Rogers v. Royal Caribbean

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ROGERS; HULYA KAR, 
individually and on behalf of all
other similarly situated seafarers
No. 07-55071
and as private attorney general,
Plaintiffs-Appellants,
 D.C. No.
CV-06-04574-SVW
v.
OPINION
ROYAL CARIBBEAN CRUISE LINE;
M/V MONARCH OF THE SEAS,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding

Argued and Submitted
May 5, 2008—Pasadena, California

Filed November 6, 2008

Before: John T. Noonan, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge William A. Fletcher;
Dissent by Judge Noonan

15227
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15231

COUNSEL

Joseph S. Farzam, Law Offices of Joseph F. Farzam & Asso-
ciates, Los Angeles, California, for the appellants.

Sanford L. Bohrer; Scott D. Ponce, Holland & Knight, Miami,
Florida; Paul C. Workman, Holland & Knight, Los Angeles,
California, for the appellee.

Jeffrey Robert White, Washington, D.C., David W. Brill,
Downs Brill Whitehead, Pembroke Pines, Florida, for amicus
curiae American Association for Justice.

Paul Giannini, Law Office of Paul Giannini, Los Angeles,
California, for amicus curiae Seafarer Benefit Foundation.

OPINION

W. FLETCHER, Circuit Judge:

Michael Rogers and Hulya Kar appeal the district court’s
order granting their employer’s motion to compel arbitration.
They argue that federal statutes exempt their employment
contracts from the scope of Title 9 of the United States Code.
We conclude that their employment contracts are “considered
as commercial” under Title 9. Therefore, we hold that the
arbitration provisions contained in their employment contracts
are enforceable, and we affirm the judgment of the district
court.
15232 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
I. Background

Michael Rogers, a citizen of Trinidad and Tobago, and
Hulya Kar, a citizen of Turkey, worked on cruise ships oper-
ated by Royal Caribbean Cruises Ltd. (“Royal Caribbean”).1
Rogers worked as a “cabin boy” and “stateroom attendant,”
and Kar worked as an assistant waiter.

Counsel for Rogers and Kar have stipulated that both
employees signed a written employment agreement with
Royal Caribbean. Kar’s employment agreement provided that
Royal Caribbean would pay her $50 in “[m]onthly basic pay,”
and that she was entitled to $890 in “[m]onthly [g]uaranteed
[p]ay including [g]uaranteed [o]vertime.” According to the
employment agreement, “the monthly guaranteed pay is inclu-
sive of all gratuities provided by passengers.”

Kar’s employment agreement expressly stated: “I . . .
understand and agree that the Collective Bargaining Agree-
ment between [Royal Caribbean] and the [Norwegian Seafar-
ers’] Union is incorporated into and made part of this
Employment Agreement and that I and the Company are
bound by its terms and conditions.” In the employment agree-
ment, Kar acknowledged having received a copy of the Col-
lective Bargaining Agreement.

Article 26 of the Collective Bargaining Agreement between
Royal Caribbean and the Norwegian Seafarers’ Union (“the
Union”) describes a “Grievance and Dispute Resolution Pro-
cedure.” Subsection (d) states that if a grievance or other dis-
pute “relating to or in any way connected with the seafarer’s
service for” Royal Caribbean is “not resolved by the Union,
the Owners/Company, and/or the Seafarer,” then the dispute
1
Royal Caribbean is unable to identify records for any employee named
Michael Rogers. For purposes of this opinion, we assume, without decid-
ing, that Rogers was a Royal Caribbean employee. Rogers has stipulated
that he signed an employment agreement incorporating the arbitration
clause at issue in this case.
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15233
shall be referred to and resolved exclusively by bind-
ing arbitration pursuant to the United Nations Con-
ventions on Recognition and Enforcement of Foreign
Arbitral Awards (New York 1958), 21 U.S.T. 2517,
330 U.N.T.S. (“The Convention”) . . . . The arbitra-
tion referred to in this Article is exclusive and man-
datory. Claims and lawsuits may not be brought by
any Seafarer or party hereto, except to enforce arbi-
tration or a decision of the arbitrator.

On July 21, 2006, Rogers and Kar brought suit against
Royal Caribbean in the U.S. District Court for the Central
District of California. The complaint alleged that Royal
Caribbean had not paid them “their full wages, including tips,
overtime and other compensation, owed under their contracts
and/or in accordance with applicable general maritime law as
well as California law.” The complaint further alleged that
Royal Caribbean did not pay Rogers and Kar their full wages
within twenty-four hours of the end of each voyage, thereby
violating 46 U.S.C. § 10313(f).

On October 13, 2006, Royal Caribbean filed a motion to
compel arbitration in accordance with the terms of the
employment contract and the collective bargaining agreement.
In a hearing on December 11, 2006, the district court granted
the motion from the bench. On January 25, 2007, the district
court issued a written order granting the motion to compel and
dismissing the complaint with prejudice. Rogers and Kar
timely appealed.

