67 F.3d 7 (2nd Cir. 1995), 1718, Effron v. Sun Line Cruises, Inc.

Docket Nº:1718, Docket 94-9279.
Citation:67 F.3d 7
Party Name:Nettie EFFRON, Plaintiff-Appellee, v. SUN LINE CRUISES, INC.; and Sun Line Greece Special Shipping Co., Inc., Defendants-Appellants.
Case Date:September 11, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 7

67 F.3d 7 (2nd Cir. 1995)

Nettie EFFRON, Plaintiff-Appellee,

v.

SUN LINE CRUISES, INC.; and Sun Line Greece Special

Shipping Co., Inc., Defendants-Appellants.

No. 1718, Docket 94-9279.

United States Court of Appeals, Second Circuit

September 11, 1995

Argued May 24, 1995.

Paul T. Hofmann, New York City (Cappiello Hofmann & Katz, of counsel), for plaintiff-appellee.

Scott A. Walker, New York City (Walker & Corsa, of counsel), for defendants-appellants.

Before: VAN GRAAFEILAND, KEARSE and CALABRESI, Circuit Judges.

Page 8

VAN GRAAFEILAND, Circuit Judge:

Sun Line Cruises, Inc. (hereinafter "Sun Line Cruises") and Sun Line Greece Special Shipping Co., Inc. (hereinafter "Sun Line Greece") appeal pursuant to 28 U.S.C. Sec. 1292(b) from an order of the United States District Court for the Southern District of New York (Cedarbaum, J.) denying Sun Line Greece's motion to dismiss Nettie Effron's suit against it for injuries sustained aboard a Sun Line Greece cruise ship, the Stella Solaris, and Sun Line Cruises' motion for summary judgment in the claim against it arising out of the same accident. See 857 F.Supp. 1079 (S.D.N.Y.1994). For the reasons that follow, we reverse the denial of Sun Line Greece's motion and remand without ruling on the denial of Sun Line Cruises' motion for summary judgment.

On January 10, 1992, Nettie Effron, a resident of Palm Beach, Florida, purchased a 17-day South American vacation package through her Florida-based travel agent. The package included air travel from Florida to Brazil on February 12, 1992 and from Argentina to Florida on February 28, 1992. The centerpiece of the vacation was a 16-day cruise aboard the Stella Solaris. The cruise commenced in Manaus, Brazil, included ports of call in five Brazilian and Uruguayan cities, and terminated in Buenos Aires, Argentina. Effron's travel agent purchased this "exotic" package from Sun Line Cruises, a New York firm.

Included in the record is what Effron described as "a copy of the promotional brochure for the February 1992 cruises being marketed to me." (Effron affidavit dated October 23, 1993) This brochure contained a document entitled "Reservations Information", which stated that the Stella Solaris was a luxury ship of Greek registry and directed the attention of passengers to "the general conditions of transportation set out in the Passage Contract." It also carried the following message under the sub-heading "Responsibility":

The transportation of passengers and baggage on the Stella Solaris is provided solely by Sun Line Greece Special Shipping Co., Inc. (owners of the Stella Solaris) and is governed by the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any Sun Line office. Passenger's acceptance of that ticket constitutes agreement to those terms and conditions.

The "Passage ticket and contract" to which plaintiff's attention was directed contained several pertinent and controlling provisions:

IMPORTANT NOTICE--READ BEFORE ACCEPTING:

Please read carefully the terms of this ticket beginning on page 1 and continuing through page 4. All these terms are an integral part of the contract between passengers and the Carrier. In accepting this contract, you agree to the terms. Attention is particularly drawn to the Carrier's right of exemption and limitation set forth in Clauses 12 and 13 (pages 3 and 4).

Clause 13, the forum-selection provision of the Passage contract, reads as follows:

Notwithstanding anything to the contrary contained herein, any action against the Carrier must be brought only before the courts of Athens[,] Greece to the jurisdiction of which the Passenger submits himself formally excluding the jurisdiction of all and other court or courts of any other country or countries which court or courts otherwise would have been competent to deal with such action.

The ticket also informs passengers that the carrier with whom they are contracting is Sun Line Greece. The company's Greek address and phone number are listed on the face of the ticket together with a statement that the Stella Solaris' country of registry is Greece.

During the South American cruise Effron allegedly was injured as the result of a shipboard fall. She brought suit against Sun Line Cruises and...

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