the Congress' treaty power and as federal law, the Convention must be enforced according to its terms over all prior inconsistent rules of law." (quotation marks omitted)). The Supreme Court has stated that "[t]he goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries." Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15, 94 S.Ct. 2449, 2457 n. 15, 41 L.Ed.2d 270 (1974).
To implement the Convention, Chapter 2 of the FAA provides two causes of action in federal court for a party seeking to
The Convention contains defenses that correspond to the two separate stages of enforcement mentioned above. Article II contains the "null and void" defense, which — like 9 U.S.C. § 206 — is directed at courts considering an action or motion to "refer the parties to arbitration":
New York Convention, art. II(3) (emphasis added). Article II applies at the initial arbitration-enforcement stage. See Bautista v. Star Cruises, 396 F.3d 1289, 1301 (11th Cir.2005) (stating that "[t]he Convention requires that courts enforce an agreement to arbitrate unless the agreement is `null and void, inoperative or incapable of being performed'" (quoting New York Convention, art. II(3))).
Article V of the Convention, on the other hand, enumerates seven defenses that — like 9 U.S.C. § 207 — are directed at courts considering whether to recognize and enforce an arbitral award. Article V applies at the award-enforcement stage. See New York Convention, art. V (listing seven instances where "[r]ecognition and enforcement of the award may be refused" by "the competent authority where the recognition and enforcement is sought"); see also 9 U.S.C. § 207 (providing "[t]he 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"). One of Article V's seven defenses is the "public policy" defense, which states:
New York Convention, art. V(2). After arbitration, a court may refuse to enforce an arbitral award if the award is contrary to the public policy of the country. Id. The party defending against the enforcement of an arbitral award bears the burden of proof. Imperial Ethiopian Gov't v. Baruch-Foster Corp., 535 F.2d 334, 336 (5th Cir.1976).
Importantly, Article II contains no explicit or implicit public policy defense at the initial arbitration-enforcement stage. See New York Convention, art. II. Meanwhile, Article V's public policy defense, by its terms, applies only at the award-enforcement stage. See id. art. V(2) (stating when "[r]ecognition and enforcement of an arbitral award may also be refused").
Both parties agree that the Convention applies to Lindo's Contract. Applying the Convention, the district court recognized and enforced Lindo's agreement to arbitrate his dispute under Bahamian law in the country of his citizenship. On appeal,
The Supreme Court and this Circuit have decided multiple cases enforcing forum-selection and choice-of-law clauses in contracts that require (1) suit or arbitration in a non-American forum, (2) application of non-American law, or (3) a combination thereof. Those cases, discussed below, provide the applicable guidelines for reviewing the choice clauses in Lindo's arbitration agreement.
Although not strictly an arbitration case, the Supreme Court's M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) ("The Bremen"), held that forum-selection clauses are "prima facie valid." Id. at 10, 92 S.Ct. at 1913. The Supreme Court disclaimed the "parochial concept that all disputes must be resolved under our laws and in our courts" and cautioned that the United States "cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts." Id. at 9, 92 S.Ct. at 1912-13.
The contract in The Bremen provided that "`[a]ny dispute arising [between the parties] must be treated before the London Court of Justice.'" Id. at 2, 92 S.Ct. at 1909. The Supreme Court recognized that English law likely would be applied to adjudicate the claim. See id. at 13 n. 15, 92 S.Ct. at 1915 n. 15 (stating "while the contract here did not specifically provide that the substantive law of England should be applied, it is the general rule in English courts that the parties are assumed, absent contrary indication, to have designated the forum with the view that it should apply its own law"). The Court remarked that "the forum clause was also an effort to obtain certainty as to the applicable substantive law." Id. Accordingly, the forum-selection clause in The Bremen contained choice-of-law implications as well — English, not American law, would apply. The Supreme Court announced a strong presumption in favor of enforcing such forum-selection clauses, despite the possibility that a markedly different result would be obtained if the case proceeded in English courts as opposed to American courts.
Only a few years later, the Supreme Court in Scherk extended these principles to arbitration, reasoning that "[a]n agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute." 417 U.S. at 519, 94 S.Ct. at 2457. Scherk also recognized that U.S. statutory claims are
Both the district and circuit courts in Scherk had refused to compel arbitration. Id. at 510, 94 S.Ct. at 2452-53. Reversing, the Supreme Court held that the parties' agreement, calling for arbitration in Paris applying Illinois law, should be "respected and enforced." Id. at 519-20, 94 S.Ct. at 2457. The Court stated that "[a] contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is[] ... an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction." Id. at 516, 94 S.Ct. at 2455 (emphasis added). The Scherk majority rejected the dissent's insistence that "American standards of fairness" must govern the controversy, commenting that such judicial obstinacy "demeans the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States law over the laws of other countries." Id. at 517 n. 11, 94 S.Ct. at 2456 n. 11 (quotation marks omitted).
After declaring that the arbitration clause must be "respected and enforced by the federal courts," the Supreme Court's 1974 Scherk decision commented that its holding garnered further support in light of the United States 1970 accession to the New York Convention and the treaty's subsequent implementation by the FAA. Id. at 519-20 & n. 15, 94 S.Ct. at 2457 & n. 15. Although declining to decide whether the New York Convention required of its own force the enforcement of the arbitration clause, the Supreme Court proclaimed that the Convention and the FAA "provide strongly persuasive evidence of congressional policy consistent with the decision we reach today." Id. at 520 n. 15, 94 S.Ct. at 2457 n. 15.
In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), the Supreme Court again enforced an arbitration clause in a sales agreement — this time calling for arbitration in Japan under the rules of the Japan Commercial Arbitration Association — even though a litigant raised U.S. statutory causes of action.
In Mitsubishi, a Japanese car manufacturer (Mitsubishi Motors Corporation) entered into a sales agreement with Soler Chrysler-Plymouth, Inc., a Puerto Rican dealership, for the sale of Mitsubishi-manufactured products. Id. at 616-17, 105 S.Ct. at 3348-49. Mitsubishi sued Soler for payments due and sought to compel arbitration as provided in the sales agreement. Id. at 618-19, 105 S.Ct. at 3349-50. Soler counterclaimed, alleging, inter alia, that Mitsubishi had violated the Sherman Act. Id. at 619-20, 105 S.Ct. at 3350.
In holding that the arbitration agreement was enforceable, the Supreme Court in Mitsubishi stressed the strong presumption favoring the enforcement of arbitration clauses and remarked that "[t]here is no reason to depart from these guidelines where a party bound by an arbitration agreement raises claims founded on statutory rights." Id. at 626, 105 S.Ct. at 3354. The Supreme Court concluded that a party is bound by its agreement to arbitrate U.S. statutory claims unless Congress has precluded arbitration as to that subject matter:
Id. at 627-28, 105 S.Ct. at 3354-55 (emphasis added).
This is consistent with Article II(1) of the Convention, which states that "[e]ach Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences ... concerning a subject matter capable of settlement by arbitration." New York Convention, art. II(1) (emphasis added). The Mitsubishi Court agreed that Article II(1) "contemplates exceptions to arbitrability grounded in domestic law." 473 U.S. at 639 n. 21, 105 S.Ct. at 3360 n. 21. In other words, courts may examine, at the arbitration-enforcement stage, whether a type of statutory claim cannot be submitted to arbitration. The Supreme Court stressed, however, that this subject-matter exception is a policy decision to be made by Congress, not courts:
Id. (emphasis added).
The Mitsubishi Court rejected the argument that Sherman Act antitrust claims were unsuitable for arbitration. The Supreme Court adverted to its decision in Scherk, concluding that "concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties' agreement, even assuming that a contrary result would be forthcoming in a domestic context." Id. at 629, 105 S.Ct. at 3355 (emphasis added). The Mitsubishi Court observed that "The Bremen and Scherk establish a strong presumption in favor of enforcement of freely negotiated contractual choice-of-forum provisions," that this presumption is "reinforced by the emphatic federal policy in favor of arbitral dispute resolution," and that this federal policy "applies with special force in the field of international commerce." Id. at 631, 105 S.Ct. at 3356.
