McMurray v. United States, 83
| Decision Date | 19 January 1962 |
| Docket Number | No. 83,Docket 27077.,83 |
| Citation | 298 F.2d 618 |
| Parties | Max GELLER and Anne Geller, Plaintiffs-Appellants, v. HOLLAND-AMERICA LINE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Eli Ellis, New York City (Hill, Betts, Yamaoka, Freehill & Longcope, J. P. Catuzzi, Jr., New York City, of counsel, on the brief), for plaintiffs-appellants.
John J. Crowley, New York City (Burlingham, Hupper & Kennedy, Francis I. Fallon, New York City, of counsel, on the brief), for defendant-appellee.
Before MOORE, SMITH and HAYS, Circuit Judges.
Appellants, plaintiffs below, appeal from a decision of the district court granting summary judgment for appellee. This action which is predicated upon personal injuries sustained by Anne Geller on December 17, 1958, while a passenger on appellee's vessel, The S. S. Statendam, was commenced on June 23, 1960. Since the Cruise Passage Contract (the Contract) between appellants and appellee contained a provision that suit for injuries sustained during the voyage must be brought within one year from the date of the injury, the district court held that appellants' suit was barred because it was not brought within the one-year limitation period.
Appellants contend that they are not bound by the limitation provision of the Contract unless it is shown that they had actual knowledge of its terms and that the collection of the ticket at embarkation negated appellee's right to enforce this provision. However, it is the settled law in this circuit that passengers will be bound by such a provision is contract of carriage, if the provision is incorporated, at least by reference, in the body of the contract. Foster v. Cunard White Star, Ltd., 2 Cir., 1941, 121 F.2d 12; Baron v. Compagnie Generale Transatlantique, 2 Cir., 1939, 108 F.2d 21; see also Siegelman v. Cunard White Star, Ltd., 2d Cir., 1955, 221 F.2d 189; Scheibel v. Agwilines, Inc., 2d Cir., 1946, 156 F.2d 703. The Kungsholm, 2d Cir., 1936, 86 F.2d 703. This rule applies even though the ticket containing the contract is collected at the time of embarkation. See Foster v. Cunard White Star, Ltd., supra. Since the limitation provision was incorporated by reference in the body of the contract, appellants were bound to institute their action within one year of the date of the injury and their failure to do so bars this suit.
The only other question presented by this appeal is whether there was a genuine issue of...
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