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Cape Flattery Ltd. v Titan Maritime, LLC

Case No. 09-15682 (C.A. 9, Jul. 26, 2011)

Plaintiff Cape Flattery Limited (“Cape Flattery”) sued Defendant Titan Maritime (“Titan”) for gross negligence in its salvage of Cape Flattery’s vessel, the M/V Cape Flattery. Titan appeals the district court’s decision denying its motion to compel arbitration of the dispute under the Federal Arbitration Act (“FAA”). Titan argues that the district court erred in refusing to apply English arbitrability law. Titan further argues that even under federal arbitrability law, the dispute is arbitrable. We conclude that federal arbitrability law applies, and that under federal arbitrability law the dispute is not arbitrable. We therefore affirm the district court.

I. Background

On February 2, 2005, the M/V Cape Flattery ran aground on a submerged coral reef off Barbers Point, Oahu, Hawai’i. Cape Flattery Ltd. v. Titan Maritime LLC, 607 F. Supp. 2d 1179, 1181 (D. Hawai’i 2009). In response, the U.S. Coast Guard issued a Notice of Federal Interest in connection with the vessel’s grounding and activated Unified Command to respond to the threat of potential oil discharge. Id. Under 33 U.S.C. § 2702, Cape Flattery, as the vessel’s owner, was liable for the cost of removing the vessel from the reef. 33 U.S.C. §§ 2701(32)(A); 2702(a). Cape Flattery entered into an agreement with Titan Maritime to salvage the vessel (the “Agreement”). Cape Flattery, 607 F. Supp. 2d at 1181.

Under the Agreement, Titan agreed:

to use its best endeavors to salve, as quickly as reasonably practicable, the [M/V Cape Flattery] by means of the personnel and equipment specified in Schedule 2, and/or such other personnel and/or equipment as may from time to time be agreed between Titan and the on-site Owners’ Representative . . . and deliver the [M/V Cape Flattery] to a Place of Safety.

Schedule 2 provides a list of Titan’s “Typical Daily Personnel & Equipment Rates.”

The Agreement also contains an arbitration clause. The clause, titled “Arbitration,” provides:

Any dispute arising under this Agreement shall be settled by arbitration in London, England, in accordance with the English Arbitration Act 1996 and any amendments thereto, English law and practice to apply.



Judge(s): William A. Fletcher
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: ADR , International , Maritime , Torts
Circuit Court Judge(s)
Marsha Berzon
William Fletcher
Wallace Tashima

Trial Court Judge(s)
Michael Seabright

Appellant Lawyer(s) Appellant Law Firm(s)
John Lacy Keesal Young & Logan
James Marissen Keesal Young & Logan
Albert Peacock Keesal Young & Logan

Appellee Lawyer(s) Appellee Law Firm(s)
Steven Egesdal Carlsmith Ball LLP
Nenad Krek Carlsmith Ball LLP
Erika Lewis Carlsmith Ball LLP
Duane Miyashiro Carlsmith Ball LLP
Eugene O’Connor Chalos O'Connor & Duffy LLP



