Mulvihill v. Furness, Withy & Co.

• Decision Date: 14 November 1955
• Citation: 136 F. Supp. 201
• Parties: Frances MULVIHILL, Plaintiff, v. FURNESS, WITHY & CO., Ltd., Defendant.
• Court: U.S. District Court — Southern District of New York

136 F. Supp. 201

Frances MULVIHILL, Plaintiff, v. FURNESS, WITHY & CO., Ltd., Defendant.

United States District Court S. D. New York.

November 14, 1955.

Edward Raff, New York City, for plaintiff, Jacob Rassner, New York City, Herbert W. Sterenfeld, Brooklyn, of counsel.

Kirlin, Campbell & Keating, New York City, for defendant, Theodore P. Daly, New York City, of counsel.

HERLANDS, District Judge.

The question of the validity of a time limitation-of-liability clause in a steamship ticket is presented by this motion for summary judgment by defendant.

Plaintiff, an American citizen and a New York resident, brought a civil action on April 14, 1955 against defendant, a British corporation. Defendant owns, operates and controls a vessel, the S.S. Ocean Monarch, which is registered under the laws of the United Kingdom of Great Britain.

The complaint alleges that plaintiff, while a passenger on defendant's vessel, was injured by a fall when a defective wooden reclining deck-chair collapsed or broke under her while she was attempting to seat herself in it. This alleged incident and injury occurred on or about September 18, 1952, when the vessel was on its return trip from Bermuda to New York. Plaintiff had boarded the vessel on or about September 13, 1952, when it left New York for Bermuda. The complaint, pleading two causes of action, seeks damages totaling $30,000. One cause of action (for $15,000 damages) is based on defendant's alleged negligence. The second cause of action (for $15,000 damages) is based on defendant's alleged breach of contract for the safe carriage and transportation of plaintiff.

Defendant denies the material allegations of the complaint and also sets up seven defenses. For purposes of this motion, we need mention only the fifth and sixth defenses. The fifth defense alleges that the complaint was not filed within one year after the cause of action arose. The sixth defense alleges that plaintiff failed to give defendant written notice of her claim, with full particulars, within six months after the date of injury. Both of these defenses are predicated upon paragraph "14" of the contract of carriage contained in the long-form ticket.

Paragraph "14" of the contract of carriage reads as follows:

"14. The shipowner shall not be liable for any claim whatsoever of the passenger, his heirs, executors, administrators, assigns, next of kin, dependents or personal representatives unless written notice thereof with full particulars shall be given to the shipowner or agent as follows: (a) within six months after the death or injury occurred in respect of any claim for loss of life or bodily injury in any case where Section 4283A of the Revised Statutes of the United States 46 U.S.C.A. § 183b shall apply: (b) within two months after the death of the passenger when occurring before landing or within fifteen days after landing or the abandonment or breaking up of the voyage in respect of any claim for loss of life, except where said Section 4283A shall apply; (c) within fifteen days after the passenger shall be landed, or the voyage is abandoned or broken up, in respect of any claim whatsoever unless such claim is included within one of the two categories just mentioned. Suit to recover on any claim shall not be maintainable unless commenced as follows: (1) within one year after the death or injury occurred in respect of any claim for loss of life or bodily injury where said Section 4283A shall apply; (2) within six months after the passenger shall be landed from the vessel or the voyage shall be abandoned or broken up or after the death of the passenger when occurring before landing, which ever may be the case, in respect of any claim whatsoever unless such claim is included within category (1), just mentioned. Any action by the shipowner or its agents or attorneys in considering or dealing with claims where the provisions of this ticket have not been complied with, shall not be considered a waiver of such requirements."

From the pleadings, examination before trial of plaintiff, and memoranda submitted by the parties, the following additional facts appear: Plaintiff is a registered nurse. She herself purchased the ticket about two weeks before she actually boarded the vessel. At the time she purchased the ticket from Thomas Cook & Sons, travel agent, she personally signed the ticket. The ticket remained in her possession until the day she sailed, September 13, 1952, at which time she turned in the ticket upon boarding the vessel. Plaintiff did not read the provisions contained in the ticket.

