Muratore v. M/S Scotia Prince

• Decision Date: 20 March 1987
• Docket Number: Civ. No. 86-0141-P.
• Citation: 656 F. Supp. 471
• Parties: Regina M. MURATORE, Plaintiff, v. M/S SCOTIA PRINCE, her tackle, apparel, etc., in rem; Prince of Fundy Cruises Ltd., and Transworld Steamship Co., Inc., in personam, Defendants.
• Court: U.S. District Court — District of Maine

656 F. Supp. 471

Regina M. MURATORE, Plaintiff, v. M/S SCOTIA PRINCE, her tackle, apparel, etc., in rem; Prince of Fundy Cruises Ltd., and Transworld Steamship Co., Inc., in personam, Defendants.

Civ. No. 86-0141-P.

United States District Court, D. Maine.

March 20, 1987.

COPYRIGHT MATERIAL OMITTED

Michael X. Savasuk, Portland, Me., for plaintiff.

Leonard Langer, Paul G. Vielmetti, Portland, Me., for defendants.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

Plaintiff filed this suit seeking to recover damages for physical injuries and mental pain and suffering allegedly suffered while on board the M/S SCOTIA PRINCE. Jurisdiction is based on this Court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333 (1982), diversity of citizenship with a proper amount in controversy pursuant to 28 U.S.C. § 1332(a) (1982), and the Court's powers of pendent and ancillary jurisdiction.

I. FINDINGS OF FACT

1. The following parties are involved in this action: Plaintiff, Regina Muratore, is a resident of Chicopee, Massachusetts. Defendant Prince of Fundy Cruises, Ltd. (Prince of Fundy) is the bareboat charterer of the M/S SCOTIA PRINCE (SCOTIA PRINCE), a cruise ship owned by Transworld Steamship Company, Inc. (Transworld). In September of 1984, Prince of Fundy was party to a contract with a company called Floating Fleet, Ltd. (Floating Fleet). Under that contract, Floating Fleet operated all the hotel services on board the SCOTIA PRINCE, i.e., the cabin operations, restaurants, bars, casino, and gift shop. Floating Fleet, in turn, had contracted with a company called Intermed Photos, Ltd. (Intermed) to provide the photographic concession on board the SCOTIA PRINCE. Under the Intermed-Floating Fleet agreement, Floating Fleet provided complimentary berths, together with darkroom and other space, in exchange for a share of the profits from the photographic concession.¹ In September of 1984, Mark Ayling and Martyn Moore were the Intermed photographers on board the SCOTIA PRINCE. Prince of Fundy and Floating Fleet are both subsidiaries of Transworld.

2. On Labor Day weekend, September 2-3, 1984, Plaintiff and her traveling companion, Marlene Lemoine, were passengers on board the SCOTIA PRINCE for a round trip between Portland, Maine, and Yarmouth, Nova Scotia. Plaintiff had arranged the trip through Peter Pan Tours, who provided bus transportation between Springfield, Massachusetts, and Portland, Maine.

3. Peter Pan tour guide William F. Donovan (Donovan) also rode from Springfield to Portland on Plaintiff's bus. Upon arrival in Portland, Donovan left the bus and returned with boarding passes, meal vouchers, and gambling chits issued by Prince of Fundy. He then distributed these materials to the people in his group, including Plaintiff and her friend.

4. Prince of Fundy had an established ticketing procedure that it followed in issuing group tickets. That procedure regularly produced three documents: a work sheet used by the accounting office, a copy of the tour confirmation, and a rooming list with cabin assignments. The work sheet provided spaces for the signatures of the tour escort and the ticket seller. When a tour group arrived, the escort signed the work sheet as confirmation of the number of passengers. Prince of Fundy then issued the group ticket and accompanying ticket jacket, together with boarding passes, meal vouchers, and gambling chits.

5. The ticket issued for Plaintiff's group was numbered "T73643." "T" designated a tour group ticket, as opposed to a ticket issued to an individual passenger. Donovan signed the work sheet for ticket T73643 on the line marked "tour escort signature" and, as a result, received the master ticket and ticket jacket, together with boarding passes, meal vouchers, and gambling chits for each passenger.²

6. Ticket T73643 contained certain terms and conditions of passage, as well as clearly marked language warning each passenger that such terms and conditions existed.³ That warning was prefaced by the word "IMPORTANT" printed in bold type. The terms and conditions were set out in twelve paragraphs on the inside of the front and back covers, with clear language indicating that the conditions were "continued inside of back cover." All paragraphs establishing any type of liability or time limitation, including paragraph nine establishing a time limitation for bringing lawsuits, were labeled with an appropriate heading all in upper-case lettering.

