Kientzler v. Sun Line Greece Special Shipping, 91 Civ. 2620 (RPP).

• Decision Date: 18 December 1991
• Docket Number: No. 91 Civ. 2620 (RPP).,91 Civ. 2620 (RPP).
• Citation: 779 F. Supp. 342
• Parties: Karma KIENTZLER, Plaintiff, v. SUN LINE GREECE SPECIAL SHIPPING CO., INC. and Sun Line Cruises, Defendants.
• Court: U.S. District Court — Southern District of New York

779 F. Supp. 342

Karma KIENTZLER, Plaintiff, v. SUN LINE GREECE SPECIAL SHIPPING CO., INC. and Sun Line Cruises, Defendants.

No. 91 Civ. 2620 (RPP).

United States District Court, S.D. New York.

December 18, 1991.

Florrie L. Wertheimer, P.C. by Jay M. Solomon, New York City, for plaintiff.

Walker & Corsa, by Lenore E. McQuilling, Scott A. Walker, New York City, for defendants.

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

This is an action for damages alleging negligence and failure to warn. Defendants, Sun Line Greece Special Shipping Co., Inc., Owner of the passenger ship STELLA SOLARIS ("Owner"), and Sun Line Cruises, Inc. ("Sun Line Agency"), now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion is granted.

BACKGROUND

Plaintiff Karma Kientzler claims that she was injured on April 3, 1990 while on board the STELLA SOLARIS when she slipped and fell on a wet step. Complaint ¶ 5. Plaintiff, who is employed by Canyon Ranch, was assigned as part of her employment to "A Taste of Canyon Ranch at Sea," a chartered group tour by air from Miami, Florida to Rio de Janeiro, Brazil and a return cruise upon the STELLA SOLARIS from March 24 to April 8, 1990. Solomon Aff. ¶ 2. On March 23, 1990, Plaintiff flew from Tucson, Arizona, where she works, to Miami, where she boarded a chartered flight to Rio de Janeiro. In Rio de Janeiro, Plaintiff boarded the STELLA SOLARIS for the voyage to Fort Lauderdale, Florida. Plaintiff filed her complaint on April 16, 1991.

Defendants move for summary judgment on the grounds that (1) there are no issues of material fact, (2) Plaintiff's cause of action against the Owner is time-barred, and (3) Plaintiff has no cause of action against Sun Line Agency because Sun Line Agency acted at all times as agent for a disclosed principal, the Owner.

DISCUSSION

1. Genuine Issue

Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), and the Court must view the facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

Once the moving party has made its showing, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact for trial. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Salahuddin v. Coughlin, 674 F.Supp. 1048 (S.D.N.Y.1987). A material fact is one "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "genuine" if a rational trier of fact could find for the opponent on the evidence presented. Id. To meet its burden, the opponent "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and must set forth specific facts showing that there is a genuine issue for trial, Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Fed.R.Civ.P. 56(e) ("the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial" (emphasis added)).

The sole material issue in dispute for purposes of this motion is whether Plaintiff, or an employee of Canyon Ranch as her agent, received Plaintiff's passenger ticket contract for the cruise. In her Affidavit in Opposition, Plaintiff asserts that neither she nor any other employee of Canyon Ranch received passenger ticket contracts for the March 24-April 8, 1990 cruise of the STELLA SOLARIS. Kientzler Aff. ¶ 2. Plaintiff refutes Defendants' arguments based on statute of limitations and disclosed principal defenses with the sole assertion that she never received the ticket; thus, she argues that she did not receive proper notice either of the one-year limitations period or of the existence of the Owner, Sun Line Agency's principal. See Pl. Mem. in Opp. at 2. Plaintiff concedes that the latter is clearly disclosed in the ticket contract. Id.

2. Evidence Pertaining to Receipt of the Cruise Ticket

Defendants offer considerable, albeit circumstantial, evidence to support their claim that Plaintiff, or a Canyon Ranch employee acting as her agent, received the passenger ticket contract. They offer proof showing that (1) Canyon Ranch paid for a ticket for Karma Kientzler at a reduced rate, Trott Supplemental Aff. Exh. D, (2) a coupon from a cruise passenger ticket contract was issued on March 13, 1990 in Ms. Kientzler's name, Trott Aff. Exh. B, and (3) a Federal Express "Sender Activity Summary" listed an entry for a priority letter mailed to "Karam Kienzler sic" at Canyon Ranch on the day after the Owner issued the cruise ticket in Ms. Kientzler's name.¹ Trott Supplemental Aff. Exh. I.