Because the meaning of dicta in Mitsubishi's footnote 19 is so hotly disputed by the parties, we discuss it in detail. In footnote 19, the Supreme Court commented that the United States, acting as amicus curiae, raised the possibility that the Japanese arbitral panel could read the choice-of-law provision to "wholly ... displace American law," not just as to the interpretation of the contract terms but also where it would otherwise apply. Id. at 637 n. 19, 105 S.Ct. at 3359 n. 19. Although the arbitration clause provided Swiss law governed the agreement, Mitsubishi conceded in oral argument that American law would apply to the antitrust claims in arbitration. Id. The Supreme
In continuing dicta in footnote 19, the Supreme Court "merely note[d]" that in the event the "choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy." Id. The Supreme Court's footnote 19 provided no examples of the types of clauses constituting such an impermissible prospective waiver. And to date, the Supreme Court has never invalidated an arbitration agreement under the "prospective waiver" reasoning of footnote 19. Instead, it has compelled arbitration at the initial arbitration-enforcement stage, noting that this "prospective waiver" issue is premature and should instead be resolved at the arbitral award-enforcement stage. See Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 540-41, 115 S.Ct. 2322, 2329-30, 132 L.Ed.2d 462 (1995) (concluding, at arbitration-enforcement stage, that ruling on "prospective waiver" question would be "premature" given subsequent opportunity for review at award-enforcement stage); see also 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, ___, 129 S.Ct. 1456, 1474, 173 L.Ed.2d 398 (2009) (stating, at arbitration-enforcement stage, that resolution of the question of a prospective waiver of "federally protected civil rights .... at this juncture would be particularly inappropriate in light of our hesitation to invalidate arbitration agreements on the basis of speculation" (citations omitted and emphasis added)).
Notably, Mitsubishi is consistent with the fact that an Article V public policy defense applies at the award-enforcement stage, not the initial arbitration-enforcement stage. Immediately following footnote 19, the text of Mitsubishi discussed how the Court's enforcement of the arbitration clause did not divest federal courts of their authority to review the arbitrators' ultimate decision. 473 U.S. at 636, 105 S.Ct. at 3359-60. At the award-enforcement stage, federal courts retain the ability to review whether the arbitral proceeding paid sufficient heed to a litigant's claims and the public policies underlying them: "Having permitted the arbitration to go forward, the national courts of the United States will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been addressed." Id. at 638, 105 S.Ct. at 3359 (emphasis added).
Additionally, the Mitsubishi Court observed that Article V of the New York Convention "reserves to each signatory country the right to refuse enforcement of an award where the `recognition or enforcement of the award would be contrary to the public policy of that country.'" Id. (emphasis added) (quoting New York Convention, art. V(2)(b)). Further allaying concerns that such public policy review would occur too late in the process, the Supreme Court stated that although "the efficacy of the arbitral process requires that substantive review at the award-enforcement stage remain minimal, it would not require intrusive inquiry to ascertain that the tribunal took cognizance of the antitrust claims and actually decided them." Id. at 638, 105 S.Ct. at 3360. In other words, at the arbitral award-enforcement stage, a court can ascertain if the
Importantly for the issue here, Vimar extended this wait-and-see principle of Mitsubishi even further. In Vimar, a U.S. distributor purchased fruit to be shipped from Morocco in a vessel owned by a Panamanian company and time-chartered to a Japanese company. 515 U.S. at 530, 115 S.Ct. at 2325. Because the fruit cargo was damaged en route, the U.S. distributor and its subrogated marine cargo insurer brought suit in federal district court against the ship in rem and its Panamanian owner in personam, while those defendants sought to compel arbitration. Id. at 531-32, 115 S.Ct. at 2325.
The Supreme Court enforced the arbitration provision providing that disputes "shall be referred to arbitration in Tokyo by the Tokyo Maritime Arbitration Commission" and that the contract "shall be governed by the Japanese law." Id. at 531, 115 S.Ct. at 2325 (quotation marks omitted). The Supreme Court acknowledged that the substantive law prospectively applied in the Japanese arbitration proceedings could reduce the defendant Panamanian shipping carrier's liability below the U.S. legal guarantees afforded to the American cargo owner under the Carriage of Goods by Sea Act ("COGSA").
Specifically, Japanese Hague Rules vested carriers with an additional defense based on the acts or omissions of hired stevedores, whereas the U.S. statute, COGSA, rendered the proper stowage of cargo a nondelegable duty. Id. Echoing Mitsubishi, the Vimar Court stated that "[w]hatever the merits of petitioner's comparative reading of COGSA and its Japanese counterpart, its claim is premature. At this interlocutory stage it is not established what law the arbitrators will apply to petitioner's claims or that petitioner will receive diminished protection as a result." Id. at 540, 115 S.Ct. at 2329 (emphasis added).
Unlike Mitsubishi, the foreign defendants in Vimar offered no stipulation that American law would apply to the arbitration
Citing Mitsubishi again, the Supreme Court added a qualifier to the language in Mitsubishi's footnote 19. Vimar stated that an arbitration agreement could be "`condemn[ed] ... as against public policy'" if the "`choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies'" and if there were "no subsequent opportunity for review." Id. at 540, 115 S.Ct. at 2330 (emphasis added) (quoting Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. at 3359 n. 19). Since "the District Court has retained jurisdiction, mere speculation that the foreign arbitrators might apply Japanese law which, depending on the proper construction of COGSA, might reduce respondents' legal obligations, does not in and of itself lessen liability under COGSA...." Id. at 541, 115 S.Ct. at 2330.
Together, these Supreme Court precedents propound several overarching themes: (1) courts should apply a strong presumption in favor of enforcement of arbitration and choice clauses; (2) U.S. statutory claims are arbitrable, unless Congress has specifically legislated otherwise; (3) choice-of-law clauses may be enforced even if the substantive law applied in arbitration potentially provides reduced remedies (or fewer defenses) than those available under U.S. law; and (4) even if a contract expressly says that foreign law governs, as in Vimar, courts should not invalidate an arbitration agreement at the arbitration-enforcement stage on the basis of speculation about what the arbitrator will do, as there will be a later opportunity to review any arbitral award.
Following Supreme Court precedent, as we must, this Court enforced both choice-of-law and forum-selection clauses in Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285 (11th Cir.1998), despite the likelihood that the law to be applied in the foreign tribunal would accord the American plaintiffs fewer remedies than would be available under U.S. statutory law. Lipcon is not an arbitration case, and was not subject to the Convention's linking of Article V's public policy defense to the arbitral award-enforcement stage. Aside from the timing feature of when the Convention's public policy defense is raised, Lipcon is highly relevant to footnote 19 in Mitsubishi.
In Lipcon, the plaintiff American investors incurred massive financial losses from certain underwriting transactions. Id. at 1288. The Lipcon case arose from efforts by Lloyd's of London, a large British insurance market, to recruit American investors. Id. Under the contractual arrangement,
Among other contentions, the American plaintiffs argued that Mitsubishi's footnote 19 indicated the Supreme Court's "unwillingness to permit choice provisions to eliminate United States statutory remedies." Id. at 1293. This Court in Lipcon rejected this argument and affirmed the district court's enforcement of the English forum and English law clauses, concluding that the forum-selection and choice-of-law clauses "satisfy scrutiny for fundamental fairness and do not contravene public policy." Id. at 1287.
Similar to the Supreme Court's Scherk decision, Lipcon considered whether the anti-waiver provisions of U.S. securities law — which barred any provision requiring a security buyer to waive compliance with the U.S. Securities Acts
Id. at 1296. As to the first factor — "fraud or overreaching" — we concluded that the American plaintiffs had not adequately pled fraud. Id.
