MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#118)

DEVINE, J.

FACTS

On May 5, 2009, the plaintiff, Maureen Cohen-Chapman, and her husband Donald Chapman, filed a three-count complaint against the defendant, Cross Sound Ferry Services, Inc., alleging negligence, nuisance and loss of consortium. On June 23, 2010, the defendant filed a motion for summary judgment on the ground that this action is barred by a one-year contractual limitation contained in the contract between the parties. The motion is accompanied by a memorandum of law and several exhibits. The plaintiff filed an objection to the motion for summary judgment on December 30, 2010 with a memorandum of law and exhibits in support of her objection. The defendant filed a reply brief and additional exhibits on January 13, 2011.

The following facts are drawn from the parties' submissions. On April 14, 2007, Maureen Cohen-Chapman (plaintiff) entered a ferry terminal owned and operated by the defendant with a non-party colleague. The plaintiff and the colleague exited the latter's automobile in a designated parking lane, walked to the ticket booth where the colleague purchased tickets for both herself and the plaintiff for entry on to the defendant's ferry and, while walking back to the automobile, the plaintiff stepped into a partially concealed hole in the parking lot and suffered several injuries. The plaintiff still managed to utilize the defendant's ferry services that day but later sought medical attention.

According to an exhibit introduced by the defendant, the ticket provided to all passengers states in clear bold lettering on the front: "Contract: Subject to Terms on Reverse Side." On the reverse side, provision four of the passage contract states: "Carrier is not liable for loss of or damage to vehicles or personal property, or for personal injuries, illness, or death, unless written notice is given to Owners within six months of the date of the occurrence, and suits on all such claims shall not be maintainable unless commenced within 1 year after the occurrence." This language is printed twice, so that the passenger retains the contract terms no matter which "stub" the ferry attendant retains while collecting tickets during embarkation. The defendant has also introduced as an exhibit a letter addressed to the defendant dated May 31, 2007, less than two months after the plaintiff's alleged injury, from the plaintiff's attorney notifying the defendant of the April 14, 2007 incident and warning of an impending lawsuit.

DISCUSSION

"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

In the present case, the defendant first argues that maritime law controls this action and that, under clear precedent, the one-year contractual limitation period has been consistently upheld as reasonable and valid. Furthermore, the defendant argues that the terms of the passenger contract were reasonably communicated to the plaintiff and thus, as a matter of law, is entitled to summary judgment in its favor because the plaintiff filed suit almost two years after the accident allegedly occurred. In the alternative, the defendant argues that the passenger ticket's forum selection clause mandates transfer of this case either to the New York State Court of Suffolk County or the United States District Court for the Eastern District of New York.

In response, the plaintiff contends that genuine issues of material fact exist as to whether maritime law and the passenger contract should control this action because the plaintiff did not purchase, hold or have an opportunity to read the passenger ticket. In addition, the plaintiff was injured within minutes of her colleague purchasing the tickets while on land and prior to boarding the ferry. Alternatively, if the action does fall within the scope of the passenger contract, the plaintiff argues that it would be unfair and unreasonable to enforce the one-year bar on actions or the forum selection clause.

A

"A passenger ticket contract is a maritime contract and is therefore governed by the general maritime law of the United States." Salza v. Norwegian Cruise Line, Ltd., United States District Court, Docket No. 07 Civ. 142 (D.Conn. April 16, 2007), citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Substantive maritime law applies even in cases pending in state court involving maritime matters. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). The plaintiff contends that the ticket contract does not apply to her claim because the plaintiff was injured on land, citing a case where a plaintiff was injured while on a shore excursion when the cruise ship was docked at a port. See Rams v. Royal Caribbean Cruise Lines, Inc., 17 F.3d 11, 12 (1st Cir. 1994). Nevertheless, the court in Rams still applied federal maritime law in addressing whether the on-shore injury was covered by the passenger contract and courts have held that "federal law applies even though the suit arises from an accident that took place on shore." Colby v. Norwegian Cruise Lines, Inc., 921 F.Sup. 86, 88 (D.Conn. 1996). Moreover, other federal courts have found that on-shore injuries are in fact covered under a cruise passenger ticket contract. In Sharpe v. Indian River Co., 118 F.Sup. 646, 650 (D.V.I. 2000), the court held that a passenger was covered by her cruise ticket contract and thus subject to its terms even when she was on shore at one of the cruise destinations: "Clearly she did not become a party to the contract only when she boarded the vessel and cease to be a party covered by the contract each time she disembarked at the various ports of call on the vessel's regular itinerary."

