Terrebonne v. K-Sea Oprt Prtnshp ( 2007 )

  •                                                       United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                        REVISED FEBRUARY 15, 2007
                                                                January 26, 2007
                                                            Charles R. Fulbruge III
                          FOR THE FIFTH CIRCUIT                     Clerk
                               No. 06-30041
              Appeal from the United States District Court
                  for the Eastern District of Louisiana
    Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
    GARWOOD, Circuit Judge:
         Plaintiff–appellant Dextel Terrebonne (Terrebonne) appeals the
    district court’s September 13, 2002, November 5, 2002, and December
    15, 2005 orders granting the motion of defendant–appellee K-Sea
    Transportation Corporation (K-Sea) to compel arbitration, denying
    Terrebonne’s motion for rehearing of that order, and granting K-
    Sea’s motion to confirm the June 27, 2005 arbitration award and
    denying Terrebonne’s motion to set aside the September 2002 order
    to compel.          For the following reasons, we affirm.
                                FACTS AND PROCEEDINGS BELOW
         In November 2000, Terrebonne worked for K-Sea as a crew member
    aboard its tug MARYLAND.               On November 3, while the tug was in
    Bridgeport,         Connecticut,       Terrebonne      overexerted     himself     when
    lifting    a    pump      in    the   tug’s    port   propeller     shaft     alleyway.
    Terrebonne reported the incident on November 28, 2000, complaining
    of abdominal pain.             He was diagnosed with a left inguinal hernia,
    and underwent hernia repair surgery on December 11, 2000, returning
    to work on January 26, 2001.
         On March 12, 2001, Terrebonne and K-Sea executed in New York
    a written “Partial Release and Claims Arbitration Agreement.”
    Pursuant       to    that      agreement,      the    parties     partially     settled
    Terrebonne’s claims arising out of the November 3, 2000 incident
    for $2,362.56.         Specifically, the agreement settled “all rights,
    claims, liens, remedies or causes of action for any damages that he
    [Terrebonne]        has     incurred    from      11/03/00   to   March   12,   2001.”
    Terrebonne reserved the right to seek recovery for “damages that
    may develop after the date of this agreement that are related to
    the alleged incident on the Tug MARYLAND on or about 11/3/02,” but
    agreed to arbitrate any such future claims in New York:
         “In further consideration of this partial settlement,
         Dextel Terrebonne agrees to submit any claims related to
         the alleged incident on the Tug MARYLAND on 11/3/00, for
         damages that develop after the date of this agreement,
         arising under the theory of unseaworthiness, Jones Act,
         or any other applicable law to arbitration in New York
          pursuant to the Commercial Arbitration Rules of the
          American Arbitration Association (AAA). . . .         The
          decision of the arbitrators shall be final and binding on
          the parties and any United States District Court shall
          have the jurisdiction to enforce this agreement, to enter
          judgement on the award and to grant any remedy provided
          by law in respect of the arbitration proceedings.”
          According to K-Sea’s uncontradicted affidavits, Terrebonne
    “reported a recurrence of his prior hernia” on April 26 or 27, 2001
    while working on the tug.    Terrebonne continued to work until May
    25, 2001 “when he complained that his prior hernia had developed
    again.”     After May 2001, he underwent medical treatment for the
          On May 1, 2002, Terrebonne instituted this suit against K-Sea
    in the court below. His complaint “demands trial by jury,” alleges
    that it is filed “under the Jones Act (46 U.S.C. [§] 688) for
    negligence, and under the General Admiralty and Maritime Law for
    unseaworthiness, maintenance, care and wages.”      It further asserts
    that plaintiff was “an employee of Defendant serving as a crew
    member aboard its vessels,” and that:
          “On or about November 3, 2000 Plaintiff was in the course
          of employment when he was required to engage in awkward
          positioning and the lifting of heavy weights excessive
          for a single person when as a result of said unseaworthy
          condition and failure to provide a safe place to work he
          was injured and suffered re-injury on or about April 27,
          2001 when he was required to move air plane tires in
          awkward positions resulting in excessive lifting and
          overexertion because of said failure to provide a safe
          place to work and unseaworthy condition.”
    The   complaint   next   alleges   that   “Defendant’s   tortious   acts
    aforesaid caused or contributed to Plaintiff’s damages.”1                     The
    complaint makes no reference to the March 12, 2001 settlement
    agreement or the payment pursuant thereto.                No amended complaint
    has been filed or sought to be filed.
           K-Sea moved to “stay further proceedings in this matter
    pending completion of the arbitration” of Terrebonne’s claims
    pursuant to the March 12, 2001 agreement.               Terrebonne opposed the
    motion, arguing that his April 2001 injury was a separate injury
    from       his   prior   hernia;   that       the   arbitration   agreement   was
    unenforceable under section one of the Federal Arbitration Act
    (FAA), 9 U.S.C. § 1, because it involves a seaman’s employment
    contract; that the Jones Act, 46 U.S.C. § 688, by virtue of its
    incorporation of section five of the Federal Employers’ Liability
    Act (FELA), 45 U.S.C. § 55, voided the agreement; and that the
    agreement is also void under 46 U.S.C. § 183c(a).2
           Over Terrebonne’s objections, the district court granted K-
    Sea’s motion to compel on September 13, 2002 (the order was entered
         Plaintiff’s damages are alleged to include: “a. Pain and
    suffering, past, future; b. Mortification, humiliation, fright
    shock and embarrassment; c. Loss of earnings and earning
    capacity; d. Hospital, pharmaceutical and other cure expenses;
    e. Aggravation of prior condition, if any there be; f.
    Inability to engage in social, recreational, and other pursuits
    previously enjoyed; g. mental anguish; h. Found; i.
    Maintenance, cure, and wages.”
