McQuillan v. " ITALIA" SOCIETA PER AZIONE DI NAVIGAZIONE
| Decision Date | 18 November 1974 |
| Docket Number | No. 73 Civ. 2300.,73 Civ. 2300. |
| Citation | 386 F. Supp. 462 |
| Parties | William McQUILLAN, Plaintiff, v. "ITALIA" SOCIETA PER AZIONE DI NAVIGAZIONE, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Harold I. Gold, New York City, for plaintiff.
Louis J. Gusmano, Kirlin, Campbell & Keating, John R. Geraghty, New York City, for defendant.
This is but one more in a long line of "passage contract" cases reaching back at least as far as The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897). Plaintiff and his wife were passengers on a Caribbean cruise on the defendant's vessel, the S.S. Michelangelo. On February 7, 1973, four days after the start of the cruise, the plaintiff was injured when a deck chair on which he attempted to sit collapsed under him.
On April 5, 1974, the plaintiff, alleging negligence on the part of the defendant, filed suit in the Supreme Court of the State of New York. Following what has become a common pattern in these cases, the defendant removed the case to this court on diversity grounds and then moved pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure for summary judgment based on a condition in the passage contract which limited the time for bringing suits against the defendant to one year from the date of the injury.1
It is uncontroverted that the plaintiff purchased two tickets in New York from a travel agent for a cruise aboard the S.S. Michelangelo from New York to the Caribbean and back to New York. After making reservations and leaving a deposit in October, 1972, the plaintiff paid the balance due on January 12, 1973. The passage tickets were received by the plaintiff approximately one week before sailing, and according to the plaintiff's affidavit, were picked up by the defendant just prior to boarding and were never signed or seen by the plaintiff again.
In response to defendant's motion for summary judgment, the plaintiff argues that the terms and conditions contained in the "passage contract" were not incorporated into any "contract" because the standards for incorporation recently enunciated by this Circuit in Silvestri v. Italia Societa Per Azioni Di Navigazione (Italian Line), 388 F.2d 11 (2d Cir. 1968), were not satisfied. In Silvestri, Judge Friendly analyzed in detail the two distinct lines of passage ticket contract cases which have involved the issue of incorporation of the numerous terms and conditions which every steamship company seems to include in their passenger tickets. One line originates with the doctrine established in The Majestic and disallows incorporation,2 while the other follows Judge Cardozo's opinion in Murray v. Cunard Steamship Co., 235 N.Y. 162, 139 N.E. 226 (1923) and allows incorporation.3 According to Judge Friendly:
"The thread that runs implicitly through the cases sustaining incorporation is that the steamship line had done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights."4
After a detailed comparison of the ticket at issue in Silvestri with the forms used by other steamship companies, Judge Friendly concluded that "the Italian Line's ticket alleged to effect incorporation fell below what could reasonably have been expected" since "nothing whatever was done to impress the importance of the terms and conditions upon the passenger." Silvestri, supra, 388 F.2d at 17. The task for this court then is to determine whether the passage contract in issue meets the Silvestri standards. In order to make this determination, a detailed examination of the defendant's passage contract must be made.5
As a starting point, it should be noted that the defendant in Silvestri and the defendant in this action are one and the same, the Italian Line. Thus, the defendant's new form of passage contract must be "significantly more eye-catching" than its old one. Although the plaintiff has gone into excrutiating detail to distinguish the Italian Line's new ticket from the Silvestri ticket and other tickets where incorporation was found,6 it is the court's conclusion that the new passage contract meets the standards set out in Silvestri, i. e., it is significantly more eye-catching, and it reasonably communicates to the passenger the fact that the terms and conditions are important matters of contract affecting his legal rights.
In Silvestri, supra, at 14, the ticket was described as follows:
The "ticket" portion of the passage contract in the case at bar is substantially the same as that in Silvestri. Inexplicably, the printing in the upper left hand corner is in even smaller type than that in Silvestri. Also, the words "terms and conditions: pages 1 through 6" appear in small type at the bottom right of the ticket. However, there are significant differences. The terms and conditions are no longer printed on "leaves" attached to the ticket portion. Instead, they are contained in an oblong booklet, bound at the left edge which has a cover, followed by 6 pages of terms and conditions, and then the "ticket" and several copies.
