[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-11850

Non-Argument Calendar

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D.C. Docket No. 1:13-cv-20414-RSR

MAHAVEER SINGH,

Plaintiff-Appellant,

versus

CARNIVAL CORPORATION,

a Panama Corporation,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 29, 2013)

Before MARTIN, KRAVITCH, and COX, Circuit Judges.

PER CURIAM:

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At bottom, this appeal is about whether the district court erred by compelling 

arbitration of claims by Mahaveer Singh, a seaman, against his employer, Carnival 

Corporation. We hold that the district court did not err.

Singh, a citizen of India, worked for Carnival Corporation, a Panama 

corporation, as a crewmember aboard its Panamanian flagged cruise ship, the 

Dream. On May 30, 2012, while participating in a lifeboat drill, the wire rope used 

to hoist Singh’s lifeboat to the cruise ship suddenly parted, plunging Singh and 

several other crewmembers sixty-five feet to the sea below. Singh’s fall inflicted 

serious injuries.

Singh’s employment contract calls for the mandatory arbitration of any 

claims Singh might have arising out of his employment with Carnival and selects 

the Philippines as the arbitration forum. It chooses Panamanian law to govern the 

contract. Over the course of four and a half years working for Carnival, Singh 

signed six employment agreements containing the same, or a similar, arbitration 

clause. 

Nevertheless, Singh contends that he did not know he was signing a contract 

containing an arbitration clause. It appears that Carnival presented the 

employment contract to Singh and his fellow seamen on a “take it or leave it 

basis.” Carnival provided the contract to Singh as he was boarding the ship to 

report for work, and Singh hurriedly signed it in order to avoid being late to his 

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duty station. Additionally, Singh contends that even if he had been aware of the 

arbitration clause, he would not have understood it, because his employment 

contract was in English. His language is Hindi.

Singh filed suit in a Florida state court for injuries he sustained alleging four 

claims: (1) Jones Act negligence;1 (2) failure to provide maintenance and cure;2 (3) 

unseaworthiness; and (4) declaratory relief seeking a determination that his claims 

are not subject to arbitration. Pursuant to 9 U.S.C. § 205, Carnival promptly 

removed Singh’s action to the United States District Court for the Southern District 

of Florida3

. The district court granted Carnival’s motion to compel arbitration and 

denied Singh’s motion to remand the case to state court.4

 Singh appeals the district 

court’s decision.

Singh “acknowledges that several issues presented in [his] brief have been 

decided adversely to him by panels of this Court . . . [but] nonetheless makes the 

 

1 The Jones Act confers on seamen the statutory right to sue their employers in an 

American court for the negligence of fellow crew members. 46 U.S.C. § 30104.

2 “Maintenance and cure” is an ancient common-law maritime remedy for seamen who 

are injured while in the service of a vessel. Basically, it is designed to place a seaman in the 

same position as if he had not been injured. See Flores v. Carnival Cruise Lines, 47 F.3d 1120, 

1127 (11th Cir. 1995).

3 9 U.S.C. § 205 provides: “Where 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], the defendant or defendants may, at 

any time before the trial thereof, remove such action or proceeding to the district court ...where 

the action or proceeding is pending.” See 9 U.S.C. § 205.

4 See 9 U.S.C. § 206 (“A court having jurisdiction under this chapter [9 USCS §§ 201 et 

seq.] may direct that arbitration be held in accordance with the agreement at any place therein 

provided for, whether that place is within or without the United States.”).