         On appeal, Terrebonne does not argue that the agreement is
    void under 46 U.S.C. § 183c(a), which by its terms applies only
    to passenger vessels.
    on September 16, 2002).3   The court concluded that Terrebonne’s
    second hernia was a recurrence of the first hernia; that the March
    12, 2001 agreement is “clearly separate and independent from
    Terrebonne’s employment contract”; that Terrebonne’s FELA-based
    argument was unsupported by case law and further undermined by the
    fact that the agreement does not exempt K-Sea from liability; and
    that 46 U.S.C. § 183c(a) is inapplicable as it only deals with
    passenger vessels. On October 11, 2002, Terrebonne filed a “Motion
    for Rehearing” which the district court denied on November 5, 2002,
    treating the motion as one under Rule 60(b) and concluding that
    Terrebonne had not provided any “clarification of issues or new
    evidence” warranting reconsideration.
         Thereafter, Terrebonne, on March 26, 2003, filed suit in
    Louisiana state court against K-Sea respecting the same matter. K-
    Sea responded by moving the district court to enjoin prosecution of
    the state court suit and to require Terrebonne to abide by the
    court’s orders compelling arbitration.   Before the district court
    ruled, however, Terrebonne agreed to a consent order which the
    district court approved, signed and entered May 13, 2003.     That
    order recites that Terrebonne and his counsel “agree to dismiss the
    Louisiana state court action,” “agree to abide by this court’s
         The order concludes by reciting that “the defendant’s
    motion to compel arbitration and stay litigation is GRANTED” and
    “this case is closed for statistical purposes;” the order does
    not direct, and K-Sea’s motion did not request, that the suit be
    Order dated September 13, 2002, compelling arbitration of this
    dispute” and “agree to proceed forthwith with the arbitration
    before the American Arbitration Association.”               The consent order
    also “dismisses, as moot” K-Sea’s request for injunction.
         Arbitration began in New York in June 2003. Terrebonne and K-
    Sea made various submissions and attended a two-day evidentiary
    hearing in October 2004, where there were over 200 exhibits and 450
    pages    of    testimony.    Following       post-hearing     submissions,   the
    hearings were declared closed on April 29, 2005, with a deadline of
    June 28, 2005, for the panel to render its award.                 The New York
    Arbitration Panel issued its award on June 27, 2005, denying all of
    Terrebonne’s claims, but awarding him arbitration costs in the
    amount of $9,132 to be paid by K-Sea.4
         On August 5, 2005, K-Sea moved to reopen this suit, and to
    enter judgment confirming the arbitration award and dismissing the
    lawsuit       with   prejudice   (and   to    deposit   the    $9,132   awarded
    Terrebonne with the court), per 9 U.S.C. § 9.5                   Terrebonne on
         K-Sea then attempted to pay Terrebonne the $9,132, but his
    attorney informed K-Sea by a July 8, 2005 letter that Terrebonne
    would not accept the $9,132 as such would be inconsistent with
    the intention “to contest the viability of enforcement of the
    arbitration award.”
          9 U.S.C. § 9, “Award of arbitrators; confirmation;
    jurisdiction; procedure,” states, in pertinent part:
         “If the parties in their agreement have agreed that a
         judgment of the court shall be entered upon the award
         made pursuant to the arbitration, and shall specify the
         court, then at any time within one year after the award
         is made any party to the arbitration may apply to the
         court so specified for an order confirming the award,
    August 12, 2005 filed an opposition to K-Sea’s motion6 and also
    moved to set aside the district court’s September 2002 order.                   He
    argued that enforcing the arbitration award would violate public
    policy and that the agreement violated section five of the FELA.
    On December 15, 2005, the district court granted K-Sea’s motion and
    denied Terrebonne’s request to set aside the September 2002 order
    because the request “assert[ed] the same arguments that th[e] Court
    ha[d] taken to be borderline frivolous twice before.”                  This last
    order       further    provides   that     “plaintiff’s    claims    against   the
    defendant are hereby dismissed, with prejudice.”
           Terrebonne timely appealed.
           The gist of Terrebonne’s arguments on appeal is that the March
    2001       arbitration   agreement    is    unenforceable.      He   secondarily
    asserts that, if the agreement is enforceable, his “re-injury”
    falls outside the agreement’s scope.              Terrebonne does not contend
    that the arbitration panel erred.              Rather, he attacks the district
    court’s       orders     compelling      arbitration      and   confirming     the
    arbitration award; in effect, he argues that his claims should not
           and thereupon the court must grant such an order unless
           the award is vacated, modified, or corrected . . . .”
         Terrebonne opposed K-Sea’s motion to confirm the
    arbitration award and moved to set aside the September 2002 order
    under FRCP 60(b). The district court considered Terrebonne’s
    motion under Rule 60(b)(4) through (6) because these were “the
    only bases for 60(b) relief when sought more than one year after
    the challenged order was entered.”
    have       been   subjected   to   arbitration   in   the   first   place.   We
    disagree, and affirm the district court’s orders, finding the
    arbitration agreement both enforceable and broad enough for the
    district court to compel arbitration and allow the arbitrators to
    determine the agreement’s scope.
                       I.   Jurisdiction and Standards of Review
           This court has jurisdiction over the instant appeal by virtue
    of 28 U.S.C. § 12917 and 9 U.S.C. § 16.8              The parties both assume
         28 U.S.C. § 1291 states that “[t]he courts of appeals
    (other than the United States Court of Appeals for the Federal
    Circuit) shall have jurisdiction of appeals from all final
    decisions of the district courts of the United States . . . .”
          Section 16 of the FAA, “Appeals,” states:
    “(a) An appeal may be taken from—
         (1) an order—
               (A) refusing a stay of any action under section 3 of
    this title,
               (B) denying a petition under section 4 of this title to
               order arbitration to proceed,
               (C) denying an application under section 206 of this
               title to compel arbitration,
               (D) confirming or denying confirmation of an award or
               partial award, or
               (E) modifying, correcting, or vacating an award;
         (2) an interlocutory order granting, continuing, or
         modifying an injunction against an arbitration that is
         subject to this title; or
         (3) a final decision with respect to an arbitration that is
         subject to this title.
