19-3400
Rodrigo R. Pagaduan v. Carnival Corporation, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of November, two thousand twenty.
Present: DENNIS JACOBS,
ROSEMARY S. POOLER,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________________________
RODRIGO R. PAGADUAN,
Plaintiff-Appellant,
v. 19-3400-cv
CARNIVAL CORPORATION, DBA CARNIVAL CRUISE
LINES, CARNIVAL PLC, MELVIN BABI, DOCTOR DOE
(SHIP’S DOCTOR), NURSE DOE (SHIP’S NURSE),
Defendants-Appellees.
_____________________________________________________
Appearing for Appellant: Felix Q. Vinluan, Woodside, NY.
Appearing for Appellees: Edgar R. Nield, Maltzman & Partners, PA, Encinitas, CA.
Appeal from the United States District Court for the Eastern District of New York
(Amon, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
Plaintiff-Appellant Rodrigo R. Pagaduan appeals from the September 20, 2019 order of
the Eastern District of New York (Amon, J.) denying his motion seeking nonenforcement and/or
vacatur of a Philippine arbitral award compensating Pagaduan for injuries he suffered as a
motorman aboard one of Defendant-Appellee Carnival Cruise Lines’ (“Carnival”) ships. We
previously affirmed the district court’s order compelling arbitration. See Pagaduan v. Carnival
Corp., 709 F. App’x 713 (2d Cir. 2017). Following arbitration proceedings, the Philippine Labor
Arbiter issued a decision granting Pagaduan $5,100 in “sickness allowance,” plus ten percent
thereof as attorney’s fees, but declining to provide other relief. App’x at 319. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.
We review factual findings for clear error and legal conclusions de novo. ABM Indus.
Grps., LLC v. Int’l Union of Operating Eng’rs, 968 F.3d 158, 161 (2d Cir. 2020). Pagaduan
invokes the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the
“New York Convention”). Under the New York Convention, a court “shall confirm [a foreign
arbitral] award unless it finds one of the grounds for refusal or deferral of recognition or
enforcement of the award specified in the said Convention.” Encyclopaedia Universalis S.A. v.
Encyclopaedia Britannica, Inc., 403 F.3d 85, 90 (2d Cir. 2005) (internal quotation marks
omitted) (quoting 9 U.S.C § 207). The party opposing enforcement of an arbitral award bears the
burden of proving that one of the specified grounds applies, and “[t]he burden is a heavy one, as
the showing required to avoid summary confirmance is high.” Id. (internal quotation marks
omitted). “[R]eview of arbitral awards under the New York Convention is very limited in order
to avoid undermining the twin goals of arbitration, namely, settling disputes efficiently and
avoiding long and expensive litigation.” Id. (alteration and internal quotation marks omitted).
Article V of the New York Convention specifies seven grounds upon which courts may refuse to
recognize the award, only two of which are at issue here: (1) Article V(1)(b), which applies when
“[t]he party against whom the award is invoked was not given proper notice of . . . the arbitration
proceedings or was otherwise unable to present his case,” and (2) Article V(2)(b), which applies
when “[t]he recognition or enforcement of the award would be contrary to the public policy of
that country.” N.Y. Convention art. V, June 10, 1958, 21 U.S.T. 2517.
Pagaduan argues Article V(1)(b) is applicable. We disagree. Article V(1)(b) allows for
nonenforcement where “[t]he party against whom the award is invoked was not given proper
notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise
unable to present his case.” Id. art. V(1)(b). Article V(1)(b) “essentially sanctions the application
of the forum state’s standards of due process.” Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141,
145 (2d Cir. 1992) (internal quotation marks omitted). Under American standards of due process,
a party is entitled to “notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 314 (1950)). Here, Pagaduan submitted multiple lengthy briefs,
medical records, and affidavits before the Labor Arbiter but chose to focus his arguments almost
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entirely on whether the Arbiter had jurisdiction over the case. Indeed, Pagaduan’s opening paper
before the Arbiter asserted that “[t]he only issue that matters in this case is whether or not the
Office of the Labor Arbiter . . . has jurisdiction over the subject matter of this case.” App’x at
335 (emphasis added). That strategy left Pagaduan with limited room to argue the merits of his
case, including how the Jones Act or Philippine law would lead to a higher recovery; but it does
not follow that he was “unable to present his case.” N.Y. Convention art. V(1)(b); see also
Parsons & Whittemore Overseas Co., Inc. v. Societe Generale De L’Industrie du Papier
(RAKTA), 508 F.2d 969, 975-76 (2d Cir. 1974) (declining to find Article V(1)(b) violation where
a party argued that “the tribunal decided the case without considering evidence critical” to its
position when it was within the party’s “ability to produce” such evidence). Pagaduan also takes
issue with the Arbiter’s finding that summons had not properly been served—and therefore
personal jurisdiction had not been obtained—over individual Appellees Melvin Babi and Doctor
and Nurse Does. But while the record reflects that a summons for Babi was sent to the same
address as the Carnival entities, nothing reflects that Babi actually received the summons himself
or authorized his co-defendant to accept service on his behalf. In any event, neither of these
purported errors suggests that Pagaduan was “denied the opportunity to be heard in a meaningful
time or in a meaningful manner.” Iran Aircraft Indus., 980 F.2d at 146. Indeed, Pagaduan was
awarded a sickness allowance and attorneys’ fees. Therefore, Article V(1)(b) does not apply.
Pagaduan also argues Article V(2)(b) is applicable. We disagree. This provision allows
for nonenforcement where “[t]he recognition of enforcement of the award would be contrary to
the public policy of that country.” N.Y. Convention art. V(2)(b). Pagaduan argues that the lesser
remedies available under Philippine law contravene United States policy to provide special
solicitude to seamen under the Jones Act. The New York Convention’s emphasis on enforcing
international arbitral awards and “considerations of reciprocity” requires that the “public policy
defense should be construed narrowly.” Parsons, 508 F.2d at 973-74. Nonenforcement pursuant
to this provision must “encompass only those circumstances where enforcement would violate
our most basic notions of morality and justice.” Telenor Mobile Commc’ns AS v. Storm LLC, 584
F.3d 396, 411 (2d Cir. 2009) (internal quotation marks omitted). Additionally, there is “well-
established federal public policy in favor of arbitration,” and “improper collateral litigation” may
itself “seriously . . . undermine” national policy. Id. at 410. Here, even assuming that Pagaduan’s
recovery was lower under Philippine law than it might have been under the Jones Act, nothing
about the award was so contrary to federal public policy as to “violate our most basic notions of
morality and justice.” Id. at 411 (internal quotation marks omitted). Federal public policy is not
violated merely because foreign law would provide a lesser or different remedy in a particular
area of the law. Therefore, Article V(2)(b) is also inapplicable.
We have considered Pagaduan’s remaining arguments and find them to be without merit.
Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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