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Barbachym v. Costa Line

Barbachym v. Costa Line Inc., 713 F.2d 216 (6th Cir. 08/08/1983)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 82-1137
713 F.2d 216

decided: August 8, 1983.


DONALD BARBACHYM AND LUCY BARBACHYM, PLAINTIFFS-APPELLANTS,
v.
COSTA LINE, INC., ET AL., DEFENDANTS-APPELLEES

ON APPEAL from the United States District Court for the Western
District of Michigan.


James E. Gould, Grand Rapids, Michigan, for Appellant.

Paul D. Galea, Foster, Meadows and Ballard, Detroit, Michigan, for
Appellee.

Edwards, Chief Circuit Judge, Contie, Circuit Judge, and Weick,
Senior Circuit Judge.

Author and Circuit Judge - CONTIE


Plaintiffs Donald and Lucy Barbachym appeal from summary judgment
granted in favor of defendants Costa Lines, Inc., 66th Street Travel
Service, Inc., Costa Armatori S.P.A. and Costa Tours, Inc., in an action
resulting from food poisoning Donald Barbachym allegedly contracted after
consuming food aboard a Costa Line cruiser. The district court granted
summary judgment for defendants based upon the plaintiffs' failure to file
suit within the one year period of limitations specified in the contract
of carriage and permitted by 46 U.S.C. ? 183b(a). On appeal, the
plaintiffs contend that they are not bound by the contractual limitation
period because the carrier did not reasonably warn them of the existence
and importance of the contract terms as required by The Majestic, 166 U.S.
375, 41 L. Ed. 1039, 17 S. Ct. 597 (1897) and Silvestri v. Italia Societa
Per Azioni Di Navigazione, 388 F.2d 11 (2d Cir. 1968). In this case of
first impression for this court, we hold the reasonable notice test of The
Majestic and Silvestri to be the proper legal standard and agree with the
plaintiffs that they did not receive reasonable notice. The judgment of
the district court is reversed and the case remanded for trial.


I.  In February 1978 Donald and Lucy Barbachym attended a medical
seminar arranged by the 66th Street Travel Service of Tampa and Miami,
Florida. The seminar included a cruise with Costa Lines, Inc. and Costa
Tours.


The initial segment of the seminar was held February 2-4, 1978, in
Clearwater, Florida. Pursuant to the arrangements made by 66th Street
Travel Services, the Barbachyms then flew to San Juan, Puerto Rico, where
the cruise ship was to be boarded. Prior to boarding the M/V Angeline
Lauro, plaintiffs were given an 8 1/4 inch by 4 1/2 inch travel folder.
Inside this folder was a 3 1/2 inch by 7 inch document entitled "Group
Boarding Pass." Information contained on the pass included the group name,
passenger names, name of the ship, sailing date and cabin number. In the
same size print was the following: "Conditions of Transportation as per
Ticket No. --- Held by Group Leader." The names and logos of Costa Lines,
Inc. and Chandris America Lines, S.A. were also on the pass. Nothing on
this document referred to the other material included in the folder.


Folded and stapled to the travel folder was an 8 1/2 inch by 11
inch document entitled "Terms and Conditions of contract of passage and
baggage." Printed on this document, in very small type, are 35 articles
which purport to delineate the respective legal rights and obligations of
the carrier and passengers. The list concludes with a clause which reads:
"THE HOLDER OF THIS PASSAGE TICKET DO [sic] HEREBY DECLARE. . . THAT HE IS
AWARE AND ADHERES TO ALL THE CONDITIONS AND CLAUSES SET FORTH IN THIS
PASSAGE CONTRACT AND THAT HE SPECIFICALLY APPROVES . . . [certain clauses
including no. 30.]" Clause No. 30 requires notice of claims to the company
within six months and initiation of litigation within one year after an
injury or death has occurred as a prerequisite to recovery.*fn1 A space is
designated for the passenger's signature. Dr. Barbachym did not sign the
documents. He testified during a deposition that he was never informed of
the importance of the document and was never requested to read and/or sign
it.


During the voyage, Dr. Barbachym contracted shigellosis which he
alleges was the direct result of consuming food while aboard the Angelina
on or about February 8, 1978. He further alleges that as a proximate
result of this food poisoning, he required two surgeries, was near death,
and was unable to work for an extended period of time. The Barbachyms
filed suit for damages in the U.S. District Court for the Western District
of Michigan on August 17, 1979, asserting theories of strict liability,
breach of implied warranty, and negligence.


The defendants moved for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure based upon the plaintiffs' failure to
bring the action within one year as specified by Article 30 of the "Terms
and Conditions." The plaintiffs argued that since they were not given
reasonable notice of the contract provisions, as required by the Supreme
Court's holding in The Majestic, 166 U.S. 375, 41 L. Ed. 1039, 17 S. Ct.
597 (1897), the limitations were not incorporated into the contract of
carriage and are therefore not binding upon them.