    (b) Except as otherwise provided in section 1292(b) of title 28,
    an appeal may not be taken from an interlocutory order—
         (1) granting a stay of any action under section 3 of this
         (2) directing arbitration to proceed under section 4 of this
         (3) compelling arbitration under section 206 of this title;
         (4) refusing to enjoin an arbitration that is subject to
    this title. 9 U.S.C. § 16 (2000).
    that the fact that this appeal is from the district court’s
    December   15,   2005   order   confirming   the   award   and   dismissing
    Terrebonne’s suit with prejudice – rather than from the September
    2002 order compelling arbitration, staying the action and stating
    “this case is closed for statistical purposes” – does not of itself
    preclude Terrebonne from challenging the validity of the September
    2002 order.9     We accordingly proceed on that assumption.
          Any such preclusion would not of itself be truly
    jurisdictional, but would be more in the nature of law of the
    case, estoppel or res judicata. We do note that where we
    dismissed for want of jurisdiction an attempted appeal from an
    order staying litigation pending arbitration because the order
    was non-final, we stated that it “was not the case” that the
    appellant then
         “. . . will be left with virtually no remedy, because
         of the deference afforded an arbitrator’s award, if the
         district court has mistakenly forced it to arbitrate
         the issue of arbitrability. If the district court
         confirms the arbitration award, this court will then
         have jurisdiction to conduct a ‘typical’ review of the
         district court’s decision regarding the scope of the
         agreement to arbitrate.” F.C. Schaffer & Associates
         Inc. v. Demech Contractors Ltd., 
    101 F.3d 40
    , 43 (5th
         Cir. 1996).
    See also Jolley v. Paine Webber Jackson & Curtis Inc., 
    864 F.2d 402
    , 404 (5th Cir. 1989). It may well be that the foregoing
    passage from Schaffer is inapplicable where the challenged order
    to arbitrate was final and appealable. We also note, however,
    that the September 2002 order here appears to be interlocutory
    and not final and hence to be non-appealable under 9 U.S.C. §
    16(b). Mire v. Full Spectrum Lending Inc., 
    389 F.3d 163
    Cir. 2004). We note in this respect that the fact that the case
    was not dismissed, that a “stay” was granted and that the closing
    was stated to be “for statistical purposes” (see note 3 supra)
    all suggest non-finality. See South Louisiana Cement v. Van
    Aallst Bulk Handling, 
    383 F.3d 297
    , 301-02 (5th Cir. 2004). In
    American Heritage Life Ins. Co. v. Orr, 
    294 F.3d 702
    , 706-07 (5th
    Cir. 2002), the order held appealable, though it did not
    expressly dismiss the case, did not purport to stay proceedings
    in the court issuing the order (it stayed proceedings only in
         We review de novo the district court’s ruling on K-Sea’s
    motion to compel arbitration and stay litigation. Freudensprung v.
    Offshore Technical Services, Inc., 
    379 F.3d 327
    , 337 (5th Cir.
    2004).    The district court’s denial of Terrebonne’s motion for
    rehearing—treated as a Rule 60(b) motion—is reviewed for an abuse
    of discretion.        Warfield v. Byron, 
    436 F.3d 551
    , 555 (5th Cir.
    2006). Confirmation of the arbitrator’s award is reviewed de novo.
    Executone Info. Sys., Inc. v. Davis, 
    26 F.3d 1314
    , 1320 (5th Cir.
              II.    Terrebonne’s Arguments and Applicable Law
         A.   Enforceability of the Arbitration Agreement
         Terrebonne focuses his appeal almost entirely on the district
    court’s September 2002 order to arbitrate and the validity or
    enforceability     of     the    March      2001   arbitration     agreement.
    Specifically,    he    makes    two   challenges   against   the   agreement:
    First, he asserts that the arbitration agreement is subsumed into
    his employment contract and therefore unenforceable per section one
    of the FAA, 9 U.S.C. § 1, which excludes “contracts of employment
    of seamen” from the FAA’s purview.            Second, Terrebonne contends
    that the agreement is void under section five of the FELA, which is
    state court) and its statement that the case “is closed” was
    wholly unmodified by any language (such as “for statistical
    purposes” or “administratively”) which might indicate the closure
    was not final and complete for all purposes.
    applicable here by virtue of the Jones Act, 48 U.S.C. § 688.10
    Section Five of the FELA provides in relevant part that “[a]ny
    contract, rule, regulation, or device whatsoever, the purpose or
    intent of which shall be to enable any common carrier to exempt
    itself from any liability created by this chapter, shall to that
    extent be void.”         45 U.S.C. § 55.     We consider each argument in
    turn below.
                1.    Section One of the FAA
         The FAA “compels judicial enforcement of a wide range of
    written arbitration agreements.”             Circuit City Stores, Inc. v.
    121 S. Ct. 1302
    ,   1307   (2001).     Accordingly,   the   FAA
    “generally declares valid and enforceable written provisions for
    arbitration in any maritime transaction . . . .”           Freudensprung,
    379 F.3d at 339.     This is consistent with the FAA’s purpose, which
          46 U.S.C. § 688, the Jones Act, provides in relevant part:
         “Any seaman who shall suffer personal injury in the
         course of his employment may, at his election, maintain
         an action for damages at law, with the right of trial
         by jury, and in such action all statutes of the United
         States modifying or extending the common-law right or
         remedy in cases of personal injury to railway employees
         shall apply; and in case of death of any seaman as a
         result of any such personal injury the personal
         representative of such seaman may maintain an action
         for damages at law with the right of trial by jury, and
         in such action all statutes of the United States
         conferring or regulating the right of action for death
         in the case of railway employees shall be applicable.
         Jurisdiction in such actions shall be under the court
         of the district in which the defendant employer resides
         or in which his principal office is located.” 46
         U.S.C. § 688(a).
    “was to reverse the longstanding judicial hostility to arbitration
    agreements.”   Gilmer v. Interstate/Johnson Lane Corp., 
    111 S. Ct. 1647
    , 1651 (1991).
         Section one of the FAA, however, provides that “nothing herein
    contained   shall   apply   to   contracts    of   employment   of    seamen,
    railroad employees, or any other class of workers engaged in
    foreign or interstate commerce.”         9 U.S.C. § 1.   Terrebonne argues
    that this exclusion applies in the instant case because the March
    2001 agreement is subsumed into his employment contract.              We find
    this argument unpersuasive.
