Summary
finding one-year limitations period enforceable because plaintiff had reasonable notice of the contracts conditions even when plaintiff did not pay for his own ticket and plaintiff did not read its terms
Summary of this case from Baer v. Silversea Cruises Ltd.Opinion
Case No. 02-20409-CIV-UNGARO-BENAGES
October 22, 2002
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant's Motion for Summary Judgment, filed September 6, 2002.
THE COURT has considered the Motion, the pertinent portions of the record, and is otherwise fully advised in the premises.
Plaintiff, a passenger aboard Defendant's cruise ship, alleges Defendant acted negligently "in its failure to properly provide adequate security to its passengers." Complaint at ¶ 7. In the instant Motion, Defendant contends Plaintiff's claim is time-barred pursuant to the one year limitations period included in the contract of passage. See Motion at 5. In response, Plaintiff maintains he was not subject to, nor made aware of, the contract's terms. See Response at § 6. For the following reasons the Court will find in favor of Defendant finding Plaintiff had adequate opportunity to make himself aware of the contract's provision thereby subjecting him to the contractual limitation of liability.
FACTS
Defendant has submitted a brief statement of facts uncontroverted by Plaintiff. The Court has harvested these facts from the parties' memoranda of law, relying on Local Rule 7.5.D.
Plaintiff's uncle won a contest sponsored by his employer, Autozone. See Reply at 2. Specifically, he was awarded passage for two upon Defendant's cruise ship. See Response at § III; Reply at 2. Autozone purchased the tickets from Defendant which were then provided to Plaintiff's uncle, by mail, at least two weeks prior to the departure date. See Reply at 2.
Plaintiff and his uncle subsequently boarded Defendant's vessel on February 4, 2000. See Response at § III. At some point after midnight, on February 5, 2000, Plaintiff fell overboard. See Id. at § VI. On February 5, 2002, two years after he sustained his injuries, Plaintiff filed the instant suit asserting a single count for negligence. See Complaint at ¶ 7.
In its Motion, Defendant avers that Plaintiff's action is time-barred pursuant to a one year limitation of liability provision contained in the ticket contract. See Motion at 3. To that end, the contract contained the following two clauses:
Whether or not signed by Passenger, this ticket shall be deemed to be an undertaking and acknowledgment by Passenger that he accepts on behalf of himself and all other persons traveling under this ticket, all terms and conditions set out herein.
Motion, Ex. 1.
NO SUIT SHALL BE MAINTAINABLE AGAINST THE CARRIER OR THE VESSEL FOR ANY CLAIM, INCLUDING BUT NOT LIMITED TO, DELAY, DETENTION, PERSONAL INJURY, ILLNESS, OR DEATH OF PASSENGER UNLESS WRITTEN NOTICE OF THIS CLAIM, WITH FULL PARTICULARS, SHALL BE DELIVERED TO CARRIER AT ITS PRINCIPAL OFFICE WITHIN SIX (6) MONTHS FROM THE DAY CAUSE OF ACTION OCCURRED; AND IN NO EVENT SHALL ANY SUCH SUIT FOR ANY CAUSE AGAINST CARRIER OR VESSEL BE MAINTAINABLE UNLESS SUCH SUIT SHALL BE COMMENCED (FILED) WITHIN (1) YEAR FROM THE DAY WHEN THE CAUSE OF ACTION OCCURRED AND PROCESS SERVED WITHIN THIRTY (30) DAYS AFTER FILING, NOTWITHSTANDING AND PROVISION OF LAW OF ANY STATE OR COUNTRY TO THE CONTRARY.See Id. (as in original). Notwithstanding this contractual language, Plaintiff contends this Court should create an exception based on the specific facts of his case. See Response at § IV. However, for the following reasons, the Court declines Plaintiff's invitation to do so.
LEGAL STANDARD
Summary judgment is authorized only when the moving party meets its burden of demonstrating that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The Adickes Court explained that when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. See Adickes, 398 U.S. at 157; Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997) (citing Adickes).
The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrell, 477 U.S. 317 (1986); Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989).
If the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. See Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. See Lighting Fixture Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969). If reasonable minds might differ on the inferences arising from undisputed facts then the Court should deny summary judgment. See Impossible Electronics Techniques, Inc. v. Wackenhut Protective Sys., Inc. 669 F.2d 1026, 1031 (5th Cir. 1982). also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("[T]he dispute about a material fact is `genuine,' . . . if the evidence is such that a reasonable jury could return a verdict for the non-moving party.").
Moreover, the party opposing a motion for summary judgment need not respond to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. See Adickes, 398 U.S. at 160. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. See Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12 (5th Cir. 1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
LEGAL ANALYSIS
Congress specifically authorized cruise lines to shorten the limitations periods for providing notice of suits and for filing suits by inserting a reasonable limitation period into their passage contracts. 46 U.S.C. § 183b(a). "Courts will enforce such a limitation if the cruise ticket contract provided the passenger with reasonably adequate notice that the limit existed and formed part of the passenger contract." Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1566 (11th Cir. 1990). Whether the notice to passengers was reasonably adequate is a question of law. See id.
46 U.S.C. § 183b(a) states:
It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel (other than tugs, barges, fishing vessels and their tenders) transporting passengers or merchandise property 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 institution of suits on such claims, than one year, such period for institution of suits to be computed from the day when the death or injury occurred.
The parties rely on the two-prong analysis enunciated in Shankles v. Costa Armatori, SPA., to ascertain whether the notice was reasonably adequate. 722 F.2d 861, 866 (1st Cir. 1983). The first prong looks to the physical characteristics of the ticket contract "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." Id. at 864. The second prong looks to the passenger's purchase and subsequent retention of the ticket contract. See id. at 865.
