Lubick v. Travel Services, Inc.

• Decision Date: 30 September 1983
• Docket Number: Civ. No. 1981-15.
• Citation: 573 F. Supp. 904
• Parties: Marvin LUBICK, Eldrie Lubick, Alice Burhenne and John Burhenne, Plaintiffs, v. TRAVEL SERVICES, INC., The Peninsular and Oriental Steam Navigation Company d/b/a Princess Cruises, John A. Tetley Co., Inc. T.M. Donald Todman, and Government of the Virgin Islands, Defendants, v. UNITED TOURS, INC., Third-Party Defendant.
• Court: U.S. District Court — Virgin Islands

573 F. Supp. 904

Marvin LUBICK, Eldrie Lubick, Alice Burhenne and John Burhenne, Plaintiffs, v. TRAVEL SERVICES, INC., The Peninsular and Oriental Steam Navigation Company d/b/a Princess Cruises, John A. Tetley Co., Inc. T.M. Donald Todman, and Government of the Virgin Islands, Defendants, v. UNITED TOURS, INC., Third-Party Defendant.

Civ. No. 1981-15.

District Court, Virgin Islands, D. St. Thomas and St. John.

September 30, 1983.

Judith Turner, Isherwood, Hunter & Colianni, Christiansted, St. Croix, V.I., for plaintiffs.

R. Eric Moore, Law Office of Eric Moore, Christiansted, St. Croix, V.I., for defendant Travel Services Inc.

Douglas Brady, Alfred & Brady, Christiansted, St. Croix, V.I., for defendant T.M. Donald Todman.

Adriane Dudley, Dudley, Dudley & Topper, St. Thomas, V.I., for defendants, John A. Tetley Co., Inc. and Peninsular and Oriental Steam Nav. Co.

Arnold Selke, St. Thomas, V.I., for thirdparty defendant United Tours, Inc.

Susan Bruch, Asst. Atty. Gen., Dept. of Law, St. Thomas, V.I., for Government of Virgin Islands.

MEMORANDUM

CHRISTIAN, Chief Judge.

This case is before the Court on motion of defendant The Peninsular and Oriental Steam Navigation Company, doing business as "P & O" and as "Princess Cruises" (hereinafter Princess Cruises), for summary judgment. Fed.R.Civ.P. 56. There being no material facts in dispute, the case is ripe for disposition at this time.

BACKGROUND

In December of 1978, each plaintiff purchased a ticket for a vacation cruise aboard the cruise vessel S.S. PACIFIC PRINCESS, which is owned and operated by defendant Princess Cruises. During the cruise and while aboard ship, the plaintiffs purchased from Princess Cruises a ticket for a shore excursion on the island of Saint Thomas. While aboard a tour bus, which was part of the shore excursion, the plaintiffs suffered injuries when the driver of the bus lost control and wrecked the bus. This occurred on February 9, 1979. On April 3, and on April 20, 1979, an attorney for plaintiffs gave Princess Cruises written notice of the claims of plaintiffs. On January 23, 1980 that attorney filed suit on behalf of plaintiffs in the Superior Court of California, Los Angeles County, against, among others, Princess Cruises. For jurisdictional reasons plaintiffs then, on January 19, 1981, caused the instant suit to be filed against the same defendant. On August 18, 1981, plaintiffs' California counsel voluntarily dismissed the California suit. Defendant Princess Cruises has now filed this motion for summary judgment arguing, inter alia, that plaintiffs' present suit is barred by the time limitations period set out in the passenger cruise ticket which constituted the contract for passage between plaintiffs and Princess Cruises. Plaintiffs argue in response to this contention that they have complied with the time limitation period and that, even if they have not, the provision is invalid. Hence the Court must determine firstly, whether the provision is valid, and secondly, if it is valid, whether plaintiffs have complied with it.

DISCUSSION

The cruise ticket contract in question is a maritime contract and therefore its interpretation will be governed by maritime law. The Moses Taylor, 71 U.S. (4. Wall.) 411, 18 L.Ed. 397 (1867). Although paragraph 17 of the cruise ticket contract dictates that the law of England is to be applied in the interpretation of the contract, we will apply the general maritime law of the United States since the plaintiffs are United States citizens seeking redress for injuries which occurred in a territory of the United States, the place of contracting was in the United States, and the point of origin of the cruise was a United States port. There are sufficient contacts with this country to warrant application of its law. DeNicola v. Cunard Line Ltd., 642 F.2d 5, 7 n. 2 (1st Cir.1981); McQuillan v. "Italia" Societa Per Azione Di Navigazione, 386 F.Supp. 462 (S.D.N.Y.1974); Mulvihill v. Furness, Withy & Co., 136 F.Supp. 201, 206 (S.D.N.Y.1955).

That maritime contracts may contain valid time limitation periods is established by statute. 46 U.S.C. § 183b(a) reads, in pertinent part:

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 for a shorter period for giving notice, or filing claims for loss of life or bodily injury, than 6 months, and for the institution of suits on claims, than one year, such period for institution of suits to be computed from the day when the death or injury occurred.

The cruise ticket contract in question here contains such a time limitation period, at paragraph 16, which reads:

Neither P & O nor any of its ships shall be under any liability either in Rem or in Personam in respect of any claim whatsoever unless written notice of the claim is presented to P & O within six (6) months from the date on which the claim arose and unless a suit or action is brought within one (1) year from that date.

Whether such a provision is valid has depended, under modern case law, on whether "the steamship line has done all it reasonably can to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights." Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11 (2d Cir.1968). "Specifically, the courts appear to have deemphasized such traditionally significant factors as the placement of the carrier's signature and the contents of the contract proper and focused instead on the adequacy of notice appearing anywhere in the ticket documents." DeNicola, supra, 642 F.2d at 9. Hence, whether we hold Princess Cruises' time limitation period valid will require an inquiry of the kind contemplated by cases such as Silvestri and DeNicola.

The cruise tickets issued to plaintiffs were comprised of six pages, each measuring four and one quarter inches by nine inches. The first four pages are virtually identical and contain the actual ticket form with information such as passenger's name, cabin number, sailing dates, airline information, etc. inserted under the respective headings for such information. The fifth page contains nineteen "conditions" printed on the front and back. These conditions describe the legal relationship between the passenger and Princess Cruises. The sixth page contains conditions on the front and back regarding the passenger-airline relationship.

Appearing at the bottom of each of the first four pages are two sentences printed in bold, red type....