         First, we note that the agreement here only partially settles
    claims for benefits and damages related to Terrebonne’s November
    2000 injury.   It does not purport either to employ Terrebonne or to
    modify Terrebonne’s contract of employment in any way.               Thus, on
    its face, the agreement does not appear to fall within section
    one’s exception for “contracts of employment of seamen.”
         Terrebonne, however, argues that the March 2001 agreement is
    subsumed into his employment contract because the agreement covers
    his maintenance and cure claims.         Because maintenance and cure are
    inseparable from a seaman’s employment, he contends, the agreement
    necessarily constitutes part of his employment contract, such that
    the agreement falls within section one’s exception.11
          K-Sea argues that Terrebonne did not raise this issue
    below. Terrebonne replies that his Memorandum in Opposition to
    Motion to Compel Arbitration and Stay Litigation Pending
         The     March    2001     agreement       indeed     covered          Terrebonne’s
    maintenance and cure claims up to the time that the agreement was
    entered into.        We reject, however, Terrebonne’s assertion that
    these   maintenance     and    cure      claims   necessarily         implicate        his
    employment    contract.            Certainly,     there   is        case    law    using
    generalized    language      connecting        maintenance     and     cure       to   the
    seaman’s employment contract.            See, e.g., Aguilar v. Standard Oil
    Co. of N.J., 
    63 S. Ct. 930
    , 933–34 (1943) (“In the United States
    [maintenance and cure] has been recognized consistently as an
    implied provision in contracts of marine employment.”); Tate v. Am.
    Tugs, Inc., 
    634 F.2d 869
    , 870 (5th Cir. 1981) (“The right of an
    injured seaman to maintenance is a form of compensation that arises
    out of the contract of employment.”).             Yet, we have clarified that
    maintenance    and    cure    is    an   intrinsic   part      of    the    employment
    relationship, separate from the actual employment contract:
    Arbitration, filed on September 3, 2002, raised the argument.
    Specifically, Terrebonne points to his statement in the
    memorandum that, “Just at [sic] the right to maintenance and cure
    is implied in a seaman’s employment contract Aguilar v Standard
    Oil Co. of N.J., 
    318 U.S. 724
    , 730 (1943), an arbitration
    agreement for a seaman’s unaccrued personal injury claim is
    subsumed within the employment contract.” Given that this
    appears to be the sole indication that Terrebonne raised his
    maintenance and cure argument below, it is doubtful that the
    argument was briefed adequately for the district court to
    consider it. Compare Goetz v. Synthesys Tech.s, Inc., 
    415 F.3d 481
    , 485 n.13 (5th Cir. 2005) (stating that, even where an issue
    was “raised in a muddled fashion, the fact that the district
    court was able to rule on the issue is sufficient for us to
    consider it raised, even in a refined form on appeal”). In any
    event, the argument lacks merit for the reasons stated below.
         “[M]aintenance and cure differs from contractual rights.
         The Court, in Cortes v. Baltimore Insular Line, 
    287 U.S. 367
    , 371, 
    53 S. Ct. 173
    77 L. Ed. 368
     (1932), held that
         maintenance and cure ‘is imposed by the law itself as one
         annex to the employment. . . . Contractual it is [in
         the] sense that it has its source in a relation which is
         contractual in origin, but given the relation, no
         agreement is competent to abrogate the incident.’” Wood
         v. Diamond M Drilling Co., 
    691 F.2d 1165
    , 1170 (5th Cir.
         1982) (concluding that “recovery of maintenance and cure
         is not subject to the same mitigation limitations that
         govern recovery based on ordinary contractual rights”).12
    In other words, maintenance and cure is an essential part of the
    seaman’s employment relationship that cannot be contracted away:
    “The duty to provide maintenance attaches once the seaman enters
    the service of the ship and it is ‘a duty that no private agreement
    is competent to abrogate.’”   Baldassaro v. United States, 
    64 F.3d 206
    , 212 (5th Cir. 1995) (quoting De Zon v. Am. President Lines, 
    63 S. Ct. 814
    , 818 (1943)).    It is true that collective bargaining
    agreements may validly set the rate of maintenance and cure.     See
    id. at 212 (“The right to maintenance cannot be abrogated, but it
    can be modified and defined by contract.”).   But we do not accept
    that this in turn means that maintenance and cure is part of the
    employment contract.    Further, while the March 2001 agreement
    states that K-Sea is obligated to pay maintenance and cure, it does
          Since this court’s decision in Wood, the Supreme Court has
    noted that the rule under Cortes, that “[u]nder traditional
    maritime law . . . there is no right of survival; a seaman’s
    personal cause of action does not survive the seaman’s death,”
    has been changed “in many instances” by Congress and the States.
    Miles v. Apex Marine Corp., 
    111 S. Ct. 317
    , 326 (1990). This does
    not affect the strength of our decision in Wood as it discusses
    maintenance and cure.
    not   purport   to    change    anything   regarding    that   obligation   or
    regarding Terrebonne’s employment with K-Sea.             Thus, we conclude
    the   agreement      is   not   subsumed   into   Terrebonne’s    employment
    contract, and does not fall under section one’s exception to the
    FAA’s coverage.13
               2.     Section Five of the FELA
          We also reject Terrebonne’s assertion that because this is a
    Jones Act case, the arbitration agreement is invalid for the reason
    that it violates section five of the FELA.             “In passing the Jones
          See also, e.g., Williams v. Cigna Financial Advisors Inc.,
    56 F.3d 656
     (5th Cir. 1995), an employee’s discrimination suit
    against his employer, Cigna, in which we rejected the contention
    that the arbitration agreement was excluded from the FAA as
    falling within the exemption for “contracts of employment of . .
