Silvestri v. Italia Societa Per Azioni Di Navigazione

• Decision Date: 04 January 1968
• Docket Number: No. 175,Docket 31489.,175
• Citation: 388 F.2d 11
• Parties: Ciro SILVESTRI, Plaintiff-Appellant, v. ITALIA SOCIETA PER AZIONI DI NAVIGAZIONE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

388 F.2d 11 (1968)

Ciro SILVESTRI, Plaintiff-Appellant, v. ITALIA SOCIETA PER AZIONI DI NAVIGAZIONE, Defendant-Appellee.

No. 175, Docket 31489.

United States Court of Appeals Second Circuit.

Argued November 15, 1967.

Decided January 4, 1968.

Paul C. Matthews, New York City, for plaintiff-appellant.

Michael D. Martocci, New York City (Dorsey, Burke & Griffin, New York City, Morgan J. Burke, New York City, on the brief), for defendant-appellee.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:

On June 20, 1966, Ciro Silvestri filed a libel in the District Court for the Southern District of New York to recover damages for an injury sustained on October 9, 1964, as a result of a lurch by the Italian Line's S.S. Leonardo Da Vinci on which he was an eastbound transatlantic passenger. Although process never issued against the ship, it was stipulated that the action should be deemed to be in rem as well as in personam. The Italian Line moved for summary judgment because of Silvestri's failure to comply with Article 30 of the Terms and Conditions of his ticket which we quote in the margin;¹ an affidavit supporting the motion set forth Silvestri's admissions on deposition that he had the ticket in his possession for at least three days before boarding the ship in New York and until he arrived in Italy, that he had looked at it prior to embarking, that he had consulted a lawyer in Italy who had made oral representations to the Italian Line without obtaining a satisfactory offer of settlement, and that he had given no written notice until the filing of the libel. Judge Metzner granted the motion, apparently for failure to begin the action within one year, a contractual period of limitation sanctioned by 46 U.S.C. § 183b(a), and hence without having to consider whether Silvestri's failure to give written notice within six months would be ineffective as a bar because of being non-prejudicial in light of the alleged knowledge of the ship's master and the claim by the Italian attorney, 46 U.S.C. § 183b(b) (1). Silvestri's alternative arguments for reversal rest on the applicability of two Supreme Court decisions, The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), and The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959), neither of which has been cited by counsel.

We find no merit in Silvestri's contention that even if the conditions were incorporated as the judge held, Article 30 did not cover a suit in rem. In The Monrosa the Supreme Court held a clause in a bill of lading which we quote in the margin² inadequate to bar an in rem proceeding in the United States. The decision is fairly distinguishable on several grounds. The Court stressed, 359 U.S. at 182, 79 S.Ct. at 712, that "the initial words" — presumably the reference not merely to the Shipowners but to the Captain and the Agents — "are particularly appropriate to a restriction of the clause to in personam actions, and the rest of the language is intelligible on this premise." Here the language is different, and we can discern no intelligible purpose to be served by provisions for filing claims and starting suits that would apply only to in personam actions and leave the claimant free to attach the ship. The Court leaned also on another clause in the bill of lading which had referred both to the carrier and the ship, 359 U.S. at 182 fn.*, 79 S.Ct. at 712; here there are no such clauses, the ticket is studded with provisions referring only to "the Company," and — perhaps decisively — Article 32 recites:

"All the regulations, limitations and exceptions relating to the responsibility of the Company are understood to apply also to the responsibilities, if any, of its Agents, its vessels, its Masters and crew, its employees and, generally, all persons who act for the Company." (Emphasis supplied.)

Finally, the clause sub judice in The Monrosa encountered what the Fifth Circuit had characterized as "one of the most universally recognized rules of law," namely, that "which gives the right to libelant, possessing a maritime lien against a vessel, to proceed in rem in the jurisdiction where the vessel is found," 254 F.2d 297, 300 (5 Cir. 1958), quoting Motor Distributors, Ltd. v. Olaf Pedersen's Rederi A/S, 239 F.2d 463, 467 (5 Cir. 1957), and the Supreme Court also recognized this by its reference to The Maggie Hammond, 76 U.S. (9 Wall.) 435, 449, 450, 19 L.Ed. 772 (1869), which held that liens "will generally, although not universally, be respected and enforced in all places where the property is found or where the right can be beneficially enforced by the lex fori." See also Continental Grain Co. v. FBL-585, 364 U.S. 19, 21-27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960).