Affidavits by two Sun Line Agency employees assert the following: (1) in Sun Line Agency's usual course of business, cruise passenger ticket contracts are mailed to the passenger or her agent,² Trott Supplemental Aff. ¶ 4; (2) in Sun Line Agency's usual course of business, passengers or their agents must present a cruise passenger ticket contract at the embarkation point, i.e. Miami in this case, Trott Supplemental Aff. ¶ 6; (3) Paul Trott and Tammy Varnavas, Sun Line Agency employees who collected coupons from cruise passenger ticket contracts for the March 24, 1990 cruise, collected the appropriate cruise ticket coupons from each passenger in Miami, after which they were forwarded to the vessel in Rio de Janeiro and in due course to the Owner, Trott Supplemental Aff. ¶ 12; Varnavas Aff. ¶¶ 5, 7; (4) no person would have been allowed past the embarkation point in Miami unless a cruise passenger ticket contract was presented by the passenger or her agent, Trott Supplemental Aff. ¶ 14; Varnavas Aff. ¶¶ 5, 7; (5) the only cruise tickets brought by Sun Line Agency to Miami were blank contracts in case a passenger forgot her ticket, and none of these blank tickets were used on March 23, 1990, Varnavas Aff. ¶ 6. The Owner has forwarded from its files the original copies of the two company-retained coupons from Ms. Kientzler's cruise ticket. Trott Supplemental Aff. Exhs. G and H.

Plaintiff, on the other hand, offers affidavits by three persons who simply deny that they received Plaintiff's passenger ticket contract for the March 24, 1990 cruise. These persons are Plaintiff herself, Christina Chapman (a Canyon Ranch employee also assigned to the cruise), and Jerrold Cohen (the president of Canyon Ranch).³ Although Plaintiff states that "no other employee of Canyon Ranch" received any passenger ticket contracts, she does not explain the grounds for this assertion. Kientzler Aff. ¶ 2. Similarly, Jerrold Cohen can only state that he was not "aware of any employee of Canyon Ranch receiving these tickets and contracts." Cohen Aff. ¶¶ 4-5.

Although this cruise apparently was a "joint venture" between Sun Line Agency and Canyon Ranch and indeed was entitled "A Taste of Canyon Ranch at Sea," Solomon Aff. ¶ 3 and Exh. C, no affidavit is offered from any Canyon Ranch employee, including L. Ayala, demonstrating any detailed knowledge of the cruise arrangements, nor is any explanation for the absence of such an affidavit proffered. No information is provided explaining how travel by Canyon Ranch employees assigned to such cruises is generally arranged. Plaintiff's own description of her "on board status" is vague. See, e.g., Solomon Aff. ¶ 3. While it was asserted that she was seeking certain information that "may shed light on her status," id., no such information has been provided to this Court.⁴ In sum, Plaintiff has alleged no specific facts to support her assertion that neither she nor any other employee at Canyon Ranch acting as her agent received her passenger ticket contract for the cruise. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Nor has she offered any explanation of what occurred in Miami when Trott and Varnavas obtained ticket coupons for retention by the Owner. Accordingly, the Court finds that there is no genuine issue of fact as to the receipt of the cruise ticket by an employee of Canyon Ranch.

3. Statute of Limitations

Assuming, then, that an employee at Canyon Ranch did receive Plaintiff's cruise passenger ticket contract, it must be determined whether her cause of action against the Owner is barred by the one-year limitations period contained in the passenger ticket contract. 46 U.S.C. § 183b authorizes a shipowner to limit contractually the time for commencement of a suit by a passenger to recover for personal injuries to one year from the day the alleged injuries occurred. A notice printed in bold on the jacket of the ticket at issue in this case states, "IMPORTANT NOTICE—READ BEFORE ACCEPTING," underneath which is typed:

Please read carefully the terms of this ticket beginning on page one and continuing through page 4. All these terms are an integral part of the contract between passengers and the Carrier. In accepting this contract, you agree to the terms. Attention is particularly drawn to the Carrier's right of exemption and limitation set forth in Clauses 12 and 13 (pages 3 and 4).

Additionally, the portion of the ticket presented for passage refers in two places to the conditions printed on the cover of the ticket and state that they form part of the contract. Clause 13 of the ticket states in pertinent part:

Suit to recover on any claim shall not be maintainable unless commenced and process served ... within

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