Muratore v. M/S Scotia Prince

• Citation: 1993 A.M.C. 2933,845 F.2d 347
• Decision Date: 09 December 1987
• Docket Number: No. 87-1641,87-1641
• Parties: Regina M. MURATORE, Plaintiff, Appellee, v. M/S SCOTIA PRINCE, ETC., et al., Defendants, Appellees. Prince of Fundy Cruises, Ltd., Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 347

845 F.2d 347

Regina M. MURATORE, Plaintiff, Appellee, v. M/S SCOTIA PRINCE, ETC., et al., Defendants, Appellees Prince of Fundy Cruises, Ltd., Defendant, Appellant.

No. 87-1641.

United States Court of Appeals First Circuit.

Heard Dec. 9, 1987.

Decided April 19, 1988.

As Amended April 20, 1988.

Leonard W. Langer with whom Paul G. Vielmetti and Thompson, McNaboe, Ashley & Bull, Portland, Me., were on brief for defendant, appellant.

Michael X. Savasuk, Portland, Me., for plaintiff, appellee Regina M. Muratore.

Before BREYER and SELYA, Circuit Judges, and LAFFITTE, ^* District Judge.

LAFFITTE, District Judge.

Plaintiff-appellee commenced this action to recover damages for physical injuries and mental pain and suffering sustained while on board the M/S Scotia Prince. After a bench trial in admiralty, the United States District Court for the District of Maine granted judgment for plaintiff on her claim for intentional infliction of emotional distress and awarded five thousand dollars in compensatory damages and twenty-five thousand dollars in punitive damages. Muratore v. M/S Scotia Prince, 656 F.Supp. 471 (D.Me.1987). On appeal, defendant-appellant Prince of Fundy Cruises, Ltd. ("Prince") seeks review of the district court's findings that: 1) plaintiff was not bound by the one year contractual limitation provision specified in the master ticket; 2) defendant was liable for the actions of the photographers; 3) plaintiff is entitled to recover for intentional infliction of emotional distress; and 4) plaintiff is also entitled to an award of punitive damages. We affirm the district court's thorough and comprehensive opinion but reverse that part of the judgment awarding appellee punitive damages.

I. FACTS

Prince was the bareboat charterer of the M/S Scotia Prince, a cruise ship owned by Transworld Steamship Company, Inc. ("Transworld"). In September of 1984, Prince had contracted with Floating Fleet, Ltd. (Floating Fleet) to operate all of the hotel services on board the cruise ship. Floating Fleet then contracted with Intermed Photos, Ltd. (Intermed) to operate a photographic concession on board the cruise ship. Floating Fleet provided Intermed complimentary berths, darkroom and other space. In return, Intermed would give Floating Fleet a share of the profits from the photographic concession.

Plaintiff, a resident of Massachusetts, and her traveling companion, Marlene LeMoine, planned a round trip voyage on the M/S Scotia Prince between Portland, Maine and Yarmouth, Nova Scotia through Peter Pan Tours during the Labor Day weekend of 1984. Peter Pan Tours provided them with bus transportation between Springfield, Massachusetts and Portland, Maine.

While plaintiff was still on the bus in Portland, William F. Donovan, the Peter Pan Tours guide, left the bus to receive the group's travel documentation. Prince issued to the Peter Pan Tour group a master ticket numbered "T73643" and its accompanying ticket jacket. The letter "T" designated a tour group ticket as opposed to a ticket issued to an individual passenger. Donovan signed the work sheet on the line marked "tour escort signature." Prince also issued to Donovan boarding passes, meal vouchers and gambling chits. The handling of this group excursion was performed in accordance with Prince's usual ticketing procedure. ¹ Donovan returned to the bus and distributed boarding passes, meal vouchers and gambling chits issued by Prince to each passenger in the tour group, including plaintiff and her traveling companion.

Master ticket T73643 contained certain terms and conditions of passage including warnings of the existence of such terms and conditions. The word "important" was printed in bold type. The terms and conditions themselves were set forth in twelve paragraphs beginning on the inside of the front cover, indicating in unambiguous language that the conditions were continued inside the back cover. Paragraph nine states:

TIME LIMITATION--SUITS.

Suits and actions to recover for loss of life or personal injury to passengers shall not be maintainable unless instituted within one (1) year from the date when death or injury occurred. Suits and actions to recover for claims other than personal injuries or loss of life shall not be maintainable unless commenced within six (6) months from the date on which the claim accrued or loss occurred.