II. Standard of Review

We review de novo the district court’s order granting the
defendant’s motion to compel arbitration. Shroyer v. New
Cingular Wireless Servs., Inc., 498 F.3d 976, 981 (9th Cir.
2007); see also Nagrampa v. MailCoups, Inc., 469 F.3d 1257,
1267 (9th Cir. 2006) (“The validity and scope of an arbitra-
tion clause are reviewed de novo. Whether a party has waived
15234 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
the right to sue by agreeing to arbitrate is reviewed de
novo.”). We also review de novo the district court’s interpre-
tation of statutes, as well as its interpretation of treaties to
which the United States is a party. Continental Ins. Co. v.
Fed. Express Corp., 454 F.3d 951, 954 (9th Cir. 2006);
Holder v. Holder, 305 F.3d 854, 863 (9th Cir. 2002). “The
burden is on the party opposing arbitration . . . to show that
Congress intended to preclude a waiver of judicial remedies
for the statutory rights at issue.” Shearson/Am. Express, Inc.
v. McMahon, 482 U.S. 220, 227 (1987).

III. Discussion

The question in this case is whether the employment agree-
ment’s provision for exclusive and mandatory arbitration is
enforceable. We hold that it is, and we therefore affirm the
judgment of the district court.

A. History of Statutory Protections for Seafarers’ Wages

Congress first enacted laws to protect the wages of seafar-
ing employees in 1790. See Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 572-73 (1982). Congress subsequently
codified those laws at 46 U.S.C. §§ 596-597. In 1983, Con-
gress altered those statutes slightly and recodified them at 46
U.S.C. § 10313. Act to Revise, Consolidate, and Enact Cer-
tain Laws Related to Vessels and Seamen, Pub. L. No. 98-89
ch. 103, 97 Stat. 500 (1983).

As the Supreme Court noted in 1932, “[t]he policy of Con-
gress, as evidenced by its legislation, has been to deal with
[seafarers] as a favored class.” Bainbridge v. Merchants’ &
Miners’ Transp. Co., 287 U.S. 278, 282 (1932). In U.S. Bulk
Carriers, Inc. v. Arguelles, the Court observed:

Seamen from the start were wards of admiralty. In
1872 it was provided that the federal courts might
appoint shipping commissioners to superintend the
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15235
shipping and discharge of seamen in our merchant
fleet. Commissioners indeed served as an adminis-
trative adjunct of the federal courts until July 16,
1946, when § 104 of Reorganization Plan No. 3 of
1946 abolished them. No other administrative
agency was substituted. The federal courts remained
as the guardians of seamen, the agencies chosen by
Congress, to enforce their rights — a guardian con-
cept which, so far as wage claims are concerned, is
not much different from what it was in the 18th cen-
tury.

400 U.S. 351, 355 (1971) (citations and internal quotation
marks omitted).

[1] In Castillo v. Spiliada Maritime Corp., 937 F.2d 240,
243 (5th Cir. 1991), the Fifth Circuit explained the rationale
for Congress’ decision to afford special statutory status to sea-
farers and their wage claims:

They enjoy this status because they occupy a unique
position. A seaman isolated on a ship on the high
seas is often vulnerable to the exploitation of his
employer. Moreover, there exists a great inequality
in bargaining position between large shipowners and
unsophisticated seamen. Shipowners generally con-
trol the availability and terms of employment.

To shield shipmen against unfair conduct by ship-
owners, Congress enacted special wage protection
statutes.

Those special wage protection statutes include the provisions
now codified at 46 U.S.C. § 10313.

[2] Subsection (f) of Section 10313 states that “[a]t the end
of a voyage, the master shall pay each seaman the balance of
wages due the seaman within 24 hours after the cargo has
15236 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
been discharged or within 4 days after the seaman is dis-
charged, whichever is earlier.” Subsection (g) states that
“[w]hen payment is not made as provided under subsection (f)
of this section without sufficient cause, the master or owner
shall pay to the seaman 2 days’ wages for each day payment
is delayed.” Subsection (i) states that “[t]his section applies to
a seaman on a foreign vessel when in a harbor of the United
States. The courts are available to the seaman for the enforce-
ment of this section.”

[3] In interpreting an earlier version of these statutes, the
Supreme Court explained the purpose of the provision making
the courts “available to the seaman for the enforcement” of
the wage provisions (now 46 U.S.C. § 10313(i)):

The language applies to all seamen on vessels of the
United States, and the second proviso of the section
as it now reads makes it applicable to seamen on for-
eign vessels while in harbors of the United States.
The proviso does not stop there, for it contains the
express provision that the courts of the United States
shall be open to seamen on foreign vessels for its
enforcement. The latter provision is of the utmost
importance in determining the proper construction of
this section of the act. It manifests the purpose of
Congress to give the benefit of the act to seamen on
foreign vessels, and to open the doors of the federal
courts to foreign seamen. No such provision was
necessary as to American seamen for they had the
right independently of this statute to seek redress in
the courts of the United States, and if it were the
intention of Congress to limit the provision of the act
to American seamen, this feature would have been
wholly superfluous.

