Fugaro v. Royal Caribbean Cruises Ltd.
851 F. Supp. 122
S.D.N.Y.
1994
Check Treatment

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

I

This еase involves an accident on board a cruise ship of the defendant Royal Caribbean Cruises Ltd. (“Royal”). The plaintiffs daughter is alleged to have been injured on August 20, 1992, due to a fall on a pool deck and onto drinking glasses on its floor causing a deep right leg laceration. Royal has moved for summary judgment based upon a one-year time limitation upon such lawsuits set forth in the ticket covering the voyage. The motion is denied.

II

The NYNEX Manhattan White Pages for 1990-1991 include a listing for “Royal Carib­bean Cruises” at “10 Pier 92 North River.”

A ticket for the voyage on which the inci­dent occurred was furnished to plаintiff, so far as the evidence now indicates, after space on the voyage had been ordered and pay­ment or a commitment to payment made. The ticket contained in prоminent contract­ing colors a statement indicating that any personal injury suits such as that involved here must be brought within one year.

On October 30,1992, approximately two (2) months after the incident, plaintiffs counsel delivered to a process server a state court *124 summons and complaint in a lawsuit against Royal based upon the incident. The process server was instructed to serve Royal Carib­bean Cruises, Ltd. at 10 Pier 92 North River, New York, New York, and attempted to do so unsuccessfully on nine (9) occasions in November and December 1992. The process server was told by neighbors that “this is a one man operation” and that headquarters was “based somewhere in Florida.” The present federal claim was filed on October 29, 1993, approximately two (2) months after the deadline for initiating suit under Royal’s ticket provision.

Ill

A threshold problem confronted by Royal is whether or not the restrictions set forth in the ticket are binding upon plaintiff. Litigation surrounding the effectiveness of a “contract ticket” containing limitations on lawsuits for injury has focused on the neces­sity for the format, type size and language to “impress the importance of the terms and conditions upon the passenger.” Spataro v. Kloster Cruise Ltd., 894 F.2d 44 (2d Cir.­1990). As in that cаse, this test appears to have been met by Royal’s ticket which uses contrasting colors.

Despite language indicating that a customer agrees to the terms by accepting the actual voyage after receiving the ticket, it is unclear that this can form a binding agree­ment if the customer has already paid or initiated payment for the trip before receiv­ing ‍‌​​‌‌​​​​​‌​‌‌​​​‌​‌​​​‌​​​‌‌​​‌‌‌​​‌‌​​‌​‌​‌‌​‌‍the ticket. A pаrty must not only be told of the contents of a contract, but manifest agreement at a time when a meaningful choice can be made without incurring a dis­advantage because of timing within the con­trоl of the other party to the transaction. See Jones v. Wide World of Cars, 820 F.Supp. 132 (S.D.N.Y.1993). Unilaterally im­posed “contracts” unsigned by the party to be bound and furnished only after consider­ation has passed are noncontractual in na­ture. See Bier Pension Plan Trust v. Estate of Schneierson, 74 N.Y.2d 312, 545 N.E.2d 1212, 546 N.Y.S.2d 824 (1989); Sandler v. Commonwealth Station Co., 307 Mass. 470, 30 N.E.2d 389 (1940).

Spataro and other cases upholding time limits on lawsuits contained in oceangoing voyage tickets do so by treating the limita­tion involved as a “contractual limitations period.” 894 F.2d at 45. The ability of ocean carriers to impose time limits on cus­tomer lawsuits is, however, regulated by 46 USC Appendix 183b, which provides in part:

(a) It shall be unlawful for the ... owner of any sea-going vessel ... to provide by rule, contract, regulation, or otherwise a shorter period ... for ... institution of suits on [claims for bodily injury] than one year....

Although § 183b does not affirmatively au­thorize a “regulation” not constituting a con­tract to limit thе time for bringing lawsuits against operators of vessels, it is written in such a way as to appear to assume that such a regulation is permissible if the time limit is within the scope allowed by the statute (as is Royal’s here). Such a legislative assumption must be given weight if it serves the pur­poses of the statute. See generally Stone, “The Common Law in the United States,” 50 Harv.L.Rev. 4, 12-18 (1936).

