Kendall v. American Hawaii Cruises

• Decision Date: 24 January 1989
• Docket Number: Civ. No. 87-0890 HMF.
• Citation: 704 F. Supp. 1010
• Parties: Vivian O. KENDALL and Hal A. Kendall, Plaintiffs, v. AMERICAN HAWAII CRUISES, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

704 F. Supp. 1010

Vivian O. KENDALL and Hal A. Kendall, Plaintiffs, v. AMERICAN HAWAII CRUISES, et al., Defendants.

Civ. No. 87-0890 HMF.

United States District Court, D. Hawaii.

January 24, 1989.

James Krueger, Wailuku, Maui, Hawaii, for plaintiffs.

Leonard F. Alcantara, Robert G. Frame, Cynthia A. Farias, Honolulu, Hawaii, for defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

FONG, Chief Judge.

INTRODUCTION

Defendant American Hawaii Cruises' present motion for summary judgment, or in the alternative, for separate trial raises significant concerns of notice for all persons who travel upon common carriers. Specifically, defendant now asks the court to bar plaintiffs' claim for negligence by enforcing a contractual time limitation clause for filing such law suits which deeply is imbedded in its cruise ship tickets. Hearing on this matter was held on November 21, 1988; Timothy P. McNulty appeared on behalf of the plaintiffs, and Cynthia A. Farias represented defendant American Hawaii Cruises. Since the court finds that defendant's notice provisions reasonably communicated these time limitations to plaintiffs, and because the court rejects plaintiffs' other contentions, defendant's motion for summary judgment is granted. Accordingly, this court need not consider defendant's alternative motion for separate trial.

BACKGROUND

On December 2, 1985, plaintiff Vivian Kendall suffered severe and permanent injuries while a passenger aboard the cruise ship, S.S. Constitution, when a spring line snapped from its mooring and slashed her in the legs. Mrs. Kendall, who was accompanied by her husband Hal, had been on the ship's deck observing Maui's scenery while the S.S. Constitution, owned and operated by defendant American Hawaii Cruises, berthed in its harbor.

In the months following the accident, plaintiffs submitted all accident-related bills directly to defendant. Although no formal arrangement had been worked out between the parties for doing so, defendant honored all such bills. At no time, however, did the parties enter into a formal settlement of claims, nor did defendant intimate that any such settlement was forthcoming. (Deposition of Hal Kendall, pp. 35-37, 63). Moreover, at no time did defendant ask plaintiffs for a release of potential claims. (Deposition of Vivian Kendall, p. 56; Deposition of Hal Kendall, p. 39). To this date, Mrs. Kendall's medical and rehabilitation costs for treatment of these injuries have approached $50,000, all of which have been paid voluntarily by defendant. (Deposition of Hal Kendall, pp. 36, 46).

Apparently, this amicable arrangement continued during the ensuing year until American Hawaii Cruises first learned that plaintiffs had retained an attorney on January 23, 1987, to consider filing suit against it. Plaintiffs eventually did file this suit in negligence for damages and for loss of consortium on November 13, 1987, nearly two years after the accident.

In response to plaintiffs' complaint, defendant now moves for summary judgment, relying on the terms of the multi-leaf passenger ticket here at issue. Defendant claims that plaintiffs' action is time-barred as a matter of law by the cruise ticket's express terms, which terms are contained on pages one through nine of the ticket booklet. More specifically, plaintiffs' filing of its claim nearly two years subsequent to the accident's occurrence violates the one-year time limitation clause found within plaintiffs' contractual agreement with defendant. This clause, located within the cruise ticket, states the following:

. . . . .

13. TIME LIMITATIONS: NOTICE OF CLAIMS AND TIME TO SUE

(a) Bodily injury or death. The Carrier and the vessel shall not be responsible or liable for bodily injury to or death of any passenger and no suit, action or proceeding, whether in personam (against persons) or in rem (against property), shall be maintainable against them for bodily injury or death unless:

(i) a claim in writing giving the full particulars shall have been delivered to the Carrier or its General Agent within six (6) months when such death or bodily injury occurred: and

(ii) the suit or action on such claim shall have been instituted or filed within one (1) year from the date when such death or bodily injury occurred, as provided for under United States Code App., Title 46, Section 183b.

Such time limitations, when noticed properly on the ticket itself, are expressly permitted under general maritime common law and 46 U.S.C.App. § 183b(a), the latter which states as follows:

It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel ... transporting passengers ... 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.

To defeat defendant's summary judgment motion, plaintiffs have raised the following four issues to convince this court that genuine issues of material fact exist:

1. whether the ticket reasonably imparted notice of time limitation provisions contained therein;

2. whether the ticket remains the Kendalls were left with after the ticketing process actually contained the time limitation clause;

3. whether American Hawaii Cruises is estopped by its conduct to assert the contractual time limitations; and

4. whether the Kendalls are excused from the contractual limitations pursuant to 46 U.S.C.App. § 183b(b).

(Plaintiffs' memorandum, p. 6). The court will address each of plaintiffs' arguments individually within the summary judgment context.

DISCUSSION

I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered when:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Thus, defendant American Hawaii Cruises has the initial burden of "identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact." T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Specifically, defendant as movant must be able to show "the absence of a material and triable issue of fact," Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987), although it need not necessarily advance affidavits or similar materials to negate the existence of an issue on which the non-moving party will bear the burden of proof at trial. California Architectural Building Products, Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). See Celotex Corp., 106 S.Ct. at 2553. But cf. id. at 2555-56 (White, J., concurring).

If American Hawaii Cruises meets this initial burden, then the plaintiffs may not defeat its motion for summary judgment in the absence of any significant probative evidence tending to support their legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). The Kendalls cannot merely stand on their pleadings, nor can they simply assert that they will be able to discredit defendant's evidence at trial. See T.W. Electrical Service, Inc., 809 F.2d at 630. Similarly, legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed. 2d 241 (1979), reh'g denied, 441 U.S. 968, 99 S.Ct. 2420, 60 L.Ed.2d 1074 (1979).

Moreover, "if the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Franciscan Ceramics, 818 F.2d at 1468, citing Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). However, when "direct evidence" produced by the moving party, in this case defendant, conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Electrical Service, Inc., 809 F.2d at 631. Furthermore, all inferences from the facts must be drawn in the light most favorable to the plaintiffs. Id.

II. THE ISSUE OF REASONABLE NOTICE:

As a preliminary matter, neither party disputes the maritime nature of the passenger ticket contract here at issue, nor the fact that this court must scrutinize the validity of its terms under general maritime common law. Cf. Harris v. Waikane Corporation, 484 F.Supp. 372, 378 (D.Haw. 1980) ("contracts to charter vessels, whether for personal or commercial use, have always been viewed as maritime in nature"); Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1231 (5th Cir.1985) ("an agreement to transport people and supplies in a vessel to and from a well site on navigable waters is clearly a maritime contract"). Accordingly, general maritime common law here supersedes all conflicting state law in the court's resolution of the parties' contractual dispute. See, e.g., Williams v. United States, 711 F.2d 893, 895 (9th Cir.1983); Laredo Offshore Constructors, Inc., 754 F.2d at 1230; In re Holoholo Litigation, 557 F.Supp. 1024, 1027 (D.Haw.1983).

Within this general maritime framework, plaintiffs initially contest defendant's motion for summary...