    . workers engaged in . . . interstate commerce” under 9 U.S.C. §
    1. As our opinion came well before Circuit City Stores, Inc. v.
    121 S. Ct. 1302
     (2001), we based our decision in that
    respect (as the Supreme Court had a few years previously in
    Gilmer v. Interstate/Johnson Lane Corp., 
    111 S. Ct. 1647
    solely on the ground that the arbitration agreement was not a
    contract of employment for purposes of § 1 and did not address
    whether the “workers engaged in . . . interstate commerce” aspect
    of the above quoted § 1 exclusion was satisfied. The plaintiff’s
    employment contract with Cigna, a member of the National
    Association of Securities Dealers (NASD), was known as a
    “Registered Representative Agreement” and the arbitration
    agreement (requiring arbitration of employment related disputes
    with the registrant’s employer) was contained in a “U-4
    Registration,” an agreement required to be executed with NASD as
    a part of registering with it, which was required of the
    plaintiff by his Registered Representative Agreement. We held:
    “. . . if we were to hold that Williams’ Registered
    Representative Agreement incorporated by reference the U-4
    Registration arbitration clause, § 1 would still exempt only the
    contract of employment. The U-4 Registration is a separate
    contract, and its arbitration clause is enforceable under the
    FAA.” Id., 56 F.3d at 660.
    Act, Congress did not specifically enumerate the rights of seamen,
    but extended to them the same rights granted to railway employees
    by FELA.”   Withhart v. Otto Candies, L.L.C., 
    431 F.3d 840
    , 843 (5th
    Cir. 2005).    Section five of the FELA invalidates “[a]ny contract,
    rule, regulation, or device whatsoever, the purpose or intent of
    which shall be to enable any common carrier to exempt itself from
    any liability created by this chapter . . . .”           45 U.S.C. § 55
         For his FELA-based argument, Terrebonne relies heavily on Boyd
    v. Grand Trunk W. R.R. Co., 
    70 S. Ct. 26
     (1949) (per curiam).            In
    Boyd the railroad employee, having been injured on the job, agreed,
    in exchange for his employer’s cash advances against whatever
    settlement or recovery was later achieved, that any suit to be
    filed on account of the injury would be filed only in a district
    (or county) that was either his residence when injured or in which
    the injury occurred. Both such locations were in Michigan, but the
    employee filed suit in the Supreme Court of Cook County, Illinois.
    The railroad sued the employee in Michigan state court to enjoin
    his prosecution of the Illinois suit, and the Michigan Supreme
    Court ruled for the railroad.         The United States Supreme Court
    reversed,     holding   that   the   Illinois   suit   was   in   a   venue
    specifically authorized under section 6 of the FELA14 and that hence
          FELA’s section six, “Actions; limitations; concurrent
    jurisdiction of courts,” 45 U.S.C. § 56, provides, in relevant
    FELA section 5 voided the agreement excluding that venue provided
    for in section 6.
         For several reasons, we are not persuaded that Boyd controls
         To begin with, the venue provisions of section 6 of the FELA
    – which Boyd held protected by FELA section 5 – do not apply to the
    Jones Act, which has its own venue provision contained in the last
    sentence of section 688(a) (see note 10, supra), and     provides for
    venue in a district where “the defendant employer resides” or “his
    principal office is located.”15    Venue of a Jones Act case is hence
    not provided for in section 6, or in any other provision, of the
    FELA.     We directly so held in Pure Oil Co. v. Suarez, 
    346 F.2d 890
    892 (5th Cir. 1965), affirmed on other grounds, 
    86 S. Ct. 1394
    (1966).      There, the plaintiff seaman brought a Jones Act and
    general maritime law suit against his employer, Pure Oil Company,
         “Under this chapter an action may be brought in a
         district court of the United States, in the district of
         the residence of the defendant, or in which the cause
         of action arose, or in which the defendant shall be
         doing business at the time of commencing such action.”
          Although this sentence of § 688(a) is written in terms of
    “jurisdiction,” it has been construed to refer only to venue.
    Panama R. Co. v. Johnson, 
    44 S. Ct. 391
    , 393 (1924).
         28 U.S.C. § 1391(c) provides in part that “[f]or purposes of
    venue under this chapter, a defendant that is a corporation shall
    be deemed to reside in any judicial district in which it is
    subject to personal jurisdiction at the time the action is
    commenced.” That section, as it was enacted in 1948, was held
    applicable to the Jones Act in Pure Oil Company v. Suarez, 
    86 S. Ct. 1391
    in the Southern District of Florida.               The defendant moved to
    transfer the case to the Northern District of Illinois, it being
    undisputed that it was incorporated in Ohio and had its principal
    office in Illinois, although it did do substantial business in the
    Southern District of Florida when the suit was commenced.                The
    district court denied the motion to transfer, but certified its
    ruling to this court under 28 U.S.C. § 1292(b).              We noted that
    “[t]he relevant language of the Jones Act, 46 U.S.C. § 688"
    provides for venue in the district “in which the defendant employer
    resides” or has its principal office, and that “in the absence of
    a   statutory   directive   to   the   contrary,    the   ‘residence’   of a
    corporation for venue purposes is limited to the state of its
    incorporation.”    Id. at 891-92.      We stated that “appellee [seaman]
    makes two arguments in support of the district court’s denial of
    the motion to transfer,” describing the first of these as follows:
    “. . . appellee argues that the special venue provisions of the
    Federal Employers Liability Act, under which venue against Pure Oil
    would undoubtedly be proper in the instant case, are applicable to
    a civil action under the Jones Act.”                Id. at 892 (footnote
    omitted).16     Characterizing this argument as one “which can be
    disposed of in short order,” we emphatically rejected it, stating:
          Citing FELA § 6, we noted that “[t]he FELA contains much
    broader venue provisions than those of the Jones Act” and
    provides that venue is proper in, among other districts, any
    “where the defendant is ‘doing business’ at the time of the
    commencement of the action.” Id., 892 n.3.
         “However, this argument does not adequately accommodate
         the well-recognized and eminently logical canon of
         statutory construction that the specific provisions of a
         statute control exclusively over the broader and more
         general provisions of another statute which may relate to
         the same subject matter in the absence of a clear
         manifestation to the contrary by the legislature. . . .
         [citations omitted]. As one court has stated, ‘The short
         answer to [appellee’s] argument is that Congress has seen
         fit to impose different venue requirements in Jones Act
         cases. To now hold that the venue requirements under the
         Federal Employers’ Liability Act are controlling would
         negate the plain language of 46 U.S.C. § 688.’ Rodriguez
         v. United Fruit Co., 
    236 F. Supp. 680
    , 682 (E.D. Va.