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applies to determine whether a given dispute is arbitrable in opinion tice to apply." under this provision, english arbitration law a. choice of arbitrability law 360 f.3d 1149, 1152 (9th cir. 2004). we review a district clause, titled "arbitration," provides: whether federal arbitrability law allows parties to agree to determine whether the parties agreed to arbitrate that dispute. and alterations omitted). under kaplan, the usual presump- cluding that the parties did not want to arbitrate a beach, california, for the appellant. appears to have applied standard contractual analysis in con- ment that english law governed the arbitrability of the dis- pute. id. at 1184-85. the court concluded that under cape flattery ltd. v. titan maritime llc, 607 f. supp. 2d omitted). that the agreement's drafters opposed arbitration all demon- emphasizing the strength of the presumption in favor of arbi- one of the parties to the contract sued, claiming breach of [5] the more difficult question is how courts should decide opinion by judge william a. fletcher 724-28 (3d cir. 2000); gregory v. electro-mech. corp., 83 waiver, delay, or a like defense to arbitrability." moses h. if parties are allowed to contract out of federal arbitrability the parties likely gave at least some thought to the company, dba titan salvage, of-law provision"); chloe z fishing co., inc. v. odyssey re stantive law to be used, and the location of arbitration, they arbitrability law. id. if we were to apply the general rule in that had run aground in the ninth circuit. there is no reason rather arcane. a party often might not focus upon agreement to apply non-federal arbitrability law. we share plaintiff cape flattery limited ("cape flattery") sued court denied the motion. the court first rejected titan's argu- arbitration provision, they provide for arbitration "arising out several district courts have taken the same approach as the silence or ambiguity on the "who should decide erage of the act." moses h. cone mem'l hosp. v. mercury state law conditioning enforceability of arbitration clause on 9531cape flattery limited v. titan maritime vent foreseeable damage to the coral reef is based on a federal tion agreement within the coverage of the [faa].' " id. at 626 clearly applies to disputes that are subject to arbitration, and parties what specific language will signify that the scope of arbitrability law in a case governed by the faa. ford v. nyl- ited by that federal statute to grossly negligent acts. less detailed discussion. see, e.g., motorola credit corp. v. henry marissen, keesal, young & logan, long to cover "any disputes between the parties," or only disputes interpretation of a clause providing for arbitration of all dis- applying mediterranean and tracer, we have no difficulty can understand why courts might hesitate to interpret arises when the parties have a contract that provides volt information sciences, inc. v. board of trustees, 489 u.s. we conclude that because the language in the arbitration was grossly negligent, in violation of both hawaii and general eral arbitration agreement to constitute an agreement to 9539cape flattery limited v. titan maritime the second circuit that when parties intend to include a broad two alterations in original). when a dispute arose, soler sued only if there is clear and unmistakable evidence that the par- tation of "arising under" in mediterranean and tracer, the their arbitration agreement is narrow. once they know the terranean "narrowly circumscribes the interpretation to be defendant-appellant. the event any controversy or claim arising out of this agree- defendant titan maritime ("titan") for gross negligence in its "arising under the contract itself and . . . not . . . matters or showing of intent. in kaplan, the supreme court held that titan maritime, llc, a crowley ksc v. harris research inc., 275 f.3d 884, 888 (9th cir. 2001). autoradiowerk gmbh, 585 f.2d 39, 43 & n.8 (3d cir. 1978). of the "relating to" language in the arbitration provision, we they are to give thought to the person determining arbitra- titan allegedly caused through gross negligence in removing 514 u.s. at 944 (citation, quotation marks, and alterations on titan's performance under the contract. instead the dispute claim shall be settled by arbitration." tracer, 42 f.3d at 1295 basis for concluding that these decisions are no longer valid. tled "in accordance with the texas general arbitration act"; 1. parties' power to agree to non-federal arbitrability to arbitration provisions). it held, however, that the faa does titan appeals the district court's decision denying its motion act 1996 and any amendments thereto, english law and prac- of or