Nash v. Kloster Cruise A/S, 89-8475

Citation901 F.2d 1565
Decision Date23 May 1990
Docket NumberNo. 89-8475,89-8475
PartiesBarbara NASH and John Nash, Plaintiffs-Appellants, v. KLOSTER CRUISE A/S, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

David Sinclair Walker, Jr., Lilburn, Ga., Benjamin S. Williams, Williams & Henry, Atlanta, Ga., for plaintiffs-appellants.

Michael W. McElroy, Harman, Owen, Saunders & Sweeney, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before CLARK, Circuit Judge, RONEY *, Senior Circuit Judge, and ATKINS **, Senior District Judge.

PER CURIAM:

This appeal raises the question of whether a cruise line ticket provided the plaintiff passengers with reasonable notice of a one-year limitation period on their right to sue for personal injuries sustained during the cruise. Holding that reasonable notice was provided, we affirm the district court's entry of summary judgment for defendant.

Two days after embarking on a November 1986 Caribbean cruise, passenger Barbara Nash slipped and fell on a gangplank, sustaining injuries for which she and her husband John brought suit some fourteen months later. Since suit was not brought within one year of the date of injury, the district court found the suit time-barred pursuant to the contractual limitation set forth in the cruise ticket.

Plaintiffs contend that the one-year time limit in the contract does not apply because the cruise line did not reasonably notify them of the limitation. Title 46 U.S.C.A.App. Sec. 183b(a) permits cruise lines to place a one-year contractual time limit on their passengers' right to file personal injury suits. Courts will enforce such a limitation if the cruise ticket provided the passenger with reasonably adequate notice that the limit existed and formed part of the passenger contract. Kornberg v. Carnival Cruise Lines, 741 F.2d 1332, 1335 (11th Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1357, 84 L.Ed.2d 379 (1985); Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (5th Cir.1979); Annotation, Federal View as to Effect of Conditions Appearing on Back or Margin of Passenger's Ticket for Ocean Voyage, 5 A.L.R.Fed. 394 (1970). Whether the notice to passengers was reasonably adequate is a question of law. Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 867 (1st Cir.1983); Barbachym v. Costa Line, 713 F.2d 216, 218 (6th Cir.1983).

There is no issue here as to whether the language of the notice satisfied the requirements articulated by the cases. E.g., Carpenter, 604 F.2d at 13 (the notice must inform passengers that terms printed elsewhere in the ticket constitute binding part of contract); Shankles, 722 F.2d at 864 (the language must be such as to "reasonably communicate to [passengers] the existence [within the ticket] of important terms and conditions which affect legal rights"). Instead, the Nashes question the placement of the notice. They urge that Kloster's failure to print the notice either on the cover of the ticket packet or on the ticket that the Nashes had to surrender upon boarding renders the notice inadequate as a matter of law.

The ticket in question was issued in multi-page, packet form. Page one was the cover of the ticket packet. This was followed by two detachable pages, the first labelled "AGENT'S COPY" and the second "PASSENGER TICKET--TO BE PRESENTED FOR PASSAGE." These two pages contained printed instructions directing their removal before a passenger embarked on a cruise, and in this case these pages had indeed been removed from the packet by the time of Mrs. Nash's injury: the first page was removed by the travel agent prior to the packet's issuance, and the second was removed by the cruise line upon boarding. Although the district court made no specific finding on this point, its accuracy is apparent from the record, since in the district court (1) the Nashes filed an affidavit from their travel agent that attached the "AGENT'S COPY" of the Nashes' ticket, and (2) Kloster submitted an affidavit from its director of customer relations that attached the "PASSENGER TICKET--TO BE PRESENTED FOR PASSAGE" page of the Nashes' ticket. It is unlikely that either affiant would have been able to produce copies of these pages had they not been duly detached from the Nashes' ticket packet.

The removal of these detachable pages rendered the "PASSENGER COPY"--though numbered page four--the first page in the Nashes' ticket packet after the cover page. In a rectangular box at the bottom left-hand corner of this "PASSENGER COPY" appeared the following language in bold red type: "NOTICE: THE PASSENGER'S ATTENTION IS SPECIFICALLY DIRECTED TO THE TERMS AND CONDITIONS OF THIS CONTRACT APPEARING ON PAGES 6, 7, AND 8." That contract, denominated "CONTRACT OF PASSAGE," bore this bold-typed legend at the top of its first page: "Passengers are advised to read the terms and conditions of the Passenger Contract Ticket set forth below. Acceptance of...

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