As to the latter three factors of "the inconvenience or unfairness of the chosen forum," "the fundamental unfairness of the chosen law," and the "contraven[tion] [of] a strong public policy," this Court in Lipcon examined whether the English remedies were inadequate, given that English law contained no direct analogues to the U.S. Securities Acts. We recounted numerous facets of English securities law which, the American plaintiffs contended, provided for inferior remedies as compared to their U.S. counterparts. Id. at 1297-98. We confessed there was "little doubt that `the
In concluding that English law contained "adequate" remedies to withstand a challenge under the Bremen test, this Court declared, "We will not invalidate choice clauses[] ... simply because the remedies available in the contractually chosen forum are less favorable than those available in the courts of the United States." Id. (emphasis added). Rather, choice clauses are unenforceable "only when the remedies available in the chosen forum are so inadequate that enforcement would be fundamentally unfair."
Lastly, in Lipcon we were mindful of Mitsubishi's footnote 19 "prospective waiver" language. See id. at 1298 (citing Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. at 3359 n. 19). The SEC, as amicus curiae, argued that courts which had addressed the issue gave short shrift to the "compensatory function of private actions under the securities laws" by enforcing similar choice clauses. Id. Although recognizing the value of these private actions, the Lipcon Court opined, "We are more confident than the SEC ... that the compensatory policy underlying United States securities law will be vindicated by litigation in English courts under English law; this is especially so given our conclusion that English law provides adequate remedies to appellants in this case." Id. at 1299 (emphasis added). Accordingly, this Court held that the American plaintiffs were bound by the choice clauses and must honor their bargain by bringing their claims in English courts, under English law. Id.
Next comes Bautista v. Star Cruises, where this Court compelled arbitration of Jones Act negligence claims in the Philippines and rejected the plaintiff seamen's arguments that the arbitration provision was "unconscionable." 396 F.3d at 1302-03. In reaching this holding, Bautista followed the clear weight of the Supreme Court's and our Circuit's precedents discussed above.
Bautista involved the explosion of a cruise ship's steam boiler while the vessel was docked in Miami. Id. at 1292. Four injured crewmembers and the personal representatives of six deceased crewmembers — all Filipino citizens, id. at 1294 n. 7 (collectively referred to as the "plaintiff seamen") — filed separate complaints in Florida state court against defendant NCL (owner of the ship) and its alleged parent company, Star Cruises. Id. at 1292. Their complaints sought damages for failure to provide maintenance, cure, and unearned wages, and for Jones Act negligence and unseaworthiness. Id.
The defendant NCL removed the case to federal court and sought to compel arbitration in the Philippines pursuant to the seamen's one-page employment agreements. Id. at 1292-93. The employment
Following the Convention and precedent, this Court in Bautista recognized that it: (1) conducts only a "very limited inquiry" in deciding a motion to compel arbitration under the Convention, id. (quotation marks omitted), and (2) must be "mindful that the Convention Act `generally establishes a strong presumption in favor of arbitration of international commercial disputes.'" Id. at 1294-95 (quoting Indus. Risk Insurers, 141 F.3d at 1440). The Bautista Court quoted Mitsubishi's instructions to enforce international arbitration clauses even if a different resolution would be reached in a purely domestic setting. Id. at 1302. We also explained that a court must order arbitration unless (1) the four jurisdictional prerequisites are not met
After determining that all jurisdictional prerequisites were met, the Bautista Court next considered whether the plaintiff seamen could assert any affirmative defenses under the Convention. We addressed only the defenses in Article II, which provides that arbitration agreements should be enforced unless the agreement "is null and void, inoperative or incapable of being performed." New York Convention, art. II(3).
The plaintiff seamen made two arguments: (1) that the arbitration provision was "unconscionable" and (2) that the dispute was not arbitrable.
Importantly, in Bautista we held that Article II's "null and void" clause was confined to "`standard breach-of-contract defenses'" and that "[t]he limited scope of the Convention's null and void clause `must be interpreted to encompass only those situations — such as fraud, mistake, duress, and waiver — that can be applied neutrally on an international scale.'" Id. at 1302 (emphasis added) (quoting DiMercurio,
In rejecting the seamen's asserted defense that their employment contracts were "unconscionable," this Court in Bautista concluded that economic hardship and unconscionability arguments are not available defenses under Article II of the Convention. We indicated that "[d]omestic defenses to arbitration are transferrable to a Convention Act case only if they fit within the limited scope of defenses described above." Id. (emphasis added). Since it was "doubtful that there exists a precise, universal definition of the unequal bargaining power defense that may be applied effectively across the range of countries that are parties to the Convention," this Court "decline[d] to formulate one." Id. Although acknowledging that the seamen's penury might lead to a "hard bargain during the hiring process," we pointed out that the Philippines government, operating through POEA, had a role in the hiring process to protect seamen interests. Id. at 1302 n. 13.
The Bautista Court next considered whether the plaintiff seamen's claims were even arbitrable in the Philippines. The plaintiff seamen had cited to a Philippine case involving tortious conduct in which the Philippine Supreme Court determined that both the labor arbiter and the national labor relations body lacked jurisdiction to consider the claims. Id. at 1302-03. In the case before it, by contrast, the Bautista Court commented that such preclusion of the claim "is not foreordained." Id. at 1303. This Court noted that "Plaintiffs have options beyond tort claims" and thus the Philippine case did not provide a sufficient basis for concluding that the employment dispute at issue could not be arbitrated in the Philippines. Id.
Having found Article II's "null and void" clause inapplicable and having determined that the arbitration provision was not "incapable of being performed" in the Philippines, the Bautista Court ruled that the district court had properly granted NCL's motion to compel arbitration of the plaintiff seamen's claims — including claims under the Jones Act — in the Philippines. Id.
This survey brings us to Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir.2009), where this Court did not enforce a plaintiff's arbitration agreement as to his Seaman's Wage Act claim. The plaintiff in Thomas was the head waiter on defendant Carnival's cruise ship, which flew a Panamanian flag of convenience. Id. at 1115-16. The plaintiff (Thomas) sued Carnival for injuries incurred onboard its ship. Id. at 1115. The complaint alleged Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to pay wages under the Seaman's Wage Act. Id. As to the place of arbitration, the plaintiff's employment agreement specified that any disputes would be arbitrated in the Philippines. Id. at 1116. As to the choice of law, the law of the vessel's flag applied in the proceedings (in the plaintiff's case, Panamanian law).
On appeal, the plaintiff argued that his arbitration clause should not be enforced because, inter alia, (1) not all the jurisdictional prerequisites for enforcement were met, and (2) the Convention provides that courts should not enforce an arbitration
In analyzing the plaintiff's affirmative defenses under the Convention, the Thomas Court cited only to Article V, quoting as follows:
Id. at 1120 (alteration and omission in original) (quoting New York Convention, art. V(2)(b)). The Thomas Court did not cite Article II anywhere in the opinion. At the conclusion of the opinion, however, Thomas declared, "[W]e find the Arbitration Clause requiring arbitration in the Philippines under Panamanian law null and void as it relates to Thomas's Seaman's Wage Act Claim." Id. at 1124 (emphasis added). In a footnote appended thereto, Thomas stated, "[T]he narrow holding is that the Convention does govern but, applying its affirmative defenses provision, we find that the particular arbitration clause in question is null and void as a matter of public policy." Id. at 1124 n. 17 (third emphasis added). Thus, although Thomas does not cite Article II, it does twice use the term "null and void," which is an Article II defense.
Thomas crafted a new public policy defense, providing that arbitration is unenforceable if foreign law applies because the plaintiff cannot assert U.S. statutory claims. The Thomas Court distinguished its case from Mitsubishi and Vimar on the basis that Thomas's arbitration agreement provided that Panamanian law would apply. The Thomas Court stated that — unlike a situation where American law would affirmatively be applied in an arbitration setting (Mitsubishi) or at least potentially applied and subject to later review by U.S. courts (Vimar) — "[i]n the case before us... it is undisputed that, regardless of the procedural posture of the case, U.S. law will never be applied in resolving the resolution of Thomas's claims." Id. at 1122-23.
The Thomas Court offered its own characterization of the Mitsubishi and Vimar decisions: "The [Supreme] Court, then, has held that arbitration clauses should be upheld if it is evident that either U.S. law definitely will be applied [(Mitsubishi)] or if, [sic] there is a possibility that it might apply and there will be later review [(Vimar)]."