Because of the possible inference from § 183b thаt a cruise line’s regulation if clearly disclosed on a ticket or similar docu­ment (as was the case here) may impose a one-year time limit on lawsuits growing out of cruise voyages, it will be assumed for the purposes of the present motion, without be­ing decided, that Royal’s ticket imposes a valid time limit on personal injury suits based on incidents occurring during the cruise. 1

IV

Otherwise untimely legal steps are permitted where the party benefitting ‍‌​​‌‌​​​​​‌​‌‌​​​‌​‌​​​‌​​​‌‌​​‌‌‌​​‌‌​​‌​‌​‌‌​‌‍from the time limit contributes significantly to the *125 delay invoked as a bar. As stated in Schrad­er v. Royal Caribbean Cruise Line, 952 F.2d 1008, 1013 (8th Cir.1991):

the doctrine of equitable estoppel has been applied to prevent a defendant from rely­ing on a limitations bar if that defendant contributed to confusion.

Schrader was decided under maritime law and involved confusion as to the proper party to be held responsible for an accident on a сruise vessel. Maritime law is applicable because admiralty jurisdiction is present in this case inasmuch as it involves disputes arising out of accidents on the high seas; such jurisdiction is “designed to protect mar­itime commerce.” Exxon v. Central Gulf Lines, 500 U.S. 603, 611, 111 S.Ct. 2071, 2076, 114 L.Ed.2d 649 (1991); Sirius Ins. Co. v. Collins, 16 F.3d 34 (2d Cir.1994); Robert E. Derecktor, Inc. v. Norkin, 820 F.Supp. 791 (S.D.N.Y.1993).

Non-maritime federal cases adopt the same approach. See generally Irwin v. VA, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Rys v. USPS, 886 F.2d 443, 445 (1st Cir.1989); Gallagher v. Donald, 803 F.Supp. 899, 901 (S.D.N.Y.1992). Rulings under New York law are similar. Gleason v. Spota, 194 A.D.2d 764, 599 N.Y.S.2d 297 (2d Dept.1993).

In the present case, Royal contribut­ed to plaintiffs confusion by permitting its name to be listed in the Manhattan telephone directly at—and solely at—an address which was apparently a one-man operation, and where diligent efforts to serve process proved unsuccessful.

It would be inequitable to permit Royal to clothe travel agents or others with apparent authority to represent it, deny them actual аuthority to accept papers, and then claim that papers timely when attempt­ed to be served in that manner do not toll a time bar as imposed by Royal’s ticket. 2

V

A further question raised by thе par­ties is whether or not the injured party’s status as a minor results in providing plain­tiff with additional time to pursue this litiga­tion extending beyond the one year limitation set forth in Royal’s ticket. While this issue need not be reached, both federal and state provisions would appear to support the con­clusion that plaintiffs current suit is timely. 3

VI

No laches causing prejudice to the defen­dant ‍‌​​‌‌​​​​​‌​‌‌​​​‌​‌​​​‌​​​‌‌​​‌‌‌​​‌‌​​‌​‌​‌‌​‌‍appears to have occurred or to have *126 been claimed. See generally Bourne Co. v. Tower Records, 976 F.2d 99 (2d Cir.1992). Royal makes no claim that the delay caused it to lose access to crucial witnesses or other information important to its defense оf plain­tiffs claim on the merits. No harm to Royal has been shown due to plaintiffs delay in filing the current federal claim two (2) months after the one-year time limit set forth in Royal’s ticket, rather than one day bеfore the expiration of that limit. See Fed. R.Civ.P. 61 (harmless error); Wojik v. Post­master General, 814 F.Supp. 8 (S.D.N.Y.­1993) (time bar imposed where substantial delay occurred).

