Texas Judiciary Online - HTML Opinion

^{^[1]} 9 U.S.C. '1 et seq.

^{^[2]} But see In re D. Wilson = Constr. Co.,=20 196 S.W.3d 774 (Tex. 2006). In In re D. Wilson, the = Texas=20 Supreme Court concluded the court of appeals had wrongly = dismissed, for=20 want of jurisdiction, a party=3Ds TAA-based interlocutory appeal from = the trial=20 court=3Ds denial of the party=3Ds arbitration rights under an = FAA-governed=20 agreement. Id. at 778B80. Given this conclusion, one = might=20 postulate that such party is not entitled to mandamus relief = because the=20 interlocutory appeal is an adequate remedy. However, in = In re D.=20 Wilson itself, the Texas Supreme Court granted mandamus relief = to the=20 party whose rights had been wrongfully denied under the = FAA-governed=20 arbitration agreement. Id.at 780B81. Because the Court granted = mandamus=20 relief in that case and has not overruled Jack B. Anglin, = we=20 conclude mandamus review remains available for wrongful denial of=20 arbitration rights under an agreement subject to the FAA.=20

^{^[3]} Tex. Civ. Prac. & Rem. Code=20 '171.098(a)(1).

^{^[4]} Weeks Marine does not dispute = that Jimenez=20 is a seaman for purposes of FAA Section 1. Thus, our = analysis=20 concerns only whether the Agreement constitutes a contract of=20 employment.

^{^[5]} In this regard, Weeks Marine = cites Green=20 Tree Financial Corp.-Ala. v. Randolph, 531 U.S. 79, 92 (2000) = (party=20 seeking to avoid arbitration bears burden of showing that = prohibitive cost=20 of arbitration renders agreement substantively unconscionable); = Gilmer=20 v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) = (party=20 seeking to avoid arbitration agreement bears burden of proving = that=20 Congress intended to preclude waiver of judicial forum for the = particular=20 statutory claims at issue); Carter v. Countrywide Credit = Industries,=20 Inc., 362 F.3d 294, 297 (5th Cir. 2004) (Aparty seeking to invalidate an = arbitration=20 agreement bears the burden of establishing its = invalidity@); and FirstMerit Bank, 52 S.W.3d = at 756=20 (same).

^{^[6]} Further, even if the Agreement = can be=20 characterized as Aemployment related,@ as Jimenez argues, only Acontracts of employment of=20 seamen@ are excluded from the FAA. 9 = U.S.C.A.=20 '1 (1999) (emphasis added). See = Terrebonne=20 v. K-Sea Transportation Corp., 477 F.3d 271 (5th Cir. = 2007). In=20 Terrebonne, the Fifth Circuit was asked to hold that a = post-injury=20 arbitration agreement was a contract of employment because part of = the=20 consideration for the employee=3Ds promise to arbitrate was the=20 employer=3Ds payment of past-due maintenance and = cure. =20 The employee argued that because the maintenance and cure = obligation is=20 inseparable from a seaman=3Ds employment contract, the post-injury = arbitration=20 agreement at issue was therefore subsumed into his employment = contract and=20 excluded from enforcement under the FAA. Conceding that the=20 maintenance and cure obligation is an intrinsic part of the = employment=20 relationship between seaman and employer but noting that = the=20 agreement did not purport to change that obligation or any aspect = of the=20 worker=3Ds actual employment, the Fifth Circuit = held=20 Athe agreement is not subsumed into [the=20 employee]=3Ds employment contract, and does not fall = under=20 section one=3Ds exception to the FAA=3Ds coverage.@ 477 F.3d at 280 (footnote = omitted).=20

^{^[7]} In opposition to Weeks = Marine=3Ds motion to compel arbitration and = pending=20 petition for writ of mandamus, Jimenez cites Brown v. Nabors = Offshore=20 Corp., 339 F.3d 391 (5th Cir. 2003) and Buckley v. Nabors = Drilling=20 USA, Inc., 190 F.Supp.2d 958 (S.D. Tex. 2002). These = decisions=20 do not inform our inquiry whether the Agreement is contained or = subsumed=20 in a contract of employment. In Brown, the employer = conceded=20 the arbitration agreement was contained in the seaman=3Ds employment contract. The issue = presented=20 was whether the employee/seaman must prove that he was actually=20 Ainvolved in the transportation of goods = in=20 commerce@ for the FAA '1 exclusion to apply. See 9 = U.S.C.=20 '1 (exempting from the FAA Acontracts of employment of seamen, = railroad=20 employees, or any other class of workers engaged in foreign or = interstate=20 commerce@). The Fifth Circuit, upholding = the trial=20 court=3Ds denial of the employer=3Ds motion to compel arbitration, found = that=20 Congress intended to exclude seamen=3Ds contracts of employment from the = arbitration act=20 even where a particular seaman was not actually Aengaged in ... commerce.@ Brown, 339 F.3d at 394 = (citing=20 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 = (2001)). =20 Buckley is similarly distinguishable and unhelpful = here. =20 Buckley, 190 F.Supp.2d at 961B62 (concluding arbitration agreement = contained in=20 contract that employer conceded was Aof employment of a seaman@ was excluded from FAA coverage without=20 employee/seaman=3Ds having to demonstrate actual = involvement in=20 interstate commerce).

^{^[8]} Cox v. Roth, 348 U.S. 207, = 208=20 (1955) (ACongress, in passing the Jones Act, did = not=20 specifically enumerate the rights of seamen, but merely extended = to them=20 the same rights granted to railway employees by [FELA]@); 46 U.S.C.A. [Revised] '30104(a) (Supp. 2007).

^{^[9]} But see Terrebonne, 477 = F.3d at 284=20 (holding that by agreeing to submit Jones Act claim to arbitral = rather=20 than judicial forum, seaman does not forgo substantive = rights);=20 Larrisquitu, 2007 WL 2330187, at *20 (ATerrebonne demonstrates that the protected status = of=20 domestic seamen does not exempt seamen from being bound by = contracts that=20 limit the tribunals for resolving claims, including claims under = the Jones=20 Act.@).

^{^[10]} Terrebonne, 477 F.3d at=20 285.

^{^[11]} 9 U.S.C.A. '2 (1999) (providing that written = arbitration=20 provision in maritime or other transaction involving commerce = Ashall be valid, irrevocable, and = enforceable, save=20 upon any such grounds as exist at law or in equity for the = revocation of=20 any contract