951 F.2d 7 (1st Cir. 1991), 91-1548, Lousararian v. Royal Caribbean Corp.

Docket Nº:91-1548.
Citation:951 F.2d 7
Party Name:Mary LOUSARARIAN, Plaintiff, Appellant, v. ROYAL CARIBBEAN CORP., as Successor in Interest to Royal Caribbean Limited, Defendant, Appellee.
Case Date:December 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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951 F.2d 7 (1st Cir. 1991)

Mary LOUSARARIAN, Plaintiff, Appellant,


ROYAL CARIBBEAN CORP., as Successor in Interest to Royal

Caribbean Limited, Defendant, Appellee.

No. 91-1548.

United States Court of Appeals, First Circuit

December 4, 1991

Heard Nov. 6, 1991.

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Joseph M. Orlando with whom Nancy Benotti and Orlando & Associates were on brief, for plaintiff, appellant.

Thomas J. Muzyka with whom Clifford B. Thompson and Clinton & Muzyka were on brief, for defendant, appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

COFFIN, Senior Circuit Judge.

Plaintiff Mary Lousararian injured her foot and leg while reboarding defendant's cruise ship during a vacation in December 1988. Fourteen months later, she filed this negligence action, despite a provision in her ticket imposing a one-year limitation on the filing of personal injury suits. The district court found as a matter of law that the limitations period was enforceable against plaintiff, and it accordingly granted summary judgment for defendant. On appeal, plaintiff claims that the district court improperly resolved factual issues concerning the enforceability of the time bar provision. We affirm.


A. Legal Principles

Although a cruise ship operator is permitted by statute to set a shortened limitations period for claims against it, see 46 U.S.C.App. § 183b(a), 1 a body of caselaw has developed barring enforceability of such a provision unless the steamship company has made a "reasonable" effort to warn passengers of the restriction. See Muratore v. M/S Scotia Prince, 845 F.2d 347, 350-51 (1st Cir.1988); Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863-64 (1st Cir.1983); DeNicola v. Cunard Line Ltd., 642 F.2d 5, 7-9 (1st Cir.1981). This precedent is designed to give passengers a fair chance to learn about conditions affecting their legal rights that otherwise might be buried within "the fine print of adhesion contracts of passage," Shankles, 722 F.2d at 864.

The specific inquiry into whether a steamship company has met the standard of "reasonable communicativeness" is two-pronged. Shankles, 722 F.2d at 865. First, a court must examine the facial clarity of the ticket contract and whether its language and appearance make the relevant provisions sufficiently obvious and understandable. The second prong focuses on "the circumstances of the passenger's

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possession of and familiarity with the ticket," id., which involves scrutiny of "any extrinsic factors indicating the passenger's ability to become meaningfully informed of the contractual terms at stake," id. at 866. Given this two-step analysis, it is obvious that the determination of enforceability must be made on a case-by-case basis. "Differing circumstances may render the same ticket binding on one passenger in one case, yet invalid as against another passenger in another case." Id. at 864. See also Muratore, 845 F.2d at 351; Barbachym v. Costa Line, Inc., 713 F.2d 216, 220 (6th Cir.1983).

The "reasonable communicativeness" of a particular ticket in particular circumstances is a question of law and, barring a genuine dispute of material fact, the determination is appropriate for resolution at the summary judgment stage of a case. Shankles, 722 F.2d at 867; DeNicola, 642 F.2d at 11. See also Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1567 (11th Cir.1990); Spataro v. Kloster Cruise, Ltd., 894 F.2d 44, 45 (2d Cir.1990) (per curiam); Barbachym, 713 F.2d at 218; Carpenter v. Klosters Rederi, 604 F.2d 11, 13 (5th Cir.1979).

B. Application of the Principles

1. Factual dispute. Plaintiff's initial argument on appeal is that the district court never should have reached the two-pronged reasonableness inquiry because, to get there, it improperly resolved a preliminary factual dispute about whether she received the portion of the ticket containing the time bar language.

In an affidavit, plaintiff stated that she recognized her signature on the first page of the ticket packet--which had been retained by defendant and was attached as an exhibit to the Motion for Summary Judgment--but had no specific memory of any other portion of the ticket, including the part containing the limitations provision. She acknowledged receiving another part of the ticket, but stated that she discarded it "during or soon after the voyage in question."

Defendant responded to plaintiff's affidavit with an affidavit from its claims manager, Wendy Zepernick, describing the defendant's standard ticketing and boarding process. 2 According to Zepernick's affidavit, the first, or signature page, of the four-page...

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