Pagaduan v. Carnival Corp.

709 F. App'x 713
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 18, 2017
Docket16-465
StatusUnpublished
Cited by13 cases

This text of 709 F. App'x 713 (Pagaduan v. Carnival Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pagaduan v. Carnival Corp., 709 F. App'x 713 (2d Cir. 2017).

Opinion

SUMMARY ORDER

Rodrigo Pagaduan appeals from the judgment of the United States District Court for the Eastern District of New York (Gleeson, J.), granting defendants-appellees’ motion to compel arbitration. We review de novo a district court’s order to compel arbitration. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir. 1987). On appeal from an order compelling arbitration, this Court “applies a standard similar to that applicable for a motion for summary judgment.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Rodrigo Pagaduan (“Pagaduan”) is a Filipino national who served as a motorman on the Queen Mary 2, a liner owned by defendants-appellees (“Carnival”). Pa-gaduan sued Carnival in the Eastern District of New York for negligence and related claims in connection with injuries sustained in the course of his employment. Carnival moved to compel Pagaduan’s claims to arbitration in the Phillippines on the basis of Pagaduan’s Contract of Employment.

The terms of his employment are largely dictated by a body of the Philippines government, the Philippine Overseas Employment Administration (“POEA”). The second paragraph of the Contract states that the “herein terms and conditions in accordance with POEA Governing Board Resolution No. 09 and Memorandum Circular No. 10 ... shall be strictly and faithfully observed.” J. App’x at 94. The Memorandum Circular No. 10 implements Standard Terms and Conditions that serve as “the minimum requirements acceptable to the POEA for the employment of Filipino seafarers on board ocean-going ships.” Id. at 204. Section 29 of those Standard Terms and Conditions reads as follows:

In cases of claims and disputes arising from this employment, the parties covered by a collective bargaining agreement shall submit the claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators. If the parties are not covered by a collective bargaining agreement, the parties may at their option submit the claim or dispute to either the original and exclusive jurisdiction of the National Labor Relations Commission ... or to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators.

Id. at 221. Judge Gleeson granted the motion.

On appeal, Pagaduan argues that material factual issues remain in dispute on the threshold question of arbitrability under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”), 9 U.S.C. §§ 201-208, and that the district court erred in denying him a trial. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 519-20, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); see also Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (existence of an agreement to arbitrate is a question for judicial determination). The Convention, which the parties agree applies here, prescribes four requirements for the enforcement of arbitration agreements: (1) there must be a written agreement; (2) that provides for arbitration in the territory of a signatory of the convention; (3) the subject matter must be commercial; and (4) it cannot be entirely domestic in scope. Smith/Enron Cogeneration Ltd. P’ship, Inc. v. Smith Cogeneration Int’l., Inc., 198 F.3d 88, 92 (2d Cir. 1999). The only requirement disputed on appeal is the existence of the written agreement.

Pagaduan admits to having entered into a contract of employment with the entities Career Philippines Shipmanagement Ltd. and Columbia Shipmanagement, Inc. to work aboard the Queen Mary 2. He contends, however, that the signed Contract of Employment contains no arbitration provision, that it does not incorporate the POEA Standard Terms and Conditions and that, in any event, Carnival as a non-party cannot enforce it.

Arbitration agreements are creatures of contract. Questions concerning the language or construction of an arbitration agreement “‘must be addressed with a healthy regard for the federal policy favoring arbitration.’ ” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).

A contract may incorporate another document by reference by describing it in such clear and unambiguous terms that its identity can be ascertained beyond reasonable doubt. See Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 47 (2d Cir. 1993); Glencore Ltd. v. Degussa Engineered Carbons L.P., 848 F.Supp.2d 410, 428 n. 14 (S.D.N.Y. 2012); Republic of Ecuador v. Chevron Corp., 638 F.3d 384, 395 (2d Cir. 2011). Maritime contracts frequently incorporate by reference other documents and industry terms and conditions. See, e.g., Son Shipping Co. v. De Fosse & Tanghe, 199 F.2d 687, 688 (2d Cir. 1952). Incorporation by reference is a matter of law that can be resolved on summary judgment and does not require a trial to discard a contrary interpretation urged by one party. Progressive Cas. Ins. Co., 991 F.2d at 47 & n.8 (“We also disagree with the district court’s ruling that a trial is necessary to determine whether the Policy identified the FRA with sufficient specificity to incorporate it by reference into the Policy. The Policy specifically and directly identifies the FRA by name.”); Roling v. E*Trade Sec. LLC. 860 F.Supp.2d 1035, 1041 (N.D. Cal. 2012) (under New York law, provision “properly incorporated by reference” “as a matter of law”).

Pagaduan’s single-page Contract of Employment does not contain an arbitration provision on its face. It does, however, reference secondary documents that govern seafaring employment contracts and that do call for arbitration, e.g., the Memorandum Circular No. 10. The Contract clearly and unambiguously describes the documents whose terms would apply to Pagaduan’s employment. See, e.g., JGA Constr, Corp. v. Burns Elec. Co., 145 A.D.2d 945, 946, 536 N.Y.S.2d 318 (4th Dep’t 1988); Bautista v. Star Cruises, 396 F.3d 1289, 1293 (11th Cir. 2005). The Contract of Employment incorporates the Standard Terms and Conditions and its arbitration provision by reference as a matter of law, foreclosing any material factual dispute.

Pagaduan quibbles with the language of the second paragraph of the Contract of Employment, arguing that it simply states that the terms “herein” are in accordance with the POEA documents.

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