Strathearn S.S. Co. v. Dillon, 252 U.S. 348, 354 (1920).
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15237
B. Codification of the Arbitration Convention

Federal arbitration law is codified in the three chapters of
Title 9 of the United States Code. The Federal Arbitration Act
(“FAA”), enacted in 1947, comprises the first chapter. See 9
U.S.C. §§ 1-14. The “Convention on the Recognition and
Enforcement of Foreign Arbitral Awards,” implementing the
treaty of the same name, was enacted in 1970. This statute,
commonly called the Convention Act, comprises the second
chapter. See 9 U.S.C. §§ 201-208. The third chapter, imple-
menting the Inter American Convention on International
Commercial Arbitration, is not relevant to this case. See 9
U.S.C. §§ 301-307.

[4] Section 1 of the FAA includes a special carve-out for
“contracts of employment of seamen.” 9 U.S.C. § 1. Section
1 is entitled “ ‘Maritime transactions’ and ‘commerce’
defined; exceptions to operation of title.” It states:

“Maritime transactions”, as herein defined, means
charter parties, bills of lading of water carriers,
agreements relating to wharfage, supplies furnished
vessels or repairs to vessels, collisions, or any other
matters in foreign commerce which, if the subject of
controversy, would be embraced within admiralty
jurisdiction; “commerce”, as herein defined, means
commerce among the several States or with foreign
nations, or in any Territory of the United States or in
the District of Columbia, or between any such Terri-
tory and another, or between any such Territory and
any State or foreign nation, or between the District
of Columbia and any State or Territory or foreign
nation, but nothing herein contained shall apply to
contracts of employment of seamen, railroad
employees, or any other class of workers engaged in
foreign or interstate commerce.

9 U.S.C. § 1 (emphasis added).
15238 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
[5] For purposes of our analysis, we refer to the italicized
language in Section 1 as the “exemption clause.” See Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 112 (2001). The
Supreme Court has interpreted the language of the exemption
clause narrowly. In Circuit City Stores, Inc. v. Adams, the
Court held that the Section 1 exemption from the FAA
extends only to “contracts of employment of transportation
workers.” 532 U.S. at 119.

The United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (“the Convention”)
entered into force for the United States on December 29,
1970. Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330
U.N.T.S. 38 (“New York Convention”). Article II(1) of the
Convention provides that “[e]ach Contracting State shall rec-
ognize an agreement in writing under which the parties under-
take to submit to arbitration all or any differences which have
arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not, con-
cerning a subject matter capable of settlement by arbitration.”
Paragraph 3 of Article I of the Convention allows — but does
not require — a Contracting State to “declare that it will apply
the Convention only to differences arising out of legal rela-
tionships, whether contractual or not, which are considered as
commercial under the national law of the State making such
declaration.” Id. art. I(3) (emphasis added).

[6] In accordance with Paragraph 3, the United States
declared in the Convention Act that it would apply the Con-
vention only to “legal relationships . . . considered as com-
mercial.” Section 202 of the Convention Act provides that
“[a]n arbitration agreement or arbitral award arising out of a
legal relationship, whether contractual or not, which is consid-
ered as commercial, including a transaction, contract, or
agreement described in section 2 of this title, falls under the
Convention.” 9 U.S.C. § 202. Section 2 of the FAA, refer-
enced in Section 202, provides:
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15239
A written provision in any maritime transaction or a
contract evidencing a transaction involving com-
merce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the
refusal to perform the whole or any part thereof, or
an agreement in writing to submit to arbitration an
existing controversy arising out of such a contract,
transaction, or refusal, shall be valid, irrevocable,
and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract.

9 U.S.C. § 2.

[7] Section 206 of the Convention Act states that “[a] court
having jurisdiction under this chapter may direct that arbitra-
tion be held in accordance with the agreement at any place
therein provided for, whether that place is within or without
the United States.” 9 U.S.C. § 206. The Convention Act
includes a general provision incorporating the FAA. Section
208 of the Act states that “Chapter 1 [of the FAA] applies to
actions and proceedings brought under this chapter to the
extent that chapter is not in conflict with this chapter or the
Convention as ratified by the United States.” 9 U.S.C. § 208.

C. Analysis

1. The Exemption Clause of the FAA

We must decide whether the exemption clause in Section
1 of the FAA applies to arbitration agreements that would, in
the absence of the exemption clause, be covered by the Con-
vention Act. We hold that it does not.

As noted above, the Convention Act applies to arbitration
agreements arising out of legal relationships that are “consid-
ered as commercial.” 9 U.S.C. § 202. The Convention Act
states that such agreements include, but are not limited to,
agreements described in Section 2 of the FAA. Section 2
15240 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
describes provisions in contracts “evidencing a transaction
involving commerce to settle by arbitration a controversy
thereafter arising out of such contract.” 9 U.S.C. § 2. The
Supreme Court has concluded that contracts “evidencing a
transaction involving . . . commerce” include employment
contracts. Circuit City Stores, 532 U.S. at 113.

[8] The Supreme Court considered the scope of Section 2
in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265
(1995). The Court had previously concluded that the FAA
preempts state law, and in Allied-Bruce it considered the
breadth of the FAA’s reach, as set forth in Section 2. Id. at
272-73. The Court examined the phrase “a contract evidenc-
ing a transaction involving commerce” in two steps. First, the
Court noted that the words “ ‘involving commerce’ . . . are
broader than the often-found words of art ‘in commerce.’ ” Id.
at 273. The Court held that the phrase “involving commerce”
is “the functional equivalent of” the phrase “affecting com-
merce,” which “normally signals Congress’ intent to exercise
its Commerce Clause powers to the full.” Id. at 273-74. Sec-
ond, the Court considered the language “evidencing a transac-
tion” involving commerce. Id. at 277. The Court read this
phrase broadly, holding that the transaction must involve
interstate commerce, but that the parties to the transaction
need not have contemplated that the transaction had an inter-
state commerce connection. Id. at 281.

The Court noted in passing in Allied-Bruce that Section 1
of the FAA “defin[ed] the word ‘commerce’ in the language
of the Commerce Clause itself.” 513 U.S. at 274; see 9 U.S.C.
§ 1 (“ ‘[C]ommerce’, as herein defined, means commerce
among the several States or with foreign nations, or in any
Territory of the United States or in the District of Columbia,
or between any such Territory and another, or between any
such Territory and any State or foreign nation, or between the
District of Columbia and any State or Territory or foreign
nation[.]”). The Court made no reference to the exemption
clause when it noted the definition of commerce in Section 1.
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15241
[9] The exemption clause in Section 1 is neither part of the
definition of commerce in Section 1, nor a limitation on
which relationships are “considered as commercial” pursuant
to Section 2. Rather, it operates as an exemption. In other
words, the exemption clause does not state that transportation
workers are not engaged in commerce or that their employ-
ment contracts are not “considered as commercial.” Instead,
it states that even though such workers are engaged in com-
merce and even though their employment contracts are con-
sidered as commercial, the FAA does not apply to them.

[10] Because the exemption clause does not affect the defi-
nition of “commerce” or the statutory description of which
relationships are “considered as commercial,” the exemption
is not incorporated into the Convention Act by virtue of Sec-
tion 202. The only limitation placed on the scope of the Con-
vention Act, other than the language of the Convention itself,
is the limitation in Section 202 that “[a]n arbitration agree-
ment . . . arising out of a legal relationship . . . which is con-
sidered as commercial, including a transaction, contract, or
agreement described in section 2 of this title, falls under the
convention.” 9 U.S.C. § 202. The employment contracts of
seafarers “aris[e] out of legal relationship[s] . . . which [are]
considered as commercial,” and therefore those contracts
“fall[ ] under the [C]onvention.”

[11] The exemption clause is also not incorporated into the
Convention Act by Section 208. That section incorporates the
provisions of the FAA unless they are “in conflict with” either
the Convention Act or the Convention. See 9 U.S.C. § 208
(“Chapter 1 [i.e., the FAA] applies to actions and proceedings
brought under this chapter to the extent that chapter is not in
conflict with this chapter or the Convention as ratified by the
United States.”). The only mechanism the Convention pro-
vides for limiting applicability of the Convention is the oppor-
tunity for Contracting States to declare that the Convention
applies “only to differences arising out of legal relationships
. . . which are considered as commercial under the national
15242 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
law of the State making such declaration.” New York Con-
vention art. I(3). Congress’ declaration to that effect, as codi-
fied in Section 202 of the Convention Act, did not include the
exemption clause. The Convention Act does not allow the
exemption clause to operate as an additional limitation, over
and above Section 202, on the applicability of the Conven-
tion. Nor, indeed, does the exemption clause purport to be
such an additional limitation, for it does not narrow the defini-
tion of “commercial.” Rather, as emphasized above, the
exemption clause specifies that the FAA does not apply to
contracts within the scope of the clause even though such con-
tracts are commercial.

2. 46 U.S.C. § 10313

[12] Rogers and Kar argue that U.S. Bulk Carriers, Inc. v.
Arguelles, 400 U.S. 351 (1971), prohibits arbitration agree-
ments from divesting courts of jurisdiction over seafarer wage
disputes brought under 46 U.S.C. § 10313. Section 10313
contains various provisions guaranteeing wages to seafarers.
Section 10313(i) specifically provides that “[t]he courts are
available to the seamen for enforcement of this section.” The
Fifth and Eleventh Circuits have previously held, as we do
today, that the exemption clause of Section 1 does not apply
to the Convention Act, but those cases did not involve claims
for lost wages under Section 10313. See Bautista v. Star
Cruises, 396 F.3d 1289, 1298-1300 (11th Cir. 2005); Fran-
cisco v. Stolt Achievement MT, 293 F.3d 270, 274-76 (5th Cir.
2002). However, in Lobo v. Celebrity Cruises, Inc., 488 F.3d
891, 896 (11th Cir. 2007), the Eleventh Circuit has recently
extended its holding in Bautista to a claim for lost wages
under Section 10313. Id. at 896. We join the Eleventh Circuit
in concluding that the Convention Act overcomes any pre-
sumption deriving from Section 10313(i) that the courts shall
remain open to foreign seafarers in a case in which a seafarer
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15243
has signed an otherwise enforceable agreement to arbitrate a
wage claim.2

We do not believe that the Supreme Court’s decision in
Arguelles requires us to hold otherwise. In Arguelles, the
Court considered whether Section 301 of the Labor Manage-
ment Relations Act (“LMRA”) abrogated the federal court
jurisdiction authorized by the predecessor to 46 U.S.C.
§ 10313. The Court held that it did not. The Court’s decision
was published just weeks after the Convention entered into
force in the United States, and there is no indication that the
Court considered the effect of the Convention on Section
10313. Nonetheless, the Court’s analysis is instructive.

Section 301 of the LMRA provides that federal courts have
subject matter jurisdiction over “actions and proceedings by
or against labor organizations.” 29 U.S.C. § 185(c). It further
provides that “[s]uits for violation of contracts between an
employer and a labor organization . . . or between any such
labor organizations, may be brought in any district court of
the United States having jurisdiction of the parties, without
respect to the amount in controversy or without regard to the
citizenship of the parties.” Id. § 185(a). The question before
the Court was whether an arbitration provision in a collective
bargaining agreement took precedence over the predecessor to
Section 10313.
2
Section 10317 renders void any stipulation in an agreement purporting
to deprive a seafarer of a remedy to which the seafarer otherwise would
be entitled. 46 U.S.C. § 10317 (“A . . . seaman by any agreement . . . may
not . . . be deprived of a remedy to which the . . . seaman otherwise would
be entitled for the recovery of wages. A stipulation in an agreement incon-
sistent with this chapter . . . is void.”). Because Rogers and Kar have not
been deprived of any statutory remedy, we do not reach the question of
whether Article V(1)(a) of the Convention would allow our courts to
refuse to recognize and enforce an arbitral award effectuating such a
deprivation. See New York Convention art. V(1)(a) (“Recognition and
enforcement of the [arbitral] award may be refused . . . if . . . the said
agreement is not valid under the law to which the parties have subjected
it[.]”).
15244 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
Despite the fact that the Court had previously held that Sec-
tion 301 of the LMRA gave it the authority to develop a fed-
eral common law of collective bargaining agreements, see
Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957),
the Court in Arguelles deferred to Congress’ statutory resolu-
tion of the question. After observing that federal courts
remain “the guardians of seamen,” particularly with respect to
wage claims, the Court wrote that it could “find no suggestion
in the legislative history of the Labor Management Relations
Act of 1947 that grievance procedures and arbitration were to
take the place of the old shipping commissioners or to assume
part or all of the roles served by the federal courts protective
of the rights of seamen since 1790.” Arguelles, 400 U.S. at
355-56. The Court wrote:

We do not hold that [Section 10313] is the exclusive
remedy of the seaman. He may, if he chooses, use
the processes of grievance and arbitration. Yet,
unlike Congress, we are not in a position to say that
his interest usually will be best served through § 301
rather than through [Section 10313].

The literal conflict between this ancient seaman’s
statute and the relatively new grievance procedure is
one which we think Congress rather than this Court
should resolve. We do not sit as a legislative com-
mittee of revision. We know that this employee has
a justiciable claim. We know it is the kind of claim
that is grist for the judicial mill. We know that in
[Section 10313] Congress allowed it to be recover-
able when made to a court. We know that this Dis-
trict Court has the case properly before it under the
head of maritime jurisdiction. We hesitate to route
this claimant through the relatively new administra-
tive remedy of the collective agreement and shut the
courthouse door on him when Congress, since 1790,
has said that it is open to members of his class.
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15245
...

The chronology of the two statutes — [Section
10313] and § 301 — makes clear that the judicial
remedy was made explicit in [Section 10313] and
was not clearly taken away by § 301. What Congress
has plainly granted we hesitate to deny. Since the
history of § 301 is silent on the abrogation of exist-
ing statutory remedies of seamen in the maritime
field, we construe it to provide only an optional rem-
edy to them. We would require much more to hold
that § 301 reflects a philosophy of legal compulsion
that overrides the explicit judicial remedy provided
by 46 U.S.C. [§ 10313].

Id. at 356-58 (emphasis added).

As the Eleventh Circuit concluded in Lobo, Congress has
provided “much more” in the text of the Convention Act than
it provided in Section 301 of the LMRA. 488 F.3d at 895. As
that court explained:

The Court’s rationale [in Arguelles] was clear: the
LMRA simply addressed restrictions on the activities
of labor unions; since the history of the LMRA “is
silent on the abrogation of existing statutory reme-
dies of seamen in the maritime field, we construe it
to provide only an optional remedy to them.” [400
U.S.] at 357. The Court concluded that it “would
require much more to hold that § 301 reflects a phi-
losophy of legal compulsion that overrides the
explicit judicial remedy provided by 46 U.S.C.
§ [10313].” Id. at 357-58.

In contrast, in ratifying the Convention, Congress
explicitly agreed to “recognize an agreement in writ-
ing under which the parties undertake to submit to
arbitration all or any differences which have arisen
15246 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
. . . between them in respect of a defined legal rela-
tionship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration.”
Convention, Article II(1). Indeed, the Convention
compels federal courts to direct qualifying disputes
to arbitration, while the Supreme Court found the
LMRA to be silent on this matter.

Lobo, 488 F.3d at 895.

[13] We agree with the analysis of the Eleventh Circuit.
The Convention Act specifically and expressly compels fed-
eral courts to enforce arbitration agreements. Therefore, Arg-
uelles does not alter our conclusion that the exemption clause
does not apply to the Convention Act.