In the present case, the plaintiff was injured in the defendant's staging area in preparation for and in anticipation of boarding the defendant's ferry. The ticket's terms require that vehicles "remain in staging area until boarding." Therefore, the ticket's inclusion of the staging area evinces an intent by the defendant to control the area where the plaintiff was injured and necessarily brings the staging area into the embarkation process and within the scope of the contract. A plain reading of the ticket and a reasonable interpretation of its terms must dictate this result. The plaintiff here was injured after her ticket was purchased and while on the defendant's property in preparation for boarding the ferry in an area over which the ticket explicitly retains control. Once the ticket was purchased, the plaintiff became a party to the passenger contract. Provision one of the ticket states: "By accepting this contract passenger agrees to its terms." By its own terms, the one-year limitation is not restricted to injuries arising only during the voyage but includes "all" claims for personal injury, illness or death. Further, the forum selection clause is directed to "[a]ll disputes in any way connected with this contract."

The plaintiff further argues that she is not bound by the passenger contract because she did not purchase, handle or read the ticket prior to her injury. However, applying maritime law, "numerous cases from both the Second Circuit and various district courts have held that a passenger's ticket may constitute a contract with a carrier even when the passenger neither purchases nor sees that ticket." Palmer v. Norwegian Cruise Line Norwegian Spirit, United States District Court, Docket No. 08 Civ. 4914 (E.D.N.Y. October 2, 2010). See Ward v. Cross Sound Ferry, 273 F.3d 520, 524 (2d Cir. 2001); Foster v. Cunard White Star, 121 F.2d 12, 13 (2d Cir. 1941). Moreover, "no express authorization for the third-party purchaser is necessary to create a contract between the passenger and the carrier." Palmer v. Norwegian Cruise Line Norwegian Spirit, supra. The plaintiff in the present case knew or should have known that she needed a ticket to board the ferry and would be bound by the terms of the ticket contract.

B

Having established that maritime law controls this action, the court will follow the well established guidelines promulgated by the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit in determining whether the terms of the ticket contract are enforceable against the plaintiff here. The Supreme Court has held that a clause in a form passenger ticket contract is enforceable when (1) the terms withstand judicial scrutiny as to reasonable and fundamental fairness and (2) the clause is "reasonably communicated" to the passenger by the carrier. Carnival Cruise Lines, Inc. v. Shute, supra, 499 U.S. 590. The Second Circuit has broken down the second prong of this test into two subdivisions, so that the court must also examine (a) whether the physical characteristics of the ticket "reasonably communicate to the passenger the existence of important terms and conditions that affect the passenger's legal rights," and (b) whether the "circumstances surrounding the passenger's purchase and subsequent retention of the ticket/contract permitted the passenger to become meaningfully informed of the contractual terms at stake." Ward v. Cross Sound Ferry, supra, 273 F.3d 523.

1.

With respect to the first prong of the Supreme Court's test for enforceability of a limitations period, that the period be reasonable and fundamentally fair, 46 U.S.C. § 30508(b) controls. The statute permits a sea carrier to contractually limit the period in which passengers can file suit for injury, but must allow a claimant at least one year from the date of injury to file a civil action for personal injury or death. "Accordingly, the Second Circuit has upheld time limitations contained in passenger ticket contracts provided that the time period is at least one year and the carrier reasonably communicates the existence and importance of the limitation to the passenger." Palmer v. Norwegian Cruise Line Norwegian Spirit, supra, United States District Court, Docket No. 08 Civ. 4914. See also Salza v. Norwegian Cruise Line, Ltd., supra, United States District Court, Docket No. 07 Civ. 142. Because the contractual time period satisfies the federal minimum standard of one year, the terms of the limitation provision meet the first prong of the test.

2.

With respect to the second prong of the test, "[w]hether a sea carrier has reasonably communicated contractual limitations to a passenger is a question of law for the Court to decide, and is thus appropriate to consider on summary judgment." Palmer v. Norwegian Cruise Line Norwegian Spirit, supra, United States District Court, Docket No. 08 Civ. 4914. The court in Ward v. Cross Sound Ferry, supra, 273 F.3d 523 divided this prong into two sub-prongs.

(a)

District courts in this circuit have found the physical characteristics of a ticket to reasonably communicate a contractual limitation where the ticket contains clear and conspicuous notices that passengers were bound by important terms and conditions contained in the ticket booklet. Palmer v. Norwegian Cruise Line Norwegian Spirit, supra, United States District Court, Docket No. 08 Civ. 4914; Noboa v. MSC Crociere S.p.A., United States District Court, Docket No. 08 Civ. 2896 (S.D.N.Y. May 5, 2009). See also Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir. 1995) (finding sufficient notice even where the clause in question was in fine print). In the present case, the ticket states in bold lettering across the bottom: "Contract: Subject to Terms on Reverse Side." This notification is provided twice, on both stubs of the ticket. Additionally, the stub marked "receipt" states in even larger font: "Please read terms of Contract on reverse side." The reverse side contains the terms of the contract in black lettering against a white background. Although the font is small, it is a mere eleven lines of text that, again, is repeated on both stubs so that the passenger will retain the contract's terms no matter which portion of the ticket is collected by the defendant.

