Miller v. Lykes Brothers Steamship Co., Inc.

• Decision Date: 13 September 1972
• Docket Number: No. 72-2077. Summary Calendar.,72-2077. Summary Calendar.
• Citation: 467 F.2d 464
• Parties: Irene M. MILLER, and her husband, Albert F. Miller, Plaintiffs-Appellants, v. LYKES BROTHERS STEAMSHIP CO., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

467 F.2d 464 (1972)

Irene M. MILLER, and her husband, Albert F. Miller, Plaintiffs-Appellants, v. LYKES BROTHERS STEAMSHIP CO., INC., Defendant-Appellee.

No. 72-2077. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 13, 1972.

John Patterson, Icard, Merrill, Cullis, Timm & Furen, P. A., Sarasota, Fla., for plaintiffs-appellants.

David J. Kadyk, Charles W. Pittman, Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for defendant-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

GODBOLD, Circuit Judge:

The District Court entered summary judgment for Lykes Brothers in this removal case brought by Irene Miller and her husband, Albert, to recover for damages resulting from personal injuries to Mrs. Miller alleged to have been incurred on defendant's ship during a lifeboat drill supervised by the crew, and as a result of defendant's negligence and breach of warranty. Appellants alleged pain and suffering, physical handicap, and loss of employment by Mrs. Miller, and medical expenses and loss of consortium by Mr. Miller.¹ By answer appellee noted that suit was brought more than one year after Mrs. Miller's injury and pleaded affirmatively the limitation in the "Passenger Contract Ticket," which provides that "Carrier shall have no liability for loss of life or bodily injury unless . . . suit on such claim is begun not later than one year from the day when such death or injury shall have occurred." The District Court found this contractual provision binding on appellants. We affirm.

The "Passenger Contract Ticket" is a one page form with provisions on both front and reverse sides. The first half of the first page consists of spaces for notation of passengers' names, place of issuance, date of issuance, etc. Above the space for passengers' names the form provides, in bold face print, "This Passage is subject to terms printed, typed, stamped, or written below and on back hereof." The various contractual provisions, consisting of twenty-seven paragraphs of fine print, begin on the second half of the first page and continue on the reverse side. These contractual provisions are preceded by the following statement, in bold face print: "By acceptance of this Contract Ticket, whether or not signed by him or on his behalf, or of passage on the ship, the passenger named herein agrees that the following terms and conditions, which are incorporated herein as part hereof, shall govern the relations between and be binding upon the carrier and the passenger in every possible contingency." At the end of the contractual provisions, on the reverse side, are spaces for passengers' signatures, above which is the following statement, in bold face print: "Receipt of this Contract Ticket is acknowledged and terms and conditions hereof are accepted." The Millers signed the ticket at the designated space, but the record indicates that they did not retain a copy of it or examine closely its provisions.

A line of cases stemming from The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), establish the general rule that mere notices insufficient to bring the passenger's attention to restrictions set forth on the reverse side of tickets do not incorporate the restrictions into the contract of passage. See, e. g., Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11 (2d Cir.1968); Maibrunn v. Hamburg-American S.S. Co., 77 F.2d 304 (2d Cir. 1935); Baer v. North German Lloyd, 69 F.2d 88 (2d Cir. 1934); cf. The Kungsholm, 86 F.2d 703 (2d Cir. 1936). Were this a standard Majestic-type case, we would meticulously compare the ticket here with tickets at issue in prior cases to determine the sufficiency of the notices to effect incorporation by reference. This is not, however, a typical "notice-incorporation" case. The limitation provision, embodied within the general contractual provisions beginning on the first page of the ticket and culminating just prior to the space for signatures, was an integral part of the contract of passage. Murray v. Cunard S.S. Co., 235 N.Y. 162, 139 N.E. 226, 26 A.L.R. 1371 (1923). As part of the contractual tissue the provision was binding on appellants irrespective of their failure to read it. "Provisions that appear on the ticket as part of the contract of passage embodied in the ticket are binding regardless of whether they were read by the passenger, provided they are not unlawful in content." Baron v. Compagnie Generale Transatlantique, 108 F.2d 21, 23 (2d Cir. 1939). Accord, Rogers v. Furness, Withy & Co., 103 F.Supp. 314, 316 (W.D.N.Y. 1951).

Our conclusion accords fully with Silvestri v. Italia Societa Per Azioni Di Navigazione, supra, in which the Second Circuit analyzed the Majestic line of cases and concluded: "The thread that runs implicitly through the cases sustaining incorporation 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 legal rights." Id., 388 F.2d at 17 (emphasis added). By this statement the Second Circuit arguably meant that restrictions on form tickets, including restrictions concededly a part of the contract, are binding only if the carrier warns the passenger of their importance as well as of their existence. The precise issue before the Second Circuit, however, was whether the lower court "erred in ruling that the conditions were incorporated." Id. at 13. Therefore, Silvestri was clearly a "notice-in corporation" case that at most only glossed the Majestic doctrine of incorporation by reference; it did not alter the rule that provisions appearing as integral parts of the contract of passage are binding on the parties.

The contractual bar to Mrs. Miller's claims operates equally to bar Mr. Miller's claims for loss of consortium and medical expenses, even though his losses, at least conceptually, may have occurred at a date substantially subsequent to the date of Mrs. Miller's injury. The contract unambiguously provides that claims for "bodily injury" shall be "begun not later than one year from the day when such death or injury shall have occurred." Such limitations are sanctioned by 46 U.S.C. § 183b(a), which provides:

It shall be unlawful for the . . . owner of any sea-going vessel . . . transporting passengers . . . from or between ports of the United States and

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