Scheibel v. Agwilines, Inc.

• Decision Date: 21 June 1946
• Docket Number: Docket 20156.,No. 247,247
• Citation: 156 F.2d 636
• Parties: SCHEIBEL v. AGWILINES, INC.
• Court: U.S. Court of Appeals — Second Circuit

156 F.2d 636 (1946)

SCHEIBEL v. AGWILINES, INC.

No. 247, Docket 20156.

Circuit Court of Appeals, Second Circuit.

June 21, 1946.

Debevoise, Stevenson, Plimpton & Page, of New York City (Edward C. McLean, of New York City, of counsel), for appellant.

Burlingham, Veeder, Clark & Hupper, of New York City (Ray Rood Allen, Burton H. White and C. B. Manley O'Kelley, all of New York City, of counsel), for appellee.

Before SWAN, CLARK and WOODBURY, Circuit Judges.

SWAN, Circuit Judge.

By this action the plaintiff sought damages for personal injuries sustained by him on May 16, 1939 while a passenger on the defendant's steamship. He purchased a ticket in Florida for transportation from Miami to New York City. Shortly after going aboard and while the vessel was still in Florida waters, he had a fall by reason, as he claims, of the defendant's negligence in failing to fasten a strip of carpeting laid on a polished floor adjacent to the Purser's office. On May 13, 1941 the plaintiff brought this action in a New York court. Because of diversity of citizenship it was removed to the federal court, where it was tried to a jury. At the close of the plaintiff's case the defendant rested and moved for a directed verdict on the ground that the action was not commenced within the one year period limited by the ticket contract.¹ Reserving decision upon the motion, the trial judge submitted the case to the jury which found a verdict for the plaintiff in the sum of $14,750. Thereupon the defendant moved to set aside the verdict and renewed its motion for a directed verdict in its favor. These motions were granted, and from the resulting judgment the plaintiff has appealed.

The questions raised by the appeal are whether the ticket provision is invalid by reason of a Florida statute, whether there was evidence from which the jury might properly find that defendant waived or is estopped to rely upon the ticket limitation, and whether the court erred in excluding evidence offered for the purpose of proving waiver by defendant of the ticket limitation. These questions will be discussed in the order stated.

Section 95.03 of Florida Statutes Annotated provides: "All provisions and stipulations contained in any contract whatever entered into after May 26, 1913 fixing the period of time in which suits may be instituted under any such contract, or upon any matter growing out of the provisions of any such contract, at a period of time less than that provided by the statute of limitations of this state, are hereby declared to be contrary to the public policy of this state, and to be illegal and void. No court in this state shall give effect to any provision or stipulation of the character mentioned in this section."

If this provision is applicable to the plaintiff's ticket contract, his action was timely because the Florida statute of limitations, section 95.11, as interpreted by the local courts, allows four years for the bringing of actions for personal injuries. Warner v. Ware, 136 Fla. 466, 182 So. 605. The district court held that the Florida statute was not applicable because of the federal statute, 46 U.S.C.A. § 183b, printed in the margin.²

The appellant argues that by enacting § 183b Congress merely "entered" the field but did not "occupy" it; that the federal legislation says no more than that contractual periods of limitation shorter than one year are unlawful, thus leaving room for state legislation to prescribe a longer period. But we think the appellee's argument that the federal statute preempts the field is more persuasive. Section 183b, although added in 1935, is an integral part of Title 46, Chapter 8 entitled "Limitation of Vessel Owner's Liability." This chapter provides a comprehensive body of regulations declaratory of federal policy with respect to the specific matters with which they deal. Thus, section 181 protects the owner from liability to shippers of specified goods who fail to disclose their nature; section 182 protects him against losses due to fire not caused by his neglect; and section 183 sets limits to the extent of his liability. The purpose of these provisions was to encourage shipbuilding and they should be liberally construed in the ship-owner's favor. Coryell v. Phipps, 317 U.S. 406, 411, 63 S.Ct. 291, 87 L.Ed. 363; The Chickie, 3 Cir., 141 F.2d 80, 85. Read in this context, section 183b is not, as the appellant argues, an isolated enactment whose negative language should be narrowly construed, but is a declaration of Congressional policy as to lawful contractual time limitations and one which in the interest of uniformity should be construed to exclude state statutes of limitation. See Moore v. American Scantic Line, Inc., D.C.S.D.N.Y., 30 F.Supp. 843, 846, 847, affirmed, 2 Cir., 121 F.2d 767. That state statutes must yield so that uniformity may prevail in interstate transportation has been recognized by the courts even though there was no federal legislation dealing expressly with suit clause limitations; see Missouri K. & T. R. v. Harrinan, 227 U.S. 657, 672, 33 S.Ct. 397, 57 L.Ed. 690; Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 346, 47 S.Ct. 383, 71 L.Ed. 672; Cudahy Packing Co. v. Munson S. S. Line, 2 Cir., 22 F.2d 989, 901, certiorari denied 277 U.S. 586, 48 S.Ct. 433, 72 L.Ed. 1000; or though the legislation was in negative form similar to section 183b. See Atlantic C. L. R. Co. v. Wauchula Truck Growers Ass'n, 95 Fla. 392, 395, 118 So. 52; Atlantic C. L. R. Co. v. Chase & Co., 109 Fla. 50, 146 So. 658. These authorities seem to us more in point than cases cited by the appellant which have sustained additional or supplemental state regulations. Accordingly the district court was right in ruling that the one year limitation in clause 11 of the ticket contract barred the action, Foster v. Cunard White Star, Ltd., 2 Cir., 121 F.2d 12; Murray v. Cunard S. S. Co., 235 N.Y. 162, 139 N.E. 226, 26 A.L.R. 1371, unless the defendant waived, or was estopped by its conduct to rely on, the ticket limitation.

The issue of estoppel was submitted to the jury and was determined in the plaintiff's favor, but the verdict was later set aside on the ground that there was no evidence to support it. The correctness of this ruling is the second question presented by the appellant. It appears that by letter of June 7, 1939 to the ship's doctor the appellant presented his claim; he received a reply from Mr. Howell, manager of the defendant's casualty department, asking him to consent to an examination by a doctor of the defendant's selection. He promptly gave consent and on June 29th was requested to arrange with Dr. Kinne for a physical examination. He telephoned Dr. Kinne who said that he would call "some time when he got ready." Having heard nothing further from Dr. Kinne or from the defendant, the plaintiff again wrote the defendant on September 20, 1939. This resulted in a call by Mr. Bohan, a claim agent of the defendant, and thereafter on October 27th Dr. Kinne examined the plaintiff. Nothing further happened until January 27, 1940 when he wrote Mr. Bohan: "Kindly advise what the status is at the present time of my claim against the Clyde-Mallory Lines." Mr. Howell replied under date of February 10th, saying that "we have made several efforts to have a physical examination made by Dr. Kinne of your town. Up to this writing we have not succeeded and we must say we cannot take this matter up farther until an examination has been...