The Thomas Court opined that there was "no assurance of an `opportunity for review'" after the arbitration process concluded, since "the possibility of any later opportunity presupposes that arbitration will produce some award which the plaintiff can seek to enforce." Id. In this regard, the Thomas Court stated that (1) "Thomas would only be arbitrating a single issue — the Seaman's Wage Act claim, one derived solely from a U.S. statutory scheme"; (2) "If, applying Panamanian law, Thomas receives no award in the arbitral forum — a distinct possibility given the U.S. based nature of his claim — he will have nothing to enforce in U.S. courts"; and, therefore, (3) U.S. courts "will be deprived of any later opportunity to review." Id. at 1123-24.
The Thomas Court pronounced that this possibility of no subsequent court review "would counsel against being deferential in this circumstance." Id. at 1124. Consequently, the Thomas Court applied no deference and refused to compel arbitration as to the plaintiff's Seaman's Wage Act claim. Id. Thomas thus concluded that arbitration agreements that select any law other than U.S. law are unenforceable under the Convention because they eliminate a plaintiff's U.S. statutory claims and a plaintiff may possibly receive no award, precluding later court review.
After reviewing the Convention and Supreme Court and Circuit precedent, we conclude that, at this initial arbitration-enforcement stage, the district court properly enforced Lindo's arbitration agreement in his Contract, which provided that his Jones Act claim would be arbitrated in a foreign forum (his own country of citizenship) under Bahamian law. We list the reasons why.
First, under the Convention and Supreme Court and Circuit precedent, there is a strong presumption in favor of freely-negotiated contractual choice-of-law and forum-selection provisions, and this presumption applies with special force in the field of international commerce. See Vimar, 515 U.S. at 537-38, 115 S.Ct. at 2328-29; Mitsubishi, 473 U.S. at 631, 105 S.Ct. at 3356; Scherk, 417 U.S. at 516-17, 94 S.Ct. at 2455-56; The Bremen, 407 U.S. at 15-16, 92 S.Ct. at 1916; Bautista, 396 F.3d at 1295; Lipcon, 148 F.3d at 1292-94.
Indeed, the Convention provides that contracting states "shall recognize" written agreements wherein parties agree to submit any and all disputes to settlement by arbitration. New York Convention, art. II(1). This Circuit has stated, in agreement with other circuits, that "a court conducts a very limited inquiry" when "deciding a motion to compel arbitration under the Convention Act." Bautista, 396 F.3d at 1294 (quotation marks omitted). Therefore, we necessarily start our analysis with a strong presumption in favor of the arbitration agreement in Lindo's Contract and, in fact, must view the choice clauses in Lindo's Contract as prima facie valid and enforceable.
Second, both the Supreme Court's and our Circuit's precedents have squarely
Because choice clauses encompassing U.S. statutory claims are enforceable, Lindo argues that his arbitration clause cannot be enforced (1) because it eliminates his Jones Act claim and (2) due to the unequal bargaining positions of Lindo and NCL.
Lindo's contentions are fundamentally flawed for several reasons. As a signatory to the Convention, the United States, and in turn U.S. courts, must recognize arbitration agreements so long as (1) the four jurisdictional prerequisites are met
At the arbitration-enforcement stage, Article II(3) of the Convention recognizes only these affirmative defenses to that mandatory recognition: "The court of a Contracting State ... shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed." New York Convention, art. II(3) (emphasis added).
In Bautista, this Court held that an arbitration agreement is "null and void" under Article II(3) of the Convention only where it is 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." 396 F.3d at 1302 (quotation marks omitted). Lindo's Contract incorporates a union-negotiated CBA, and there is no claim — much less any showing — of fraud, mistake, duress, or waiver. To the extent Lindo relies on Article II, his claim fails.
Lindo argues that the arbitration provision is unconscionable, maintaining that he signed the Contract on a "take-it-or-leave-the-ship" basis. However, this was the same argument asserted by the plaintiff seamen in Bautista. See id. (stating that plaintiffs argued "crewmembers were put in a difficult `take it or leave it' situation when presented with the terms of employment" which allegedly "render[ed] the resulting agreements unconscionable"). This Court expressly rejected that argument, concluding that an unconscionability defense was not available under Article II of the Convention. See id. ("It is doubtful that there exists a precise, universal definition of the unequal bargaining power defense that may be applied effectively across the range of countries that are parties to the Convention, and absent any
In an attempt to dismiss binding prior precedent, the dissent criticizes Bautista. Yet, Bautista's articulation of the narrow scope of the "null and void" clause is in complete accord with the prevailing authority in other circuits.
Because Lindo relies heavily on Thomas, we explain at length why Thomas does not help him.
As a preliminary matter, we note that it is difficult to ascertain whether Thomas is an Article II or Article V case. As mentioned above, Thomas never cited Article II but instead cited and quoted Article V, which contains the "contrary to ... public policy" defense. See New York Convention, art. V(2)(b). However, Thomas does twice employ Article II's "null and void" language. See 573 F.3d at 1124 & n. 17. To the extent Thomas was applying Article
First, Thomas did not cite or acknowledge Bautista's governing principles: (1) courts conduct a "very limited inquiry" in deciding a motion to compel arbitration, and (2) there is a "strong presumption" in favor of arbitration.
Second, and more importantly, Thomas failed to follow Bautista's holding that limited the "null and void" clause's application to "only those situations — such as fraud, mistake, duress, and waiver — that can be applied neutrally on an international scale." Id. at 1302 (quotation marks omitted). Thomas's creation of a new public policy defense under Article II — based on the elimination of a U.S. statutory claim under the Seaman's Wage Act — by definition cannot be applied "neutrally on an international scale," as each nation operates under different statutory laws and pursues different policy concerns. Thomas wholly failed to subject Thomas's public policy claim to Bautista's test for "null and void" defenses available under Article II. Compare Thomas, 573 F.3d at 1120-24, with Bautista, 396 F.3d at 1302. Thus, to the extent Thomas allowed the plaintiff seaman to prevail on a new public policy defense under Article II, Thomas violates Bautista and our prior panel precedent rule. See United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.1997) ("Under the prior panel precedent rule, we are bound by earlier panel holdings ... unless and until they are overruled en banc or by the Supreme Court.").
We further note that Thomas's use of Mitsubishi's footnote 19 does not eliminate its conflict with Bautista. Thomas quoted the "prospective waiver" language in Mitsubishi's footnote 19. See Thomas, 573 F.3d at 1121 (quoting Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. at 3359 n. 19). Thomas itself reads as though footnote 19 is Mitsubishi's holding.
Thomas dismissed Vimar by stating that "it is undisputed that, regardless of the procedural posture of the case, U.S. law will never be applied in resolving the resolution of Thomas's claims." Thomas, 573 F.3d at 1122-23. Thomas ignored Vimar's conclusion that at the interlocutory arbitration-enforcement stage it is not established, even if U.S. law is not applied, what law the arbitrator may apply or that the plaintiff will receive "diminished protection as a result." Vimar, 515 U.S. at 540, 115 S.Ct. at 2329. There was no analysis in Thomas of what remedies Panamanian law provided. The significance of Vimar is that, at the arbitration-enforcement stage, it is generally premature to make findings about how arbitrators will conduct the arbitral process, whether a claim will be heard, or whether the foreign-law remedies will be adequate or inadequate.
Additionally, the Vimar Court emphasized that there would be "subsequent opportunity for review" to ensure that public policy interests have been adequately addressed. Id. at 540, 115 S.Ct. at 2330. In dismissing Vimar again, Thomas contended that "there is no assurance of an `opportunity for review' of Thomas's Seaman's Wage Act claim" because "the possibility of any later opportunity presupposes that arbitration will produce some award which the plaintiff can seek to enforce." Thomas, 573 F.3d at 1123. Yet Thomas did not indicate why Vimar's statement — that the district court would have jurisdiction at the award-enforcement stage to review the arbitration proceedings — did not equally apply in Thomas. The prospect of an arbitral tribunal awarding no damages in Vimar was just as conceivable as it was in Thomas.