Plaintiff relies on the second prong asserting two arguments in favor of exempting him from the ticket contract's limitation provision. First, Plaintiff contends neither he nor his uncle purchased the ticket and thus should not be bound by its contractual terms. See Response at § IV. Second, Plaintiff avers that his uncle held the tickets such that he was only in actual possession of the ticket "for a matter of minutes" preventing him from reading its terms. See id. Both contentions fail.
As to the first argument, Plaintiff does not specifically explain the legal relevance of the fact that neither he nor his uncle paid for his ticket except obliquely by suggesting that a lack of bargaining power and an alleged lack of consideration should relieve him of the ticket's terms.
As to lack of bargaining power, contracts of this type are enforceable even if a party is unable to participate in negotiations regarding its terms. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 592-94 (1991). In Shute, the Court unequivocally confirmed this point stating:
respondents' passage contract was purely routine and doubtless nearly identical to every commercial passage contract issued by petitioner and most other cruise lines. In this context, it would be entirely unreasonable for us to assume that respondents — or any other cruise passenger — would negotiate with petitioner the terms of a forum-selection clause in an ordinary commercial cruise ticket. Common sense dictates that a ticket of this kind will be a form contract the terms of which are not subject to negotiation, and that an individual purchasing the ticket will not have bargaining parity with the cruise line.Id. at 593 (internal citations omitted). Thus, the fact that Plaintiff did not negotiate the contract's terms does not extinguish his obligations thereunder. See id.
Additionally, while Plaintiff did not pay for the ticket himself, Defendant received valid consideration from Plaintiff's uncle's employer, Autozone. Thus, the mailing of the tickets to Plaintiff and his uncle constituted an offer by Defendant. Plaintiff thereafter accepted the offer upon boarding the vessel, as explained on the ticket. See supra at 2; Motion, Ex. 1. See also Restatement (Second) of Contracts § 17 (1981). Finally, consideration was provided by Autozone upon purchasing the ticket for use in its contest. See Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1311 (11th Cir. 1998) ("It is a fundamental principle of contract law that a promise is not enforceable unless it is supported by consideration."). Consequently, the requisite elements of contract formation were present. See id. (citing Restatement (Second) of Contracts § 17 (1981) ("[T]he formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.")).
The Court notes that the "cruise ticket is a maritime contract and thus the substantive law to be applied in this case is the general federal maritime law." Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763, 766 (D.C. Cir. 1992) (citing Hodes v. S.N.C. Achille Lauro Ed Altri-Gestione, 858 F.2d 905, 909 n. 2 (3d Cir. 1988) (citing The Moses Taylor, 71 U.S. (4 Wall) 411, 427 (1886)), cert. dismissed, Hodes v. Lauro Line s.r.l., 490 U.S. 1001 (1989); Siegelman v. Cunard White Star, 221 F.2d 189, 192-93 (2d Cir. 1955))).
As to the second argument, Plaintiff's assertion that he did not have an opportunity to read the ticket contract does not permit him to avoid its terms. See Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005, 1010 (D. Haw. 1992) ("A party cannot avoid the effect of contractual provisions to which he is a party by simply choosing not to read the contract."). Plaintiff admits the tickets were sent to his uncle before they boarded the vessel, see Response at § III, and nothing in the record suggests that Plaintiff lacked access to the tickets in the days preceding their embarkation. In this regard, Plaintiff concedes that ". . . it has been held that the fact that a ticket may have been in the possession of a friend or relative is irrelevant as long as the plaintiff had an opportunity to read the terms and conditions of the contract." See id. at § VI. See, e.g., Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir. 1987), cert. denied, 484 U.S. 852 (1987).
Moreover, even if Plaintiff did not have an opportunity to read the ticket contract before accepting its terms upon boarding the vessel, he had a year after the accident to apprise himself of' its conditions. See Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 12 (1st Cir. 1991) (affirming summary judgment in favor of defendant finding plaintiff "had ample opportunity to become aware of the limitations provision, which was made accessible to her both by the physical characteristics of the ticket booklet and by the surrounding circumstances."). See also Shankles, 722 F.2d at 865 (same); Marek, 817 F.2d at 247 (same). As stated in Lousararian, "although a passenger may almost never read all of the fine print on the ticket upon purchase, or as pleasure reading in the berth the first night at sea, the same passenger might very well be expected to consult the multifarious terms and conditions of the ticket/contract in the event of an accident resulting in loss or injury." 951 F.2d at 12. Indeed, "[t]here is both ample time and a powerful incentive to study the passage contract ticket promptly after a loss has occurred." Shankles, 722 F.2d at 864. See also Lousararian, 951 F.2d at 12 ("the prevailing view seems to be that an injured passenger has a `powerful incentive,' and thus an affirmative responsibility, to become informed so long as the opportunity to do so exists.") (internal citation omitted). Consequently, Plaintiff's contention that he did not have an opportunity to read the ticket, either before or after his injury, is without merit.
As stated above, the "reasonableness" of notice to passengers is a question of law to be determined by the court and therefore properly resolved on a motion for summary judgment. See Nash, 901 F.2d at 1566. In the light of the undisputed facts before the Court, the undersigned concludes that Plaintiff had reasonable notice of the contractual conditions in issue in this case such that his action is properly time-barred. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment is GRANTED. It is further
ORDERED AND ADJUDGED that Defendant's Request for Hearing is DENIED AS MOOT.