The opinion of the court was delivered by: LACEY
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.
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 2-3-4-5-6."
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, 50 L. Ed. 2d 748, 97 S. Ct. 732 (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, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (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 ...