Given that Vimar wholly refutes the logic of Thomas on this point, the dissent attempts to distinguish Vimar, contending that its "subsequent opportunity for review" statement somehow does not apply if a district court has not expressly retained jurisdiction (as in Lindo's case). The Supreme Court has nowhere hinted that a district court need do so, however. This is not surprising, as an action to confirm an arbitral award may be brought as a separate action under federal law. Compare 9 U.S.C. § 207, with id. § 206; see also id. § 203 ("An action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States. The district courts of the United States ... shall have original jurisdiction over such an action or proceeding, regardless of the amount in controversy." (emphasis added)). Indeed, in Mitsubishi the Supreme Court indicated that various federal courts might have
For all of these reasons, we conclude that Thomas does not aid Plaintiff Lindo at this Article II arbitration-enforcement stage.
Nevertheless, Lindo argues that his arbitration agreement is "contrary to the public policy" of the United States under Article V. Lindo cites Thomas for this Article V argument, too.
The first problem for Lindo is that Article V applies only at the arbitral award-enforcement stage and not at the arbitration-enforcement stage at issue here. 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." New York Convention, art. V(2) (emphasis added). Yet, Article V has no application in the interlocutory procedural posture of this case, where NCL seeks to enforce arbitration at the outset of the dispute.
Similarly, and as noted before, in Mitsubishi the Supreme Court stated: "Having permitted the arbitration to go forward, the national courts of the United States will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been addressed." 473 U.S. at 638, 105 S.Ct. at 3359 (emphasis added). On this point, the Mitsubishi Court continued: "The Convention reserves to each signatory country the right to refuse enforcement of an award where the `recognition or enforcement of the award would be contrary to the public policy of that country.'" Id. at 638, 105 S.Ct. at 3359-60 (quoting New York Convention, art. V(2)(b), and citing Scherk, 417 U.S. at 519 n. 14, 94 S.Ct. at 2457 n. 14) (emphasis added).
This Circuit has also uniformly cited or discussed Article II at the arbitration-enforcement stage and Article V at the award-enforcement stage. Compare Bautista, 396 F.3d at 1301-02 (analyzing Article II "null and void" defense at arbitration-enforcement stage), and Lobo v. Celebrity Cruises, Inc., 488 F.3d 891, 894-96 (11th Cir.2007) (citing and quoting Article II in the procedural posture of an arbitration-enforcement case), with Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 533 F.3d 1349, 1350-53 (11th Cir.2008) (noting Article V gives courts discretion to refuse enforcement of an award only after one of Article V's defenses has been shown), Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 377 F.3d 1164, 1166-72 (11th Cir. 2004) (in an earlier appeal, remanding case to district court for consideration of defense under Article V at award-enforcement stage), Czarina, L.L.C., 358 F.3d at 1291, 1292 n. 3 (noting that "Article II of the Convention imposes a prerequisite on a party asking the court to compel arbitration" and later commenting that Article V enumerates affirmative defenses to an action confirming an award), Indus. Risk Insurers, 141 F.3d at 1441-46 (analyzing defenses raised under Article V at award-enforcement stage), and Imperial Ethiopian Gov't, 535 F.2d at 335-37 & n. 1 (analyzing Article V defense at award-enforcement stage). Thomas is a clear departure from these precedents, too.
Given the lack of case law supporting the dissent's position on this public policy "timing" question (and despite the plain text of Articles II and V), the dissent relies
For all the foregoing reasons, we hold that Lindo cannot raise an Article V public policy defense at this initial arbitration-enforcement stage.
Alternatively, even assuming, arguendo, that this timing infirmity were immaterial and Lindo could somehow raise an Article V public policy defense at the arbitration-enforcement stage, Lindo's challenge to his arbitration agreement still fails.
First, Lindo once again relies on Thomas for his public policy argument. Yet, Thomas conflicts with this Circuit's earlier precedent in Lipcon,
By contrast, Thomas contains no mention of Panamanian law, much less an analysis of whether the Panamanian remedies would be so inadequate as to be fundamentally unfair. Lipcon explicitly rejected the type of public policy defense asserted in Thomas — i.e., that choice-of-law clauses cannot be enforced when doing so could deprive the plaintiff of the full panoply of remedies provided by a U.S. statute. See id. ("We will not invalidate choice clauses, however, simply because the remedies available in the contractually chosen forum are less favorable than those available in the courts of the United States.").
Although public policy interests underlie the Seaman's Wage Act claims in Thomas, the public policy interests underlying the U.S. statutory claims in Lipcon — namely, some of the most crucial components of United States securities laws — are at least as important. Lipcon closely resembles the public policy issue in Thomas — less favorable treatment in a foreign forum under foreign law. To the extent Thomas is an Article V case, Thomas wholly fails to take into account our earlier precedent in Lipcon.
Second, even aside from Thomas, Lindo's challenge to his arbitration agreement fails because (1) Bahamian law itself recognizes negligence actions; and (2) even if, as Lindo claims, U.S. law under the Jones Act has a more relaxed causation standard for negligence claims than Bahamian law, these were precisely the same arguments lodged (and rejected) in Lipcon.
Lipcon acknowledged that "the United States securities laws would provide [the American plaintiffs] with a greater variety of defendants and a greater chance of success due to lighter scienter and causation requirements." Id. (quotation marks omitted). Nevertheless, this Court held that the choice-of-law and forum-selection clauses were enforceable and ordered the matter to be heard in English courts under English law, since "we will declare unenforceable choice clauses only when the remedies available in the chosen forum are so inadequate that enforcement would be fundamentally unfair."
Additionally, Lindo has not shown that international arbitration under Bahamian negligence law will provide an inadequate remedy. In this regard, we note that NCL filed the affidavit of Bahamian attorney Stephen A. Turnquest, who averred that, under Bahamian law, a plaintiff seaman injured by an employer's breach of duty may sue in negligence and recover damages for pain and suffering, loss of wages and future earnings, and medical expenses. Moreover, a seaman may recover aggravated damages or punitive damages — damages that may be unavailable in strict Jones Act cases. And while Lindo submitted the affidavit of a Bahamian lawyer describing the lighter causation requirements under the Jones Act as compared to Bahamian law,
This case exemplifies why the public policy defense of Article V may be raised only at the arbitral award-enforcement stage. Similar to Vimar, the arbitrator at that time will have ruled and the record will show what legal principles were applied and what Lindo recovered, or did not recover, and why. Lindo's public policy defense is "premature" at this initial arbitration-enforcement stage. See Vimar, 515 U.S. at 540-41, 115 S.Ct. at 2329-30; Mitsubishi, 473 U.S. at 638, 105 S.Ct. at 3359-60.
Lastly, Lindo's position would effectively eviscerate the mutually binding nature of the Convention. Lindo maintains that his arbitration agreement is void as against public policy because he cannot assert his U.S. statutory rights under Bahamian law. By this logic, courts in other nations could likewise refuse to recognize valid, mutually agreed-upon arbitration provisions if they contemplated the application of American law, in derogation of home-based statutory remedies. Yet if every country refused to recognize arbitration agreements that contemplate the application of foreign law, the multilateral commitment of the Convention would be defeated. See Mitsubishi, 473 U.S. at 639 n. 21, 105 S.Ct. at 3360 n. 21 ("The utility of the Convention in promoting the process of international commercial
In Vimar, the Supreme Court stated it was imperative that U.S. courts abide by the treaty obligations under the New York Convention: "If the United States is to be able to gain the benefits of international accords and have a role as a trusted partner in multilateral endeavors, its courts should be most cautious before interpreting its domestic legislation in such manner as to violate international agreements." 515 U.S. at 539, 115 S.Ct. at 2329.
