Shankles v. Costa Armatori, S.P.A.

• Decision Date: 23 November 1983
• Docket Number: No. 83-1078,83-1078
• Parties: Kathryn J. SHANKLES, et al., Plaintiff, Appellee, v. COSTA ARMATORI, S.P.A., et al., Defendants, Appellees. Isolina Vazquez Gaston, Plaintiff, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 861

722 F.2d 861

1984 A.M.C. 2772

Kathryn J. SHANKLES, et al., Plaintiff, Appellee, v. COSTA ARMATORI, S.P.A., et al., Defendants, Appellees Isolina Vazquez Gaston, Plaintiff, Appellant.

No. 83-1078.

United States Court of Appeals First Circuit.

Argued Sept. 13, 1983.

Decided Nov. 23, 1983.

Harry A. Ezratty, San Juan, P.R., for plaintiff, appellant.

Roberto Moreno, Old San Juan, P.R., with whom Jimenez & Fuste, San Juan, P.R., was on brief, for Costa Armatori, S.P.A., et al.

Before CAMPBELL, Chief Judge, ALDRICH and COWEN ^*, Senior Circuit Judges.

COWEN, Senior Circuit Judge.

Appellant, Isolina Vazquez-Gaston, appeals from an order of the United States District Court for the District of Puerto Rico (Jaime Pieras, Jr., District Judge) granting the motion for summary judgment of defendant-appellee, Costa Armatori, S.P.A. (Costa, defendant, appellee). She instituted this action against Costa for losses incurred and personal injuries sustained as a result of a fire aboard a ship chartered by Costa and on which she was a passenger. She sought recovery of $65,000, the estimated value of personal property lost in the fire, and $100,000 for physical pain, discomfort, and mental anguish allegedly caused by the fire. At issue in this appeal is whether the district court correctly held that appellant's action was time-barred due to her failure to comply with the notice and filing provisions of her ticket/contract of passage. Appellant urges several reasons why this court should overturn the district court's ruling. Because we do not find appellant's arguments convincing, we affirm the judgment of the district court.

I. THE FACTS AND PRIOR PROCEEDINGS

The district court summarized the main facts of this case in its opinion as follows:

On March 30, 1979, the Italian cruise ship "ANGELINA LAURO" was engulfed by a fire while in port at Charlotte Amalie harbor in St. Thomas, U.S. Virgin Islands. The fire initially broke out in the ship's crew galley and spread throughout the vessel destroying or otherwise rendering useless the inside structure. With the exception of two minor injuries, no human casualties resulted from the fire, however, most of the personal property owned by passengers and crew were either lost, irreparably damaged by fire or were later subjected to vandalism and looting. Both plaintiffs ¹ herein were passengers on the ANGELINA LAURO and for this ill-fated trip had purchased passage tickets from Costa Armatori S.P.A. [Costa] * * * Plaintiff brought a complaint against Costa and its underwriters on March 28, 1980, almost a year after the casualty. In this complaint she claimed loss of personal property found aboard and damages predicated on physical and mental duress suffered as a result of the fire.

Civil No. 80-0693, at 1, 2 (footnotes omitted).

Defendant's successful motion for summary judgment was based on Article 30 of the ticket/contract, which required that:

(1) For property losses, notice of the claim be filed with the company within 10 days of the loss and suit be commenced not later than 6 months therefrom.

(2) For personal injuries, notice of the claim be filed within 6 months and suit be commenced within 1 year.

Attached to Costa's motion for summary judgment was an affidavit which stated in substance that the appellant's claim for loss of personal property was not submitted until after Costa wrote her on April 6, 1979, but she dated it March 31, 1979; that her suit for the value of the personal property was not filed within the 6-month time limitation provided in Article 30, and that she gave Costa no notice of her claim for personal injuries until the suit was filed, more than 6 months after the claimed injury. The affidavit was not controverted by appellant. To the contrary, her opposition to the motion for summary judgment stated that the facts stated in Costa's motion for summary judgment were substantially correct and could be accepted by the court.

On the basis of Costa's affidavit, a supporting memorandum, and the admissions by appellant, the district court found that appellant did not comply with either the notice of loss or the commencement of suit provisions of the ticket with regard to the claimed property losses, and that although the personal injury action was commenced 2 days before the end of the contractual 1-year period, no notice of that claim (required by the ticket to be given within 6 months) had been given to Costa. Thus, the district court ruled that Costa was entitled to summary judgment as a matter of law.