Silvestri can prevail, therefore, only if the judge erred in ruling that the conditions were incorporated, decision of which requires us to go back to The Majestic. That case stemmed from a misadventure of the Misses Potter who, with their maid, had sailed from Liverpool to New York in 1892. Despite the improvements in transatlantic navigation since the memorable voyage exactly four centuries earlier, the estimable young ladies found on disembarking that the contents of their trunks had been badly damaged by sea water. When they libelled the Majestic, they were met, among other defenses, with a ticket provision limiting liability "for loss of or injury to or delay in delivery of luggage" to £10. The ticket contained a "box" bearing the names of the passengers, alongside which was an agreement of carriage signed by the Oceanic Steam Navigation Company. Underneath this was a "Notice to Cabin Passengers" with provisions not relevant to the issue save for a reference "See Back"; on the back, under the rubric "Notice to Passengers," like that on the front in bold face type, was a statement "This contract is made subject to the following conditions," including, in fine type, the limitation of liability for luggage to which we have referred. The attention of the Misses Potter had not been called to this, nor had either of them read it. In a unanimous opinion by Chief Justice Fuller, the Court allowed them to recover free from the limitation. Relying particularly on Richardson, Spence & Co. v. Rowntree, 1894 A.C. 217, and Henderson v. Stevenson, L.R. 2 Sc. & Div.App. 470 (1875), the Court held that the limitations "were not included in the contract proper, in terms or by reference." 166 U.S. at 385, 17 S.Ct. at 602.

In an effort to meet the rule in The Majestic, which the Supreme Court has had no further occasion to elucidate, steamship companies have used various expedients to effectuate inclusion in the contract of the all too numerous conditions they appear to consider essential. Here the "box" bore in the upper right hand corner the words:

BIGLIETTO DI PASSAGIO PASSAGE CONTRACT

followed by an identifying number, and in the lower right hand corner the validating stamp of the issuing travel agent. Almost all of the captions in the "box" were in capital or bold face letters, the major exception being the following statements, which appeared in the upper left hand corner of the ticket in ordinary lower-case one-eighteenth inch type:

Il presente biglietto di passagio e soggetto alle condizioni stampate sulla copertina e sui fogli n° 1 e 2.

Subject to the conditions printed on the cover of this ticket which form part of this contract.

The inconspicuousness of these statements was increased by the fact that they were squeezed immediately below a caption in bold face and to the left of one in capital letters. The two "leaves" which are an integral part of the coupon retained by the passenger were headed "TERMS AND CONDITIONS" in bold face. Then followed 35 numbered paragraphs in very small print. At the end were spaces for signature by or for the passenger, but neither Silvestri nor any representative signed.

Judicial efforts to determine what suffices to meet the rule of The Majestic have produced distinctions of considerable nicety. The early decisions of this court ruled against incorporation. La Bourgogne, 144 F. 781 (2 Cir. 1906); The Minnetonka, 146 F. 509 (2 Cir. 1906); Smith v. North German Lloyd S.S. Co., 151 F. 222 (2 Cir. 1907).³ A contrary line of authority finds its main doctrinal source in Murray v. Cunard Steamship Co., 235 N.Y. 162, 139 N.E. 226, 26 A.L.R. 1371 (1923). The Court of Appeals there enforced a 40 day notification requirement despite the fact that the passenger had apparently been required to surrender the ticket on board the ship. Judge Cardozo's opinion stated that "The plaintiff's ticket * * * is described in large type as a `cabin passage contract ticket.' It provides, again in large type, that `this contract ticket is issued by the company and accepted by the passenger on the following terms and conditions.' * * * At the top of the ticket is printed a notice `The attention of passengers is specially directed to the terms and conditions of this contract.'" On these facts, the court held:

"This is not a case of a mere notice on the back of a ticket, separate either in substance or in form from the body of the contract. The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039. Here the condition is wrought into the tissue, the two inseparably integrated. This ticket, to the most casual observer, is as plainly a contract, burdened with all kinds of conditions, as if it were a bill of lading or a policy of insurance. `No one who could read could glance at it without seeing that it undertook * * * to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination\' Fonseca v. Cunard S.S. Co., 153 Mass. 553, 27 N.E. 665, 12 L.R.A. 340. In such circumstances, the act of acceptance gives rise to an implication of assent." Id. at 166, 139 N.E. at 228.

Despite the eminence of its authorship the Murray opinion did not at first have an...