As the Supreme Court observed in Scherk, "[T]he delegates to the Convention voiced frequent concern that courts of signatory countries in which an agreement to arbitrate is sought to be enforced should not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or in a manner that would diminish the mutually binding nature of the agreements." 417 U.S. at 520 n. 15, 94 S.Ct. at 2457 n. 15. This Court in Lobo noted that the Scherk Court considered the Convention to be "`strongly persuasive evidence of congressional policy' in favor of uniform enforcement of arbitration agreements, despite the potential presence of parochial policies present in other parts of the U.S. Code. Thus, to nullify the arbitration provision here would hinder the purpose of the Convention and subvert congressional intent." Lobo, 488 F.3d at 896 (citation omitted) (quoting Scherk, 417 U.S. at 520 n. 15, 94 S.Ct. at 2457 n. 15); see also Bautista, 396 F.3d at 1299 ("Indeed, to read industry-specific exceptions into the broad language of the Convention Act would be to hinder the Convention's purpose....").
These precedents reveal the Supreme Court's and our Circuit's recognition of the reciprocal nature of the Convention and the need for uniformity in the enforcement of arbitration agreements. Under Lindo's reading of the Convention — which implies that arbitration agreements are invalid ab initio whenever the application of foreign law may displace a U.S. statutory claim — the public policy exception would swallow the rule that signatory nations "shall recognize" arbitration agreements.
We recognize that NCL's brief on appeal argues that "Lindo has failed to establish that international arbitration will nullify or lessen his U.S. statutory claim," "Lindo has failed to establish that the choice-of-law provision would deprive him of the Jones Act or of any remedy," "[t]here is no evidence in the record establishing that application of Bahamian Law will prohibit the arbitrator's consideration of Lindo's claim based on the Jones Act," and "there is not one shred of evidence that Bahamian law will prevent [Lindo] from reaching his Jones Act claim." Appellee's Br. at 13-14, 23. We need not examine the veracity of these claims to reach the conclusion we set forth here, however. Cf. Vimar, 515 U.S. at 541, 115 S.Ct. at 2330 (stating that, "[u]nder the circumstances of this case," it was "correct to reserve judgment on the choice-of-law question, as it must be decided in the first instance by the arbitrator" (citation omitted)).
Lastly, Lindo contends that a 2008 Amendment to the Jones Act, which deleted its venue provision, means Congress has rendered Lindo's Jones Act claim inarbitrable. We style this argument as a claim that Congress created a "subject-matter exception" to arbitrability, as discussed in Mitsubishi. See 473 U.S. at 639 n. 21, 105 S.Ct. at 3360 n. 21.
In January 2008, Congress amended the Jones Act. See National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 110-181, § 3521(a), 122 Stat. 3, 596 (2008) (codified as amended at 46 U.S.C. § 30104). In so doing, it eliminated the Jones Act's venue provision in subsection (b), which provided: "VENUE. — An action under this section shall be brought in the judicial district in which the employer resides or the employer's principal office is located." 46 U.S.C. § 30104(b) (2007).
Since the Jones Act requires that "[l]aws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section," id. § 30104, Lindo contends that the repeal of the Jones Act venue provision thereby entails that the venue provision of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 56,
Lindo's claim lacks merit for several reasons. The Committee Report on the 2008 Amendment stated the venue provision's repeal was merely meant to clarify existing law:
H.R.Rep. No. 110-437, at 5 (2007) (emphasis added). The purpose of the 2008 Amendment, in other words, was to clarify what had already been settled in 1966 by the Supreme Court's decision in Pure Oil.
Id. at 2 (emphasis added).
Despite Lindo's appeals to the contrary, Congress's 2008 Amendment to the Jones Act did not signal its intention to "identify any category of claims as to which agreements to arbitrate will be held unenforceable." Mitsubishi, 473 U.S. at 627, 105 S.Ct. at 3354. The repeal of the Jones Act's venue provision hardly warrants the inference that Congress sought to overturn the numerous cases requiring arbitration of Jones Act claims where the Convention applies. Even assuming, arguendo, that § 56 (FELA's venue provision) now applies to Jones Act claims, there is nothing to indicate that § 55 (FELA's prohibition on limiting liability) applies as well. If Congress had intended to render international arbitration clauses unenforceable in Jones Act cases, it could have explicitly done so. Instead, the legislative history of the 2008 Amendment reveals that no such sweeping change was intended at all. Other courts have likewise concluded that § 55 is "inapplicable to seaman arbitration agreements." Harrington v. Atlantic Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir.2010) (collecting cases), cert. denied, ___ U.S. ___, 131 S.Ct. 1054, 178 L.Ed.2d 876 (2011).
Because we conclude that Congress intended no subject-matter exceptions to arbitrability for Jones Act claims, Lindo's argument fails and the arbitration clause in his Contract must be enforced.
For the foregoing reasons, we affirm the district court's order granting NCL's motion to dismiss and compel arbitration and denying Lindo's motion to remand.
BARKETT, Circuit Judge, dissenting:
In 1985, the Supreme Court issued Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444, a landmark opinion upholding an international commercial agreement requiring U.S. statutory antitrust claims to be arbitrated abroad. The Court emphasized that its decision to uphold the agreement turned on the fact that American law would apply in the arbitral proceeding, thus ensuring the vindication of U.S. statutory remedies. Mitsubishi, 473 U.S. at 636-38 & n. 19, 105 S.Ct. 3346. Indeed, in footnote 19, the Court cautioned in the most forceful language that "in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies ..., we would have little hesitation in condemning the agreement as against public policy." Id. at 637 n. 19, 105 S.Ct. 3346.
Tracking that language, Lindo argues in this case that the arbitration agreement in his employment contract — requiring that he submit his federal Jones Act claim of negligence to arbitration in Nicaragua under Bahamian law — effectuates a prospective waiver of his statutory rights and therefore violates public policy. The majority holds, however, that Lindo must first proceed to arbitration before raising
As the majority observes, there are two stages of judicial enforcement under the New York Convention: the initial pre-arbitration stage, where a court determines whether to refer a matter to arbitration ("agreement-enforcement stage"); and the subsequent post-arbitration stage, where a court determines whether to enforce a resulting arbitral award ("award-enforcement stage"). With respect to the agreement-enforcement stage, Article II(3) of the Convention requires a court to refer certain matters to arbitration, "unless it finds that the [arbitration] agreement is null and void, inoperative or incapable of being performed." Convention, art. II(3). The threshold issue here is whether an arbitration agreement can be rendered "null and void, inoperative or incapable of being performed" on account of its inconsistency with the forum nation's public policy. If so, Lindo would be permitted to raise his prospective waiver argument at the initial agreement-enforcement stage.
As an initial matter, the meaning of the phrase "null and void" strongly suggests that public policy is a defense to arbitration. See Medellin v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) ("The interpretation of a treaty, like the interpretation of a statute, begins with its text."). It is well-established that agreements contrary to public policy are characterized in our legal system as "void." See, e.g., Oubre v. Entergy Operations, Inc., 522 U.S. 422, 431, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998) (Breyer, J., concurring) (defining "void" as something "without any legal effect, say, like a contract the terms of which themselves are contrary to public policy"); Evans v. Jeff D., 475 U.S. 717, 759, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986) (Brennan, J., dissenting) (referring to the "well-established principle that an agreement which is contrary to public policy is void and unenforceable"). Indeed, Black's Law Dictionary provides that "[a] contract is void ab initio if it seriously offends law or public policy...." Black's Law Dictionary 1709 (9th ed. 2009) (emphasis added). This common understanding — that a contractual provision contrary to public policy is void — must inform the meaning of the Convention's "null and void" clause.
This view is strengthened by Article V(2)(b) of the Convention, which provides that a court need not enforce an arbitral award if such enforcement would be contrary to public policy. Although one might initially wonder whether the Convention's
To the contrary, it makes good sense to look to Article V(2)(b)'s public policy exception when interpreting Article II(3)'s "null and void" clause. Indeed, we did so in Thomas.
Indeed, the two most authoritative scholarly sources interpreting the Convention around the time of its adoption — both of which have been relied on by the Supreme Court — have taken this view. First, G.W. Haight, a member of the International Chamber of Commerce delegation to the New York Conference, contemporaneously prepared what remains the most comprehensive summary of the proceedings.
Second, a seminal law review article published in the Yale Law Journal shortly after the Convention entered into force reached the same conclusion: "Article [V(2)(b)] allows the forum State to refuse enforcement of an award if the recognition and enforcement of the award would be contrary to its public policy. It can be expected that the forum State will similarly refuse ... to order the parties to arbitration where its public policy renders the arbitral agreement `null and void, inoperative or incapable of being performed.'" Leonard V. Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1064 n. 71 (1961).