The district court, relying primarily on the reasonable notice
requirement of Silvestri v. Italia Societa Per Azioni Di Navigazione, 388
F.2d 11 (2d Cir. 1968), initially determined that neither the statement on
the boarding pass nor the physical arrangement of the terms and conditions
provided reasonable notice to the passengers of the terms and conditions.
Thus, the court held that those terms were not incorporated into the
contract and the defendants' motion was denied. Immediately prior to
trial, however, the court reversed its earlier ruling and granted the
defendants' motion for summary judgment. Relying on DeNicola v. Cunard
Line Ltd., 642 F.2d 5 (1st Cir. 1981), the district court concluded that,
as a matter of law, the form in which the material was presented to the
plaintiff complied with the carrier's duty of reasonable communication.
Therefore, the court held that the plaintiffs' action was barred for
failure to meet the one-year period of limitations contained in the
contract of carriage.


On appeal, the plaintiffs claim that the district court erred in
holding that the defendants did all they could reasonably do to warn
passengers that the terms and conditions were important legal matters
affecting their legal rights. We agree.


II.  The "reasonableness" of notice to the passengers of critical terms
of carriage contracts is a question of law; hence the trial judge was
correct to rule on the issue without submitting it to a jury. See DeNicola
v. Cunard Line Ltd., 642 F.2d at 11; Carpenter v. Klosters Rederi, 604
F.2d 11, 13 (5th Cir. 1979); Cada v. Costa Line, Inc., 547 F. Supp. 85, 87
(N.D. Ill. 1982).


Title 46 U.S.C. ? 183b(a) allows owners, operators and agents of
sea-going vessels to limit their liability for personal injury and death
to cases in which notice has been given to the carrier within six months
of the incident and where the suit has been commenced within one year.*fn2
Since this statute clearly works to the carriers' benefit while
restricting the time available for passengers to seek legal recourse,
courts have been hesitant to honor the shortened period of limitations
permitted by Section 183b(a) unless the carrier has made a "reasonable"
effort to warn passengers of the notice and filing requirements. See
Silvestri, supra; The Kungsholm, 86 F.2d 703 (2d Cir. 1936); Cada, supra;
Raskin v. Compania de Vapores Realma S.P., 521 F. Supp. 337 (S.D. N.Y.
1981). Even prior to the enactment of 46 U.S.C. ? 183b(a), the Supreme
Court held that a carrier must make a reasonable effort to advise
passengers of the terms of the carriage contract. The court stated:


We quite agree with Lord O'Hagan in Henderson v. Stevenson, that
"when a company desires to impose special and most stringent terms upon
its customers, in exoneration of its own liability, there is nothing
unreasonable in requiring that those terms shall be distinctly declared
and deliberately accepted."

The Majestic, 166 U.S. 375, 386, 41 L. Ed. 1039, 17 S. Ct. 597
(1897)

Although The Majestic was decided over eighty years ago, a clear
standard for determining whether a particular carrier's notice to
passengers regarding limitations of liability is "reasonable" has not
yet evolved. Following a lengthy analysis of the development of case
law in this area which need not be repeated here, the Silvestri court
concluded that ". . . the thread that runs implicitly through the cases sustaining
incorporation is that the steamship line had done all it reasonably could
to warn the passenger that the terms and conditions were important matters
of contract affecting his legal rights." 388 F.2d at 17. "Subsequent
decisions. . . [suggest] that the Silvestri approach should govern the
analysis in most if not all steamship ticket cases." DeNicola, 642 F.2d at
9. See also Cada, 547 F. Supp. at 86-87; Raskin, 521 F. Supp. at 340;
("[a] fair reading of Silvestri requires a carrier to apprise the
passenger of both the existence and importance of contractual periods of
limitation in order to find the restrictions enforceable.") McQuillan v.
"Italia" Societa Per Azione Di Navigazione, 386 F. Supp. 462 (S.D. N.Y.
1974), aff'd, 516 F.2d 896 (2d Cir. 1975).


This is a case of first impression for this court. We now adopt
the "reasonable notice" standard of Silvestri. We also agree with the
Silvestri court that the burden of proof is on the carrier to show that it
did all that it reasonably could to warn the passengers of its limited
liability. 388 F.2d at 17.