              1964).”   Id.
         Having     rejected   the   seaman-appellee’s    first   argument,    we
    proceeded to consider his second, characterized as “a far more
    appealing argument,” which was that “the definition of the term
    ‘residence’ which was added to the general venue statute in 1948,
    28 U.S.C.A. § 1391(c), should be read into the Jones Act.”           Id. at
    893.17     Under the terms of section 1391(c), as added in 1948, “any
    judicial district in which” a corporation “is incorporated or
    licensed to do business or is doing business . . . shall be
    regarded as the residence of such corporation for venue purposes.”
    Agreeing     with   appellee’s   second   argument,   we   held   that   this
          We observed that: “Prior to 1948 – and, indeed, at the time
    Congress enacted the Jones Act in 1920 – . . . The residence of a
    corporation [for venue purposes] was uniformly restricted to the
    state of its incorporation, even in Jones Act suits. E.g.,
    Burris v. Matson Nav. Co., (S.D.N.Y. 1940), 37 F. Supp. 648.”
    Id. In the cited Burris case, Jones Act venue was held improper
    even though the defendant was, at the time of suit, doing
    business in the district.
    definition of a corporate defendant’s residence in section 1391(c)
    applied   to    determine    the     district      “in   which   the”    corporate
    “defendant employer resides” as provided in section 688, and on
    that basis affirmed the district court’s denial of the motion to
    transfer.   Id. at 893-97.      In this latter connection we considered
    and rejected the contention that the Supreme Court’s decision in
    Fourco Glass Co. v. Transmirra Prods. Corp., 
    77 S. Ct. 787
    (holding section 1391(c) did not define a corporate defendant’s
    residence      under   28   U.S.C.    §        1400(b)   applicable     to    patent
    infringement suits) dictated a contrary result. Id. at 894 et seq.
         The Supreme Court granted certiorari to resolve the issue
    concerning section 1391(c), section 688 and the Fourco case, and
    ultimately affirmed this court, holding that the section 1391(c)
    definition of corporate residence applied to determine the district
    “in which” the corporate “defendant employer resides” as provided
    in § 688.      Pure Oil Co. v. Suarez, 
    88 S. Ct. 1394
     (1966).                     The
    Supreme Court did not mention our holding that the venue provisions
    of section 6 of the FELA did not apply to the Jones Act.18                   We note,
    however, that the section 1391(c) question would not have any
    practical importance if Jones Act venue included whatever venue
          Nor did the Supreme Court pass on our separate holding (346
    F.2d at 891, n.1) that where a suit is based on both the Jones
    Act and unseaworthiness the venue requirements of the Jones Act
    must be satisfied, the Supreme Court stating there was “no
    occasion to pass upon this issue” as it “was not raised in this
    Court.” 86 S.Ct. at 1395 n.2.
    would be proper under section 6 of the FELA because section 1391(c)
    embraced no venue not authorized by section 6.
          Because,    under   our    decision    in    Pure    Oil   Co.,    the   venue
    provisions of section 6 of the FELA are inapplicable to Jones Act
    cases, it necessarily follows that nothing in section 5 of the FELA
    is applicable to Jones Act venue.           Hence, neither Boyd nor section
    5 dictate the result here.19
          Boyd is also to be distinguished because it did not in any way
    involve the FAA (or, indeed, an agreement to arbitrate).                  There was
    no federal statute authorizing or providing for the enforcement of
    the   type   of    agreement     involved     in     Boyd.       In     Gilmer   v.
    Interstate/Johnson Lane Corp., 
    111 S. Ct. 1647
     (1991), the Court
    upheld an agreement to arbitrate governed by the FAA, specifically
    distinguishing prior cases on the ground, inter alia, that “those
    cases were not decided under the FAA, which, as discussed above,
    reflects     a    ‘liberal      federal     policy        favoring      arbitration
          Moreover, in Boyd the Court specifically distinguished its
    decision in Ex parte Collect, 69 .Ct. 944 (1949), where the Court
    upheld the 28 U.S.C. § 1404(a) transfer to a different district
    in a different state, at the defendant railroad’s request and
    over the plaintiff-employee’s objection, of the employee’s FELA
    suit filed in a section 6 authorized district prior to the
    enactment of § 1404(a). Collect observes that § 1404(a) “does
    not limit or otherwise modify any right granted in [FELA] § 6 . .
    . to bring suit in a particular district . . . [a]n action may
    still be brought in any court . . . in which it might have been
    brought previously.” Id. at 947. Boyd, which quotes this
    passage from Collect, explains that “nothing in Ex parte Collect
    . . . affects the initial choice of venue afforded Liability Act
    plaintiffs.” Boyd, 70 S.Ct. at 28 (emphasis added).
    agreements.’” Id. at 1657 (quoting Mitsubishi Motors Corp. v. Soler
    Chrysler-Plymouth Inc., 
    105 S. Ct. 3346
    , 3353 (1985)).            See also,
    e.g., Shearson/American Express Inc. v. McMahon, 
    107 S. Ct. 2332
    2337 (1987) (“The Arbitration Act thus establishes a federal policy
    favoring    arbitration”)   (inside    quotation   marks   and    citation
    omitted).   Here, in contrast to Boyd, the FAA is involved and thus
    the issues “must be addressed with a healthy regard for the federal
    policy favoring arbitration.”         Gilmer at 1652 (emphasis added;
    inside quotation marks and citation omitted).20
         Terrebonne answers this argument solely by relying on Wilko v.
    74 S. Ct. 182
     (1953).    Wilko was a suit by a customer against
    a brokerage firm alleging the firm sold him certain securities by
    misrepresentations.    The suit was pursuant to sections 12(2) and
    22(a) of the Securities Act of 1933, 15 U.S.C. § 77l(2), 77v(a),
    which respectively provide that under certain circumstances the
    seller making such misrepresentation “shall be liable to the person
    purchasing such security from him, who may sue . . . in any court
    of competent jurisdiction, to recover the consideration paid . .
    .”, and that the United States District Courts have jurisdiction
          Boutte v. Cenac Towing Inc., 
    346 F. Supp. 2d 922
     (S.D. Tx.
