Lipton v. National Hellenic American Lines

• Decision Date: 30 April 1968
• Docket Number: No. 66 C 1089.,66 C 1089.
• Citation: 294 F. Supp. 308
• Parties: J. George LIPTON, Plaintiff, v. NATIONAL HELLENIC AMERICAN LINES and Home Lines Agency, Defendants.
• Court: U.S. District Court — Eastern District of New York

294 F. Supp. 308

J. George LIPTON, Plaintiff, v. NATIONAL HELLENIC AMERICAN LINES and Home Lines Agency, Defendants.

No. 66 C 1089.

United States District Court E. D. New York.

April 30, 1968.

Howard S. Kass, Brooklyn, N. Y. (Gerberbaum, Garson & Goldgerg, Brooklyn, N. Y., of counsel), for plaintiff.

William P. Larsen, and Joseph T. Stearns, New York City (Cichanowicz & Callan, New York City, of counsel), for defendants.

DOOLING, District Judge.

Plaintiff alleges that he was a passenger aboard the SS. QUEEN FREDERICA on February 25, 1965, and was on that day personally injured through the negligence of the defendant shipowner, and the unseaworthiness of its vessel, and through the shipowner's failure in these respects to perform its contract of safe carriage, a contract made on January 29, 1965. Plaintiff sued in Queens County Supreme Court on August 12, 1966, and the defendant shipowner removed on the diversity ground. (The second named defendant is apparently, for removal purposes, to be considered a New York corporation, it is alleged in the complaint to be the shipowner's agent, and the parties appear to be agreed that it is not genuinely a proper party to the action. Cf. 28 U.S.C. § 1441(c); American Fire & Casualty Co. v. Finn, 1951, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, 19 A.L.R.2d 738.)

The defendant shipowner has moved for summary judgment on the ground that the "Passage Contract Ticket" provided, at page 5 of five fine-print, double-columned pages preceding the filled-out coupon-pages, that

"22. a The Carrier shall not be liable for any claim whatsoever of the Passenger howsoever and wheresoever arising unless written notice thereof with full particulars shall be delivered to the Carriers as follows:

1. Within six (6) months from the day when the death or injury occurred in respect of any claim for loss of life or bodily injury in any case where Sec. 4823A of the Revised Statutes of the United States shall apply;

* * * * * * b Suit to recover on any claim against the Carrier shall not be maintainable unless:

1. Suit is initiated within one (1) year from the day death or injury occurred in respect of any claim for loss of life or bodily injury in any case where said Sec. 4283A shall apply;

* * *"

The clause is drawn under 46 U.S.C. § 183b, enacted in 1935 as a new Section 4283A of the Revised Statutes, Title 48, Chapter 6 (49 Stat. 960). The question is whether plaintiff is so plainly bound by the contract clause that summary judgment is proper, for concededly he did not sue within the time fixed by the clause. Cf. Silvestri v. Italia Societa Per Azioni Di Navigazione, 2d Cir. 1968, 388 F.2d 11; Lisi v. Alitalia-Linee Aeree Italiane, Societa Per Azioni, 2d Cir. 1966, 370 F.2d 508, aff'd, equally divided Court, 1968, 390 U.S. 455, 88 S.Ct. 1193, 20 L.Ed.2d 27. It is concluded that defendant is entitled judgment.

The physical arrangement of the ticket is far more likely to alert the holder to the menace of its fine-print terms than the ticket in Silvestri. It is an oblong booklet, and it is bound at the left edge. It measures about 3 5/8 inches from top to bottom and about 7¾ inches from the left edge to the right. In large type the cover is labelled "Passage Contract Ticket." In smaller but readily legible type the cover states, "IMPORTANT NOTICE. Each passenger should carefully examine this ticket, particularly the conditions on pages 2, 3, 4 and 5." Pages 2 to 5 start with the inside of the cover page. The top of page 2 is conspicuously headed "CONDITIONS OF CONTRACT." Then follow five pages, double-columned, of discouragingly fine print. The "conditions" opens with apt contract language—that the Line by issuing and the passengers by accepting or using the ticket mutually agree that the carrier will provide passage "as stated herein, subject to the terms appearing herein." The next paragraph reads, "NOTICE: The Passenger's attention is particularly directed to the Terms and Limitations appearing on this and the following pages of this Contract."

The following pages are slow and painful reading; they consist in very considerable part of exculpations and of explanations of the limitations on the carrier's undertaking. The contract conditions conclude with a clause 26: "The Passenger and, if another, the Purchaser hereof covenant and warrant that he or they have read this Passage Contract and that he or they are duly authorized on behalf of all the Passengers named herein by accepting this ticket to agree to and are bound by all the stipulations, terms and conditions herein contained in every contingency whatsoever and wheresoever occurring and even * * * during deviation or unseaworthiness of the vessel at the inception of the voyage or subsequently." Clause 7a provides, inter alia, that "The passenger shall not be entitled to transportation except upon production and surrender of this passage contract * * *," but it may be assumed that the surrender, if required, would not be until the end of the voyage and would not deprive a passenger of access to the terms of his passage contract. (See Coupon F. the "Passenger's Copy" of the passage coupon, forming the inside of the back cover of the ticket booklet.)

Page 6 of the ticket (the reverse side of page 5) deals with confirming return-voyage reservations, and pages 7-8 are a tear-out sheet for use in confirming return-voyage reservations. The only portion of the ticket filled out—in typewriting—is the "Embarkation Coupon" and its five carbon-copy counterparts; the coupon gives the ship's name, voyage data, passengers' names, price, etc. The coupon is marked at top left (to the right of the carrier's emblem) "PASSAGE CONTRACT" in large clear type, and under those words, in smaller type, but type still as large as the rest of the printed type on the page, "SUBJECT TO THE CONDITIONS OF CONTRACT ON PAGES 2-3-4-5."

The printed signature of the carrier appeared at the foot of page 5; at the lower right hand corner of the "Embarkation Coupon" and its carbon counterparts appeared the stamp of the issuing travel agency in a ruled-off box in which were to be entered the date and place of issue and the name of the issuer and the signature of the issuing agent. The stamp impressed by the issuing travel agency gave its name and address and the date of issue.

The physical arrangement and the legal form of the ticket remove it from the class of tickets which bear endorsed conditions that are not effectively incorporated in the text of the passage contract (The Majestic, 1897, 166 U.S. 375, 381, 17 S.Ct. 597, 41 L.Ed. 1039; contrast Murray v. Cunard S. S. Co., 1923, 235 N.Y. 162, 165-166, 139 N.E. 226, 26 A.L.R. 1371; cf. Chandler v. Aero Mayflower Transit Co., 4th Cir. 1967, 374 F.2d 129, 134-137), and make the case one for summary judgment under Geller v. Holland-America Line, 2d Cir. 1962, 298 F.2d 618, aff'g, S.D.N.Y.1961, 201 F.Supp. 508, unless Silvestri interposes an obstacle. Cf. Siegelman v. Cunard...