There are a total of three distinct warnings on the front of the passenger ticket that alerts the passenger to the existence of the contract terms on the reverse side. Therefore, the physical characteristics of the ticket reasonably communicate to the passenger the existence of the contract terms and the shortened limitations period.

(b)

The final issue to resolve in determining the enforceability of the limitations period is whether the circumstances surrounding the purchase and retention of the plaintiff's ticket permitted the plaintiff to become meaningfully informed of the ticket's provisions.

The plaintiff relies heavily on Ward v. Cross Sound Ferry, supra, 273 F.3d 525-26, for the proposition that the plaintiff was unable to become meaningfully informed of the ticket's terms and conditions because she did not purchase or possess the ticket and was injured within minutes of her colleague's purchase of the tickets. The plaintiff contends that the present case is an example of the "rare situation" in Ward where the passenger's possession of the ticket is limited to a matter of minutes. Her reliance on Ward, however, is misplaced. The standard for whether the passenger had sufficient opportunity to become aware of the ticket's provisions focuses on the acts of the sea carrier and includes an evaluation of the circumstances surrounding both the purchase and retention of the ticket. A contract provision is enforceable when "the steamship line had done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights." Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11, 17 (2d Cir. 1968). See also Ward v. Cross Sound Ferry, supra, 273 F.3d 523 (focusing on whether circumstances "permitted" the passenger to learn the relevant contract terms). "[I]n applying this test, the Second Circuit does not require that a passenger personally possess, read, see, or purchase a ship ticket for its terms to be enforceable, as long as the ticket was generally available to the passenger for a reasonable period of time both before and after embarkation." Palmer v. Norwegian Cruise Line Norwegian Spirit, supra, United States District Court, Docket No. 08 Civ. 4914. "The crux of this second prong focuses on plaintiffs' opportunity to educate themselves as to their contract rights, including both the time period before embarkation as well as the time following injury." Noboa v. MSC Crociere S.p.A., supra, United States District Court, Docket No. 08 Civ. 2896. It is significant that previous courts interpreting the Ward test have not focused on whether the passenger had a meaningful opportunity to become aware of the ticket provisions before his or her injury, but rather the relevant time periods are before and after embarkation and after the injury occurs.

The court in Ward held that the plaintiff was not bound by the passenger ticket's terms because the plaintiff's husband possessed the tickets for several minutes before relinquishing the ticket upon embarkation. Ward v. Cross Sound Ferry, supra, 273 F.3d 525. Passengers in that case did not retain a ticket stub with the terms and conditions of the passenger contract upon boarding. Id. Thus, the plaintiff in Ward truly had only minutes to become aware of her contract rights. Here, the defendant intentionally printed the terms of the contract twice, so that no matter which stub was collected upon embarkation, the passenger would always have access to the contract terms: before, during and after the voyage. The second sub-prong of the test has been met in this case, and, accordingly, the contractual limitations provision will be enforced.

"The `reasonable communicativeness' of a particular ticket in particular circumstances is a question of law and, barring a genuine dispute of material fact, the determination is appropriate for resolution at the summary judgment stage of a case." Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 9 (1st Cir. 1991). "The `reasonableness' of notice to passengers is a question of law to be determined by the court." Shankles v. Costa Armatori, S.p.A., 722 F.2d 861, 867 (1st Cir. 1983). "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." Id., 864. The "inquiry into the passenger's possession of and familiarity with the ticket does not depend upon actual knowledge of the terms in the contract of passage, but focuses instead on the opportunity for such knowledge." (Emphasis in original; internal quotation marks omitted.) Lousararian v. Royal Caribbean Corp., supra, 951 F.2d 11. "[T]he proper test of reasonable notice is an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factors indicating the passenger's ability to become meaningfully informed of the contractual terms at stake." Shankles v. Costa Armatori, S.p.A., supra, 722 F.2d 866.

" De Carlo [ v. Italian Line, 416 F.Sup. 1136 (S.D.N.Y. 1976)], and Ciliberto [ v. Carnival Cruise Lines, Inc., 1986 AMC 2317 (E.D. Pa. 1986)], stand for the proposition that when a passenger gives the authority to another — at least where such other is a relative, friend, personal companion, or the like — to acquire and to hold her individual passenger ticket and where the contract of passage on the individual ticket is conspicuously stated and valid, the court will rightly charge a passenger with notice of the contractual provisions. This is necessary to avoid passengers who delegate their responsibilities to another in handling their individual tickets to bypass valid limitation provisions." Muratore v. M/S Scotia Prince, 845 F.2d 347, 352 (1st Cir. 1988). See also Marchewka v. Bermuda Star Lines, 937 F.Sup. 328, 333 (S.D.N.Y. 1996) ("[A] passenger may be charged with notice of the conditions of the ticket even if that passenger never had the ticket in his possession").

