Hyperlawhypertext legal database Lerner v. Karageorgis Lines, Inc. 66 N.Y.2d 479

← Cases

Lerner v. Karageorgis Lines, Inc.

66 N.Y.2d 479 Court N.Y. Decision date 1985-12-26 English

Delivered by Alexander, J.

Contents

Majority

p. 479
Evelyn Lerner et al., Appellants, v Karageorgis Lines, Inc., Respondent.
Argued October 7, 1985;
decided December 26, 1985
p. 480
POINTS OF COUNSEL
Steven R. Lapidus for appellants.
I. The one-year time limitation provision contained in clause 13 of the contract of carriage is inapplicable to the facts in the case at bar, without considering CPLR 4544. (Kossick v United Fruit Co., 365 US 731 ; Wilburn Boat Co. v Fireman’s Ins. Co., 348 US 310 .) II. The one-year time limitation contained in clause 13 of the contract of carriage is invalid, regardless of CPLR 4544, because the print is too small to be noticeable or readable. (Lisi v Alitalia-Linee Aerre Italiene, 253 F Supp 237 , 370 F2d 508 , 390 US 455 ; Egan v American Airlines, 21 NY2d 160 , 390 US 1039 ; Molitch v Irish Intl. Airlines, 436 F2d 42 ; The Majestic, 166 US 375 ; Silvestri v Italia Societa Per Azioni Di Navigazione, 388 F2d 11 .) III. The one-year time limitation contained in clause 13 of the contract of carriage is invalid because it is violative of CPLR 4544. (Shankles v Costa Armatori, S.P.A. 722 F2d 861 ; Western Fuel Co. v Garcia, 257 US 233 ; Spencer Kellogg Co. v Hicks, 285 US 502 ; Celeste v Prudential-Grace Lines, 35 NY2d 60 ; Wilburn Boat Co. v Fireman’s Ins. Co., 348 US 310 ; Kossick v United Fruit Co., 365 US 731 ; Matter of Rederi [Dow Chem. Co.], 25 NY2d 576 ; Matter of Heaney v Carlin Constr. Co., 269 NY 93 ; Industrial Commn. v Nordenholt Corp., 259 US 263 ; Matter of Cassaretakis, 289 NY 119 .) IV. Irrespective of the applicability of CPLR 4544, defendant has not made a reasonable effort to warn plaintiffs on the face of the ticket that there were time limitations contained inside the contract of carriage, and, therefore, the time limitations are invalid. (The Majestic, 166 US 375 ; Silvestri v Italia Societa Per Azioni Di Navigazione, 388 F2d 11 ; The Kungsholm, 86 F2d 703 ; Maibrunn v Hamburg-American S. S. Co., 77 F2d 304 ; Raskin v Campania de Vapores Realma, 521 F Supp 337 ; Owens v Italia Societa Per Azione Di Navagazione-Genova, 70 Misc 2d 719 , 75 Misc 2d 104 ; DeNicola v Cunard Line, 642 F2d 5 ; McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , 516 F2d 896 ; Lipton v National Hellenic Am. Lines, 294 F Supp 308 ; Baron v Compagnie Generale Transatlantique, 108 F2d 21 .) V. The contractual Statute of Limitations applies only to suits commenced in Greece and not to this action pending in New York. (Meachem v Jamestown, Franklin & Clearfield R. R. Co., 211 NY 346 ; Kyler v United States Trotting Assn., 12
p. 481
AD2d 874 ; Sliosberg v New York Life Ins. Co., 217 App Div 685 ; Wydallis v United States Fid. & Guar. Co., 63 NY2d 872 .)
Kathleen McQuilling and Steven P. Calkins for respondent.
