Marek v. Marpan Two, Inc.

Citation817 F.2d 242
Decision Date11 February 1987
Docket NumberNo. 86-1493,86-1493
PartiesMAREK, Harriet and Marek, Samuel Husband and Wife, Appellants, v. MARPAN TWO, INC. and Bahama Cruise Line, Inc. . Submitted under Third Circuit Rule 12(6)
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Barry L. Gross, Stief, Waite, Gross, Sagoskin & Kellis, Newtown, Pa., for appellants.

Douglas H. Riblet, Rawle & Henderson, Philadelphia, Pa., for appellees.

Before HIGGINBOTHAM and STAPLETON, Circuit Judges, and RODRIGUEZ, District Judge. *

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This appeal continues the long line of cases, going back at least as far as The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), involving the enforcement of contractual conditions that are invariably located deep in the fine print of cruise ship tickets. Because the ticket at issue here was reasonably communicative in giving notice of the existence and importance of, and in expressing, its limiting conditions, we will affirm the district court's entry of summary judgment for appellees.

I.

The following facts are taken from appellants' complaint and from the affidavit of appellant Harriet Marek ("Marek"). At some point prior to March 1983, Marek and her friend Jackie Toombs made arrangements through the Warren County Motor Club of Warren, Pennsylvania, for a cruise aboard the S.S. VERACRUZ. Marek and Toombs traveled to Tampa, Florida, prior to the vessel's sailing date of March 12, 1983. They did not receive their cruise ticket folder, however, until they boarded the ship for departure in Tampa, at which time they together were given one ticket folder. In the boarding process, ship personnel removed one sheet of paper from this joint ticket folder. The folder, a cover containing the two remaining pages, was thereafter retained by Toombs. Marek recalls that she and Toombs, sometime after they had boarded ship, "scanned the written material on the inside of the front cover of the ticket folder, but ... [they] did not read every word that was there because the print was so small and crowded and because [they] couldn't understand most of The ticket folder shared by Marek and Toombs includes, as one of its terms and conditions, the following language:

                what was printed there."    Marek also recalls that they "glanced at printed material on the outside of the back cover of the ticket folder, although [she] do[es]n't recall what that material said."    Marek, at that time and later, neither read nor became aware of the printed material on the ticket's inside back cover
                

6. (a) Neither the Carrier nor the Vessel shall be liable for any claim for loss of life or personal injury, whatsoever and wheresoever arising and howsoever caused, unless written notice thereof, with full particulars be given to the Carrier within six (6) months from the date of such loss of life or injury.

(b) Suit to recover on any such claim against the Carrier or the Vessel shall not be maintainable unless:

(1) The Passenger has complied with the above notice provisions; and (2) Suit is instituted within one (1) year from the date of the loss of life or bodily injury.

These time limits on the filing of personal injury actions are implicitly authorized by federal statute. 46 App.U.S.C. Sec. 183b(a) (Supp. III 1985). 1 Other physical characteristics of the ticket folder are described below in section III.

On March 18, 1983, while the S.S. VERACRUZ was at sea, Marek slipped while walking down a stairway in the vessel, sustaining a number of severe personal injuries. More than one year later, on May 8, 1984, Marek and her husband, appellant Samuel Marek, filed this diversity action in the Eastern District of Pennsylvania against appellee Marpan Two, Inc., which owned at the relevant times the S.S. VERACRUZ, and appellee Bahama Cruise Line, Inc., which chartered the vessel for this fateful cruise.

The district court granted appellees' summary judgment motion. Marek v. Marpan Two, Inc., No. 84-2214 (E.D.Pa. July 15, 1986). Marek admittedly failed to file this suit within one year of her accident, in clear violation of paragraph 6(b)(2) of her ticket contract, and the district court determined that this particular contract limitation was valid as a matter of law. 2

II.

We review a grant of summary judgment by applying the same test a district court should employ. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). A district court may enter summary judgment if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

In cases of this variety, the facts tend to be uncontested. The only issue that remains then is a wholly legal one: Are the time limitations contained in the ticket's fine print part of the passenger's contract with the owners and operators of the cruise vessel? 3 Courts thus consider it "well-established" that evaluating time limits on notice and filing of a passenger's lawsuit The seminal opinion in this field, as in so many others, is one authored by Judge Henry Friendly. In Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11 (2d Cir.1968), Judge Friendly concluded that "the thread that runs implicitly through the cases sustaining [such cruise ticket time limitations] is that the steamship line had done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his [or her] legal rights." Id. at 17. As the district court recognized, however, this statement of the legal test, if taken literally, is simply too rigid. There is no

