United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 27, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-31068
VINOD KUMAR DAHIYA,
Plaintiff-Appellee,
v.
TALMIDGE INTERNATIONAL LTD; NEPTUNE
SHIPMANAGEMENT SERVICES (PTE.) LTD;
AMERICAN EAGLE TANKERS INC. LTD;
AMERICAN EAGLE TANKERS AGENCIES INC.;
BRITANNIA STEAM SHIP INSURANCE ASSOCIATION LTD,
Defendants-Appellants.
Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans
ON PETITION FOR REHEARING EN BANC
(Opinion 5/18/04, 5th Cir., _____, _____ F.3d _____)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
court having been polled at the request of one of the members of
the court and a majority of the judges who are in regular active
service not having voted in favor (FED. R. APP. P. and 5th CIR. R.
35), the Petition for Rehearing En Banc is DENIED.
DeMOSS, Dissenting from Refusal to Reconsider En Banc, joined by
Judge Smith.
For the following reasons, I respectfully dissent from the
refusal of our Court to reconsider en banc the panel decision in
this case:
1. The agreement to arbitrate at issue in this case
was entered into in writing between Dahiya, a
citizen of the country of India, and Neptune
Shipmanagement Services (PTE) Ltd. (“Neptune”), his
employer, a corporate entity organized under the
laws of the country of Singapore. Both the country
of India and the country of Singapore are
signatories to the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the
“Convention”).
2. The United States of America is a signatory to the
Convention, and Congress enacted special statutory
provisions, 9 U.S.C. § 201 et seq. (the “Act”), to
provide for the enforcement of the Convention
within the United States. As an act enabling a
treaty, the Act comprises “the highest law of the
land.”
3. The State of Louisiana is not a signatory to the
Convention, and whatever its statutory or
decisional law may indicate to be its public policy
either favoring or disfavoring agreements to
arbitrate, that policy is irrelevant and immaterial
to the application and enforcement of the Act.
4. The district court clearly erred in considering
that the statutory and decisional law of Louisiana
invalidated the agreement to arbitrate between Dahiya and his
employer Neptune and clearly erred again in determining that the
suit which Dahiya filed against his employer in state court in
Louisiana did not relate to the arbitration agreement between them
and that removal to federal court under § 205 was not proper.
5. The district court erred in not granting the motion
of Dahiya’s employer Neptune to compel arbitration
under § 206 of the Act and such error was
immediately appealable under the provisions of
9 U.S.C. § 16 (a)(1)(C) of the Federal Arbitration
Act (the “FAA”), incorporated into the Act by
§ 208.
6. The district court erred in granting the motion to
remand the controversy between Dahiya and his
employer Neptune to state court.
7. The Fifth Circuit panel erred in determining that
the district court’s order to remand was entered in
accordance with the provisions of 28 U.S.C.
§ 1447(c) and that consequently the panel did not
have appellate jurisdiction under § 1447(d).
The net result of the foregoing errors is to frustrate the
intention of Congress as reflected by the FAA and the Act to give
foreign parties the right to choose arbitration as a form of
dispute resolution designed to save the parties time, money, and
effort by substituting for the litigation process the advantages of
speed, simplicity, and economy associated with arbitration. If the
provisions of § 1447(d) will always trump the provisions of
9 U.S.C. § 16, then the Convention will be unenforceable in the
State of Louisiana and the procedural pattern utilized by Dahiya’s
counsel in this case will become a pattern for subjecting foreign
defendants to litigation in Louisiana state court with personal
injury claimants with whom agreements to arbitrate had in fact been
made. I am disappointed that my colleagues on this Court seem to
conclude that two wrongs make a right and that Congress’s elaborate
efforts in Title 9 to give parties the right to choose arbitration
in place of litigation can now be frustrated by the age-old
controversy as to whether litigation was going to occur in the
state courts or the federal courts.
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