I. The court below correctly held that Federal maritime law has preempted the field of suit time-limitation clauses in maritime contracts. (Scheibel v Agwilines, Inc., 156 F2d 636 ; Moore v American Scantic Line, 30 F Supp 843 , 121 F2d 767 ; Murray v Cunard S. S. Co., 235 NY 162 ; Garrett v Moore-McCormack Co., 317 US 239 ; Alvez v American Export Lines, 46 NY2d 634 , 446 US 274 ; Celeste v Prudential-Grace Lines, 35 NY2d 60 ; Matter of Rederi [Dow Chem. Co.], 25 NY2d 576 , 398 US 939 ; Schwartz v S. S. Nassau, 345 F2d 465 , 382 US 919 ; Jansson v Swedish Am. Line, 185 F2d 212 ; McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , 516 F2d 896 .) II. Clauses exonerating or limiting air carrier’s liability under the Warsaw Convention stand on a different footing and are distinguishable from the subject clause 13 limiting time to commence suit to one year. (Bergman v Pan Am. World Airways, 32 AD2d 95 ; Molitch v Irish Intl. Airlines, 436 F2d 42 ; Lipton v National Hellenic Am. Lines, 294 F Supp 308 ; Shankles v Costa Armatori, S.P.A., 722 F2d 861 ; DeNicola v Cunard Line, 642 F2d 5 ; Gardner v Greek Line, 388 F Supp 856 ; McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , 516 F2d 896 ; Silvestri v Italia Societa Per Azioni Di Navigazione, 388 F2d 11 ; Furr v Societa Italiana Transporti Marittimmi, 162 F Supp 645 .) III. The two-prong test of reasonable notice in the passenger ticket contract and adequate opportunity for plaintiffs to inform themselves of the limitation of suit time provision was satisfied under the circumstances of this case. (Shankles v Costa Armatori, S.P.A., 722 F2d 861 ; DeNicola v Cunard Line, 642 F2d 5 ; McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , 516 F2d 896 ; Silvestri v Italia Societa Per Azione Di Navigazione, 388 F2d 11 ; Lipton v National Hellenic Am. Lines,, 294 F Supp 308 ; The Majestic, 166 US 375 ; The Kungsholm, 86 F2d 703 ; Maibrunn v Hamburg-American S. S. Co., 77 F2d 304 ; Raskin v Campania de Vapores Realma, 521 F Supp 337 ; Carpenter v Kolosters Rederi, 604 F2d 11 .) IV. Passenger contracts of carriage are not consumer contracts for goods or services under CPLR 4544. (Drelich v Kenlyn Homes, 86 AD2d 648 .) V. The strict print size requirement of CPLR 4544 cannot modify, alter or add to the rights and liabilities between passenger and ocean carrier under the Federal mari
p. 482
time law. (Matter of Rederi [Dow Chem. Co.], 25 NY2d 576 ; Shankles v Costa Armatori, S.P.A., 722 F2d 861 ; Matter of Heaney v Carlin Constr. Co., 269 NY 93 ; Matter of Cassaretakis, 289 NY 119 .) VI. The court below correctly dismissed plaintiffs’ third cause of action for passage fare refund. (Shankles v Costa Armatori, S.P.A., 722 F2d 861 ; Yollin v Holland Am. Cruises, 97 AD2d 720 .)
Graydon S. Staring, John C. McHose and Lizabeth L. Burrell for Maritime Law Association of the United States, amicus curiae.
I. The court below was correct in ruling that CPLR 4544 cannot be applied to a maritime contract asserted in defense to a claim involving an alleged injury to a cruise passenger since such cases are governed by Federal maritime law. (McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , 516 F2d 896 ; Alvez v American Export Lines, 46 NY2d 634 , 446 US 274 ; Mulvihill v Furness, Withy & Co., 136 F Supp 201 ; Kossick v United Fruit Co., 365 US 731 ; Garrett v Moore-McCormack Co., 317 US 239 ; Union Fish Co. v Erickson, 248 US 308 ; Corbitt v Diamond M. Drilling Co., 654 F2d 329 ; Navieros Oceanikos, S.A. v S.T. Mobil Trader, 554 F2d 43 ; Hudson Waterways Corp. v Coastal Mar. Serv., 436 F Supp 597 ; Matter of Rederi [Dow