306 F.3d 827 (9th Cir. 2002), 01-56700, Wallis v. Princess Cruises, Inc.

Docket Nº:01-56700.
Citation:306 F.3d 827
Party Name:Bobbie Jo WALLIS, in her individual capacity as Administrator of the Estate and Personal Representative of Joel Anderson Wallis, Deceased, for the benefit of Ervin B. Wallis, Helen Wallis, Joel Shannon Wallis, Stacy Trent Wallis, Jolie Amanda Wallis and Vallie Jo Wallis, Plaintiff-Appellant, v. PRINCESS CRUISES, INC.; Fairlane Shipping Internationa
Case Date:September 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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306 F.3d 827 (9th Cir. 2002)

Bobbie Jo WALLIS, in her individual capacity as Administrator of the Estate and Personal Representative of Joel Anderson Wallis, Deceased, for the benefit of Ervin B. Wallis, Helen Wallis, Joel Shannon Wallis, Stacy Trent Wallis, Jolie Amanda Wallis and Vallie Jo Wallis, Plaintiff-Appellant,

v.

PRINCESS CRUISES, INC.; Fairlane Shipping International Corporation, Ltd.; Princess Cruise Lines, Ltd., Defendants-Appellees.

No. 01-56700.

United States Court of Appeals, Ninth Circuit

September 24, 2002

Argued and Submitted June 5, 2002.

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[Copyrighted Material Omitted]

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Franklin M. Tatum and Christiane E. Cargill, Wright Robinson Osthimer & Tatum, Los Angeles, CA, for the plaintiff-appellant.

Elsa M. Ward, Lawrence W. Kaye, Kaye, Rose & Partners, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California;

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William J. Rea, District Judge, Presiding. D.C. No. CV-00-07239-WJR.

Before FERNANDEZ, WARDLAW and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Plaintiff Bobbie Jo Wallis brought an action against defendants Princess Cruises, Inc., and others for damages based on the death of her husband, who drowned off the coast of Greece after falling in an undetermined manner from defendants' cruise ship. The district court granted defendants' motions for summary judgment, with the exception of plaintiffs Death on the High Seas Act ("DOHSA") claim, and granted defendants' motion for partial summary judgment limiting their liability to approximately $60,000 in accordance with a clause printed in the back of the ticket contract. We reverse the grant of partial summary judgment limiting recoverable damages, and hold that a contract clause that merely refers to the " 'Convention Relating to the Carriage of Passengers and Their Luggage by Sea' of 1976 ('Athens Convention')" does not reasonably communicate a liability limitation. We affirm the district court's order in all other respects.

I. Background

In the summer of 1999, Bobbie Jo Wallis and her husband, Joel Anderson Wallis, embarked on a Mediterranean cruise aboard the Grand Princess, a cruise ship owned by related companies Princess Cruises, Inc., Fairlane Shipping International Corporation Ltd., and Princess Cruise Lines, Ltd. ("Princess" or "defendants"). They were each given a ticket packet containing ticket coupons and a "Passage Contract." At the bottom of "Coupon 01" of the ticket packet was the warning headline "IMPORTANT NOTICE" in 1/8-inch type, followed by this statement in 1/16-inch type:

THIS TICKET INCLUDES THE PASSAGE CONTRACT TERMS SET FORTH AT THE END OF THIS PACKET WHICH ARE BINDING ON YOU. PLEASE READ ALL SECTIONS CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS, PARTICULARLY SECTION 14 GOVERNING THE PROVISION OF MEDICAL AND OTHER PERSONAL SERVICES AND SECTIONS 15 THROUGH 18 LIMITING THE CARRIER'S LIABILITY AND YOUR RIGHTS TO SUE.

The warning headline and text was repeated four more times at the bottom of "Coupon 04," "Coupon 07," "Coupon 08," and "Coupon 09." Text of similar wording appeared across the top of the first page of the Passage Contract, located behind the ticket coupons. On pages six and seven of the Passage Contract was a paragraph headed "16. LIMITATIONS ON CARRIER'S LIABILITY; INDEMNIFICATION." The sixth and seventh sentences of the paragraph1 read:

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Carrier shall be entitled to any and all liability limitations, immunities and rights applicable to it under the "Convention Relating to the Carriage of Passengers and Their Luggage by Sea" of 1976 ("Athens Convention") which limits the Carrier's liability for death of or personal injury to a Passenger to no more than the applicable amount of Special Drawing Rights as defined therein, and all other limits for damage or loss of personal property. If the Athens Convention or such exemptions are held not to apply for any reason, then all the exemptions from and limitations of liability provided in or authorized by the laws of the United States (including Title 46 U.S. Code Sections 181-186, 188) will apply.