3. The Arbitration Provisions are Enforceable Under the
Convention

The Convention allows a party to avoid arbitration if the
agreement to arbitrate is “null and void.” New York Conven-
tion art. II(3). Rogers and Kar argue that even if the exemp-
tion clause does not apply to the Convention Act, and even if
the Convention Act applies to seafarers’ wage claims despite
Section 10313, the arbitration provisions in the Collective
Bargaining Agreement are unenforceable under the Conven-
tion because they are unconscionable and contrary to public
policy. We address these arguments in turn.

a. Unconscionability

[14] Even assuming that unconscionability renders an
agreement “null and void” under the Convention, see Baut-
ista, 396 F.3d at 1301, Rogers and Kar have not carried their
burden of establishing that the arbitration clause at issue in
this case is unconscionable. See Paulson v. Dean Witter Reyn-
olds, Inc., 905 F.2d 1251, 1255 (9th Cir. 1990). The Collec-
tive Bargaining Agreement provides that the agreement is
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15247
governed by “the laws of the State of Florida, United States
of America.” Florida law recognizes “a two-pronged
approach” to unconscionability: procedural unconscionability
and substantive unconscionability. Belcher v. Kier, 558 So. 2d
1039, 1040 (Fla. Dist. Ct. App. 1990). Procedural uncon-
scionability is present where one party to an agreement has no
meaningful choice but to accept the agreement. See id. at
1042. Substantive unconscionability is present where the
terms of the agreement are not merely unreasonable, but
shock the judicial conscience. Id. at 1043-44.

Rogers and Kar have not met their burden of establishing
procedural unconscionability. The Collective Bargaining
Agreement, including the arbitration provision, was the prod-
uct of negotiations between Royal Caribbean and the union
that represents Rogers and Kar. Rogers and Kar have pre-
sented no evidence that their union lacked any meaningful
choice but to accept the arbitration provision. They have also
presented no evidence that they themselves lacked any mean-
ingful choice but to accept the employment agreement that
incorporated the Collective Bargaining Agreement.

Rogers and Kar have not met their burden of establishing
substantive unconscionability. First, they argue that the arbi-
tration provision does not allow the employees to participate
in selecting the arbitrators. However, the Union participates in
the selection process and can represent the interests of its
members. Second, they argue that the arbitration provisions
are substantively unconscionable because they require
employees to travel to “distant fora” to resolve their disputes.
However, the default location for arbitration is the country of
citizenship of the employee. Rogers and Kar have not shown
that either term is substantively unconscionable.

b. Contrary to Public Policy

[15] Rogers and Kar further argue that the arbitration provi-
sion is invalid because it is contrary to public policy and
15248 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
therefore null and void. See New York Convention art. II(3).
They argue that because seafarers are “wards of admiralty,”
Arguelles, 400 U.S. at 355, public policy requires that the
courts remain open to seafarers for the enforcement of their
wage claims. This argument is insufficient to warrant render-
ing the arbitration provisions void. Congress has expressly
directed courts to ensure that arbitration agreements are
enforced. 9 U.S.C. §§ 3, 206. The Supreme Court has recog-
nized “the emphatic federal policy in favor of arbitral dispute
resolution,” a policy which “applies with special force in the
field of international commerce.” Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985). We
have recognized “the strong public policy favoring arbitra-
tion,” including international arbitration. Lozano v. AT&T
Wireless Servs., Inc., 504 F.3d 718, 726 (9th Cir. 2007); Min-
istry of Def. of the Islamic Republic of Iran v. Gould, Inc., 969
F.2d 764, 770 (9th Cir. 1992). Rogers and Kar have not
shown that any public policy favoring seafarers is sufficient
to overcome the public policy favoring international arbitra-
tion, particularly in the absence of any evidence that interna-
tional arbitration would nullify any of the statutory rights
Congress has conferred on seafarers.

IV. Conclusion

For the foregoing reasons, we conclude that the arbitration
agreement between Royal Caribbean and the Norwegian Sea-
farers’ Union is enforceable under the Convention.

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

Among the statutes enacted by the First Congress was the
Act of July 20, 1790 establishing a seaman’s right to the
prompt payment of his wages and a remedy for this right in
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15249
federal court. 1 Stat. 133. No other class of contracts was so
marked off. No other class of potential plaintiffs was provided
with a timetable in terms of which the debt owed them had to
be paid.

Seamen’s wages were bound by law to the ship the seamen
sailed. A lien on the vessel for their payment was “so sacred”
that “it adheres to the last plank of the ship.” Sheppard v. Tay-
lor, 30 U.S. 675, 710 (1831) (per Story, J.). The connection
of ship and wages due was such that it could be said that a
seaman’s wages “are nailed to the ship.” The Eclipse, 58 F.
273, 277 (N.D. Cal. 1892).

