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 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
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.
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 ...