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SCHENCK v. KLOSTER CRUISE LTD.

July 28, 1992

BARBARA SCHENCK and SAMUEL SCHENCK, Plaintiffs,
v.
KLOSTER CRUISE LIMITED, Defendant.



The opinion of the court was delivered by: MARYANNE TRUMP BARRY

I. INTRODUCTION

 Defendant Kloster Cruise Limited ("Kloster") has filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56 to dismiss the complaint of plaintiffs Barbara Schenck ("Mrs. Schenck") and Samuel Schenck ("Mr. Schenck"), asserting that the action is barred by the applicable statute of limitations. For the following reasons, this motion will be granted.

 II. BACKGROUND

 The facts underlying this action are not complicated and are largely undisputed. Barbara Schenck purchased a cruise ticket to sail on the SS Norway, a ship owned and operated by Kloster, from her travel agent in Plainfield, New Jersey. The cruise sailed on October 27, 1990. Affidavit of Barbara Schenck (hereinafter "Schenck Aff.") P 1. Mrs. Schenck shared a room with her friend, Besse Johnson. Id. § 2. On October 30, 1990, while Mrs. Schenck was climbing a ladder to her top bunk, one of the rungs gave way, causing her to fall backwards onto the floor. Id. P 3. As a result of the fall, she sustained back injuries and broke her camera. Id. Immediately following her fall, she notified the ship's security office, and a report documenting the accident was prepared. Id. P 4.

 Prior to sailing, Mrs. Schenck was issued a Passenger Ticket Contract dated October 2, 1990. On each of the first four pages of the ticket, the words IMPORTANT NOTICE appear in white bold letters against a red background. See Passenger Ticket Contract, Verified Statement of Jane E. Kilgour (hereinafter "Kilgour Statement"), Exh. A. Immediately following these words, the ticket clearly states:

 
The passenger's attention is specifically directed to the terms and conditions of this contract appearing on pages 6, 7, 8, 9 and 10. These terms and conditions affect important legal rights and the passenger is advised to read them carefully.

 Id. The top of page six first informs the passenger that "acceptance of this Passenger Ticket Contract by passenger shall constitute the agreement of the Passenger to these Terms and Conditions." Id. The Passenger Ticket Contract contains a contractual limitation period for personal injury actions:

 
in no event shall any suit for any cause, including, without limitation, suits brought in rem and suits brought in personam be maintained against the vessel or the Carrier with respect to any delay, detention, personal injury, illness or death be maintainable, unless suit shall be commenced within one (1) year from the day when the delay, detention, personal injury, illness or death of the passenger occurred, notwithstanding any provision of law of any state or country to the contrary.

 Id. (emphasis in original).

 In February of 1991, Caribbean Marine Associates ("CMA"), a claims adjuster to whom Kloster referred Mrs. Schenck's claim, wrote to counsel for Mrs. Schenck, requesting any medical reports or other information regarding her injuries and allegations of negligence. Verified Statement of D.C. Maillet (hereinafter "Maillet Statement"), Exh. A. In this letter, CMA, as Kloster's agent, clearly advised that all "discussions and negotiations are without prejudice to the rights of either party, and are subject to the terms and conditions of the contract of passage." Id. Various medical reports and other information were sent to CMA on August 30, 1991. Maillet Statement, Exh. C.

 In its October 7, 1991 correspondence to counsel for Mrs. Schenck, CMA requested further in formation with which to evaluate the claim, once again clearly indicating that "this request for information, and any correspondence between [the parties], is expressly subject to the rights and defenses of Kloster Cruise Limited, including the terms and conditions set forth in the contract of passage, which manifests the agreement between Barbara Schenck and Kloster." Maillet Statement, Exh. E. On October 23, 1991, counsel for Mrs. Schenck indicated that, in his opinion, CMA had ample information with which to evaluate the claim, stating that "if you don't feel that you have enough, please advise me because we will begin the litigation." Maillet Statement, Exh. G. On December 16, 1991, approximately one year and two months after the date of the accident, Mrs. Schenck filed an action against Kloster in the Superior Court of New Jersey, alleging strict liability, breach of express warranty, and negligence. *fn1" See Complaint, Kilgour Statement, Exh. D.

 On January 7, 1992, Kloster removed the action to this court based upon diversity of citizenship, pursuant to 28 U.S.C. § 1332(a)(1), and admiralty and maritime ...


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