Plaintiff never physically possessed master ticket T73643 and its accompanying ticket jacket containing the terms and conditions of passage. The three documents (boarding passes, meal vouchers and gambling chits) that plaintiff possessed did not contain or refer to any of the terms and conditions.

On boarding the cruise ship, photographers Mark Ayling and Martyn Moore were taking the passengers' pictures. Plaintiff informed the photographers that she did not want her photograph taken. When they proceeded to disregard her request, plaintiff turned her back to them and walked backwards onto the cruise ship. One of the photographers took her picture from the back. The following day, plaintiff's picture was displayed along with other passengers' pictures and offered for sale. Plaintiff's picture, however, had been "doctored" with a picture of a gorilla face that had been appended to cover the back of plaintiff's head.

As plaintiff and her friend were proceeding to the cafeteria for breakfast, plaintiff slipped and fell down a flight of stairs. At the time of the fall, the stairs were carpeted. Plaintiff was disturbed from the fall and went to the cafeteria for a cup of coffee and a cigarette. Afterwards she completed an accident report and returned it to the manager of Floating Fleet. At that time, plaintiff refused medical assistance from the cruise ship's medical doctor.

Throughout the cruise, plaintiff had repeated confrontations with the photographers. On one occasion, a photographer dressed in a gorilla costume approached plaintiff. Again she turned her back. One photographer then shouted to the other, "take the back of her--she likes things from the back." Plaintiff understood the remark to be lewd and offensive. On another occasion, the photographers attempted to photograph plaintiff while she and her traveling companion sat in the coffee shop. Though she covered her face with her hands the picture was taken. Plaintiff was embarrassed by the pictures and felt harassed on her weekend voyage. The record discloses that plaintiff spent several hours in her cabin in order to avoid the photographers.

Sometime after departing from the M/S Scotia Prince, plaintiff began to experience severe bruising and physical discomfort, in particular, lower back pains. This pain continued in varying degrees. Her injury interrupted activities such as lifting, gardening, or walking for extended periods of time. She is, however, able to work and engage in normal social activity.

On March 7, 1986, over a year and a half after the cruise, plaintiff filed a complaint against M/S Scotia Prince, Transworld and Prince. Prior to the bench trial, plaintiff's in rem claims against M/S Scotia Prince were dismissed for failure to obtain in rem jurisdiction over the vessel. Plaintiff's in personam claims proceeded to trial against Prince and Transworld. Based on the photographers' conduct, plaintiff asserted a claim for intentional infliction of emotional distress and negligent infliction of emotional distress. She further alleged that Prince was negligent in maintaining the stairways and as a result she slipped and fell down the stairs and injured her back. Prince and Transworld raised the defense that plaintiff's action was time barred by the one year contractual limitation provision specified in the Contract of Passage.

After a thorough review of the master ticket, the district court found that Donovan signed for and received the group ticket T73643; that said ticket contained clearly marked language warning each passenger to examine the terms and conditions of passage specified on the ticket jacket. The court also found, however, that the terms and conditions were never communicated to plaintiff. In considering the legal effect of these factual findings, the lower court ruled that since Prince did not do all that it reasonably could have done to notify plaintiff of the contractual limitations, plaintiff was not legally bound by them.

In examining the merits of plaintiff's claim for emotional distress, the district court concluded that Prince was indeed responsible for the photographers' conduct since the two photographers were considered part of Prince's crew and Prince had a pecuniary interest in the photographic concession. The lower court determined that the photographers' conduct was outrageous and that therefore plaintiff was entitled to recover $5,000.00 for intentional infliction of emotional distress. The trial court awarded plaintiff $25,000 in punitive damages on the grounds that Prince as a carrier had breached its duty to its passengers, that the photographers' conduct was intentional and deliberate, that Prince failed to discipline the photographers, and that an award was needed to deter future improper conduct. Prince and not Transworld appeals these findings. The district court returned a judgment for Prince and Transworld on plaintiff's claim for personal injuries and for negligent infliction of emotional distress. These holdings are not on appeal. ²

II. CONTRACTUAL LIMITATION

In determining whether a contractual limitation period contained in a passenger ticket is binding on a steamship passenger, this Circuit has applied the "reasonable communicativeness" test on a case by case basis. See Shankles v. Costa Armatori, S.P.A., 722 F.2d 861 (1st Cir.1983); DeNicola v. Cunard Line Ltd., 642 F.2d 5 (1st Cir.1981). See also, Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983); Silvestri v. Italia Societa Per Azioni di Navigazione, 388 F.2d 11 (2nd Cir.1968); Lipton v. National Hellenic American Lines, 294...