When interpreting a time limitation clause in a ticket's terms, courts have noted that the relevant period during which the plaintiff must have an opportunity to become meaningfully informed of such clause is only after the injury occurs. See Ames v. Celebrity Cruises, Inc., United States District Court, Docket No. 97 Civ. 0065 (S.D.N.Y. July 29, 1998) ("Because plaintiffs were unaffected by the time limitations until they suffered injury, they had a duty at that time to consult their tickets or to contact [the defendant] in order to learn of any limitations affecting their right to sue"); Sasso v. Travel Dynamics, Inc., 844 F.Sup. 68, 72-73 (D.Mass. 1994) ("Whether plaintiffs received the Contract three weeks before the cruise . . . or at the point of boarding . . . is not material to their ability to become `meaningfully informed' of its contents, because their strongest incentive to apprise themselves of the terms and conditions only arose at the moment [of injury]"); Shankles v. Costa Armatori, S.p.A., supra, 722 F.2d 866-67 (noting that time limitations on a right to sue are relevant only after injury, as opposed to dollar limitations on liability which curtail passengers' rights from the moment they purchase their tickets); Lieb v. Royal Caribbean Cruise Line, Inc., 645 F.Sup. 232, 235 (S.D.N.Y. 1986) ("[T]here is a strong incentive on the part of the plaintiffs to investigate the terms of the contract after an injury has occurred"); Lipton v. National Hellenic American Lines, 294 F.Sup. 308, 311 (E.D.N.Y. 1968) ("The time limitation . . . does not become relevant until after loss or injury occurs and inquiry is afoot").

"A common factor considered in assessing a passenger's ability to become `meaningfully informed' of a shortened limitations period is the passenger's access to counsel prior to the expiration of the period." Sasso v. Travel Dynamics, 844 F.Sup. 68, 73 (D.Mass. 1994), citing Jimenez v. Peninsular Oriental Steam Navigation Co., 974 F.2d 221, 225 (1st Cir. 1992); Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 11 (1st Cir. 1991); Shankles v. Costa Armatori, S.p.A., 722 F.2d 861, 866 (1st Cir. 1983). See also Barkin v. Norwegian Caribbean Lines, 1988 A.M.C. 645, 650 (D.Mass. 1987) ("The plaintiff was sophisticated enough to take her claim to an attorney who knew or should have known the importance of reading the terms of the contract").

The possible harshness of this result is lessened by the fact that the plaintiff's attorney sent a letter to the defendant less than two months after the alleged injury, notifying the defendant of an impending lawsuit against it. Not only did this satisfy the "notice" requirement in the contractual limitations provision in the passenger ticket, but it also indicates that the plaintiff, by obtaining counsel within weeks of the accident, had ample opportunity to inquire into the existence of the passenger contract and to review its terms to ensure compliance with the one-year limitation on the filing of claims. The court in Palmer was faced with a similar dilemma and ultimately concluded that "the fact that [the plaintiff] timely contacted a lawyer — who, while he never saw [the plaintiff]'s ticket, could have determined whether any time limitations applied to her potential lawsuit — enhances the presumption that the terms of the plaintiff's contract of adhesion will be enforced." Palmer v. Norwegian Cruise Line Norwegian Spirit, supra, United States District Court, Docket No. 08 Civ. 4914. See also Valvoules v. Kloster Cruise Ltd., 822 F.Sup. 979, 981 (E.D.N.Y. 1993) (holding that, where a cruise ship passenger consulted an attorney within the limitations period provided for in ticket, the presumption that the limitations period would be enforced was heightened).

C

The defendant alternatively moves to transfer this case on the ground that the plaintiff filed suit in this court in violation of the forum selection clause in the passenger ticket contract that requires "[a]ll disputes in any way connected with this contract . . . be litigated in the State Court of Suffolk County, N.Y. or in the U.S. District Court of Eastern District of New York." Reasonable forum selection clauses in form contracts between passengers and sea carriers are generally permissible, subject to judicial scrutiny for fundamental fairness. Carnival Cruise Lines, Inc. v. Shute, supra, 499 U.S. 595. The court in Shute found that it was not unfair to require the plaintiffs, residents of the state of Washington, to litigate their claims in Florida, pursuant to a forum selection clause. Id. The clause in the present case would require the plaintiff, a resident of this state, to litigate in New York.

Because the court holds that the plaintiff's claims are barred by the contractual limitations period, transferring the case to another jurisdiction would be futile. Thus, the court declines to do so.

CONCLUSION CT Page 10127

Based on the foregoing, the defendant has met its burden of establishing that there are no genuine issues of material fact and that it is entitled to a judgment as a matter of law. The court hereby grants the defendant's motion for summary judgment.