7. Plaintiff never possessed ticket T73643,⁴ nor did any of the documents Plaintiff did receive (boarding passes, meal vouchers, and gambling chits) alert her to the existence of conditions of passage limiting her legal rights.⁵

8. On the evening of September 2, 1984, as passengers boarded the SCOTIA PRINCE, two photographers were taking the passengers' pictures. Plaintiff told the photographers that she did not wish to have her picture taken. When the photographers ignored Plaintiff's request, Plaintiff walked backward onto the ship. One photographer took her picture from the back. The next day, Plaintiff's picture was displayed with pictures of other passengers and offered for sale. Plaintiff's picture, however, had been "doctored": a picture of a gorilla face had been attached to cover the back of Plaintiff's head.

9. At approximately 7:30 the next morning, Plaintiff and her traveling companion made their way to the cafeteria for breakfast. Plaintiff slipped and fell down a flight of stairs. At the time of the fall, the stairs were carpeted.⁶

10. Shaken up from the fall, Plaintiff proceeded to the cafeteria for a cup of coffee and a cigarette. She then filled out an accident report and returned it to Guiseppe Ravenna, manager of the SCOTIA PRINCE. At that time, Plaintiff declined medical assistance from the ship's physician.

11. During the course of the trip, Plaintiff had several confrontations with the photographers. On one occasion, one of the photographers, dressed in a gorilla costume, approached Plaintiff. When Plaintiff turned her back, one photographer told the other, within the hearing of Plaintiff and others, "Take the back of her — she likes things from the back." The tone of the comment suggested lewd implications, and Plaintiff understood the comment to be a lewd remark. On another occasion, the photographers approached Plaintiff and Ms. Lemoine as they sat in the coffee shop. Plaintiff covered her face with her hands to avoid having her picture taken, but the picture was taken regardless. Plaintiff was embarrassed at the pictures, felt harassed throughout the trip, and spent several hours of the trip in her cabin to avoid the photographers.

12. After departing from the SCOTIA PRINCE at about 8:00 p.m. on September 3, 1984, Plaintiff and her traveling companion rode the Peter Pan Tours bus back to Springfield. Plaintiff later experienced severe bruising and physical discomfort, especially pain in her lower back. Plaintiff has continued to experience pain in varying degrees until the present time. Her injury has interfered with activities such as lifting, gardening, or walking for extended periods of time. She is able to work and participate in normal social activity, however, and was able to take a cruise in February of 1985.

II. PROCEDURAL BACKGROUND

This Court previously denied Defendant's motions to dismiss and for summary judgment. At bench trial, counsel for both sides presented live witness testimony and testimony by deposition.⁷

Prior to trial, Defendant M/S SCOTIA PRINCE raised the issue of in rem jurisdiction over the vessel. Specifically, the SCOTIA PRINCE argued that in rem jurisdiction did not exist because Plaintiff had never arrested the vessel, never sought a letter of undertaking or comparable security to stand in the vessel's place, and because the vessel was outside of the Court's territorial jurisdiction at the time of trial. In her post-trial brief to the Court, Plaintiff conceded that she had not secured in rem jurisdiction. The Court, therefore, dismisses all in rem claims against the vessel, M/S SCOTIA PRINCE, and will proceed to consider the in personam claims against Defendants Prince of Fundy and Transworld.

III. CONCLUSIONS OF LAW

A. Statute of Limitations

Defendants argue that Plaintiff's action is time-barred under the terms of a Contract of Passage issued in Plaintiff's name. The Contract of Passage allegedly establishes a one-year statute of limitations for the filing of personal injury or loss of life suits. Defendants assert that the Contract of Passage was set forth in a master ticket picked up by William Donovan, a tour guide for Peter Pan; that Donovan was acting as Plaintiff's agent; and that Plaintiff is charged with the knowledge of her agent. Plaintiff argues that her action is not time-barred because Prince of Fundy did not do all it reasonably could do to communicate the existence of a limitations period to her, and because she never possessed the ticket containing the terms of passage.

As set forth above, the Court finds as fact that Donovan signed for and received a group ticket, and that the ticket contained clearly marked language warning each passenger to examine the terms and conditions of passage set forth on the ticket jacket. Those limitations were not communicated to Plaintiff. The Court turns now to consider the legal effect of those findings.

1. Validity of the Limitation on Liability —Physical Characteristics of the Ticket⁸

Section 183b of title 46, United States Code expressly provides that maritime contracts may contain valid time limitation periods. That section states:

It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel ... transporting passengers ... 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

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