Hallman v. Carnival Cruise Lines, Inc., 84-445

• Decision Date: 06 November 1984
• Docket Number: No. 84-445,84-445
• Citation: 459 So.2d 378
• Parties: Lowell M. HALLMAN and Eva B. Hallman, his wife, Appellants, v. CARNIVAL CRUISE LINES, INC., Appellee.
• Court: Florida District Court of Appeals

Page 378

459 So.2d 378

1985 A.M.C. 2019

Lowell M. HALLMAN and Eva B. Hallman, his wife, Appellants, v. CARNIVAL CRUISE LINES, INC., Appellee.

No. 84-445.

District Court of Appeal of Florida Third District.

Nov. 6, 1984.

Rehearing Denied Dec. 17, 1984.

Horton, Perse & Ginsberg and Edward A. Perse, John B. Ostrow, Miami, for appellants.

Holland & Knight and Michael T. Moore and George Mencio, Jr., Miami, for appellee.

Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

This appeal is from a summary judgment entered in favor of the defendant Carnival Cruise Lines, Inc. on the ground that the plaintiff-passengers' action to recover for injuries sustained by the plaintiffs when Mr. Hallman slipped and fell on the deck of Carnival's cruise ship, the T.S.S. Festival, was barred by the one-year limitations period provided for in the passenger tickets. We affirm.

The facts are not in dispute. The Hallmans participated in a tour package offered by a travel agency. After reading the brochure supplied by the agency which described the cruise, set forth the applicable rates, and contained a "Tour Participation Contract," the Hallmans filled out and mailed a reservation form along with their check for the full purchase price to the group sponsoring the cruise. Thereafter, the Hallmans received a "cruise package" from Carnival through the travel agency. The package contained tickets, baggage tags, boarding passes, and another brochure. Only the baggage tags and boarding passes were required to be filled in by the Hallmans.

The passenger tickets consist of two pages--a cover page, on the reverse side of which is page number 1; and a second page, numbered 2 and 3. In the lower left corner of the cover page there appears in upper case type, "SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES," and immediately below that, again in upper case type, the words "IMPORTANT: PLEASE READ CONTRACT ON LAST PAGES 1, 2, 3." In the lower right corner of the cover page in lower case type is the statement: "The provisions on the reverse hereof are incorporated as though fully rewritten." On page 1, in upper case type and underlined, are the words, "TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET." Terms and conditions numbered 1 through 9 are listed beneath this title. ¹ The one-year limitations period is found in condition 7 on contract page 1. It reads:

"Suit to recover any claim shall not be maintainable in any event unless commenced within one year after the date of the loss, injury or death."

When the Hallmans boarded the ship on June 20, 1981, their boarding passes were taken; however, they retained copies of their tickets. Four days later, on June 24, 1981, Mr. Hallman slipped and fell on a deck of the ship sustaining injuries. Approximately a year and a half after the incident, the Hallmans filed their action, alleging that the deck was negligently maintained. The defendants successfully moved for summary judgment on the ground that the one-year limitations period barred the Hallmans' action. This appeal ensued.

The appellants contend that they were not adequately informed by the contract of the one-year limitation for bringing suit and, therefore, that this condition of the contract is unenforceable. ² At the threshold, they argue that the adequacy vel non of the notice of the one-year limitation is to be decided under Florida law and, in any event, is not to be decided as a matter of law. We briefly dispose of these arguments. First, while the plaintiffs are clearly entitled to sue in state courts for damages arising from maritime torts accruing on navigable waters in this country, maritime law is the substantive law to be applied irrespective of where the action is brought. Branch v. Schumann, 445 F.2d 175 (5th Cir.1971); Still v. Dixon, 337 So.2d 1033 (Fla. 2d DCA 1976); Rountree v. A.P. Moller Steamship Co., 218 So.2d 771 (Fla. 1st DCA 1969); Foresman v. Eastern Steamship Corp., 177 So.2d 887 (Fla. 3d DCA 1965). Second, it is well established that the issue of whether the carrier has adequately notified a passenger of a condition of the contract is one to be determined by the court and is thus suitable for disposition by summary judgment. 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); Carpenter v. Klosters Rederi A/S, 604 F.2d 11 (5th Cir.1979); 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); Schroeder v. Holland-America Cruises, 171 N.J.Super. 584, 410 A.2d 281 (App.Div.1980). Compare McCaffrey v. Cunard Steamship Co., 139 F.Supp. 472 (S.D.N.Y.1955); Azrak v. Panama Canal Co., 117 F.Supp. 334 (S.D.N.Y.1953).

Under maritime law as it has evolved, a notice appearing in the contract must be a reasonable warning to the passenger in order to incorporate into the contract the conditions to which it refers. Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11 (2d Cir.1968). Thus, in Silvestri, notwithstanding that the ticket face bore the words "PASSAGE CONTRACT" in large type, the statement which followed in small type, viz., "Subject to the conditions printed on the cover of this ticket which form part of this contract," was held to be inconspicuous and not sufficiently "eye-catching" to "warn the passenger that the terms and conditions were important matters of contract affecting his legal rights." Id. at 17. See Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983); Raskin v. Compania de Vapores Realma, S.P., 521 F.Supp. 337 (S.D.N.Y.1981). But where the ticket is "likely to alert the holder to the menace of its fine-print terms," the fine-print terms of the contract will be enforced. Lipton v. National Hellenic American Lines, 294 F.Supp. 308, 309 (E.D.N.Y.1968). In Lipton, the cover of the five-page ticket was clearly labeled, in large type, "Passage Contract Ticket," and contained, in smaller but readily legible type, the words "Important Notice" followed by the...