杨先生的遗孀, 他们的子女等给予以下四个因素导致的非正常死亡（wrongful death）对Dongwon和Majestic提起诉讼:

上诉中，Dongwon辩论道，它可以根据《美国法典》第9篇第201条及《纽约公约》, 强制进行仲裁。为了根据《纽约公约》强制进行仲裁, 一方当事人“必须证明《公约》存在的书面和有效的仲裁协议。”《纽约公约》的第2条第(2) 款将 “书面协议” 定义为 “合同或仲裁协议中的仲裁条款, 由双方签署或包含在书信往来中"。

认识到它既不是杨先生雇佣协议的签署方也不是当事人, Dongwon辩称, 当事人所签署的协议只适用于仲裁协议, 而不包含在合同中的仲裁条款。法院不同意抗辩意见。法院采用了英文标点符号规则（The court employed the rules of English punctuation）, 审查了《公约》中同样具有权威性的法文和西班牙文本以及《公约》的谈判记录, 得出结论, 双方签署的措词修改了先行措辞。法院还注意到, 《公约》第2条明确规定, 只有在有书面协议的情况下, 双方当事人同意就它们之间可能出现的争议提交仲裁, 才允许仲裁。

在答辩中, Dongwon 辩称，如果有关州合同法允许当事人执行该协议, 那么不属于仲裁协议一方的当事人（litigant）应该被允许根据《联邦仲裁法》（FAA）提起仲裁。法院首先指出，“《联邦仲裁法》在第1条中明确排除了船员雇用合同的适用”。虽然Dongwon援引了第2条, 但《联邦仲裁法》还明确规定, 该条只适用于其不与《公约》相冲突的情形。因此, 如果《联邦仲裁法》被用来为本案中与非签署方或非缔约方之间的争端提供仲裁, 它将与《公约》相抵触, 不适用。

然而, 即使Dongwon可以查阅国家合同法, 它仍然无权对争端进行仲裁。Dongwon提出了三个法律理论支持其强制仲裁的动议: 公平的禁止反言（estoppel）, 代理机构（agency）和代理人（alter ego）。关于公平的禁止反言问题, 法院认为, 这是不适用的, 因为杨先生的遗孀对Dongwon的索赔与Majestic雇佣协议的无关。对Dongwon的索赔依据是其行为和疏忽--提供不适航船舶和船员--而不是依据雇用关系。至于代理机构和代理人的论点，法院认定，Dongwon没有在地方法院提出来，从而放弃这些论点，构成弃权。

法院在结论中还讨论了Dongwon的另一个论点--联邦政策支持仲裁应允许其强制动议。但并没有说服法院。“ 联邦政策适用于可仲裁事项的范围, 当涉及到某一特定当事人是否受仲裁协议约束的问题时，就不适用了（inapposite）。关岛地区法院决定驳回Dongwon强制仲裁的动议, 法院已予以确认, 并由Dongwon负担费用。

Enforcement of Arbitration Clause by Non-Signatories.

Ninth Circuit refuses to compel arbitration by a non-signatory to the arbitration agreement.

Author: Andrew Riccio and David Zaslowsky

Yang v. Majestic Blue Fisheries, LLC, No. 15-16881 (9th Cir. Nov. 30, 2017)

Mr. Yang was a fisherman on a vessel owned by Majestic Blue Fisheries, LLC (“Majestic”), a Delaware entity and affiliate of Dongwon Indus. Co., Ltd. (“Dongwon”), a Korean entity. Although Majestic owned the vessel, Dongwon was required to supply the vessel’s crew and to supervise the vessel’s repair and maintenance. Despite known mechanical issues with the vessel, on May 21, 2010 the vessel set out from Guam with Mr. Yang on board as the chief engineer. On June 14, 2010, the vessel sank with the crew abandoning ship, leaving the captain to “execute critical abandon ship procedures on his own.” Mr. Yang, having initially abandoned ship, re-boarded the vessel to look for the captain. Both men died when the vessel sank.

Mr. Yang’s widow, their children, and his estate filed suit against Dongwon and Majestic for wrongful death under four separate causes of action: (1) a survival action for pre-death pain and suffering under the Jones Act, 46 U.S.C. § 30304; (2) wrongful death under general maritime law; (3) wrongful death under the Death on the High Seas Act, 46 U.S.C. § 30301 et seq.; and (4) wrongful death under the Jones Act. Dongwon filed a motion to compel arbitration relying on the employment agreement between Majestic and Mr. Yang, which contained an arbitration clause. The Guam District Court dismissed Dongwon’s motion to compel arbitration, and Dongwon appealed.

On appeal, Dongwon argued that it could compel arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201 et seq. (the “New York Convention” or “Convention”). In order to compel arbitration under the New York Convention, a party “must prove the existence and validity of an agreement in writing within the meaning of the Convention.” The New York Convention’s Art. II(2) defines an “agreement in writing” as “an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters.”

Recognizing that it was neither a signatory nor a party to Mr. Yang’s employment agreement, Dongwon argued that the signed by the parties requirement only applied to an arbitration agreement, and not an arbitration clause contained in a contract. The court disagreed. The court employed the rules of English punctuation, a review of the equally authoritative French and Spanish texts of the Convention, and the legislative history of the Convention, to conclude that the phrase signed by the parties modified both antecedent phrases. The court also noted that Article II of the Convention makes clear that arbitration is permissible only where there is an agreement in writing under which the parties agree to submit to arbitration regarding differences that may arise between them.

In response, Dongwon argued that a litigant who is not a party to an arbitration agreement should be allowed to invoke arbitration under the FAA if the relevant state contract law allows the litigant to enforce the agreement. The court first noted that “the FAA expressly exempts from its scope any contracts of employment of seamen” from its first chapter. While Dongwon had invoked the second chapter, the FAA also expressly provides in that chapter that it will apply only to the extent it does not conflict with the Convention. Thus, if the FAA could be read to provide for arbitration of disputes with non-signatories or non-parties in this case, it would conflict with the Convention and not apply.

Yet even if Dongwon could look through to state contract law, it would still not be entitled to arbitrate the dispute. Dongwon presented three state law theories in support of its motion to compel arbitration: equitable estoppel, agency and alter ego. As to equitable estoppel, the court found that it was inapplicable because Mr. Yang’s widow had a claim against Dongwon independent of the existence of the employment agreement with Majestic. The claims against Dongwon relied on its acts and omissions—providing an unseaworthy vessel and crew—and not on the existence of an employment relationship. As to the agency and alter ego theories, the court found that Dongwon waived these arguments by failing to raise them below, in the district court.

In its conclusion, the court addressed one further argument of Dongwon’s—the federal policy in favor of arbitration should permit its motion to compel. But the court was unconvinced. “[T]he federal policy applies to the scope of arbitrable issues and is inapposite when the question is whether a particular party is bound by the arbitration agreement.” The Guam District Court’s decision to deny Dongwon’s motion to compel arbitration was affirmed by the court, and costs were taxed against Dongwon.