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Miller v. Tri Marine Fish Co.

United States District Court, C.D. California

June 28, 2016

Maren Miller
v.
Tri Marine Fish Company, et. al.

          Present: Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE.

          PROCEEDINGS: (IN CHAMBERS) ORDER RE PLAINTIFF’S MOTION TO REMAND (DKT. 11)

          JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Maren 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 States.

         On 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.

         A 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.

         II. Factual Background

         A. The Underlying Incident

         The 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. ¶ 2.

         B. Employment Contracts and Agreements Identified in Defendants’ Notice of Removal

         Defendants 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.

         1. Philippines Overseas Employment Administration (“POEA”) Employment Contract (“POEA Agreement”)

         The 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.

         The 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.

         2. Memorandum Circular No. 10 (Series of 2010) (“Circular No. 10”) and POEA Standard Terms and Conditions

         Circular 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 ships.” Id.

         The 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.

         3. November 26, 2015 Employment Contract with Tri Marine (“Tri Marine Agreement”)

         Decedent 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).

         Paragraph 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.

         Paragraph 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.

         C. Commencement of Arbitration Proceedings

         On 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. ...


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