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arguments in order to preserve them for further review.” (Appellant’s Reply Br. at 

21-22). While Singh presents six separate issues in his brief, the underlying issue 

in this case is whether the district court erred by compelling arbitration. The six 

issues that Singh presents, as outlined in his statement of the issues in his brief, are 

as follows: (1) whether the arbitration agreement is valid under Panamanian law;

(2) whether unconscionability based on gross disparity of bargaining power and 

attendant circumstances is a standard breach of contract defense that can be applied 

neutrally on an international scale and is, therefore, a defense to a motion to 

compel arbitration under Article II of the United Nations Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards; (3) whether the district 

court properly compelled arbitration pursuant to an arbitration agreement in a 

seaman’s contract with a mandatory choice-of-law clause that required Singh, an

Indian seaman, to arbitrate in the Philippines, under Panamanian law, and 

prospectively waive his Jones Act and Maintenance and Cure claims; (4) whether

the arbitration and foreign choice of law clauses which eliminate Carnival’s Jones 

Act liability and Plaintiff’s right to choose the forum violate the Jones Act; (5) 

whether Singh’s claims for maintenance and cure are not subject to arbitration; and

(6) whether the case must be remanded to state court for lack of subject matter 

jurisdiction. (Appellant’s Initial Br. at 1).

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We review de novo a district court’s order to compel arbitration pursuant to 

the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 

opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (the 

“Convention”) (codified as 9 U.S.C. §§ 202-208 (2012)). See Bautista v. Star 

Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005).

When deciding a motion to compel arbitration, a court conducts a very 

limited inquiry. This limited inquiry generally consists of a two-step process: 

First, the court looks to see whether the Convention’s jurisdictional perquisites are 

met. See Bautista, 396 F.3d at 1294. If these perquisites are met, it then looks to 

see whether any of the Convention’s Article II affirmative defenses apply.5

 The 

Convention’s four jurisdictional prerequisites are: (1) That there is an agreement in 

writing to arbitrate the dispute; (2) That the agreement provides for arbitration in 

the territory of a signatory of the convention; (3) That the agreement arises out of a 

legal relationship, whether contractual or not, that is considered commercial; and

(4) That one party to the agreement is not a United States citizen, or that the 

commercial relationship at issue has some reasonable relation with a foreign state.

 

5 The Convention mentions affirmative defenses in two places that are relevant to this 

case: Article II and Article V. A party seeking to resist arbitration may raise only Article II 

defenses when a court is deciding whether to compel arbitration. Article II defenses are limited 

to standard breach-of-contract defenses, which can be applied neutrally on an international scale. 

Bautista, 396 F.3d at 1302 (citing DiMercurio v. Sphere Drake Ins. PLC, 202 F.3d 71, 79 (1st 

Cir. 2000))(discussing Article II’s “null and void” language). A party may raise Article V 

defenses only at the post-arbitration enforcement stage of proceedings. The Article V category 

of defenses is broader and includes unconscionability and violation of public policy as valid 

defenses.

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Id. at 1294-95. The party seeking to compel arbitration, Carnival, bears the burden 

of proving each of these jurisdictional prerequisites. See generally Lindo v. NCL 

(Bahamas), Ltd., 652 F.3d 1257 (11th Cir. 2011).

The only jurisdictional prerequisite Singh disputes is the first one. Singh 

asserts two affirmative defenses, which the district court properly characterized as 

unconscionability and violation of public policy. The district court properly held 

that our decision in Bautista forecloses the argument that Article II includes an 

affirmative defense based upon unconscionability. Similarly, the district court 

properly held that Singh’s public policy defense (based upon the assertion that the 

employment agreement insulated compliance with the Jones Act and the general 

maritime law of the United States) “applies only at the arbitral award–enforcement 

stage”. (Opinion at p. 10 quoting Lindo, 652 F.3d at 1280.) Singh relies on 

Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), and contends that 

Lindo is not binding precedent.

Singh argues that because the parties in Lindo settled after the panel issued 

its opinion, but before our mandate issued, the settlement mooted the controversy 

and deprived the Court of subject matter jurisdiction to decide the case. Thus, 

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according to Singh, Lindo is not valid precedent, and we should have vacated our 

opinion in the case.6

 We reject this argument.

Based on Singh’s logic, anytime a party does not like the outcome in a case, 

that party could essentially “buy” the case’s precedential value by settling the case. 