Under these circumstances there are no grounds for taking a narrower view оf tolling doctrines in order to avoid their abuse. Compare Thomas v. Yonkers Police Dept., 147 F.R.D. 77 (S.D.N.Y.1993) (service re­quirements).

SO ORDERED.

Notes

1

. In some instances, rales set forth in filed rates available for public inspection and approved by a regulatory authority and recited in tickets for information may be binding even if a copy of the ticket is not provided prior to purchase. See generally Keogh v. Chicago & N.W. Ry., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922), reaffirmed in Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986). Such rales are subject to judicial review concerning their reasonableness and adherence to legal norms. See FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 88 S.Ct. 1005, 19 L.Ed.2d 1071 (1968).

2

. Pendency of a lawsuit frequently tolls running of a limitation period. Cullen v. Margiotta, 811 F.2d 698, 727 (2d Cir.1987); Town of Colonie v. Cahill, 172 A.D.2d 904, 567 N.Y.S.2d 956 (3d Dept.1991). Such tolling is not available to plaintiff here. Attempted initiatiоn of an action, after which there was a dismissal without preju­dice or its equivalent, does not toll the statute of limitations. Lubick v. Travel Services, 573 F.Supp. 904 (D.V.I.1983).

An unsuccessful effort to proceed before the expiration of а time bar may, however, satisfy a timeliness requirement. If a "claimant has ac­tively ‍‌​​‌‌​​​​​‌​‌‌​​​‌​‌​​​‌​​​‌‌​​‌‌‌​​‌‌​​‌​‌​‌‌​‌‍pursued ... judicial remedies by filing a defective pleading during the [applicable time] period,” the limitation is deemed satisfied. Fel­lows v. Earth Construction, 805 F.Supp. 223, 225 (D.Vt.1992) and authorities cited.

Although the question need not be reached here, it may be argued that by delivering a sum­mons and complaint to a process server who tried to serve it at the address in the telephone book, plaintiff actively pursued judicial remedies by filing what turned out to be a defective plead­ing (because sent to an ineffective address) dur­ing the period permitted by Royal's cruise tickеt.

3

. Under 46 USC Appendix 183b(c), a time limit such as that set forth in Royal’s ticket is tolled until a legal representative for a minor is ap­pointed, provided this is done within three years.

Royal points out that under New York CPLR 1201 the plaintiff as parent with custody is auto­matically the minor’s legal representative “if there is no ... guardian ...” The CPLR 1201 thus permits but does not require what might be termed the “default option” of parental rеpresen­tation to become effective.

Both federal and state statutes are silent in regard to the effect of the interacting statutes on a maritime injury to a minor who is a New York resident. The parties have indicated that the issue is one of first impression. Under such circumstances, the purposes of the statutes in­volved would control. See United States v. Clas­sic, 313 U.S. 299, 317-18, 61 S.Ct. 1031, 1038-­39, 85 L.Ed. 1368 (1941); Tedla v. Ellman, 280 N.Y. 124, 19 N.E.2d 987 (1939).

The Shipping Act as a whole and § 183b in pаrticular, like most statutes, has multiple gener­al objectives. These include both to "encourage shipbuilding,” Schwartz v. SS Nassau, 345 F.2d 465, 469 (2d Cir.1965), and to protect consumers from overreaching, Barrette v. Home Lines, 168 F.Supp. 141 (S.D.N.Y.1958). These goals are complеmentary: protection of the legitimate in­terests of ship owners and operators is essential to the availability of maritime services to the public. Protection of the customer is necessary *126 to permit the public to purchase such services with ‍‌​​‌‌​​​​​‌​‌‌​​​‌​‌​​​‌​​​‌‌​​‌‌‌​​‌‌​​‌​‌​‌‌​‌‍confidence, a result essential to the indus­try.

Insofar as pertinent here, the purpose of the federal statute would apрear to be that inferred from its text: to protect minors from losing claims because of difficulty in obtaining repre­sentation. Likewise, the language of the CPLR provision makes it clear that its purpose is to leave the choice open to the minor and family members or other guardians concerning how to proceed if a minor is injured.