Carpenter v. Klosters Rederi, 76-4261

• Citation: 604 F.2d 11
• Decision Date: 05 October 1979
• Docket Number: No. 76-4261,76-4261
• Parties: Ralph CARPENTER, Plaintiff-Appellee, v. KLOSTERS REDERI A/S, a foreign corporation, d/b/a Norwegian Caribbean Lines, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 11

604 F.2d 11

Ralph CARPENTER, Plaintiff-Appellee, v. KLOSTERS REDERI A/S, a foreign corporation, d/b/a Norwegian Caribbean Lines, Defendants-Appellants.

No. 76-4261.

United States Court of Appeals Fifth Circuit.

Oct. 5, 1979.

Frank J. Marston, Miami, Fla., for defendants-appellants.

Eugene L. Heinrich, Fort Lauderdale, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before JONES, AINSWORTH and HILL, Circuit Judges.

JONES, Circuit Judge:

The appellant, Klosters Rederi A/S, is a corporation of Norway doing business under the name of Norwegian Caribbean Lines. It operated cruise ships from Florida ports. The appellee, Ralph C. Carpenter is a citizen and resident of Broward County, Florida. Carpenter purchased a "Passage Contract Ticket" from the appellee shipowner for a cruise on the M/S Sunward sailing from and returning to Miami, Florida. The top line of the ticket read, "Norwegian Caribbean Lines Passage Contract Ticket." Immediately below, and in bold type was the provision, "Issued subject to the terms and conditions printed on the cover of this contract ticket which form part thereof." Among the terms and conditions referred to and in the fine print on the cover of the ticket was the provision that: "The acceptance of this ticket by a passenger shall be deemed to be an undertaking and acknowledgment that he accepts on behalf of himself and all other persons traveling under this ticket and his and their heirs and representatives that he and they accept and agree to all the conditions of carriage herein set out or otherwise notified to the passenger by the owners." The terms and conditions contain a one-year suit time limitation: "Suit to recover any claim shall not be maintainable . . . unless commenced within one year after the date of the accident or loss."

On September 14, 1973 Carpenter brought an action against the shipowner seeking damages for personal injuries. Federal jurisdiction of diversity of citizenship was asserted. In the complaint it was alleged that Carpenter, on October 15, 1972, while a passenger on the shipowner's vessel, the M/S Sunward, and while the vessel was on the high seas, stepped from an elevator onto a wet and slippery deck, fell and was injured. The shipowner denied negligence and asserted that the deck was dry. At the trial of the cause a verdict was returned for the shipowner and judgment was entered on the verdict. Carpenter filed a motion for a new trial on the ground that evidence was improperly admitted. The court granted the motion and ordered a new trial. Then, for reasons not clearly apparent, Carpenter filed a motion for a voluntary dismissal of the action. The motion was granted and an order was entered dismissing the action without prejudice.

On January 29, 1976 Carpenter brought another action against the shipowner asserting the same claim as in the first suit. In its answer the shipowner asserted as an affirmative defense that the ticket contained a suit time limitation of one year and the action, commenced more than three years after the accident, was barred. A motion for summary judgment asserted the same defense. The district court denied the motion for summary judgment. In its order the district court cited Miller v. Lykes Brothers Steamship Co., 5th Cir. 1972, 467 F.2d 464, and Silvestri v. Italia Societa Per Azioni Di Navigazione, 2d Cir. 1968, 388 F.2d 11.

On appeal the shipowner contends that the district court erred in granting the motion for a new trial in the first action and in denying the motion for summary judgment in the second action. The contention that the district court erred in granting the ...