Hayman v. Sitmar Cruises, Inc.

• Decision Date: 15 April 1993
• Docket Number: No. B058688,B058688
• Citation: 18 Cal.Rptr.2d 412,14 Cal.App.4th 1499
• Court: California Court of Appeals Court of Appeals
• Parties: , 1994 A.M.C. 911 Clarice HAYMAN, Plaintiff and Appellant, v. SITMAR CRUISES, INC., et al., Defendants and Respondents.

Page 412

18 Cal.Rptr.2d 412

14 Cal.App.4th 1499, 1994 A.M.C. 911

Clarice HAYMAN, Plaintiff and Appellant, v. SITMAR CRUISES, INC., et al., Defendants and Respondents.

No. B058688.

Court of Appeal, Second District, Division 4, California.

April 15, 1993.

Fest & Williams and Stuart W. Fest, Canoga Park, for plaintiff and appellant.

Kaye, Rose & Maltzman, Lawrence W. Kaye and Bradley M. Rose, San Diego, for defendants and respondents.

INTRODUCTION

HOFFMAN, Associate Justice. ^*

Plaintiff and appellant Clarice Hayman (appellant) appeals from a judgment entered against her and in favor of defendants and respondents Sitmar Cruises, Inc. (Sitmar) and Princess Cruises, Inc. (Princess) (Sitmar and Princess are referred to collectively as respondents) after the grant of respondents' motion for summary judgment on the ground appellant's action was barred for her failure to effect service within one year. We reverse the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On July 19, 1988, appellant, a passenger aboard the cruise ship Fairwind, ¹ sustained injuries to her right arm and hand when the elevator in which she was riding stopped abruptly. She immediately reported the accident to shipboard personnel who took her statement and conducted an investigation.

On October 3, 1988, appellant's attorney wrote to Sitmar requesting information concerning Sitmar's liability insurance. Discussions between Sitmar and appellant's attorney followed, and several months later, on January 19, 1989, Sitmar's claims representative provided appellant with a copy of the accident report taken shipboard and requested that appellant's attorney provide him with copies of appellant's medical reports, her theory of liability, support for special damages, and a settlement demand. On February 1, 1989, appellant's attorney advised Sitmar that the information was being organized and he would be "in touch." On April 25, 1989, appellant's attorney submitted to Sitmar some medical records and an itemized statement of medical However, on June 14, 1989, unbeknown to respondents, appellant's counsel had filed, but not served, the complaint in this action. In fact, appellant did not serve this lawsuit until September 7, 1990, almost 15 months after the complaint was filed and over two years after the incident.

bills, then totalling $775. The parties had no further contact. Accordingly on February 5, 1990, over a year from the alleged injury, the claims representative advised Princess to close its file.

What is significant here, however, is that service was made 14 months beyond a one-year limitations period for service of process which appeared on the back of appellant's cruise ticket passage contract. For that reason, on December 13, 1990, respondents moved for summary judgment in the superior court on the sole ground appellant's action was barred by her failure to serve respondents within one year of the injury.

Provision No. 14 on appellant's cruise ticket passage contract was entitled "CLAIMS FOR INJURY OR DEATH" and provided in pertinent part: "Sitmar shall not be liable for and no suit shall be maintainable for injury or death to the passenger unless (A) the passenger has given notice to Sitmar in writing with full particulars within six (6) months after the injury or death; and (B) the passenger has commenced suit and served process regarding incidents of this nature within one (1) year." (Emphasis added.)

Provision No. 21 on the passage contract stated: "ENFORCEABILITY OF ENTIRE CONTRACT. If any terms or provisions of the contract are deemed invalid or unenforceable, the remainder of the contract and its application shall remain in full force and effect."

On February 4, 1991, the superior court granted respondents' motion for summary judgment. Appellant's motion for reconsideration was subsequently denied and, on March 21, 1991, judgment was entered in favor of respondents.

ISSUES

I. Is a clause in a cruise ticket passage contract, which provides that no suit may be maintained for injury or death to a passenger unless the passenger has commenced suit and served process within one year, lawful and enforceable as written? No.

