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United States District Court, District of New Jersey

May 3, 1991


The opinion of the court was delivered by: Garrett E. Brown, Jr., District Judge.


This breach of contract action is presently before the Court upon defendant Cunard Line Limited's motion for summary judgment. This Memorandum and Order issued pursuant to Fed.R.Civ.P. 78 resolves this motion. Because we hold that the complaint in this case is barred by the applicable time limitation for such a suit, we will grant defendant's motion for summary judgment.


The Complaint in this action was filed on January 11, 1989, by Manuel, Ellen, Michele and Jennifer Feingold against Cunard Line Limited. Jurisdiction of this Court was invoked pursuant to 28 U.S.C. § 1332. The Complaint alleges that on or about December 19, 1987, plaintiffs embarked on the Queen Elizabeth II ocean liner for a Caribbean cruise, pursuant to a contract with defendant. It is further alleged that defendant breached its agreement with plaintiffs by providing inferior services and failing to provide other services.*fn1 Plaintiffs also alleged that defendant fraudulently concealed the results of a Department of Health and Human Services sanitation inspection from them. Plaintiffs have requested $34,000 on each of the two causes of action.


The first question we must address is which law to apply. Despite the plaintiffs having originally filed this action under diversity jurisdiction, 28 U.S.C. § 1332(a), we are not constrained by Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to apply state law. Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 909 (3d Cir. 1988), cert. dismissed sub nom., 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989). A passenger ticket for an ocean voyage constitutes a maritime contract. Id. at 909 (citing The Moses Taylor, 71 U.S. (4 Wall.) 411, 427, 18 L.Ed. 397 (1866)). "Accordingly, whether ticket conditions form part of the passenger's contract and the effect such conditions should be afforded are matters governed by the general maritime, not the local state, law." Id.

The question presented to the Court for summary judgment, therefore, is whether plaintiffs are time-barred, as a matter of law, from asserting their breach of contract claims after the time limit outlined in the passenger contract ticket has expired. The standards for summary judgment are well known. Summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In a summary judgment motion, the nonmoving party receives the benefit of all reasonable doubts and any inferences drawn from the underlying facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Fed.R.Civ.P. 56(e) also requires that when a non-moving party bears the burden of proof at trial as to a dispositive issue, that party is required to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. For an issue of fact to be genuine, the non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355-56. Issues of material fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Defendant's motion for summary judgment relies upon a six-month time limitation for filing suit which is set forth in a provision of the "Passenger Ticket & Passage Contract" alleged to have been issued to plaintiffs. This provision, Article 21 reads as follows:

  Art. 21 — TIME LIMIT ON SUITS Suit
  to recover on any claim against the Company shall
  be instituted: . . . (2) as to all other claims,
  including breach of contract, within 6 months from
  the passenger's arrival at destination, or in the
  case of non-arrival, from the day on which the
  passenger and/or the baggage should have arrived.

Because there is no doubt that plaintiffs' action was filed more than six months after the plaintiffs' arrival at their destination,*fn2 the issue presently before the Court — whether plaintiffs' action is time barred — turns on whether the plaintiffs should be legally chargeable with notice of the time limitation clause. This determination necessarily turns on whether plaintiffs were aware of the ticket's time limitation provision or whether they had an opportunity to acquire such awareness. Actual awareness of the time limit provision is unnecessary. A passenger will be charged with notice of the ticket provisions solely through possession of the tickets. See Shannon v. Norwegian Caribbean Lines, 640 F. Supp. 373, 374 & n. 1 (M.D.Pa. 1985) (where plaintiffs admit that they had their travel documents and tickets from a few days before their voyage until some time after they boarded ship, "no issue of material fact exists as to the question whether plaintiffs had an opportunity to read the provisions of the contract of passage but nonetheless simply failed to do so"); see also Hodes, 858 F.2d at 912 (holding that passenger charged with notice of ticket provisions by their own and their agent's possession); Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir.), cert. denied, 484 U.S. 852, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987).

Plaintiffs have not argued that the contractual limitation on the time for filing suit contained in the Passenger Ticket & Passage Contract was not reasonably communicative, nor have they challenged the six-month time limit as unenforceable.*fn3 All that plaintiff Manuel Feingold has claimed is that he did not recall having received the passenger contract, nor does he recall having given a ticket to the embarkation officer when he and his family boarded the vessel. Defendant, on the other hand, has extensively documented, through the submission of physical and testimonial evidence, the existence of two sets of tickets that it claims had been issued to and received from plaintiffs.