The Passage Contract also required that all claims against Princess be litigated in a court located in the County of Los Angeles, California.

Sometime in the early morning of July 10, 1999, Mr. Wallis disappeared from the Grand Princess. During this time, the ship was traveling towards Athens. No one saw Mr. Wallis fall overboard. By the time the Grand Princess docked in Athens, it was apparent that Mr. Wallis was missing from the ship. A certified statement from the Hellenic Coast Guard reports that a helicopter and multiple rescue boats were launched that day to search for Mr. Wallis. The distraught plaintiff initially remained on board, where she was given a sedative by the ship's physician and questioned by Greek police about her husband's disappearance. Plaintiff asserts that during this time, "Commodore Moulin [the ship's master] subjected [her] to remarks that her husband had fallen overboard; that he died in his fall from the ship; that his body would be sucked under the ship, chopped up by the propellers and probably would not be recovered." Later that afternoon, Commodore Moulin informed plaintiff that the Grand Princess was set to leave port at 5:30 p.m., and that she had a choice of disembarking or continuing with the cruise. Plaintiff chose to disembark and stay in Athens.

On July 16, 1999, Mr. Wallis' body washed ashore near Lavrio, Greece. The body was severely decomposed, but nothing in the record indicates that the body

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had been cut by propellers. Since Mr. Wallis' death, plaintiff has been diagnosed with depression and post-traumatic stress disorder. Plaintiff claims that she has recurring images of her husband being pulled under the ship and into its propellers.

Plaintiff filed this action against Princess in federal district court, alleging seven causes of action against Princess, including wrongful death under DOHSA, 46 App.U.S.C. §§ 761-767; intentional infliction of emotional distress; breach of contract; and fraud in various marketing materials. Princess moved for summary judgment striking all claims or, alternatively, for partial summary judgment limiting Princess' liability to the amount (approximately $60,000) prescribed by the Convention Relating to the Carriage of Passengers and Their Luggage by Sea ("Athens Convention"), incorporated by reference in paragraph 16 of the Passage Contract. On August 14, 2001, the district court granted Princess' motions for summary judgment on all claims except for the DOHSA claim, and granted the motion for partial summary judgment limiting Princess' liability. Plaintiff timely appealed the district court's grant of partial summary judgment on the amount of recoverable damages, and its grant of summary judgment on the claim for intentional infliction of emotional distress.

II. Discussion

A grant of summary judgment is reviewed de novo. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

A. Jurisdiction

Under 28 U.S.C. § 1292(a)(3), a court of appeal has jurisdiction over "[i]nterlocutory decrees of . . . district courts . . . determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed." Princess contends that because the district court left for trial the issue of whether Princess was liable for a negligent search under DOHSA, the district court's decision below did not "determin[e] the rights and liabilities of the parties" within the meaning of § 1292(a)(3). Therefore, according to Princess, the district court's decision is not subject to interlocutory review under § 1292(a)(3). We have jurisdiction to determine our scope of jurisdiction. See Breed v. Hughes Aircraft Co., 253 F.3d 1173, 1177 (9th Cir. 2001).

We have previously stated that "§ 1292(a)(3) is an exception to the final judgment rule and, therefore, is construed narrowly. It permits appeals only when the order appealed from determines the rights and liabilities of the parties." Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1136 (9th Cir. 2000), cert. denied, 532 U.S. 1007, 121 S.Ct. 1733, 149 L.Ed.2d 658 (2001). At the same time, we have twice exercised jurisdiction to hear interlocutory appeals under this section when the district court has upheld the validity of a clause limiting the amount of liability but has not reached the question of whether the defendant was actually liable. See Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897 (9th Cir. 1989); Vision Air Flight Service, Inc. v. M/V National Pride, 155 F.3d 1165 (9th Cir. 1998).

In Carman Tool, defendants were sued for negligent handling of cargo. We wrote:

As an affirmative defense, [defendants] asserted that their liability, if

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any, is limited to $500 per package, pursuant to section 4(5) of COGSA [Carriage of Goods at Sea Act], 46 App. U.S.C. § 1304(5) (1982 & Supp. III 1985), the terms of the contract of carriage as contained in the bill of lading. . . .

All parties moved for partial summary judgment as to whether defendants' liability is limited to $500 per package. The district court granted partial summary judgment in favor of defendants, and plaintiffs took an interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(3) (1982).

871 F.2d at 899 (footnote omitted) (emphasis added). Although the district court in Carman Tool had made no determination as to whether the defendants were actually liable, we nonetheless exercised jurisdiction under § 1292(a)(3) to determine whether the defendants' potential liability was...

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