relating to" the agreement. id. because of the absence cape flattery, 607 f. supp. 2d at 1182. on march 19, 2009, parties have the power to agree to apply non-federal arbitra- how to determine whether the parties have agreed to apply cone, 460 u.s. at 24-25 (footnote omitted). courts should parties agreed to apply non-federal arbitrability law. kaplan, there is a good reason to indicate clearly to contracting held that contracting parties could agree to apply texas 607 f. supp. 2d at 1185. of kinoshita to the precise language at issue in that case). if the parties can agree to apply a non-federal arbitrability arbitrability." id. at 1312. the district court in this case gener- ing under this agreement shall be settled by arbitration in titan argues that the district court erred in deciding that putes is replaced by a presumption against the arbitrability of the court is to make this determination by applying the `fed- agreement" shall be subject to arbitration. titan argues that, 708 f.2d at 1464. tracer similarly held that when a tort claim not arbitrable. id. at 1188 (quoting tracer, 42 f.3d at 1295). network, inc. v. john deere health plan, inc., 350 f.3d 568, [12] we therefore conclude that under the narrow interpre- bility law. see cape flattery, 607 f. supp. 2d at 1185 (sug- this case, when titan and cape flattery entered into the arbitrability law); in re oil spill by the "amoco cadiz" off language in the agreement, the narrow interpretation of "aris- ified that a tort claim is not arbitrable just because it would gest any exception to the application of federal arbitrability resulting from the grounding. see id. § 2702(a) ("[e]ach and damages" under 33 u.s.c. § 2702. cape flattery was also dant moved to compel arbitration. one of the issues in the maritime law, in deciding to use submerged, rather than float- construction co., 708 f.2d 1458 (9th cir. 1983), and tracer (quoting moses h. cone, 460 u.s. at 24). ment cannot be settled by the parties [ ], such controversy or iterranean. indeed, in mediterranean we wrote that "federal under the faa, it does not address whether federal arbitra- under 33 u.s.c. § 2702(b)(2), cape flattery is liable to the apply non-federal arbitrability law. id. it concluded that even federal law applies to determine arbitrability. tion should be guided by kaplan. agreement should be interpreted narrowly. we first discuss appeal from the united states district court follow mediterranean and tracer because those cases were involves a tort claim based on hawaii and maritime tort law, determine the arbitrability of a given dispute. it notes that dis- `but for' the parties' licensing agreement is not determina- no clear and unmistakable evidence in this case, federal agreement, mediterranean and tracer had both been the district court then held that because titan's duty to pre- contract, breach of fiduciary duty, conspiring to induce breach the general rule "would require the court to see whether the ("a person may bring a civil action for contribution against given [the arbitration] clause." id. at 1295. we thus concluded salve the vessel, and whether defendant must take precau- party); id. § 2702(b)(2)(a) (damages recoverable under no longer had a license. id. at 1294-95. we noted that medi- not constitute an agreement to apply non-federal arbitrability cape flattery argues that because mitsubishi does not sug- 9542 cape flattery limited v. titan maritime same as that in mediterranean and tracer, we should inter- lulu, hawaii, eugene j. o'connor, chalos o'connor & united states government for all damage to natural resources before: a. wallace tashima, william a. fletcher, and arcane." in negotiating an agreement, parties are just as the m/v cape flattery from the reef. see 33 u.s.c. § 2709 cedent. notwithstanding the fact that the language in this case is the trable. we therefore affirm the district court. these parties agreed to arbitrate their disputes"). decide. 9535cape flattery limited v. titan maritime 9528 cape flattery limited v. titan maritime to compel arbitration of the dispute under the federal arbitra- defendant's duties under the agreement," id. at 1190-91, specific language that is required, they can rely on that lan- why the law would insist upon clarity before con- or differences which may arise between [mitsubishi] and the vessel's grounding and activated unified command to id. at 945 (internal citations omitted). for the ninth circuit bility of the dispute. titan argues that the agreement's provi- 9533cape flattery limited v. titan maritime concerning whether the parties specified the relevant arbitra- bility law. volt's statement that the federal policy is "to amendments thereto, english law and practice to the third circuit, on the other hand, has held that a general `arising under the agreement.' " id. at 1464. we agreed with tery and titan provides that "[a]ny dispute arising under this at 1182. 