This extraordinary solicitude for seamen — this linkage of
seamen and ship and federal supervision — was not the prod-
uct of a romantic vision of life at sea, but came from a grasp
of its grim realities: the resources, social status, and bargain-
ing position of the vessel owner set over against the paltry
options of the individual seaman. Together with that apprecia-
tion of the seaman’s lot went a sense of the importance of a
merchant marine and its sailors to the economy of the nation
and to its defense. The classic expression of the convergence
of all these interests in federal solicitude for the seaman is the
opinion of Justice Story, a native of the port of Salem, as he
sat on circuit in Maine. Harden v. Gordon, 11 F. Cas. 480
(C.C.D. Me. 1823). The continuing strength of this conver-
gence was confirmed by the Supreme Court’s citation and
quotation of Harden in Vaughn v. Atkinson, 369 U.S. 527,
531 (1962).

In time the protection of federal law was extended by stat-
ute to foreign seamen whose ships were in American ports.
Strathearn S.S. Co. v. Dillon, 252 U.S. 348, 354 (1920). The
extension was undoubtedly designed to prevent American
seamen, who could sue, from being replaced by those who
could not. Id. at 355-56. The statute is of special relevance
here where the plaintiffs are foreigners and where counsel for
15250 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
Royal Caribbean acknowledge in their brief that many of its
employees are foreigners.

Even with the significant change in bargaining power
brought about by the National Labor Relations Act of 1937,
the seaman’s right to sue directly for his wages was prized by
individual seamen and upheld by the Supreme Court. U.S.
Bulk Carrier, Inc. v. Arguelles, 401 U.S. 351 (1971). Decid-
ing Arguelles, the Supreme Court noted that the explicit rem-
edy permitting the seamen’s suit was “not clearly taken away”
by the National Labor Relations Act. Id. at 357. The Court
added: “What Congress has plainly granted we hesitate to
deny.” Id. And the Court did not deny it. This precedent
speaks powerfully in the case at bar.

Federal solicitude for the seaman is today embodied in 46
U.S.C. § 10313, simply entitled “Wages.” The statute begins
by specifying when a seaman’s “entitlement to wages and
provisions” begins. The statute provides that wages “are not
dependent on the earning of freight by the vessel.” The statute
provides for payment to a seaman before the beginning of the
voyage and for non-payment if refusing to work. Near the
center of the statute is this provision: “After the beginning of
the voyage, a seaman is entitled to receive from the master on
demand one-half of the balance of wages earned and unpaid
at each port at which the vessel loads or delivers cargo during
the voyage.” At the end of a voyage the master must pay the
balance of wages due within 24 hours after the voyage ends.
The master or owner is liable for 2 days wages for each day
payment is delayed. Exclusions and inclusions within the stat-
ute are spelled out. Excluded from some provisions are fish-
ing and whaling vessels and yachts. Included are seamen “on
a foreign vessel when in a harbor of the United States.”

This last provision must be considered in relation to what
Chapter 103 — Foreign and Intercoastal Voyages embraces.
The introductory language reads: “Except as otherwise specif-
ically provided, this chapter applies to a vessel of the United
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15251
States on a voyage between a port in the United States and a
port in a foreign country (except a port in Canada, Mexico, or
the West Indies).” If this portion of Chapter 103, which is
entitled “Application,” confines the chapter to U.S. vessels
and requires that the voyage be between the United States and
the non-excluded parts of the world, then the Wage Act has
no application here. But the Wage Act specifically provides
that it applies to seamen “on a foreign vessel when in a harbor
of the United States.” No requirement that the vessel be
American. No requirement that the vessel’s voyage have a
particular international destination. It appears that the particu-
lar controls the general and that the statute protects foreign
seamen in an American port. This reading is confirmed by a
broad grant of jurisdiction that concludes the statute: “The
courts are available to the seaman for enforcement of this sec-
tion.”

The provisions of Chapter 103 of Title 46 should be read
in harmony with a second statute simply denominated “Sea-
men’s suits.” It reads as follows: “In all courts of the United
States, seamen may institute and prosecute suits and appeals
in their own names and for their own benefit for wages or sal-
vage or the enforcement of laws enacted for their health and
safety without prepaying fees or costs or furnishing security
therefor.” 28 U.S.C. § 1916.

As set out in the current U.S. Code, the Wages Act incorpo-
rates amendments made in 1983 and in 1986. Neither it nor
the Seaman’s suits Act have been repealed. They contain no
reference to federal law on arbitration. The careful exclusions
of the Wages Act do not mention the subject. It is nonetheless
the contention of Royal Caribbean that both statutes have
been substantially repealed as to foreign seamen. Let us
examine the basis for this remarkable contention.

The first step in Royal Caribbean’s case is page 1 of a fax
of a printed form entitled Sign-On Agreement dated Novem-
ber 1, 2005. Its first part provides the make of the ship, the
15252 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
M/V Monarch of the Seas and the name of Hulya Kar, her
age, and her residence is Istanbul, Turkey. The second part
identifies her job: “Assistant Waiter,” the portion of her
“basic pay payable by the company:” $50; her monthly over-
time rate: $3.98; her monthly vacation pay: 0; her daily sick
wage rate: $15.30; and her monthly guaranteed pay: $890,
specified to be “inclusive of all gratuities provided by passen-
gers.”

The form then states in the first person an acknowledgment
that the employer may terminate the agreement on 7 days
notice. It continues: “I further understand and agree that the
Collective Bargaining Agreement between the Company and
the Union is incorporated into and made part of this Employ-
ment Agreement and that I and the Company are bound by its
terms and conditions.”