    2004), relied on by appellant, is similarly distinguishable
    because the agreement there held invalid was not an arbitration
    agreement and even if it had been it would have been expressly
    exempted from the FAA by the terms of 9 U.S.C. § 1 as it was
    contained in the seaman’s employment agreement. Boutte at 932
    (“choice of forum agreements in employment contracts between
    American seaman and American companies are unenforceable in Jones
    Act claims”).
    over such suits, with venue in a district where, inter alia, the
    defendant is “found” or “transacts business” or where “the sale
    took place” but precluding removal of state court suits.         The
    defendant moved under section 3 of the FAA to stay trial of the
    suit pending completion of arbitration, relying on the arbitration
    provisions of the plaintiff’s margin agreement with the brokerage
    firm (executed prior to the challenged sale).     The Supreme Court
    noted that section 14 of the Securities Act, 15 U.S.C. § 77(a),
    provided that “[a]ny condition, stipulation, or provision binding
    any person acquiring any security to waive compliance with any
    provision of this subchapter . . . shall be void.”   Id. at 184 n.6.
    It went on to hold that the arbitration agreement was invalid
         “The words of § 14, . . . void any ‘stipulation’ waiving
         compliance with any ‘provision’ of the Securities Act.
         This arrangement to arbitrate is a ‘stipulation,’ and we
         think the right to select the judicial forum is the kind
         of ‘provision’ that cannot be waived under § 14 of the
         Securities Act.”
    Id. at 186, and that “Congress must have intended § 14 . . . to
    apply to waiver of judicial trial and review.”    Id. at 188.
         The Wilko Court then continued by stating:
         “This accords with Boyd v. Grand Trunk Western R. Co., .
         . . . We there held invalid a stipulation restricting an
         employee’s choice of venue in an action under the Federal
         Employers’ Liability Act, 45 U.S.C.A. § 51 et seq.
         Section 6 of that Act permitted suit in any one of
         several localities and § 5 forbade a common carrier’s
         exempting itself from any liability under the Act.
         Section 5 had been adopted to avoid contracts waiving
         employers’ liability. . . . We said the right to select
         the ‘forum’ . . . is a ‘substantial right’ and that the
         agreement, restricting that choice, would thwart the
         express purpose of the statute.”        Id. (footnotes
         However, over a decade ago the Supreme Court, in Rodriguez De
    Quijas v. Shearson/American Express Inc., 
    109 S. Ct. 1917
    expressly overruled Wilko, and held that a predispute agreement to
    arbitrate was validly applicable to a claim under section 12(2) of
    the Securities Act and was not invalided by section 14 thereof.21
    Rodriguez    observed   that   Wilko’s   “characterization   of   the
    arbitration process” was “pervaded by . . . ‘the old judicial
    hostility to arbitration’” which had become “outmoded” and had
    “fallen far out of step with our current strong endorsement of the
    federal statutes favoring this method of resolving disputes.”     Id.
    at 1920.    It rejected the Wilko’s holding “that § 14 did not permit
    waiver of ‘the right to select the judicial forum’”, id. at 1919,
    on the ground that “[b]y agreeing to arbitrate a statutory claim,
    a party does not forgo the substantive rights afforded by the
    statute; it only submits to their resolution in an arbitral, rather
    than a judicial, forum.’”      Id. at 1920 (internal quotation marks
    and citation omitted).     It likewise held, with reference to the
    procedural litigation provisions contained in the Securities Act,
          Appellant’s counsel neglected to note in any of his pre-
    oral argument briefing that Wilko had been overruled, and only
    after oral argument, at which the matter was called to his
    attention, did he, with our permission, file a post-submission
    brief recognizing that fact.
    such as “the statute’s broad venue provisions,” “nationwide service
    of process” and “concurrent jurisdiction in the state and federal
    courts without possibility of removal,” that: “There is no sound
    basis for construing the prohibition in § 14 on waiving ‘compliance
    with any provision’ of the Securities Act to apply to these
    procedural   provisions.”      Id.        These   holdings    are   similarly
    applicable here. Under the arbitration agreement, Terrebonne “does
    not forgo the substantive rights afforded by” the Jones Act (and
    the general maritime law), he “only submits to their resolution in
    an arbitral, rather than a judicial, forum.”
         Terrebonne argues in his post-submission brief (see note 21
    supra) that Rodriguez is restricted to “business transactions.”
    That argument, however, is clearly refuted by Gilmer, which relied
    on, inter alia, Rodriguez, to enforce under the FAA a pre-dispute
    arbitration agreement as applied to an individual employee’s claim
    under the Age Discrimination in Employment Act.              See Gilmer, 111
    S.Ct. at 1652, 1654, 1655.22
         In this connection, Terrebonne further passingly contends, in
          See also, e.g., Circuit City Stores, Inc. v. Adams, 
    121 S. Ct. 1302
    , 1313 (2001), (“The Court has been quite specific in
    holding that arbitration agreements can be enforced under the FAA
    without contravening the policies of congressional enactments
    giving employees specific protection against discrimination
    prohibited by federal law. . .”); Garrett v. Circuit City Stores,
    449 F.3d 672
     (5th Cir. 2006) (Uniformed Services Employment
    and Reemployment Rights Act); Carter v. Countrywide Credit
    Industries, Inc., 
    362 F.3d 294
     (5th Cir. 2004) (Fair Labor
    Standards Act); Alford v. Dean Witter Reynolds, Inc., 
    939 F.2d 229
     (5th Cir. 1991) (Title VII).
    a most conclusory fashion, that requiring arbitration of a seaman’s
    Jones Act claim is contrary to public policy.                    But, as noted above,
    the   FAA       “establishes     a    federal       policy    favoring    arbitration.”