2. parties' choice of arbitrability law pel arbitration de novo. bushley v. credit suisse first boston, policy favoring arbitration under a certain set of procedural bility law. the court stated in mitsubishi that courts should relating to the interpretation and performance of the contract "who (primarily) should decide arbitrability" . . . is breach thereof, shall be finally settled by arbitration in japan contributorily liable if titan was "grossly negligent." id. on defendants' continued use of trade secrets for which they dence that the parties agreed to apply english arbitrability tion provision." s.a. mineracao da trindade-samitri v. utah applies generally, but argues that federal arbitrability law federal arbitrability law would apply. we therefore conclude, i. background constitutes an "independent wrong from any breach" of the law. the arbitration provision states that "[a]ny dispute aris- [6] there are, however, some situations concerning the pretation, the present dispute is not arbitrable. we therefore on february 2, 2005, the m/v cape flattery ran aground place of safety. ing under" in those cases controls. concerning the applicable arbitrability law as providing for a agreement governed by . . . the faa regardless of any choice- the first place. faced with such ambiguity, we conclude that at 1463 (internal quotation marks omitted). we noted that the fied in subsection (b) of this section that result from such inci- similar to the language in this case, disagreeing with our deci- & equipment rates." ments is that courts "should apply ordinary state-law arbitration based on the arbitration clause in the agreement. for publication putes pursuant to the arbitration rules in the california arbi- we interpreted "arising hereunder" as "synonymous with according to their terms, of private agreements to arbitrate." to cover a much narrower scope of disputes, i.e., only those law, cape flattery and titan rely on different supreme court responsible party for a vessel . . . which poses the substantial 473 u.s. 614, 626 (1985), federal arbitrability law applies to bility of a dispute. cape flattery argues that parties cannot claims that relate "only peripherally" to the agreement are tive." id. supp. 2d at 1190 (footnote omitted). nor does the dispute turn have significantly limited the application of mediterranean, contract. "the fact that the tort claim would not have arisen policy favors the enforcement of arbitration agreements," 708 468 (1989). in volt, the parties agreed to arbitrate any dis- intern., inc., 745 f.2d 190, 194 (2d cir. 1984). similarly, in f. supp. 2d 1305, 1311-12 (s.d. fla. 2006), the district court parties to arbitrate a matter they reasonably would cuit relied on this rationale in declining to overturn kinoshita, these concerns and conclude that our approach to this ques- contract it "does not require interpretation of the contract and the coral reef. sion that "[a]ny dispute arising under this agreement shall be seeking indemnity and/or contribution based on the damage concerning the scope of arbitrable issues should be resolved schedule 2 provides a list of titan's "typical daily personnel decisions in mediterranean enterprises, inc. v. ssangyong care health plans of gulf coast, inc., 141 f.3d 243, 248-49 decisions. cape flattery relies on mitsubishi motors. mitsu- arbitrability. id. the court reasoned that the question of concluding that the present dispute is not arbitrable. the dis- the language discussed in these cases -- "arising hereun- court's choice-of-law decision de novo. ticknor v. choice law, courts should always apply federal arbitrability law to party in mitsubishi argued that anything other than federal ties intended that the language they chose would be inter- of the agreement reading, "notice: this agreement is subject titan succeeded in removing the m/v cape flattery from is not arbitrable." tracer, 42 f.3d at 1295. tracer further clar- 1184. the court noted the legal uncertainty concerning agreement with titan maritime to salvage the vessel (the of "[a]ny dispute arising under this agreement." our interpre- equipment as may from time to time be agreed iii. discussion under the agreement, titan agreed: titan also notes that both our court and the second circuit 1:08-cv-00482-jms- affirm the district court's careful and thorough opinion. scope of arbitration. and, given the law's permissive 1054, 1055 (9th cir. 1995). we review the factual findings through binding arbitration. mediterranean, 708 f.2d at 1461. determine arbitrability "by applying the federal substantive unlikely to give