Valenti v. Home Lines Cruises, Inc.

• Decision Date: 30 April 1984
• Docket Number: Civ. No. 83-4074.
• Citation: 614 F. Supp. 1
• Parties: Beatrice VALENTI, Plaintiff, v. HOME LINES CRUISES, INC., and John Doe, said name being fictitious and presently unknown, Defendants.
• Court: U.S. District Court — District of New Jersey

614 F. Supp. 1

Beatrice VALENTI, Plaintiff, v. HOME LINES CRUISES, INC., and John Doe, said name being fictitious and presently unknown, Defendants.

Civ. No. 83-4074.

United States District Court, D. New Jersey.

April 30, 1984.

Breslin & Breslin, P.A., Hackensack, N.J., for plaintiff.

Evans, Koelzer, Osborne, Kreizman & Bassler, Red Bank, N.J., for defendants.

OPINION

LACEY, District Judge.

FACTUAL BACKGROUND

The plaintiff, Beatrice Valenti, filed a complaint in the Superior Court of New Jersey, Law Division, Bergen County, on September 1, 1983. The complaint alleged that she was injured while a passenger on a seven-day Bahamas cruise on the ocean liner, S.S. Oceanic. Plaintiff asserts that, while preparing to return to the ship in the Bahamas, she sustained personal injuries when the vessel's gangplank struck her right ankle and/or foot due to the actions of a servant or employee of the defendant.

Plaintiff had incorrectly identified the defendant as Home Lines Cruises Inc. (hereinafter "HLCI"), instead of Home Lines Inc. (hereinafter "HLI"), the true owner of the vessel. HLCI is an agent of the owner HLI.

On October 20, 1982, the plaintiff's attorney sent a letter to HLCI to inform them of plaintiff's intent to pursue a claim for injuries sustained while aboard the vessel. In a letter dated October 25, 1982, HLCI acknowledged the receipt of the plaintiff's letter and expressed their willingness to attend to the matter. No other communication was made between the parties until the plaintiff instituted this action in the Superior Court of New Jersey on September 1, 1983. The matter was removed to this court by the defendant in October 1983.

Prior to her passage, plaintiff was issued a passage contract ticket by the vessel owner. The passage contract contains 27 separately numbered paragraphs that set forth the conditions and terms of passage. One such condition is a liability limitation that requires an injured passenger to notify the vessel owner about a claim within six months of the date of the injury. In addition, the passage contract requires that the injured passenger initiate any action within one year of the date of the injury. The "Conditions of the Contract of Passage" provide in pertinent part:

(a) The Carrier and/or vessel shall not be liable for any claim whatsoever of the Passenger howsoever and wheresoever arising unless written notice thereof with full particulars shall be delivered to the Carrier or its agents as follows:

1. Within six (6) months from the day when the death or injury occurred in respect of any claim for loss of life or bodily injury in any case where Sec. 4283A of the Revised Statutes of the United States shall apply;

(b) Suit to recover on any claim against the Carrier and/or vessel shall not be maintainable unless:

1. Suit is initiated within one (1) year from the day when death or injury occurred in respect of any claim for loss of life or bodily injury in any case where said Sec. 4283 shall apply (page 2 paragraph 22).

On the face of the passage contract, in fairly large white lettering on a blue background, it reads, "IMPORTANT NOTICE: Each passenger should carefully examine this ticket, particularly the condition on pages 2, 3, 4, 5, and 6." In addition, on the top of the embarkation coupon in large clear type it states "PASSAGE CONTRACT — SUBJECT TO CONDITIONS OF CONTRACT ON PAGES X-X-X-X-X."

At the end of the passage contract after all the conditions are set forth, the name of the vessel owner, HLI, appears.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant's motion for summary judgment is based on two contentions: 1) plaintiff's claim is time barred for failure to comply with the terms of the passage contract; and 2) HLCI is an improper defendant in this action because it is not the owner of the vessel.

In opposition to defendant's motion for summary judgment, plaintiff asserts that she should be given leave to amend her complaint to name as a defendant HLI, the vessel owner, as well as HLCI, the owner's agent.

As to the vessel owner, plaintiff asserts that the passage contract that it issues to the passengers does not reasonably communicate that there are conditions contained therein that limit the owner's liability.