The document is signed by the employee. In a new para-
graph on the same page appears the following: “I acknowl-
edge having received copies of (1) the Collective Bargaining
Agreement referred to above effective on the date of this
Employment Agreement; (2) The Employee Handbook.” The
signature line under this statement is for the signature of the
“Payroll Purser” and is apparently so signed and dated by
him.

A Collective Bargaining Agreement (CBA) between Royal
Caribbean and the Norwegian Seafarers Union is included in
the excerpt of record. It occupies 24 pages. Its signature on
behalf of the company is dated August 23, 2005 but Article
28 provides that it “is effective from January 1, 2005.”

Article 26 of the CBA is entitled “Grievance and Dispute
Resolution Procedure.” Section (b) of this article states what
is to happen “if the dispute is one involving the amount of
wages paid to the Seafarer.” On receiving notice of “a griev-
ance” in this regard, the Employer has the right within 60
days to either pay the amount claimed or to deposit it in an
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15253
interest-bearing account. If the legal resolution of the griev-
ance is in favor of the employee, he receives no more than the
sum deposited by the Company plus the accrued interest. Sec-
tion (d) of Article 26 provides the procedure for the resolution
of “all grievances and any dispute whatsoever.” It is to be “by
binding arbitration pursuant to the United Nations Conven-
tion.”

The drift of Royal Caribbean’s argument is now evident:
By signing on to the form, Kar agreed to arbitrate as the CBA
provided, and the CBA provides no place for an action in a
federal court. By contract Kar has no choice but to arbitrate.

What’s wrong with this argument? It assumes that the
rights conferred on seaman by U.S.C. § 10313 may be waived
by contract. The assumption runs counter to general maritime
law. Again, Justice Story is a good guide: Bargains between
shipowners and seaman are scrutinized “with scrupulous jeal-
ousy” by courts of admiralty. Brown v. Lull, 4 F. Cas. 407,
409 (D. Mass. 1936). Any stipulation in the shipping articles
derogating from the seaman’s rights is void unless the clause
was “fully and fairly explained to the seamen” and they were
compensated for the waiver. Id. This approach has prevailed:
“The analogy suggested by Justice Story between seamen’s
contracts and those of fiduciaries and beneficiaries remains,
under the prevailing rule treating seamen as wards of admi-
ralty, a close one.” Garrett v. Moore-McCormack Co., 317
U.S. 239, 247 (1942). The shipowner who relies on a sea-
man’s release of his rights must show “that it was executed
freely, without deception or coercion and that it was made by
the seaman with full understanding of his rights.” Id. at 248.

In our case, Kar has stipulated that she signed the Sign-On
Agreement which incorporated the CBA. She has not stipu-
lated that she saw the CBA, read it, or understood it, or that
her attention was drawn to the federal rights she was waiving.
The most we have from the Sign-On Agreement is that “cop-
ies” of the CBA were received by someone, apparently the
15254 ROGERS v. ROYAL CARIBBEAN CRUISE LINE
purser. In the absence of any stipulation or other evidence, the
incorporation of the arbitration clause into the Sign-On
Agreement was void.

Royal Caribbean attempts to avoid this conclusion by this
line of argument: The Convention, admittedly not self-
executing, has been enacted into federal law by 9 U.S.C.
§ 202. This statute commands the federal courts to enforce all
international agreements to arbitrate, no exceptions admitted.
It is Royal Caribbean’s position that it is this statute, not Kar’s
Sign-On Agreement that puts a dent or, rather, a hole in 46
U.S.C. § 10313’s set of rights and remedies.

This contention is a slight of hand. The statute enforcing
the Convention comes into play only if there is a valid agree-
ment to arbitrate. We have already determined that no such
agreement exists. The international arbitration statute has not
been set in motion.

And even if it were, what rule of construction would tell us
that the statute, enacted in 1971, trumps a statute that long
preceded it and was amended and codified in the 1980’s? To
suppose that Congress in 1971 meant to repudiate a role for
federal courts that went back to 1790 — and did so without
a single explicit word — is to engage in unlikely fantasy. To
suppose that Congress in the 1980’s kept alive a statute
expressly opening the federal courts to foreign seamen when
the alleged sense of the 1971 statute mandated arbitration in
their place is to credit Congress with absentmindedness and
to fail to acknowledge the later statute as the governing stat-
ute. Frost v. Weine, 157 U.S. 46, 57 (1895) (per Harlan, J.).

In Arguelles, a new and powerful national policy, collective
bargaining, was urged to have led to legislation making obso-
lete and defunct the seaman’s direct remedy in federal court.
In our case a new and powerful national policy in favor of
international arbitration is urged to reach the same result. But
neither the National Labor Management Relations Act nor the
 ROGERS v. ROYAL CARIBBEAN CRUISE LINE 15255
Convention addressed the seaman’s statutory rights. No more
than the Court in the Arguelles case should we do what Con-
gress did not do and proclaim the elimination of the statutory
remedy for foreign seamen. Congress has chosen to set in
place two routes for the seaman, including the foreign sea-
man. He or she may arbitrate or he or she may proceed with-
out paying costs to sue in a federal district court.