thought to the applicable arbitrability law as lines defendant must use, how precisely defendant must governed by non-federal arbitrability law. tation of the phrase "arising under" is controlled by our prior f.3d 1292 (9th cir. 1994), the "arising under" language in the statute and is thus "separate from and above and beyond ments[,] . . . . it does not require interpretation of the contract to the specific language at issue. it is quite another to simply "care, assistance, or advice" in removing vessels only liable requires courts to enforce contracting parties' agreement to foreign arbitrability law when they reasonably thought that whether a given merits-based dispute is arbitrable cuit's decision in kinoshita. see highlands wellmont health man hutton, inc., 514 u.s. 52, 66 (1995). however, this 9530 cape flattery limited v. titan maritime removal, however, serious damage was inflicted on the reef. federal policy in favor of arbitration therefore cannot be a f.2d at 1463, and in tracer we noted the "federal policy [7] like the question of who should decide arbitrability, bility. thus, if courts were to interpret silence or ambiguity bility law. the general rule in interpreting arbitration agree- of contracting parties to agree to a non-federal arbitrability "[c]ourts should not assume that the parties agreed to arbitrate seq., creates "a body of federal substantive law of arbitra- gesting that there may be "a bright-line rule that the court law, the parties in this case had not done so. id. at 1185. refusing to apply english arbitrability law. titan further present dispute is not arbitrable. [10] mediterranean established that under an arbitration filed july 26, 2011 that because the tort claim constituted an "independent wrong in favor of arbitration, whether the problem at hand is the con- agreements to arbitrate," 489 u.s. at 476, strongly suggests act or another law."); id. § 1321(c)(4) (parties rendering determine arbitrability based on non-federal arbitrability law. parties point to no agreement provision that defendant alleg- salvage of cape flattery's vessel, the m/v cape flattery. conclude that courts should apply non-federal arbitrability law arbitrability law applies. under federal arbitrability law, our favor of arbitrating the merits of a dispute. "[a]ny doubts ally followed the reasoning in sea bowld. see cape flattery, between titan and the on-site owners' representa- 577-78 (6th cir. 2003); battaglia v. mckendry, 233 f.3d 720, any other person who is liable or potentially liable" for the titan notes that other circuits have relied on the federal pol- the parties have so agreed. case was whether the language "arising hereunder" was meant ii. standard of review d.c. no. can, the parties did not do so in the agreement. plaintiff-appellee, tration. ing that "[a]ny disputes arising hereunder" would be settled scope of the arbitration clause." ford, 141 f.3d at 246, 249. based on the supreme court's reasoning in kaplan, we ing parties' agreement to have arbitrability governed by non- court was whether the faa preempts the caa and requires counsel not have arisen "but for" the parties' agreement. id. § 2702(a) include "[d]amages for injury to [or] destruction of 9526 cape flattery limited v. titan maritime empts state laws that render arbitration agreements entirely law of arbitrability to interpret a given arbitration agreement. bility law, the current dispute did not "aris[e] under" the held that a general choice-of-law provision was ambiguous marsha s. berzon, circuit judges. agreement signifies a narrow arbitration agreement. cape 9527cape flattery limited v. titan maritime law provision is insufficient to overcome the "overriding [11] the present dispute does not turn on an interpretation advice" in removing the vessel, cape flattery can hold titan putes "arising under" an agreement. under this narrow inter- apply. that, in disputes subject to the faa, federal rules of arbitra- duane richard miyashiro, carlsmith ball llp, hono- § 1321(c)(4). cape flattery alleged in its complaint that titan law allows contracting parties to agree to apply a non-federal underlying the district court's decision for clear error. bradley the following arbitration clause: "all disputes, controversies provides an " `overriding basis' for why the law under which f.3d 716, 720-21 (9th cir. 1999) (broadly interpreting the 2. application of mediterranean and tracer united states court of appeals appealed. flattery, 607 f. supp. 2d at 1185-86. under these cases, on a submerged coral reef off barbers point, oahu, hawai'i. preted differently than it had been in those cases. that question. . . . and, given the principle that a v. that at issue in this case. the agreement between cape flat- that courts should respect contracting parties' agreement to be ing, tow lines, and that the submerged lines caused damage to f.3d 382, 383-86 (11th cir. 1996); peoples sec. life ins. co. refuse to follow them. arbitrability law. becker autoradio u.s.a., inc. v. becker for the district of hawaii law however, it is one thing to limit the application of these cases cir. 1961), had narrowly construed the language "arising the reef and eliminating the threat of oil discharge. id. at decisions in mediterranean and tracer mandate a narrow pret "arising under" broadly. titan argues that we should not may apply despite an agreement to apply non-federal arbitra- ever, just as kaplan was concerned about interpreting a gen- least) relied on [kinoshita] in their formulation of an arbitra- struction of the contract language itself or an allegation of cape flattery limited, arbitrate arbitrability, these courts were concerned about inter- (holding that for agreements covered by the faa, the faa gested, without directly holding, that federal arbitrability law inc. v. casarotto, 517 u.s. 681, 687 (1996) (faa preempts settled by arbitration in london, england, in accordance with [2] titan does not contest that federal arbitrability law specifically has agreed to submit to arbitration, one say nothing, and mean nothing, as to the threshold issue of edly breached -- the agreement is silent regarding what tow and that under federal arbitrability law the dispute is not arbi- our conclusion is consistent with decisions of our sister cir- "agreement"). cape flattery, 607 f. supp. 2d at 1181. mitsubishi alleging, among other things, violations of the der," "arising under," and "arising out of" -- is the same as determination of arbitrability in which courts require a higher pute was arbitrable, the supreme court stated: "[t]he first contract out of federal arbitrability law, and that even if they law, it is also undecided how courts should determine whether determine arbitrability. non-federal arbitrability law, parties could be subjected to a after several rounds of briefing and a hearing, the district federal arbitrability law applies, and in its application of that courts should be cautious in determining whether the parties enforce an agreement to arbitrate pursuant to non-federal rules of-circuit cases provide no basis for us to ignore our own pre- guage to produce a result they jointly desire. the second cir- the question of what law governs arbitrability is "rather law of arbitrability, applicable to any arbitration agreement mitsubishi motors corp. v. soler chrysler-plymouth, inc., opinion bility, applicable to any arbitration agreement within the cov- under" and "arising out of." mediterranean, 708 f.2d at 1463. to use its best endeavors to salve, as quickly as rea- bility law absent "clear and unmistakable evidence" that the policies in respect to arbitration, one can understand b. federal arbitrability law respond to the threat of potential oil discharge. id. under 33 tracer, and kinoshita. see simula, inc. v. autoliv, inc., 175 agreement covering disputes "arising under" the agreement, the district court then concluded that under federal arbitra- not mandate certain rules of arbitration. "there is no federal conclusion 9529cape flattery limited v. titan maritime case is not arbitrable. the agreement provides for arbitration courts have taken different approaches to the question of agreement. id. at 1185-92. it first concluded that under our for arbitration of some issues. in such circumstances, in defending their respective positions regarding the power settled by arbitration in london, england, in accor- hotels int'l, inc., 265 f.3d 931, 936 (9th cir. 2001). we also united states trustee"). on august 8, 2008, the government 9540 cape flattery limited v. titan maritime on december 17, 2008, titan filed a motion to compel [4] we therefore hold that courts should enforce contract- federal arbitrability law. trict courts, including the district court in this case, have sug- things, a tort claim for misappropriation of trade secrets based london, england, in accordance with the english arbitration dent."); id. § 2701(32)(a) (owner of vessel is a responsible steven m. egesdal, nenad krek, erika leina togashi lewis, preting a general choice-of-law provision to constitute an sherman act. id. at 619-20. in determining whether the dis- [soler] out of or in relation to . . . this agreement or for the only those disputes "relating to the interpretation and perfor- foreign law. while these designations are relevant to the sub- pute in this case is based on the oil pollution act of 1990, 33 . . . natural resources . . . , which shall be recoverable by a choice-of-law and arbitration provisions that both reference decided before the supreme court's more recent decisions incorporated as part of the oil pollution act of 1990, and lim- 9536 cape flattery limited v. titan maritime thus "construe ambiguities concerning the scope of arbitra- we also rejected the defendants' argument that the dispute fel, honolulu, hawaii, albert a. peacock, james arthur enjoin titan from requesting arbitration. law. we address titan's arguments in turn. ble for the cost of removing the vessel from the reef. 33 const. corp., 460 u.s. 1, 24 (1983). neither the supreme ment); ace capital re overseas ltd. v. central united life reasoning that "contracting parties may have (in theory at arbitrable. we conclude that federal arbitrability law applies, of arbitration, federal law should enforce an agreement to tions to prevent harm to the coral reef." cape flattery, 607 f. strated that "the parties intended texas law . . . to govern the following kaplan, that courts should apply federal arbitra- non-federal arbitrability law. the fifth circuit in ford research corp. v. national environmental services co., 42 from any breach of the licensing and nondisclosure agree- duffy llp, port washington, new york, for the appellee. to arbitration under the texas arbitration act"; and the fact mance of the contract itself" are arbitrable. mediterranean, threat of a discharge of oil . . . is liable for the damages speci- principles that govern the formation of contracts." first bishi and soler entered into a sales agreement that included should apply federal law in determining arbitrability of an no. 09-15682 decisions in mediterranean and tracer. in both of those commercial arbitration association." 473 u.s. at 617 (first and then discuss their actual application. (citation and internal quotation marks omitted). but neither means of the personnel and equipment specified in agreement is ambiguous concerning whether english law also the english arbitration act 1996 and any amendments icy favoring arbitration to construe broadly language that is tracer involved a licensing agreement providing that "[i]n see cape flattery, 607 f. supp. 2d at 1185. however, the schedule 2, and/or such other personnel and/or whether the parties have agreed to apply non-federal arbitra- denials of motions to compel arbitration are immediately to believe that the experienced lawyers representing both par- bishi states that federal arbitrability law applies to disputes the first issue is what law applies to determine the arbitra- 9534 cape flattery limited v. titan maritime determine arbitrability. cape flattery, 607 f. supp. 2d at apply non-federal arbitrability law. titan relies primarily on 1179, 1181 (d. hawai'i 2009). in response, the u.s. coast power, for doing so might too often force unwilling bility law allows the parties to agree to a non-federal arbitra- tive . . . and deliver the [m/v cape flattery] to a of contract, quantum meruit, and conversion. id. the defen- u.s.c. §§ 2701(32)(a); 2702(a). cape flattery entered into an on october 24, 2008, cape flattery filed a complaint in the in sea bowld marine group, ldc v. oceanfast pty., ltd., 432 that they did so." id. at 944 (citation, internal quotation marks within the coverage of the act." mitsubishi, 473 u.s. at 626 damage "under this act or another law" under § 2709. u.s.c. § 2702, cape flattery, as the vessel's owner, was lia- agreement that english law applies to determine the arbitra- cape flattery's tort claims against titan are not arbitrable. argued and submitted affirmed. 1. applicability of mediterranean and tracer and is not arbitrable under mediterranean enterprises." id. [3] we agree with titan that, based on volt, contracting 1181. at some point in the m/v cape flattery's grounding or [1] the federal arbitration act ("faa"), 9 u.s.c. § 1 et the coast of france march 16, 1978, 659 f.2d 789, 793 (7th keating, 464 u.s. 1, 10 (1984)); see also doctor's associates, john robert lacy, goodsill anderson quinn & sti- presumption was established well before our decision in med- favoring [arbitration]," 42 f.3d at 1294. a purportedly new moore v. local 569 of int'l bhd. of elec. workers, 53 f.3d had "no difficulty finding that `arising hereunder' is intended have agreed to arbitrate arbitrability. the court held that parties objectively revealed an intent to" apply non-federal 9538 cape flattery limited v. titan maritime sions in mediterranean and tracer, and with the second cir- cases, we held that the phrase "arising under" in an arbitration (london) ltd., 109 f. supp. 2d 1236, 1252 (s.d. cal. 2000) bility in favor of arbitration." mastrobuono v. shearson leh- dance with the english arbitration act 1996 and any liable for all damage to natural resources resulting from the basis" the faa creates for applying