A total of ten out of a possible twelve coupons were collected from the two ticket passage contracts alleged to have been issued to the plaintiffs. See Exhibits 8, 9, 10, 11 and 12.*fn4 These coupons were all retrieved from the Cunard system long after the voyage had ended. Brendan Vierra, Cunard's Vice-President for Order Processing, also produced and explained the booking records of Mr. and Mrs. Feingold (for their ticket # 192538/01/01) and the Misses Feingold (for their ticket # 192530/01/01). Vierra Dep. at 14-22 & Exh. 6. He explained that the passenger tickets were issued on or about December 9, 1987; that they were set up for office pick up on the 10th of December 1987, with a notice to collect final payment; and that final payment was received on December 14, 1987. Id. at 21.

Defendant has also presented testimony explaining the custom and practice of the cruise line with respect to ticketing, maintaining passenger files, and following established embarkation procedures for boarding passengers on the ship. The deposition testimony of Eileen Lennon, Embarkation Supervisor for Cunard in New York, revealed that she was present for the cruise which is the subject of this suit. Deposition Testimony of Eileen Lennon, Exhibit C, at 8. Mrs. Lennon described the embarkation procedure which takes place on the pier and involves the passenger turning over their tickets and registration coupons to the staff for processing. Id. at 9-11. Mrs. Lennon indicated that her staff people mark their initials on the ticket and the number of passengers travelling on the ticket, as well as their nationality. Each of the two Sailing Coupons submitted to the Court had the initials "AL" written on them as well as "2x" and "USA". Exhs. 8 & 13. Mrs. Lennon identified the initials on the tickets as the initials of Angela Lilly. Lennon Dep. at 18.

Mrs. Lennon also testified that she is unaware of any circumstance, since 1978, in which a passenger has gotten on the vessel without a ticket. Id. at 17. She stated that if a passenger does show up to the pier without a ticket, a manual ticket is prepared at that time and given to the passenger. This ticket would follow the same procedures outlined above. Id.

Plaintiff argues that defendant merely maintains that a ticket was issued to plaintiffs and that passengers such as plaintiffs could not have gotten on board the vessel without a ticket. Plaintiff also states that he does not recall having received a ticket nor does he recall having given a ticket to the embarkation officer when he and his family boarded the vessel. Plaintiff argues, therefore, that it is "readily apparent" that there exists an issue of fact that would preclude the granting of summary judgment. We cannot agree.

A party opposing a motion for summary judgment is required to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. The Third Circuit has made it clear "that a party resisting the motion cannot expect to rely merely upon bare assertions, conclusory allegations, or suspicions." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). Yet that is exactly what plaintiffs are attempting to rely on in this case. Plaintiff has never denied receipt of the Passenger Ticket & Passage Contract, he only claims not being able to recall receiving or using the passenger tickets. Deposition Testimony of Manuel Feingold, Exhibit A, at 18-19, 74.

A similar situation was presented to the district court in Vaci v. Swedish American Line, 200 F. Supp. 207, 209-10 (E.D.Pa. 1961). In that case, the plaintiff's sole attack on the validity of the contract of passage was on the ground that she never accepted it because she does not recall or remember seeing or receiving it. The court said:

  It is our opinion that the attack is unwarranted
  because the fact of her acceptance of the contract
  of passage is clearly established. Significantly,
  [passenger] does not state that she did not see or
  receive the contract of passage; she states merely
  that she does not recall or remember. We deem this
  statement insufficient to constitute a substantial
  denial of acceptance of the contract of passage.

Id. at 210.

The plaintiffs in this case have completely failed to produce any probative evidence showing that they embarked the Queen Elizabeth II without the use of passage contract tickets. Nor have they sought to explain how the cruise line came into possession of ten of twelve coupons that were removed during the booking and embarkation processes. We believe that plaintiffs were, for some time prior to their cruise, in possession of their Passenger Tickets and Passage Contracts and therefore, will be legally chargeable with notice of the time limitation clause and will be bound thereby. See Marek, 817 F.2d at 247. Because the Feingolds have failed to show that there is a genuine issue for trial wherein a reasonable jury could return a verdict in their favor we hold that plaintiffs cause of action is time-barred and will grant defendant's motion for summary judgment in its entirety.

For the foregoing reasons,

It is this 3rd day of May, 1991,

ORDERED that defendant Cunard Line Limited's motion for summary judgment be and is hereby GRANTED.

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