    McMahon at 2337.         The burden is on Terrebonne to show a contrary
    and compelling public interest.                     Gilmer at 1652.      Terrebonne has
    made no such showing.            “Having made the bargain to arbitrate, the
    party should be held to it unless Congress itself has evinced an
    intention        to   preclude    a   waiver        of    judicial   remedies      for   the
    statutory rights at issue.”                Gilmer at 1652 (citation and inside
    quotation marks omitted).23               The only such indication on the part
    of Congress is the concluding clause of section 1 of the FAA which
    expressly exempts from the FAA, and from the binding effect it
    gives      to    pre-dispute      contracts          to    arbitrate,    “contracts       of
    employment of seamen, railroad employees,” or other such in-
    commerce transportation workers.                     Beyond that express exemption,
    there is certainly no more public policy reason to exempt seamen
    from the binding effect of pre-dispute contracts – other than
    contracts        of   employment      –   to   arbitrate       Jones    Act   or   general
    maritime law claims against their employer than there is to exempt
          In Gilmer the Court held ADEA claims subject to a pre-
    dispute agreement to arbitrate notwithstanding “the recent
    amendments to the ADEA.” Id. at 1653-54. We note that “the
    recent amendments” referred to are apparently those of Pub. L.
    101-433, Title II, § 201, October 16, 1990, 104 Stat. 983,
    codified at 29 U.S.C. § 626(f)(1), which provide in part that
    “the individual does not waive rights or claims that may arise
    after the date the waiver is executed.” § 626(f)(1)(C).
    employees    protected    by   the   various       civil      rights   or   employee
    protection    statutes     from     the    binding       effect   of   pre-dispute
    contracts to arbitrate claims under such statutes against their
    employer.    See Gilmer and note 22 supra.
         This comports with our decision in Freudensprung v. Offshore
    Technical Services, Inc., 
    379 F.3d 327
     (5th Cir. 2004), where we
    affirmed the district court’s orders staying litigation of the
    plaintiff’s Jones Act claim pending arbitration.                  Id. at 332.     We
    noted that “the Convention on the Recognition and Enforcement of
    Foreign     Arbitral     Awards,”     9        U.S.C.    §§    201-208,     “governs
    concurrently with the FAA in this case.”                Id. at 338.    We held that
    “even assuming arguendo that the Consultant’s Agreement [by which
    the defendant retained the plaintiff] is a seaman’s employment
    contract,     the   arbitration       agreement          contained     therein    is
    nonetheless enforceable pursuant to the Convention . . . .”                      Id.
    We rejected the plaintiff’s argument
         “. . . that a ‘pre-injury’ agreement to arbitrate rather
         than litigate his personal injury claims is ‘inherently
         unfair’ because he could not have made an informed
         decision concerning his post-injury remedies before his
         injury had occurred and before any medical advice was
         available to him. The difficulty with this argument is
         that the same could be said of any advance agreement to
         arbitrate personal injury claims, and it is by now beyond
         cavil that such agreements are presumptively enforceable.
         As noted above, Freudensprung and OTSI agreed to
         arbitrate ‘any dispute’ arising out of the Consultant’s
         Agreement.    It is ‘[o]nly by rigorously enforcing
         arbitration agreements according to their terms, do we
         “give effect to the contractual rights and expectations
         of the parties, without doing violence to the policies
         behind the FAA.”’ Ford v. NYLCare Health Plans of Gulf
           Coast, Inc., 
    141 F.3d 243
    , 248-49 (5th Cir. 1998)
           (quoting Volt Information Sci., Inc. v. Bd. of Trustees
           of Leland Stanford Junior Univ., 
    489 U.S. 468
    , 479, 
    109 S. Ct. 1248
    103 L. Ed. 2d 488
     (1989).” Id. at 342.
    The plain implication is that if the agreement was not contained in
    a seaman’s contract of employment it would be enforceable under the
           We observe that, beyond vague references to the unfairness of
    pre-injury    arbitration    agreements    (of    seamen   and    of   others)
    generally     and generically, Terrebonne has never asserted in this
    case (or urged on this appeal) that the March 12, 2001 agreement
    here was invalid because it was not (or was not shown to be)
    sufficiently voluntary, informed and understood on his part, or
    because the amount paid for damages incurred up until March 12,
    2001 was not (or was not shown to be) fair and adequate, or because
    the agreement was not otherwise sufficiently fair or shown to be
    so.    Terrebonne’s public policy arguments lack merit.
           B.   Scope of the Arbitration Agreement
           In   addition   to   challenging    the    arbitration    agreement’s
    enforceability,    Terrebonne    asserts    that    if   the    agreement   is
    enforceable, his “re-injury” is separate from his prior hernia and
    thus outside the agreement’s coverage.           We hold that the district
    court did not err in compelling arbitration or confirming the
    arbitration award on this basis; the agreement was sufficiently
    broad for the district court to compel arbitration and allow the
    arbitration panel to determine its scope.
         The agreement clearly states that it encompasses “any claims
    related”    to    Terrebonne’s   November    2000   injury.   Terrebonne’s
    complaint in this action is for damages for both his 2000 accident
    and his April 2001 “re-injury.”           Terrebonne has nowhere asserted
    that he is only or even mainly asking for damages for his reinjury.
    Further, Terrebonne has not explained anywhere how these two are
    different.       Thus, in light of Terrebonne’s complaint—which lumps
    together the November 2000 and April 2001 injuries—the arbitration
    agreement was broad enough to be submitted to the arbitrators for
    determination of whether Terrebonne’s reinjury fell within the
    agreement’s scope. See in re Complaint of Hornbeck Offshore (1984)
    981 F.2d 752
    , 754–55 (5th Cir. 1993) (stating that this
    court distinguishes between broad and narrow arbitration clauses,
    and explaining, “If the clause is broad, the action should be
    stayed and the arbitrators permitted to decide whether the dispute
    falls within the clause”). We conclude that the arbitration clause
    is broad.    See, e.g., Hornbeck Offshore at 755 (“any dispute” is
    broad) and       Beiser v. Weyler, 
    284 F.3d 665
    , 669-70 (5th Cir. 2002)
    (“relates to” has a “plainly broad meaning”).           Terrebonne has not
    attacked the award rendered by the arbitration panel; nor has he
    attacked the arbitrators’ decision that the reinjury fell within
    the agreement’s scope.
         Terrebonne has shown no valid basis on which to reverse the
    district court’s decision to compel arbitration. The district
    court’s judgment is accordingly