"constitutes a legal determination, suitable for disposition by summary judgment." DeNicola v. Cunard Line, Ltd., 642 F.2d 5, 11 (1st Cir.1981); accord Barbachym v. Costa Line, Inc., 713 F.2d 216, 218 (6th Cir.1983). This determination, in turn, is best understood as a pair of distinct legal examinations. One focal point is the adequacy of so-called "warning language," often found on the front cover of a cruise ticket, directing a passenger to read the particular terms inside the ticket. The other focal point is the ticket terms themselves, and concerns such physical characteristics as the location of the terms within the ticket, the size of the typeface in which they are printed, and the simplicity of the language they employ. The question is thus whether, "taken together, the various notices and provisions of this cruise ticket contract" suffice legally to give effect to the time limits it contains. Lubick v. Travel Servs., Inc., 573 F.Supp. 904, 907 (D.V.I.1983). Because this is a matter of first impression in our Circuit, we begin our legal analysis by briefly summarizing and adopting the general approach that other courts have taken to this legal question.

situation where, from hindsight, one could not imagine the shipowner doing some little bit more to draw attention to the limitation clause.... Thus, even though the courts continue to use the "all it reasonably could" language, application of the standard involves notions of reasonableness and not hypothesizing some further step the shipowner could possibly have taken.

Marek, No. 84-2214, mem. op. at 3 (E.D.Pa. July 15, 1986). We therefore follow in the wake of those courts, including those in our Circuit, 4 that have adopted the more practical "standard of reasonable communicativeness," 5 Lipton v. National Hellenic Am. Lines, 294 F.Supp. 308, 311 (E.D.N.Y.1968), and we apply that standard as we assess Marek's particular contentions.

III.
A.

Across the top of the ticket folder cover, beneath the words "S.S. VERACRUZ"

                and above an impressive picture of the vessel and the words "BAHAMA CRUISE LINE," appears the following warning:  "ACCEPTANCE OF THIS TICKET CONSTITUTES A CONTRACT.  THE TERMS AND CONDITIONS OF WHICH ARE SET FORTH INSIDE.  PLEASE READ CAREFULLY."    The warning, which is printed in capital letters that are approximately  1/16 inch high, is clearly printed and easily read, even when held at arms' length distance from the naked eye. 6   Across the top of the first of two columns of print on the first page inside the folder appears this additional warning:
                

CONDITIONS OF CONTRACT

Acceptance Of This Ticket By The Passenger Shall Constitute

An Acceptance By The Passenger, As That Word Has

Been Defined, Of All The Terms And

Conditions Set Forth Herein.

This warning, in letters approximately 1/8 inch high, is also clearly printed, and its relatively larger print size makes it even easier to read than the warning on the folder's front cover. A third warning, at the bottom of the passenger copy of the ticket itself, states: "ACCEPTANCE OF THIS TICKET CONSTITUTES A CONTRACT READ TERMS AND CONDITIONS CAREFULLY." This warning, in letters slightly less than 1/16 inch high, is also clearly printed and easily read. Marek nonetheless contends that these warnings--especially the one on the folder's front cover--did not reasonably communicate the existence and importance of the terms inside, including the time limits in ticket paragraph six. We disagree.

Marek's first allegation, that the cover warning should have been "significantly more eye-catching than this," Silvestri, 388 F.2d at 18, asks too much of appellees. Each of the three warnings is easy to read and appears at a prominent place in the ticket folder. Taken together, they indicate that appellees did what was reasonable to communicate to Marek and Toombs that the terms of the contract exist, are important, bind them as passengers, and should be read. We also note, as did the district court, that the warnings in this folder compare favorably with ticket notices that courts have approved, 7 and they far surpass in clarity and visibility those notices that courts have...

To continue reading

Request your trial
90 cases
  • Hodes v. S.N.C. Achille Lauro ed Altri-Gestione
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 22, 1988
    ...and Frank Hodes. Finding that the clause satisfies the "reasonable communicativeness" test this court set forth in Marek v. Marpan Two, Inc., 817 F.2d 242 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987), and that its enforcement would not violate the principles ......
  • MCI Telecommunications Corp. v. Teleconcepts, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 8, 1995
    ...... Teleconcepts claimed that MCI's action was untimely since it was not filed within the two year statute of limitations contained in the Communications Act. Teleconcepts argued that MCI's ......
  • Oak St. Printery, LLC v. FujiFilm N. Am. Corp.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 17, 2012
    ...of Wallingford, Inc. v. Reliable Data Systems, Inc., No. 95–6686, 1995 WL 734232 (E.D.Pa. Dec. 5, 1995)) (citing Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir.1987) (holding that as long as the terms and conditions were reasonably communicative, “[t]he [plaintiff] who omits to read t......
  • Licensed Practical Nurses v. Ulysses Cruises
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 15, 2000
    ...in the ticket may limit rights to sue. See Spataro v. Kloster Cruise, Ltd., 894 F.2d 44, 45 (2d Cir.1990). See also Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir.1987); Lerner v. Karageorgis Lines, 66 N.Y.2d at 485, 497 N.Y.S.2d 894, 488 N.E.2d 824; Shankles v. Costa Armatori, S.P.A.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT