Moore v. American Scantic Line

• Decision Date: 09 October 1939
• Citation: 30 F. Supp. 843
• Parties: MOORE v. AMERICAN SCANTIC LINE, Inc.
• Court: U.S. District Court — Southern District of New York

30 F. Supp. 843

MOORE v.AMERICAN SCANTIC LINE, Inc.

District Court, S. D. New York.

October 9, 1939.

Bigham, Englar, Jones & Houston, of New York City(John L. Quinlan, of New York City, of counsel), for plaintiff.

Hunt, Hill & Betts, of New York City, (Geo. Whitefield Betts, Jr., Frank J. Zito, and Helen F. Tuohy, all of New York City, of counsel), for defendant.

CONGER, District Judge.

The above action has been brought by the plaintiff, to recover for personal injuries suffered by him aboard the defendant's vessel, while he was traveling thereon as a passenger.The defendant, in his answer, denies any allegations of negligence or defective condition and sets up four affirmative defenses, two of which are in issue here.

The plaintiff has moved to strike out these two affirmative defenses, namely, the second and third.

It will not be necessary to set forth in full the details of these defenses.They have to do with the provisions of the ticket or agreement issued for the carriage of the plaintiff and constituting the contract between the plaintiff and the defendant, in and by which the plaintiff carrier attempts to limit its liability for injury to the passenger from all liability for injury to the passenger by reason of the defendant's neglect or default or by reason of the neglect or default of its employees (Second separate and distinct defense).Further, that the defendant is not liable because the plaintiff did not comply with the terms of the ticket constituting the contract between the plaintiff and the defendant in that he failed to give notice of claim in writing within forty days after the landing of the passenger from the steamer, and that he did not begin suit within six months after the passenger left the steamer (Third separate and distinct defense).

The plaintiff left the vessel on August 13, 1936.The written notice of claim was not served within forty days, as required by paragraph 12 of the provisions and terms printed on said ticket.Suit was not commenced until August 6, 1937, which was not within the limitation contained in the said provision of said ticket, but beyond it.

This motion, therefore, brings up for review the legality and the validity of the aforesaid provisions, limitations and restrictions contained and printed on the ticket or contract of carriage of the plaintiff.If they are valid and legal, then under the second separate defense, the defendant is not liable for its negligence or the negligence of its servants; and also under the third separate defense, claim not having been served within forty days, suit not having been commenced within six months, the plaintiff cannot maintain this action.

Plaintiff contends that the limitation and restriction contained in the ticket and contract of carriage, set forth in the second defense, and which attempts to exempt the defendant from liability to a passenger for injuries, even though caused by the defendant's negligence or the negligence of its employees, is not a good defense, because it is contrary to Section 183c of Title 46 of the United States Code Annotated, it being also Section 4283B of the Revised Statutes of the United States.This reads as follows: "It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for such loss or injury, or the measure of damages therefor.All such provisions or limitations contained in any such rule, regulation, contract, or agreement are hereby declared to be against public policy and shall be null and void and of no effect."

Plaintiff also contends that the provision of the ticket and contract of carriage which provides that the claim shall be filed within forty days and suit commenced within six months is not valid because it is contrary to provisions of Section 183b of Title 46 of United States Code Annotated, being also Section 4283a of the Revised Statutes of the United States.This reads as follows:

"(a) It shall be unlawful for the manager, agent, master, or owner of any seagoing vessel (other than tugs, barges, fishing vessels and their tenders) transporting passengers or merchandise or property from or between ports of the United States and foreign ports to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily injury, than six months, and for the institution of suits on such claims, than one year, such period for institution of suits to be computed from the day when the death or injury occurred.

"(b) Failure to give such notice, where lawfully prescribed in such contract, shall not bar any such claim —

"(1) If the owner or master of the vessel or his agent had knowledge of the injury, damage, or loss and the court determines that the owner has not been prejudiced by the failure to give such notice; nor

"(2) If the court excuses such failure on the ground that for some satisfactory reason such notice could not be given; nor

"(3) Unless objection to such failure is raised by the owner.

"(c) If a person who is entitled to recover on any such claim is mentally incompetent or a minor, or if the action is one for wrongful death, any lawful limitation of time prescribed in such contract shall not be applicable so long as no legal representative has been appointed for such incompetent, minor, or decedent's estate, but shall be applicable from the date of the appointment of such legal representative: Provided, however, That such appointment be made within three years after the date of such death or injury."

The real question, therefore, is the applicability of the two aforesaid sections.Section 183b became a law on August 29, 1935;Section 183c became a law on June 5, 1936.Plaintiff's ticket was purchased and became effective on the 31st day of July, 1936, subsequent to the enactment of the last mentioned section.I have been unable to find, and the attorneys for the parties herein state that they have been unable to find, any cases which interpret or pass upon the effect and applicability of these two sections.

Defendant's main contention is that these sections apply only to proceedings for "limitation of liability", and that they are not applicable to this case.

I am satisfied that the statutes above referred to are statutes of general import, enacted for the purpose of regulating the relationship between a common carrier of passengers and passengers with reference to duties, obligations and restrictions of the carrier in connection with its issuance of tickets and its liability to passengers for safe passage thereunder.I am further convinced that these are not statutes of special import, applying only to "in limitation of liability proceedings".To give them this narrow meaning, it seems to me to be beyond the apparent scope and intent of these statutes, and would practically rob them of any meaning.

While there have been no decisions, as before...