federal arbitrability law. 1252-54, the district court concluded that a general choice-of- 9532 cape flattery limited v. titan maritime informed cape flattery that it would likely be liable for dam- english law and practice are to be applied by the arbitrator. tion act ("faa"). titan argues that the district court erred in any dispute arising under this agreement shall be tion apply. id. at 470-73. the court noted that the faa pre- of any clause in the contract. as the district court noted, "[t]he law, none of these cases specifically relied on kaplan. how- u.s.c. § 2701 et seq. once the m/v cape flattery ran tion that exists in favor of the arbitrability of merits-based dis- 1989). although titan is correct that these circuits have dis- in concluding that a general choice-of-law provision does review the validity and scope of an arbitration clause de novo. related matter. on the other hand, the [question of] cuits. largely for the reasons just discussed, the fifth circuit 9541cape flattery limited v. titan maritime guard issued a notice of federal interest in connection with eral substantive law of arbitrability, applicable to any arbitra- [8] in this case, there is no clear and unmistakable evi- flattery could "bring a civil action for contribution against combination of a clause providing that any claim must be set- the applicability of mediterranean and tracer to this case, uzan, 388 f.3d 39, 50-51 (2d cir. 2004) (applying swiss j. michael seabright, district judge, presiding bility law. it reasoned that "the agreement here contains agreed with our reasoning in mediterranean and tracer, out- appealable under 9 u.s.c. § 16(a)(1)(b) and (c). titan timely arbitrability law applied to the dispute. thus, although mitsu- aground, cape flattery was responsible for "removal costs (5th cir. 1998). several other circuits have applied non- unenforceable. id. at 472, 478 (citing southland corp. v. 9523 court nor this court has decided whether federal arbitrability decided. the agreement concerned the salvage of a vessel volt, 489 u.s. at 476. titan argues that just as federal law will claims independent of the contract or collateral thereto." id. arbitrability unless there is clear and unmistakable evidence [9] mediterranean involved a construction contract provid- because titan was a party rendering "care, assistance, or thereto, english law and practice to apply" constitutes an task of a court asked to compel arbitration of a dispute is to any other person who is liable or potentially liable under this this case, it may well be that english law would apply to cir. 1981) (applying english arbitrability law). the agreement also contains an arbitration clause. the february 17, 2011--honolulu, hawaii ages in excess of $15 million. cape flattery, 607 f. supp. 2d second circuit, in in re kinoshita & co., 287 f.2d 951 (2d grounding. id. §§ 2701(32)(a), 2702(a), 2702(b)(2)(a). cape compliance with special notice requirements applicable only a bold-typed, all-caps, underlined statement on the first page sonably practicable, the [m/v cape flattery] by cluding that texas arbitrability law applied. it held that the itself." id. when "grossly negligent"). the complaint also sought to provisions in mediterranean and tracer is the same as the 9537cape flattery limited v. titan maritime arbitrability" point as giving the arbitrators that have thought a judge, not an arbitrator, would ensure the enforceability, according to their terms, of private choice-of-law provision is not enough to displace federal federal arbitrability law in cases governed by the faa with third circuit. in chloe z fishing co., 109 f. supp. 2d at party can be forced to arbitrate only those issues it rules; the federal policy is simply to ensure the enforceability, applying federal arbitrability law, we conclude that this ties intended to apply such non-federal law. because there is we review the district court's decision on a motion to com- tration act ("caa"). id. at 470-71. the question before the titan is certainly correct that there is a presumption in was arbitrable because it would not have arisen but for the phrase "arising in connection with" in an arbitration agree- w. fletcher, circuit judge: options of chicago, inc. v. kaplan, 514 u.s. 938, 944 (1995). in accordance with the rules and regulations of the japan the case `arises' . . . must apply to the question of whether argues that even under federal arbitrability law, the dispute is (alterations in original). the case involved, among other federal district court for the district of hawai'i against titan, ins. co., 307 f.3d 24, 26 (2d cir. 2002) (limiting application v. monumental life ins. co., 867 f.2d 809, 813 (4th cir.

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