United States District Court, C.D. California
Present: Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT
PROCEEDINGS: (IN CHAMBERS) ORDER RE PLAINTIFF’S
MOTION TO REMAND (DKT. 11)
A. KRONSTADT, UNITED STATES DISTRICT JUDGE
Miller (“Plaintiff”), acting as the Personal
Representative of the Beneficiaries and Estate of Godofredo
Recto, Jr. III (“Decedent”), brought this action
in the Los Angeles Superior Court against Tri Marine Fish
Company, LLC, Tri Marine Management Company, LLC, Tri Marine
Fishing Management, LLC, Cape Finisterre Fishing LP and Cape
Finisterre Fishing LLC (collectively,
“Defendants”). Dkt. 1-2. The Complaint advances
claims arising out of the alleged wrongful death of Decedent.
They are based on the Jones Act, 46 U.S.C. § 30104, the
Death on the High Seas Act (“DOHSA”), 46 U.S.C.
§ 30301, and the general maritime law of the United
March 31, 2016, Defendants removed this action pursuant to 9
U.S.C. § 205. That statute permits removal
“[w]here the subject matter of an action or proceeding
pending in a State court relates to an arbitration agreement
or award falling under the Convention [on the Recognition and
Enforcement of Foreign Arbitral Awards] . . . .”
(“Convention”). Dkt. 1. On May 2, 2016, Plaintiff
filed a Motion to Remand (“Motion”). There,
Plaintiff contends that, because there is no valid and
enforceable written arbitration agreement between the parties
that is within the scope of the Convention, there is no
subject matter jurisdiction over this action. Dkt. 11.
Defendants opposed the Motion (Dkt. 15) and Plaintiff
replied. Dkt. 21.
hearing on the Motion was held on June 27, 2016, and the
matter was taken under submission. Dkt. 24. For the reasons
stated in this Order, the Motion is DENIED.
Complaint alleges that Decedent was a citizen of the Republic
of Philippines who was legally residing in American Samoa at
the time of his death. Dkt. 1-2, ¶ 3. At the time of his
death, Decedent was employed by Defendants as a commercial
fisherman aboard the F/V Cape Finisterre
(“Vessel”). Id. The Vessel is a United
States “flagged tuna fishing seiner, ” with U.S.
Coast Guard Official Number 610466. Id. The
Complaint alleges that in December 2015, the Vessel was on a
routine fishing trip to the Western Pacific Ocean.
Id. It also alleges that, on December 10, 2015,
Decedent was trapped in a freezer or cold room of the Vessel
and later died of hypothermia. Id. Decedent is
survived by his widow, Liezel Recto, and his daughter, Erma
Recto, who are both Philippine citizens. Id. ¶
Employment Contracts and Agreements Identified in
Defendants’ Notice of Removal
presented two agreements -- and other supporting
documentation -- in support of the removal of this action
pursuant to § 205, and their claim that the issues
raised are subject to arbitration. These documents are
summarized in the following discussion.
Philippines Overseas Employment Administration
(“POEA”) Employment Contract (“POEA
POEA Agreement is a one-page document that is dated September
8, 2014. It bears the signatures of Decedent and a
representative of the employer, which is identified as Able
Maritime Seafarers, Inc. Dkt. 1-5, Ex. E. The POEA Agreement
states that it is a 12-month contract of employment for the
vessel “FV ‘Cape San Lucas, ’” and
that the principal/shipowner is “Tri Marine Fishing
Management, LLC.” Defendants note that, although the
POEA Agreement identifies the vessel as Cape San Lucas,
“[i]t is common . . . for Filipino seafarers to work
aboard a different vessel than that identified in the POEA
agreement. Such was the case here. Following execution of his
POEA Agreement, Decedent worked aboard several Tri Marine
vessels.” Dkt. 1, ¶ 8.
POEA Agreement also states that “[t]he herein terms and
conditions are in accordance with POEA Governing Board
Resolution [N]o. 09 and Memorandum Circular No. 10, both
Series of 2010, shall be strictly and faithfully
observed.” Dkt. 1-5, Ex. E. The POEA Agreement does not
otherwise explain these Circulars, nor was either attached to
the POEA Agreement when Decedent signed it.
Memorandum Circular No. 10 (Series of 2010)
(“Circular No. 10”) and POEA Standard Terms and
No. 10 states that its subject is “Amended Standard
Terms and Conditions Governing the Overseas Employment of
Filipino Seafarers on-Board Ocean-Going Ships.” Dkt.
1-6, Ex. F at 1 (capitalization omitted). Circular No. 10
then sets forth six “guidelines” for the
implementation of the Amended Standard Terms and Conditions.
One of these provides that the terms and conditions are
“the minimum requirements acceptable to the POEA for
the employment of Filipino seafarers on board ocean-going
Notice of Removal also included a copy of the “Standard
Terms and Conditions Governing the Overseas Employment of
Filipino Seafarers on Board Ocean-Going Ships.”
Id. at 3 (capitalization omitted). Section 29 of
this document, which sets forth the process for settlement of
disputes, provides 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, the parties may at their option submit
the claim or dispute to either the original and exclusive
jurisdiction of the National Labor Relations Commission
(NLRC), pursuant to Republic Act (RA) 8042 otherwise known as
the Migrant Workers and Overseas Filipinos Act of 1995, as
amended, or to the original and exclusive jurisdiction of the
voluntary arbitrator or panel of arbitrators.
Id. at 18.
November 26, 2015 Employment Contract with Tri Marine
(“Tri Marine Agreement”)
executed an employment contract with Tri Marine (“Tri
Marine Agreement”) on November 26, 2015. Dkt. 1-7, Ex.
G. Pursuant to the Tri Marine Agreement, Decedent was to work
as a deckhand aboard the Cape Finisterre. The Tri Marine
Agreement provides that it is “effective for one
fishing trip. A fishing trip commences at the time the Crew
Member first joins the Vessel and continues throughout the
ensuing trip until the Vessel has been unloaded and
cleaned.” Id. at 1 (underlining omitted).
11 of the Tri Marine Agreement includes an arbitration and
choice of law provision which states in relevant part:
It is specifically agreed that any and all disputes or claims
of any nature arising out of, or relating to, this employment
agreement or the Crew Member’s employment aboard this
Vessel shall be subject to mandatory binding arbitration. Any
such arbitration shall occur in American Samoa and be subject
to the Revised Uniform Arbitration Act.
Id. at 4.
12 of the Tri Marine Agreement adds that, as to Filipino
Seafarers who are subject to the terms and conditions of the
POEA standard employment contract, the same terms are
incorporated into the agreement in place of its Paragraph 11.
Id. at 5. The Tri Marine Agreement states that this
incorporation of terms includes the “dispute settlement
procedures set forth therein, which are incorporated by
reference herein, and provide for either arbitration in the
Philippines or submission to the Filipino National Labor
Relations Commission (NLRC).” Id.
Commencement of Arbitration Proceedings
March 2, 2016, Tri-Marine Fishing Management, LLC and Able
Maritime Seafarers, Inc. filed a petition for arbitration
before the Philippine National Labor Relations Commission
(“NLRC”) of Plaintiff’s claims arising out
of Decedent’s death. Dkt. 21 at 2. Plaintiff has
objected to the arbitration on the grounds that Decedent did
not agree to arbitrate any claims. ...