II. Is that clause lawful and enforceable if the service of process provision is severed therefrom? Yes.

DISCUSSION

I. Standard of Review.

Since this case reaches us on appeal from a summary judgment in favor of respondents, we need only determine whether there is a possibility that appellant may be able to establish her case. (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 339, 138 Cal.Rptr. 670.)

"Summary judgment is properly granted where the evidence in support of the moving party, here the respondents, is sufficient to establish a complete defense to appellant's claims and there is no triable issue of fact. [Citations.]" (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362, 178 Cal.Rptr. 783, 636 P.2d 1121.)

On appeal from the grant of a summary judgment, the reviewing court must conduct a de novo examination to see whether the moving party is entitled to summary judgment as a matter of law or whether there are genuine issues of material fact. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 211-212, 285 Cal.Rptr. 717.)

II. That portion the passage contract which Limits the Time for Service of Process Is Unlawful and Thus Unenforceable.

Appellant argues the requirement in the limitations clause that process be served within one year shortens the time for the commencement of the action to less than one year and for that reason the limitation is unlawful under sections 183b and 183c.

Specifically, appellant urges the clause is private legislation of a limitations period, which is prohibited by section 183b, and lessens, weakens or avoids the right of appellants to bring a bodily injury claim, which is prohibited by section 183c.

A. The Relevant Statutory Law

Revised statutes section 4283A (46 U.S.C. Appx. § 183b) provides: "Stipulations limiting time for filing claims and commencing suit [p] (a) It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel ... transporting passengers ... from or between ports of the United States and foreign ports to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily injury, than six months, and for the institution of suits on such claims, than one year, such period for institution of suits to be computed from the day when the death or injury occurred." (Emphasis added.)

Revised statutes section 4283B (46 U.S.C. Appx. § 183c) provides: "It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers ... to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability ... for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for such loss or injury.... All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect." (Emphasis added.)

B. The Relevant Case Law

A passage contract on a cruise ship is a maritime contract and its interpretation is governed exclusively by maritime or admiralty law. (The Moses Taylor (1867) 71 U.S. (4 Wall.) 411, 427, 18 L.Ed. 397; see Carnival Cruise Lines, Inc. v. Shute (1991) 499 U.S. 585, ----, 111 S.Ct. 1522, 1525, 113 L.Ed.2d 622.) The validity of a passage contract provision is to be interpreted by the general maritime law of the United States, not state law. (McQuillan v. "Italia" Societa Per Azione di Navigazione (S.D.N.Y.1974) 386 F.Supp. 462, 468, affd. (2d Cir.1975) 516 F.2d 896.) State courts, however, have concurrent jurisdiction with federal courts to entertain actions governed by maritime law. (D'Aquisto v. Campbell Industries (1984) 162 Cal.App.3d 1208, 1212, 209 Cal.Rptr. 108; Intagliata v. Shipowners and Mer. Etc. Co. (1945) 26 Cal.2d 365, 371, 159 P.2d 1.)

The only federal circuit court case we have found which interprets a passage contract limitations clause similar to the one in the instant lawsuit is Schwartz v. S.S. Nassau (2nd Cir.1965) 345 F.2d 465, 468. ² In that case, as here, the contract also had a severability clause. The court interpreted the contract's limitations clause with reference to section 183b, holding that, under the contract's severability clause, the service of process provision in the limitations clause was severable. When the offending language regarding service of process was thus severed, the "other clearly legal provisions of the contract" were found to be valid and enforceable. (345 F.2d at p. 468.) ³

Respondents urge this court to ignore the precedent of Schwartz on the ground the United States Supreme Court recently addressed appellant's contentions in Carnival Cruise Lines, Inc. v. Shute, supra, 499 U.S. 585, 111 S.Ct. 1522, and found a forum-selection provision in a passage contract was enforceable.

In Shute, cruise ship passengers brought an action against the defendant cruise line in the state of Washington, seeking damages for injuries sustained in a slip and fall accident. Defendant's motion for summary judgment was granted, on the ground the court lacked jurisdiction because the forum selection clause in the passage contract required that suit be brought in the state of Florida. The Supreme Court agreed, holding that (1) a forum selection clause in a passage contract, requiring litigation of all disputes in Florida, was reasonable and enforceable and (2) the forum selection clause did...