II. ANALYSIS

A. The Reasonable Notice Issue

In seeking reversal of the district court's judgment, appellant has advanced several arguments. With one exception, we find that they deserve only brief discussion. The exception is the appellant's contention that the ticket/contract did not meet the standard of "reasonable communicativeness" first espoused in Lipton v. National Hellenic American Lines, 294 F.Supp. 308 (E.D.N.Y.1968).

Beginning almost a century ago with the case of The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), courts have struggled to divine standards by which to determine whether steamship passengers are to be held bound by "boilerplate" conditions located in the fine print of adhesion contracts of passage. Although some discernible standards have begun to emerge in the past two decades, this is still largely a case-by-case determination. Differing circumstances may render the same ticket binding on one passenger in one case, yet invalid as against another passenger in another case. The basic inquiry is whether, and to what extent, a passenger, who in almost all cases does not actually bargain for a particular term or condition of a contract of passage, but who nevertheless accepts or signs the ticket before embarkation, is bound by the fine print of the ticket.

Recent cases reflect that courts examine the entire ticket to answer the question: Does the contract reasonably communicate to the passenger the existence therein of important terms and conditions which affect legal rights? DeNicola v. Cunard Line Ltd., 642 F.2d 5 (1st Cir.1981); Silvestri v. Italia Societa Per Azione di Navigazione, 388 F.2d 11 (2d Cir.1968); McQuillan v. "Italia" Societa Per Azione di Navigazione, 386 F.Supp. 462 (S.D.N.Y.), aff'd 516 F.2d 896 (2d Cir.1975), and Lipton v. National Hellenic American Lines, supra.

In Silvestri, Judge Friendly phrased the test in terms of whether the company has "done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights." 388 F.2d at 17.

1. Physical Characteristics of the Ticket/Contract

The test which they have applied has led courts to the tedious and detailed examination of ticket coupons, booklets of conditions, and surrounding documentation on a case-by-case basis. Features such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question, are all called into question by reviewing courts in their assessment of a ticket's "reasonable communicativeness." See DeNicola, supra; Miller v. Lykes Brothers Steamship Co., 467 F.2d 464 (5th Cir.1972); Silvestri, supra; Raskin v. Compania de Vapores Realma, S.P., 521 F.Supp. 337 (S.D.N.Y.1981); McQuillan, supra, and Lipton, supra.

The Costa ticket purchased by appellant is contained in a 3 1/2" X 7 1/2"' booklet, bound on the left edge, and identified on the cover as "Passage Ticket," in regular Roman type, under the Costa logo, both in Italian and in English. Inside the booklet are ten pages of terms and conditions set out in small but legible type in two columns--Italian on the left, English on the right. In bold print on the top of the first page (but not on the cover) appears the following legend: "Terms and Conditions of Contract of Passage." Immediately before the listing of the terms and conditions, in regular Roman print, is a statement that the terms and conditions thereafter are known to and agreed to be complied with by the passenger "owing to the mere fact of having booked and/or purchased the passage ticket." Thereafter, there are 35 terms and conditions, each identified by a boldfaced caption. Article 30, which limits and qualifies passengers' ability to bring tort actions, is on page 10 (of 10 pages) of the terms and conditions. At the bottom of that 10th page, the following legend appears in bold print (all grammatical and punctuation errors in original):

THE HOLDER OF THIS PASSAGE TICKET, DO HEREBY DECLARE TO THE EFFECTS AND UNDER PROVISIONS OF ARTS. 1341 and 1342 OF THE ITALIAN CIVIL CODE IN FORCE, THAT HE IS AWARE AND ADHERES TO ALL CONDITIONS AND CLAUSES SET FORTH IN THIS PASSAGE CONTRACT AND THAT HE SPECIFICALLY APPROVES CLAUSES Nos. 1, 2, 4, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, and 35.

Next appears a foldout page consisting of a passenger declaration form to be filled out and signed by the passenger. Near the end of the booklet, is the coupon portion of the ticket, which contains blanks for relevant information such as the passenger's name, schedule, berth, and fare. In the upper left hand corner, in regular Roman type, is the following legend:

By accepting or using this ticket the passenger agrees to the terms and conditions appearing on pages 2/10.

If the only consideration in determining whether the applicant had reasonable notice of Article 30 of the ticket/contract was the physical characteristics of the ticket, this would be a close case. The facts respecting the form of the ticket in this case seem to fall squarely between those where notice is virtually nonexistent (Silvestri, supra, and Raskin, supra ) and those where the ticket clearly and conspicuously alerts the reader to the presence of important terms and conditions (McQuillan, supra, and Lipton, supra ). Here, there is no facial warning on the...