As to the agent, plaintiff asserts: 1) that 46 U.S.C. § 183b, which allows a vessel owner to limit contractually the time in which an injured passenger may file suit, is inapplicable to the agent of a vessel owner; and 2) breach of representation and warranty in that the agent assured her that she would enjoy a safe passage.

Summary judgment is a "drastic remedy" which should be granted only in a case where "a trial is unnecessary and would cause delay and expense." Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). See Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981). A trial court may enter summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Sunshine Books Ltd. v. Temple University, 697 F.2d 90, 95 (3d Cir.1982); Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir.1981). The party moving for summary judgment has the burden of demonstrating the absence of all genuine issues of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153-61, 90 S.Ct. 1598, 1606-10, 26 L.Ed.2d 142 (1970). Even if "the preponderance of the evidence should appear to be on the moving party's side, the court's function is not to decide issues of fact, but only to determine whether any issue of fact exists to be tried." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981); Ransburg Electro-Coating Corp. v. Lansdale Finishers, Inc., 484 F.2d 1037, 1039 (3d Cir.1973). In deciding a motion for summary judgment, the non-moving party's allegations should be taken as true and all inferences from the evidence must be drawn in favor of the opposing party. Whitehead v. St. Joe Lead Co., 729 F.2d 238, 251 (3d Cir.1984); In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 256-59 (3d Cir.1983).

The Third Circuit, however, has made it clear that under Fed.R.Civ.P. 56(e) a party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading in opposition to a properly supported summary judgment motion." Sunshine Books Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir.1982). Rather, the opposing party is required to "set forth specific facts showing that there is a genuine issue for trial." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981). Hence, "a party resisting the motion cannot expect to rely merely upon bare assertions." Id.

In support of its motion for summary judgment, defendant contends that plaintiff's claim is time barred for failure to comply with the terms of the passage contract. (See Defendant's Brief pp. 9-17.) Under the terms of the passage contract, an injured party is required to notify the owner of the vessel about a claim within six months from the day of injury. In addition, the party is required to initiate a suit within one year of the day of injury in order to hold the owner liable for the injuries. See p. 3, supra.

The plaintiff, Beatrice Valenti, sustained an injury on August 23, 1982. Suit was not filed until September 1, 1983. The liability limitation contained in the passage contract, set forth above, precludes any liability on the part of the vessel owner.

Congress has recognized the right of owners of ocean vessels to limit their liability by including in their passage contracts time limitations within which notices of claim and suit may be brought. 46 U.S.C. § 183b. Although the courts have consistently recognized the validity of these provisions, they have refused to enforce them unless they are properly set forth in the passage contract. See, e.g., Silvestri v. Italia Societa Per Azione Di Navigazione, 388 F.2d 11 (2d Cir.1968). Generally, the courts have required that these liability limitations be made a formal part of the passage contract either directly or by reference. See The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897).

In determining whether the liability limitation is part of the passage contract, the courts have examined the physical arrangement of the contract itself. The cases have required that the carrier include clear and conspicuous language in the passage contract which alerts the passenger to the condition limiting liability. DeNicola v. Cunard Line Limited, 642 F.2d 5 (1st Cir. 1981); Gardner v. Greek Line, 388 F.Supp. 856 (M.D.Pa.1975). The passage contract should "reasonably communicate" to the passenger that the condition limiting liability is an important matter. Barbachym v. Costa Line, Inc., 713 F.2d 216, 217 (6th Cir.1983); Silvestri, supra, 388 F.2d at 17.

Furthermore, the court must determine if the carrier did all that it reasonably could to impress upon the passengers the importance of these conditions. DeNicola, supra, 642 F.2d at 9; Gardner, supra, 388 F.Supp. at 857. Therefore, if the notice which alerts the passenger to the condition limiting liability is inconspicuously placed in the passage contract or printed in unreasonably small print, it will not meet the standard required by the court. See, e.g., Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983); Silvestri v. Italia Societa Per Azione Di Navigazione, 388 F.2d 11 (2d Cir.1968).

Generally, courts have recognized that a carrier has not reasonably communicated to the passenger its liability limitations "unless the face of the ticket contains conspicuous language directing the passenger's attention to the contractual terms contained therein." Barbachym, supra, 713 F.2d at 219. Accord Carpenter v. Klosters Rederi, 604 F.2d 11, 13 (5th Cir. 1979).

Defendant contends...