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Winograd v. Carnival Corp.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 28, 2010

AUDREY WINOGRAD, PLAINTIFF-APPELLANT,
v.
CARNIVAL CORPORATION, COSTA CROCIERE S.P.A., COSTA CRUISE LINES N.V. AND FLORIDA-CARIBBEAN CRUISE ASSOCIATION, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3680-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2010

Before Judges Skillman and Fuentes.

Plaintiff was a passenger on a cruise ship named the Costa Magica, which was owned by defendant Costa Crociere, S.P.A., an Italian corporation. Kurt Mehta, a friend of plaintiff, who went with her on the cruise, purchased the cruise tickets through a ticket agent who obtained the tickets from defendant Costa Cruise Lines N.V., the sales and marketing agent for the Costa Magica.

Paragraph 1 of the ticket contract for the cruise imposed a one-year statute of limitations on claims for personal injury, stating, in relevant part, in bold print:

1. NOTICE AND LIMITATION OF ACTIONS AGAINST THE CARRIER

The carrier shall not be liable for any physical or emotional injury, illness or death of the passenger unless written notice of the claim with full particulars is delivered to the carrier or its duly authorized agent within 185 days after the date of injury, illness or death. No suit shall be maintainable in any event unless filed within one year after the date of injury, illness or death, and unless served upon the carrier within 120 days after filing.

[Emphasis added.]

Paragraph three of the ticket contract extended the protections of the contract to Costa Crociere's parents and agents, including defendant Costa Cruise Lines N.V., stating, in relevant part,

3. LIMITATIONS OF LIABILITY OF THE CARRIER'S AGENTS, SERVANTS, AND OTHERS

All of the defenses, limitations and exceptions of whatever kind relating to the responsibility and liabilities of the CARRIER that may be invoked by the CARRIER by virtue of this Contract or by law are fully extended to and may also be invoked by all persons who may act on behalf of the CARRIER or on whose behalf the CARRIER may act. Such persons may include without limitation (i) the CARRIER's parents, subsidiaries, affiliates, successors, assigns, representatives, agents, employees, servants, concessionaires and contractors, . . . and (iii) Costa Cruise Lines N.V., the Netherlands Antilles corporation that is a sales and marketing agent for the CARRIER and the issuer of this Passage Ticket Contract.

The itinerary for the cruise, which embarked from Port Everglades, Florida, on November 26, 2006, included a November 30, 2006 visit to La Romana, Dominican Republic. Plaintiff and Mehta disembarked from the ship when it arrived at La Romana and went by shuttle bus to the port. While walking in the shopping district, plaintiff and Mehta were robbed by men with knives, who stole their passports, drivers licenses, credit cards, and other personal effects. Plaintiff alleges that she suffered physical and emotional injury as a result of the robbery.

On November 26, 2008, nearly two years after the robbery, plaintiff filed this action in the Law Division. Plaintiff's complaint named as defendants not only Costa Crociere and Costa Cruise Lines but also Carnival Corporation, which the complaint identified as the owner of Costa Cruise Lines, and Florida- Caribbean Cruise Association, which the complaint identified as a trade organization composed of thirteen member cruise lines including Costa Cruise Lines and the Costa Magica.

The complaint alleged that defendants had been negligent in failing to warn her of the dangers posed to tourists embarking on an excursion to La Romana, Dominican Republic; failing to protect her while in La Romana; and failing to provide her proper medical and psychological treatment after the attack.

The complaint also asserted claims for negligent and intentional infliction of emotional distress. In addition, plaintiff's complaint asserted a claim under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Plaintiff alleged that defendants had engaged in "unconscionable commercial practices" within the meaning of that Act by "knowing[ly] scheduling . . . an excursion to a dangerous location and not warning the Plaintiff of the known risks involved[,]" and instead "advertis[ing] to Plaintiff[] and the public that the trip would be a safe and enjoyable experience."

Defendants filed a motion to dismiss plaintiff's complaint on the ground that it was barred by the one-year limitations period set forth in the ticket contract for the cruise.

Defendants also sought dismissal on the ground that the complaint was barred by other provisions of the ticket contract, including a forum selection clause requiring any claim arising out of, concerned with, or incident to any cruise to be heard in Broward County, Florida, and other clauses that preclude liability based on actions occurring onshore, medical care, negligent infliction of emotional distress, and the intentional or negligent acts of non-employees.

Judge Suter granted defendant's motion to dismiss based solely on the one-year limitation set forth in paragraph one of the ticket contract and did not reach the other defenses to plaintiff's action raised by defendants. The judge issued a written opinion, which stated in part:

Federal maritime law authorizes an owner of a sea-going vessel to establish a one-year statute of limitation in its passenger contract. "Generally, contract provisions limiting the time parties may bring suit have been held to be enforceable, if reasonable. Such provisions are accepted by the courts as long as they do not violate public policy."

The issue, then, is whether the contractual limitation in this case was reasonable. . . . Here the court finds that the time limitation for filing suit contained in the Contract is reasonable and enforceable against the plaintiff.

. . . Plaintiff contends that she never saw the contract language before boarding the cruise or during the cruise, as she did not purchase the tickets and Kurt Mehta, the purchaser of the tickets, held on to the tickets. However, in Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir. 1987), the Court found that a friend's "possession of the folder is sufficient to charge [plaintiff] with notice of its provisions." Similarly, in Hodes [v. S.N.C. Achille Lauro], 858 F.2d [905], 911-12 [3rd Cir. 1988], the Court found that the appellees are charged with notice of the ticket provisions, even though the tickets had been held by the appellees' travel agent and the appellees did not receive their tickets until immediately before boarding the ship and therefore had no effective opportunity to read the conditions of the contract. Here, Mr. Mehta purchased the tickets through a travel agent and had the tickets at least one week prior to boarding the cruise ship. The fact that Mr. Mehta purchased the ticket for Plaintiff does not change the fact that plaintiff, as a ticketed-passenger of the cruise ship, is charged with notice of the ticket provisions. The court holds that plaintiff had notice of these conditions through her agent travel companion, who procured the tickets.

[Citations omitted.]

We affirm substantially for the reasons set forth in Judge Suter's written opinion. We add the following supplemental comments.

Even if plaintiff's Consumer Fraud Act claim were not subject to the one-year limitations period set forth in paragraph one of the ticket contract, plaintiff would be required under paragraph 19(a) of the contract to bring that claim in Broward County, Florida. Such a forum selection clause in a cruise ticket contract is clearly valid. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-96, 111 S.Ct. 1522, l527-28, 113 L.Ed. 2d 622, 631-33 (1991); see also Kubis & Perszyk Associates, Inc. v. Sun Microsystems, Inc., 146 N.J. 176, 186-92 (1996).

The argument presented under Point I of plaintiff's brief was not presented to the trial court. Therefore, that argument is not properly before us on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

20100528

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