Plaintiff claims that, as a matter of law, the above quoted provisions of paragraph "14" are not binding upon her; that the ticket does not specifically direct the passenger's attention to the terms and conditions of the contract embodied in the ticket; that, whereas all of the essential parts of the contract are printed in bold black print, paragraph "14" appears in much lighter print; and finally, that paragraph "14" does not appear on the face of the contract, but "only on the third and fourth pages in very small print."

Defendant argues that the words "Contract Ticket" appear in bold black type in the upper righthand corner of the ticket; that this constitutes adequate notice to the passenger; that the contract is introduced by the clause beginning with the words: "It Is Mutually Agreed," which words appear over plaintiff's signature on the first page of the ticket; that paragraph "14" is an integral part of the contract; and that, as a matter of law, the time limitations prescribed in paragraph "14" are valid, binding and conclusively determinative of the motion at bar.

A photostatic copy of the contract ticket is before the Court; and all of the other relevant and material facts are not in dispute. In the interest of a fuller description of the ticket, the following details may be added to those already cited:

On "Page One" of the contract ticket, the following provision appears:

"It Is Mutually Agreed between the shipowner and the passenger named herein, that in consideration of the payment to the shipowner of the passage money by or on behalf of the passenger, the shipowner will provide the said passenger with passage as stated herein, unless prevented by some unforeseen circumstance, on the terms hereinafter stated, which shall govern the relations between the shipowner, vessel and passenger in every possible contingency wheresoever occurring and even in the event of deviation or unseaworthiness of the vessel at the inception of the voyage or subsequently and whether or not this ticket has been signed by, or on behalf of the passenger.

"These terms supersede all representations, promises and agreements whatsoever that may have been made, or may be claimed to have been made, to or with the intending passenger by anyone on behalf of the shipowner. These terms shall not be considered modified or waived except by an express written modification or waiver signed by the master or an executive officer of the shipowner."

Immediately following the above-quoted language are these words in large, clear capital letters:

"The Terms Hereinabove Mentioned Form Part of the Contract Ticket and are as Follows:"

There is then set forth a paragraph numbered "1," which is continued on "Page Two." At the end of that portion of paragraph "1" which is printed on "Page One," are the words: "(Continued on Pages Two, Three and Four)." In the upper lefthand corner of "Page Two" are the following words: "(Terms Continued from Page One)." In the upper lefthand corner of "Page Three" are the following words: "(Terms Continued from Page Two)." In the upper lefthand corner of "Page Four" are the following words: "(Terms Continued from Page Three)."

In the lower lefthand corner of "Page One" are the following words:

"I agree to the terms of this Contract Ticket Signed Frances Mulvihill Signature of Passenger Or Agent Or Purchaser of Ticket."

Paragraph "14" appears on "Page Three" and "Page Four" of the ticket.

Certain findings of fact become immediately clear: (1) the contract ticket cites R.S. § 4283A, 46 U.S.C.A. § 183b, and the time-limitation provisions come within the permissive limits sanctioned by that statute; (2) plaintiff, a registered nurse, personally purchased and then retained the ticket in her personal possession for about two weeks before surrendering it to defendant; (3) plaintiff personally signed the ticket immediately underneath words that plainly notified her that she was signing a contract the terms of which were set forth in the body of the ticket; and (4) plaintiff's ignorance of those terms was self-imposed and in the face of a contract ticket whose format was fair.¹

The public policy promulgated by Congress in 46 U.S.C.A. § 183b² validates the time limitation for instituting suit as contained in the ticket.

Admiralty law determines the validity of the contractual limitation of liability in a steamship ticket.³ In this case, a specific federal statute has preempted the field; and the application of § 183b, Title 46 U.S.C.A., is dispositive of the validity of these contractual limitations and, consequently, of plaintiff's right to bring suit at this time.

Although the complaint recites that jurisdiction is based upon diversity of citizenship, the cause of action is actually founded upon a maritime tort, cognizable in admiralty. The substantive law to be applied "is the `general maritime law' of which the ultimate expositor is the Supreme Court of the United States."⁴ This is not a case where federal jurisdiction is based solely upon diversity of citizenship and where the rule of Erie R. R. Co. v. Tompkins⁵ requires application by the federal court of substantially the same law as would be applied by courts of the state in which the federal court is sitting.⁶ These considerations require the court to apply the federal choice-of-law rule.

The next inquiry is: what law governs the issues in ...