Significantly, this interpretation of the "null and void" clause is also that of the political branches in the United States. When submitting the Convention to the Senate for ratification in 1968, President Johnson attached a memorandum prepared by the Department of State, adopting Quigley's view that the "null and void" clause incorporated Article V(2)'s exceptions to the enforcement of arbitral awards. S. Exec. Doc. E, 90th Cong., 2d Sess. 19 (1968) ("Paragraph 3 [of Article II] ... provid[es] that a court in a contracting country, when seized of an action in respect of which the parties have made an agreement within the meaning of Article II, shall, upon the request of one of the parties, refer the parties to arbitration unless it finds the agreement null and void, inoperative, or incapable of being performed. Here again, it appears that the exceptions provided in Article V, paragraph 2, with respect to the enforcement of awards, would apply."). And, in this respect, the State Department anticipated that Article V(2)(b)'s public policy exception "would give the courts to which application is made considerable latitude in refusing enforcement." Id. at 21. I find it highly significant that the political branches ratified the Convention with the apparent understanding that the enforcement of international arbitration agreements would not come at the expense of all other U.S. public policies.
The Supreme Court confirmed in Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995) that a public policy defense based on the prospective waiver doctrine may sometimes be raised at the agreement-enforcement stage. In that case, the Court upheld an international agreement requiring a U.S. statutory claim to be arbitrated abroad under foreign law. Id. at 541, 115 S.Ct. 2322. Although the petitioner argued at the initial stage that this agreement effectuated a prospective statutory waiver, the Supreme Court found this argument "premature." Id. at 540, 115 S.Ct. 2322. Significantly, however, the Court repeatedly emphasized that its decision turned on the critical fact that the district court had retained jurisdiction over the case, thus guaranteeing that the petitioner would have a subsequent opportunity to raise his public policy defense at the award-enforcement stage. Id. at 532, 540-41, 115 S.Ct. 2322; see id. at 542, 115 S.Ct. 2322 (O'Connor, J., concurring in the judgment) (reiterating that the majority's holding turned on the district court's retention of jurisdiction). And the Court made clear that "[w]ere there no [such] subsequent opportunity for review" at the award-enforcement stage, "and were we persuaded that `the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's rights to pursue statutory remedies, we would have little hesitation in condemning the agreement as against public policy.'" Id. at 540, 115 S.Ct. 2322 (quoting Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. 3346) (ellipsis omitted). Thus, Vimar supports the proposition that a public policy defense based on the prospective waiver doctrine may be raised at the initial agreement-enforcement stage when there will not be any subsequent opportunity for review.
In this case, Lindo's prospective waiver argument is not premature because the district court did not retain jurisdiction. Instead, the court issued a final order compelling arbitration, dismissing Lindo's complaint, and closing the case. Thus, unlike in Vimar, there is no guarantee that Lindo will be afforded an opportunity to raise his prospective waiver argument at the award-enforcement stage.
Notwithstanding all of the authority discussed above, the majority reads our decision in Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir.2005), in a manner that precludes Lindo from raising his public policy defense at the agreement-enforcement stage. In that case, this Court stated (without analysis) that the "Convention's null and void clause `must be interpreted to encompass only those [breach of contract defenses] — such as fraud, mistake, duress, and waiver — that can be applied neutrally on an international scale.'" Id. at 1302 (quoting DiMercurio v. Sphere Drake Ins. PLC, 202 F.3d 71, 79 (1st Cir. 2000)); see Bautista, 396 F.3d at 1302 ("Domestic defenses to arbitration are transferrable to a Convention Act case only if they fit within th[is] limited scope of defenses...."). The majority asserts that, by so limiting the scope of the "null and void" clause, Bautista effectively eliminated national public policy as a defense.
However, construing Bautista this way, as the majority does, places it in conflict with Supreme Court precedent. Precluding a public policy defense from ever being raised at the agreement-enforcement stage conflicts with Vimar's holding that such a defense may be raised at that stage when there is no subsequent opportunity for review. Although Vimar did not specifically discuss the "null and void" clause, that clause is the only authority upon which the Court's holding could have been based. See Brubaker & Daly, supra note 3, at 1273 ("[T]he null and void clause provides the only possible basis under the New York Convention for courts to apply the prospective waiver doctrine and refuse to compel parties to arbitrate.").
Moreover, by suggesting that only certain domestic defenses to arbitration apply in the international context, the majority's reading of Bautista overlooks a key provision of the legislation implementing the Convention. That legislation, codified as Chapter 2 of the Federal Arbitration Act ("FAA"), contains a residual clause providing that Chapter 1 of the FAA, governing arbitration generally, "applies to actions and proceedings brought under [Chapter 2] to the extent that [Chapter 1] is not in conflict with [Chapter 2] or the Convention as ratified by the United States." 9 U.S.C. § 208. Chapter 1, in turn, provides that arbitration agreements are enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. As discussed above, public policy constitutes such a ground. And because there is nothing in Chapter 2 or the Convention that excludes public policy as a defense to international arbitration, see 9 U.S.C. § 206; Convention, art. II(3), the residual clause operates to ensure its inclusion.
In effectively excluding public policy from the scope of the "null and void" clause, the majority's reading of Bautista wholly fails to account for the text of the clause, Article V(2)(b) of the Convention, the residual clause in the Convention's implementing legislation, and contrary views held by the political branches at ratification, prominent scholars, and even the Supreme Court itself. Based on the great weight of this authority, I believe that the "null and void" clause encompasses a public policy defense that may be raised at the initial agreement-enforcement stage.
Although the majority holds that Lindo may not raise his public policy defense at this initial stage, it gratuitously goes on to assert that the arbitration agreement does not violate public policy. Maj. op. at 1283-86. Needless to say, this discussion is wholly unnecessary to the majority's resolution of this case and is plainly dicta. See, e.g., Schwab v. Crosby, 451 F.3d 1308, 1327 (11th Cir.2006) ("[T]hat which is not necessary to the decision of a case is dicta."). Nonetheless, I write to explain my contrary view that a faithful application of the Supreme Court's prospective waiver doctrine compels the conclusion that the arbitration agreement in this case contravenes public policy.
As explained at the outset, the Supreme Court articulated the prospective waiver doctrine in Mitsubishi in order to ensure the preservation of federal statutory rights in foreign arbitral proceedings. The Court repeatedly emphasized this point in footnote 19 and the surrounding text. See Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. 3346
The majority asserts that footnote 19 of Mitsubishi is "undisputably dicta." Maj. op. at 1278. This cannot be the case, as this footnote was critical to the Court's reasoning and the outcome of the case. Merely because the Court did not find a prospective waiver there does not make that language — forming part of the Court's core reasoning — dicta. Indeed, it is revealing in this respect that the Supreme Court has reaffirmed the prospective waiver doctrine twice since Mitsubishi, and has done so as recently as 2009. See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, ___, 129 S.Ct. 1456, 1474, 173 L.Ed.2d 398 (2009) ("[A] substantive waiver of federally protected civil rights will not be upheld....") (citing Mitsubishi, 473 U.S. at 637 & n. 19, 105 S.Ct. 3346); Vimar, 515 U.S. at 540, 115 S.Ct. 2322 (quoting with approval the prospective waiver language in Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. 3346). And this Court has previously characterized footnote 19 of Mitsubishi not as dicta, but rather as controlling precedent that needed to be distinguished. See Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1293-94, 1298-99 (11th Cir.1998).
Moreover, discounting the Supreme Court's prospective waiver doctrine has serious implications. In doing so, the majority effectively transforms the enforcement of international arbitration agreements into the top U.S. public policy. As discussed above, there is nothing to suggest that the political branches ever intended such a result. And the prospective waiver doctrine operates to avoid that result by ensuring that the enforcement of such agreements will not be elevated over every other U.S. public policy — including policies dating back to the very founding of this country. Lindo's case exemplifies this point.