Across the top of the cover of the passage contract in white lettering on a blue background appear the words "Italian Line," "Italia Soc. Di Navigazione-Genova," and "Italmar." Slightly below these words, and in the center appear the words "Ships of Italian Registry." Approximately 3/40 of an inch below that line is a logotype consisting of three anchor devices arranged in a horizontal pattern approximately 5 1/8 inches in width and 2 3/8 inches high. Super-imposed on this logotype in Italian, English, Spanish and Portugese, in black lettering approximately 9/60 of an inch high, are the words "passage contract." Just below the logotype printed in two columns, the left hand column in Italian and the right hand column in English, in white lettering on the blue background, and in clearly legible type appears the following:
Terms of Passage Contract. Passengers are kindly requested to read the conditions of this contract before accepting. "Italia," Societa per Azioni di Navigazione, hereafter referred to as "the Company," agrees to provide (continued page 2)
The wording continues onto the second page in smaller but still legible type:
the transportation described herein to the person or persons named herein, subject to the terms set forth in this passage contract, printed on this page and on pages 3, 4, 5, 6.
Pages 2, 3, 4, 5 and 6 then go on to state 16 "articles" containing the terms of the contract. These terms are printed in a two column approach, the left hand column in Italian and the right hand column in English. The printing is small, but legible, and the title of each article is printed in bold face and in larger type.
The physical arrangement of the passage contract described above is similar to that in Lipton v. National Hellenic American Lines, 294 F.Supp. 308 (E.D. N.Y.1968), and although the warning on the cover of the Lipton ticket was phrased in stronger terms,7 I have concluded that this passage contract reasonably communicates the importance of the terms and conditions to the passenger and therefore they are incorporated into the contract.8
The finding that the terms and conditions were incorporated into the contract does not necessarily mean that defendant's motion for summary judgment should be granted, for there are other issues which must be examined including the validity of Articles 13 and 14 of the passage contract, and whether certain actions taken by the defendant subsequent to the filing of the plaintiff's notice of claim estop the defendant from asserting the time limitation conditions as a defense. These issues present the additional problem not raised by either party, of what law should be applied in determining these issues, since the passage contract contains the following provision:
Preliminarily, it should be noted that this is not a case governed by Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The alleged tort was committed on the high seas and involves a defense based on a contract made in New York, by a New York plaintiff, with performance there and on the high seas. Thus "the substantive law to be applied including choice-of-law rules is the `general maritime law' of which the ultimate expositor is the Supreme Court of the United States." Jansson v. Swedish American Line, 185 F.2d 212, 216 (1st Cir. 1950); Siegelman v. Cunard White Star, 221 F. 2d 189 (2d Cir. 1955).9
It must now be determined what choice of law rule would be applied under the "general maritime...
To continue reading
Request your trial
-
Hodes v. S.N.C. Achille Lauro ed Altri-Gestione
...298 F.2d 618, 619 (2d Cir.); cert. denied, 370 U.S. 909, 82 S.Ct. 1256, 8 L.Ed.2d 403, (1962); McQuillan v. "Italia" Societa Per Azione Di Navigazione, 386 F.Supp. 462, 464 (S.D.N.Y.1974), aff'd, 516 F.2d 896 (2d Cir.1975); Murray v. Cunard S.S. Co., 235 N.Y. 162, 166-67, 139 N.E. 226 (N.Y.......
-
Honeycutt v. Tour Carriage, Inc., 5:95CV134-MCK.
...even though the operative language was incorporated within 10 pages of "small but legible type"); McQuillan v. "Italia" Societa Per Azione Di Navigazione, 386 F.Supp. 462 (S.D.N.Y.1974), aff'd, 516 F.2d 896 (2d Cir. 1975) (defendant's motion for summary judgment should be granted based upon......
- United States v. Bynum
-
Wallis v. Princess Cruises, Inc.
...7 (2d Cir.1995); Spataro v. Kloster Cruise, Ltd., 894 F.2d 44 (2d Cir.1990); Hodes, 858 F.2d 905; McQuillan v. "Italia" Societa Per Azione Di Navigazione, 386 F.Supp. 462 (S.D.N.Y.1974). The second prong of the reasonable communicativeness test requires us to evaluate "`the circumstances su......
-
Chapter § 3.02 CRUISE SHIPS
...Hecht v. Cunard Line, Ltd., 1982 A.M.C. 656 (S.D.N.Y. 1981) (loss of jewelry); McQuillian v. Italia Societa Per Azione Di Navigazione, 386 F. Supp. 462 (S.D.N.Y. 1974), aff 'd 516 F.2d 396 (2d Cir. 1975). Fifth Circuit: Miller v. Lykes Brothers Steamship Co., 467 F.2d 464 (5th Cir. 1972). S......