Our 1993 decision in Key Enterprises of Delaware, Inc. v. Venice Hospital, 9 F.3d 

893 (11th Cir. 1993) (en banc), while not factually on point, appears to agree with 

Singh. Key Enters., 9 F.3d at 894-95. There we said: “Because the case became 

moot after the panel published its decision but before the mandate issued, we 

dismiss the appeal, vacate the district court’s judgment, and remand to the district 

court with instructions to dismiss the case.” Key, 9 F.3d at 899. Singh relies

heavily on this case to press his point that the Lindo panel should have vacated its 

decision and that its failure to do so renders Lindo ineffectual as precedent. 

(Appellant’s Br. at 44-45, 47-48). 

In 1994, however, the Supreme Court decided U.S. Bancorps Mortgage Co. 

v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386 (1994), which modified its 

precedent in United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104 (1950). 

We relied on Munsingwear in formulating our decision in Key.

The Supreme Court acknowledged that it had established a broad rule 

regarding vacatur in Munsingwear, which required dismissal and vacatur if a case 

 

6 This means that our decision in Thomas, which is more favorable to Singh’s positions, 

would purportedly control the analysis in this instance.

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was mooted at any point in the appellate process. Bancorp, 513 U.S. at 390. It 

recognized that Munsingwear made no distinction between categories of mooted

cases and that its rule even applied to cases mooted by reason of settlement. Id.

(citing Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S.Ct. 553 

(1985) (per curiam)). The Bancorp Court narrowed this rule and specifically 

addressed whether courts must vacate an opinion where subsequent mootness 

resulted from settlement. Bancorp, 513 U.S. at 23-24. The Court held that the 

opinion need not be vacated. It explained that “[t]his is not to say that vacatur can 

never be granted when mootness is produced [by reason of settlement] . . . . [T]he 

determination is an equitable one, and exceptional circumstances may conceivably 

counsel in favor of such a course.” Id. at 29. 

Lindo was mooted by settlement of the parties after the opinion issued, so 

the determination became an equitable one where the panel was free to not vacate 

its opinion. The panel exercised this discretion when it denied the parties’ motion 

to dismiss with prejudice due to their settlement. The Lindo panel’s decision to not

vacate its opinion appears especially correct in light of the Supreme Court’s 

pronouncement that “[j]udicial precedents are presumptively correct and valuable 

to the legal community as a whole. They are not merely the property of private 

litigants and should stand unless a court concludes that the public interest would be 

served by a vacatur.” Bancorp, 513 U.S. at 26-27 (quoting Izumi Seimitsu Kogyo 

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Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40, 114 S.Ct. 425, 428 (1993) 

(Stevens, J., dissenting)). Since Lindo was correcting and clarifying the law and 

the precedential value of our earlier decisions in Bautista and Thomas, it was 

certainly valuable to the legal community as a whole, and its vacatur would not 

have served the public interest.

And 11th Cir. R. 36-3, IOP 2 supports our result. It reads as follows:

Effect of Mandate on Precedential Value of Opinion. Under the law 

of this circuit, published opinions are binding precedent. The issuance or 

non-issuance of the mandate does not affect this result. See Martin v. 

Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992) . . . .

See 11th Cir. R. 36-3, IOP 2. Singh challenges the validity of 11th Cir. R. 36-3, 

IOP 2 when applied in this instance. He states, “The fact that 11th Cir. Rule 36 

grants precedential authority to a published opinion before the mandate issues does 

not change [the conclusion that the Lindo panel should have vacated its decision] . 

. . [and that] Carnival’s reliance on 11th Cir. Rule 36 to provide precedential effect 

to Lindo must be rejected.” (Appellant’s Reply Br. at 12, 14).

Singh is correct that, at first blush, our decision in Key and Rule 36-3, IOP 2 

are inconsistent. But, this inconsistency disappears in this case when both are 

interpreted in light of the Supreme Court’s decision in Bancorp.

The district court correctly analyzed and decided, based on our decisions in

Bautista and Lindo, the other issues Singh presents. We find no reversible error in 

the district court’s analysis and its order granting Carnival’s motion to compel 

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arbitration and denying Singh’s motion to remand. (See opinion and order at Dkt. 

22, pps. 1-14). The district court properly compelled arbitration of Singh’s claims, 

and we affirm its order.

AFFIRMED.

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