From the earliest days of the Republic, there has been a "great public policy of preserving [seamen as an] important class of citizens for the commercial service and maritime defence of the nation." Harden v. Gordon, 11 F.Cas. 480, 483 (No. 6,047) (C.C.D.Me.1823) (No. 6,047) (Story, J.). Indeed, "[s]eamen have always been regarded as wards of the admiralty, and their rights, wrongs, and injuries a special subject of the admiralty jurisdiction. The policy of Congress, as evidenced by its legislation, has been to deal with them as a favored class." Bainbridge v. Merchants' & Miners' Transp. Co., 287 U.S. 278, 282, 53 S.Ct. 159, 77 L.Ed. 302 (1932) (citation omitted). Consequently, seamen like Lindo have traditionally been afforded special legal remedies. See McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 354, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991).
To achieve that purpose, the Jones Act affords seamen "heightened legal protections," Chandris, 515 U.S. at 354, 115 S.Ct. 2172, including the right to "recover ... with a lower showing of proximate cause than would be required in a non-admiralty case." Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1542 (11th Cir.1989). Rather than showing, for example, that the employer's negligence was a substantial factor in causing the injury, "causation may be found [under the Jones Act] if the defendant's acts or omissions played any part, no matter [h]ow small, in bringing about the injury." McClow v. Warrior & Gulf Navigation Co., 842 F.2d 1250, 1251 (11th Cir.1988) (citation omitted). This so-called "featherweight" causation standard, id. (citation omitted), dramatically increases the likelihood of recovery, thus reflecting the strong public policy deeply embedded in our nation's history.
Enforcing the arbitration agreement in this case directly contravenes that public policy. The agreement unambiguously requires Lindo to submit his Jones Act claim to arbitration under Bahamian law. But there is no Jones Act in the Bahamas. Instead of a relaxed or featherweight causation standard, Bahamian law requires a seaman to prove a direct causal link between the employer's negligence and the injury, a much more stringent standard. The result is that the arbitral tribunal will neither "take cognizance of the statutory cause of action" nor "actually decide" a claim under the Jones Act, making the prospect of recovery substantially more difficult and unlikely. Mitsubishi, 473 U.S. at 637-38 & n. 19, 105 S.Ct. 3346. In short, the agreement results in the evisceration, not the vindication, of Lindo's statutory right under the Jones Act to establish causation by a mere featherweight.
We employed this same reasoning in Thomas. In that case, we considered a contractual provision requiring a cruise-ship employee to arbitrate his statutory claim under the Seaman's Wage Act in the Philippines under Panamanian law. Thomas, 573 F.3d at 1115-20 & n. 9. Like the Jones Act, the Seaman's Wage Act affords seamen special legal remedies, namely the right to obtain treble damages for late wage payments. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 572, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)
Although Thomas is almost directly on point and closely follows the Supreme Court's prospective waiver doctrine, the majority here relies heavily on our decision in Lipcon. In that non-arbitration case, this Court enforced an international agreement requiring U.S. statutory securities claims to be resolved in English courts under English law. Applying M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) — which established the framework for evaluating international forum-selection clauses — we concluded, inter alia, that these choice clauses did not violate public policy because, even though English law was "less favorable" to the American plaintiffs than U.S. securities laws, it provided "adequate remedies" allowing the "polic[ies] underlying United States securities law [to] be vindicated...." See Lipcon, 148 F.3d at 1297-99.
The majority reads Lipcon far too broadly. It suggests that Lipcon stands for the sweeping proposition that an international agreement does not violate public policy merely because the applicable foreign law is less favorable than U.S. law. Such a broad reading, however, would place Lipcon in direct conflict with the Supreme Court's prospective waiver doctrine. In order to reconcile Lipcon with that doctrine, it is necessary to emphasize instead Lipcon's finding that English remedies, despite being less favorable, nonetheless allowed for the "vindicat[ion]" of the policies underlying the federal securities law. Id. at 1299. Unsurprisingly, that finding was tied to the particular facts and circumstances of the case, see id. at 1297-99 (relying on the particular claims, defendants, and provisions of English law), thus yielding a narrow holding with limited prospective applicability.
The upshot is that, contrary to the majority's assertion, Thomas does not conflict with Lipcon, and Lipcon does not control this case. For one thing, Lipcon did not even involve an arbitration agreement, much less the New York Convention. Moreover, Thomas and this case involve fundamentally different facts and circumstances than Lipcon — different federal statutes, different public policy considerations, and different choice clauses.
Finally, it bears mention that Lipcon itself did not meaningfully distinguish the Supreme Court's prospective waiver doctrine. The Court in Lipcon first suggested that the prospective waiver doctrine was not applicable because Mitsubishi involved antitrust claims, not securities claims. Id. at 1294. Of course, Mitsubishi's articulation of the doctrine did not turn on the fact that antitrust claims were at issue; the Supreme Court's subsequent reiteration of the doctrine in Vimar — involving claims brought under the Carriage of Goods by Sea Act, a completely different federal statute — should have made that clear. Lipcon, however, did not cite Vimar, decided only three years earlier.
The Court in Lipcon also relied on Mitsubishi's statement that "concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes" counsel in favor of enforcing international arbitration agreements. Id. (quoting Mitsubishi, 473 U.S. at 629, 105 S.Ct. 3346). Again, these policy concerns admittedly account for the presumption in favor of enforcement. But that presumption is overcome by the Supreme Court's accompanying articulation of the prospective waiver doctrine.
In sum, I believe the Supreme Court meant what it said in Mitsubishi. The majority, however, gives the Supreme Court's prospective waiver doctrine short shrift. I would simply take the Supreme Court at its word, as we are required to do, and apply the doctrine to the case before us. And such an application compels the conclusion that the arbitration agreement in Lindo's contract effectuates precisely the sort of prospective statutory waiver that the Supreme Court "would have little hesitation in condemning as against public policy." Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. 3346. Accordingly, I would hold that the arbitration agreement in Lindo's contract is "null and void" and thus unenforceable.
46 U.S.C. § 30104.
As a preliminary matter, the Supreme Court rejected the plaintiffs' argument that the costs and inconvenience of foreign arbitration necessarily "lessen[ed] ... liability" in a manner not countenanced by COGSA. The Supreme Court concluded that nothing in COGSA's "lessening such liability" language "prevents the parties from agreeing to enforce [COGSA's] obligations in a particular forum." Id. at 535, 115 S.Ct. at 2327. Relying on the "contemporary principles of international comity and commercial practice" observed in The Bremen, Scherk, and Mitsubishi, the Vimar Court declared that "[i]t would also be out of keeping with the objects of the Convention for the courts of this country to interpret COGSA to disparage the authority or competence of international forums for dispute resolution." Id. at 537-38, 115 S.Ct. at 2328-29.
Bautista, 396 F.3d at 1294 n. 7.
The second problem is that, as indicated by the dissent's own cited sources, the Convention's delegates actually considered a proposal to insert language linking arbitration agreements to the award-enforcement stage — and thus, Article V's public policy defense — but this proposal was voted down. See Leonard V. Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1063 (1961); G.W. Haight, Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Summary Analysis of Record of United Nations Conference 27-28 (1958).
Scherk, 417 U.S. at 530 n. 10, 94 S.Ct. at 2462 n. 10 (Douglas, J., dissenting) (quoting G.W. Haight, Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Summary Analysis of Record of United Nations Conference). The Scherk dissent went on to say that, in Haight's opinion, courts "`may be allowed some latitude'" and "`find an agreement incapable of performance if it offends the law or the public policy of the forum.'" Id. (quoting Haight) (emphasis omitted). However, Haight considered this a "`limited opening,'" apart from which "`the Conference appeared unwilling to qualify the broad undertaking not only to recognize but also to give effect to arbitral agreements.'" Id. (quoting Haight). Of course, this weak support represents the opinion of a lone delegate, and is clearly not controlling law — particularly since it was not adopted by the Scherk majority. And even under Haight's interpretation, a public policy exception would not apply to Article II(3)'s "null and void" language, but rather to its "incapable of performance" language, which courts have treated separately.
45 U.S.C. § 56.
