Originally from AAA Yearbook on Arbitration and the Law - 26th Edition

2.01 Scope of the Arbitration Agreement

Cape Flattery Ltd. v. Titan Maritime, LLC, 647 F.3d 914 (9th Cir. 2011)

1. Courts should apply federal arbitrability law absent “clear and unmistakable evidence” that the parties agreed to apply non-federal arbitrability law.

2. Arbitration agreements with the phrase “arising under” are interpreted narrowly.

3. Tort claim did not relate to interpretation and performance of contract and was not arbitrable under narrow arbitration clause.

Cape Flattery, boat owner, sued Titan Maritime, a salvage company, in federal district court seeking indemnity or contribution for damages to coral reef caused by salvage of the boat. The parties had an agreement that Titan Maritime would salvage the boat and the agreement included an arbitration clause stating that any dispute arising under the agreement would be settled by arbitration in England and English law would apply. Titan sought to compel arbitration based on the arbitration clause in the agreement. The district court concluded that federal arbitrability law applied to determine arbitrability and that, under federal arbitrability law, the dispute did not arise under the agreement. Titan appealed.