Generally, courts have held that a carrier has not made a
"reasonable" effort to warn passengers of its liability limitations unless
the face of the ticket contains conspicuous language directing the
passenger's attention to the contractual terms contained in other material
furnished by the carrier. See, e.g., The Majestic, 166 U.S. at 379 ("there
was no proof whatever that [the plaintiffs] . . . ever had their attention
called to the notices on the back of the paper . . ."); Silvestri, 388
F.2d at 17-18 (imposing a duty on the ticket draftsman to produce a
significantly eye-catching warning); The Kungsholm, 86 F.2d at 704
(perceiving general rule as requiring notice on face of ticket that terms
are incorporated by reference); Bellocchio v. Italia Flotte Riunite
Cosulich Line Lloyd Sabaudo Navigazione Generale, 84 F.2d 975, 976 (2d
Cir. 1936) (nothing on face of ticket called attention to limiting terms
on the back; therefore, terms not part of the contract of carriage). See
also Maibrunn v. Hamburg-American S.S. Co., 77 F.2d 304, 305 (2d Cir.
1935); Baer v. North German Lloyd, 69 F.2d 88, 89 (2d Cir. 1934); Cada,
547 F. Supp. at 87; Raskin, 521 F. Supp. at 341. In contrast, cases in
which the carrier's liability limitations have been honored generally
involve tickets with conspicuous warnings directing the passenger's
attention to the contractual terms contained elsewhere. See, e.g.,
DeNicola, 642 F.2d at 10 (language directing passengers to terms and
conditions of contract printed in bold type on ticket face); Foster v.
Cunard White Star, 121 F.2d 12, 13 (2d Cir. 1941) (plaintiff bound by a
direct reference on the face of the ticket to the terms and conditions of
the contract); Baron v. Compagnie Generale Transatlantique, 108 F.2d 21,
22 (2d Cir. 1939) (prominent red type on ticket called passengers
attention to limitation of liability contained in contract of carrier);
Gardner v. Greek Line, 388 F. Supp. 856, 857 (M.D. Pa. 1975) (bold,
underlined type on ticket face read "please read before accepting" in
reference to contract terms contained in packet); McQuillan, 386 F. Supp.
at 466 (message on ticket face found by court to "reasonably communicate"
the importance of terms and conditions of contract to passengers).


In the instant case, the ticket face contained no conspicuous
language. The only language even hinting that there may be additional
terms elsewhere reads: "Conditions of Transportation as per Ticket No.
/--." The line immediately below states "Held by Group Leader." Thus, even
if a passenger were to deduce from this vague language that there might be
some additional terms governing the trip, the passenger naturally would
assume that only the "Group Leader" had access to the material containing
those terms. Nothing on the face of the ticket indicates either the
critical nature of the additional terms of contract or the fact that the
"Terms and Conditions of contract of passage and baggage" are contained in
the travel folder.

Other factors weigh heavily against the "reasonableness" of the
carrier's efforts to warn the passengers in this case. The paper
containing the contract was folded and stapled to the folder. The print
was extremely small. No effort was made to explain the terms to Dr.
Barbachym or to obtain his signature on the contract, even though a space
was provided for his signature. Finally, the article on the limitation of
liability, which ultimately controls all the other rights of the
passengers, is the thirtieth of thirty-five articles which allegedly form
the carriage contract. We believe that an article of such import should be
more prominently displayed.

Comparing and contrasting the various ticket forms and results of
previous steamship ticket cases shows that each case must be reviewed
carefully to determine whether the particular type of notice was
reasonable in that particular situation. In the instant case, we find that
the notice was not only insufficient, but virtually nonexistent. It
clearly does not meet the Silvestri reasonableness standard. Therefore, we
REVERSE and REMAND for further proceedings consistent with this opinion.

Disposition

REVERSE and REMAND.


Opinion Footnotes

*fn1 Article 30 of the "Terms and Conditions of Contract of
Passage and Baggage" provides:

Limitation of Actions against the Company: No action or proceeding against
the company for death or injury of any kind to the passenger shall be
instituted, unless notice is given to the company or its duly authorized
agent within six months from the day when the death or injury occurred,
and the action or suit arising therefrom is commenced within one year from
the date when the death or injury occurred.

*fn2 46 U.S.C. ? 183b(a) reads:

It shall be unlawful for the manager, agent, master, or owner of any
sea-going vessel (other than tugs, barges, fishing vessels and their
tenders) transporting passengers or merchandise or property from or
between ports of the United States and foreign ports to provide by rule,
contract, regulation, or otherwise a shorter period for giving notice of,
or filing claims for loss of life or bodily injury, than six months, and
for the institution of suits on such claims, than one year, such period
for institution of suits to be computed from the day when the death or
injury occurred.








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Cruise Ship Injury Case - Food Poisoning
A Cruise Ship Injury Case Involving Food Poisoning.
During the voyage, the passenger contracted
shigellosis which he alleged was the direct result
of consuming food aboard the cruise ship
Angelina.
The cruise ship passenger alleged that as a
proximate result of this food poisoning, he required
two surgeries, was near death, and was unable to
work for an extended period of time. The injured
cruise ship passenger filed suit for damages in the
U.S. District Court for the Western District of
Michigan asserting theories of strict liability,
breach of implied warranty, and negligence.
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