Chem. Co.], 25 NY2d 576 , 398 US 939 .) II. The Constitution provides for a body of national maritime law to govern all maritime claims, whether brought in State or Federal court. (Romero v International Term. Co., 358 US 354 ; Pope & Talbot v Hawn, 346 US 406 ; Panama R. R. Co. v Johnson, 264 US 375 ; Washington v Dawson & Co., 264 US 219 ; Knickerbocker Ice Co. v Stewart, 253 US 149 ; The Lottawanna, 21 Wall [88 US] 558; Riley v Agwilines, Inc., 296 NY 402 ; United Brands Co. v Mutual Mar. Off., 117 Misc 2d 507 ; Matter of Rederi [Dow Chem. Co.], 25 NY2d 576 , 398 US 939 .) III. Because there is a well-developed body of Federal maritime law setting forth standards for passage contracts, the conflicting State statute cannot be applied. (Scheibel v Agwilines, Inc., 156 F2d 636 ; The Majestic, 166 US 375 ; Baron v Compagnie Generale Transatlantique, 108 F2d 21 ; DeNicola v Cunard Line, 642 F2d 5 ; Lipton v National Hellenic Am. Lines, 294 F Supp 308 ; McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , 516 F2d 896 ; Silvestri v Italia Societa Per Azioni Di Navigazione, 388 F2d 11 ; Shankles v Costa Armatori, S.P.A., 722 F2d 861 ; Carpenter v Klosters Rederi, 604 F2d 11 ; Raskin v Campania de Vapores Realma, 521 F Supp 337 .) IV. Because application of CPLR
p. 483
4544 would work prejudice to the characteristic features of the maritime law and impair its uniformity, the statute should not be applied. (Southern Pac. Co. v Jensen, 244 US 205 ; Knickerbocker Ice Co. v Stewart, 253 US 149 ; Chelentis v Luckenbach S. S. Co., 247 US 372 ; Byrd v Bryd, 657 F2d 615 ; Moye v Henderson, 496 F2d 973 , 419 US 884 ; Jansson v Swedish Am. Line, 185 F2d 212 ; In re Holoholo, 557 F Supp 1024 ; Raymond Intl. v M/T Dalzelleagle, 336 F Supp 679 ; Danielsen v Morse Dry Dock & Repair Co., 235 NY 439 .) V. Application of CPLR 4544 is impermissible because rights and liabilities under maritime law can be neither enlarged nor diminished by State law. (Jansson v Swedish Am. Line, 185 F2d 212 ; Pope & Talbot v Hawn, 346 US 406 ; Garrett v Moore-McCormack Co., 317 US 239 ; Byrd v Byrd, 657 F2d 615 ; Moye v Henderson, 496 F2d 973 , 419 US 884 ; Celeste v Prudential-Grace Lines, 35 NY2d 60 ; Robins Dry Dock & Repair Co. v Dahl, 266 US 449 ; Chelentis v Luckenbach S. S. Co., 247 US 372 ; Branch v Schumann, 445 F2d 175 ; Scheibel v Agwilines, Inc., 156 F2d 636 .) VI. Since CPLR 4544 is not a common-law remedy, it may not be applied by a State court in a maritime action. (Panama R. R. v Vasquez, 271 US 557 ; Matter of Rederi [Dow Chem Co.], 25 NY2d 576 , 398 US 939 ; Knickerbocker Ice Co. v Stewart, 253 US 149 .)

OPINION OF THE COURT

In April 1981, plaintiffs purchased tickets from a travel agent in the United States for a 14-day Mediterranean cruise on defendant’s ship, the S.S. Nacarino, departing from Venice on August 1. Clause 13 of the "General Conditions” of the ticket provided, in four-point type, that, inter alla, "[s]ult to recover on any claim shall not be maintainable unless commenced and process served within one (1) year from the date when the death or injury occurred in respect of any claim for loss of life or bodily injury in any case where * * * [46 USC § 183b (a)][1] shall apply” and "2. [wjithin six (6) months after

1 That statute provides, in pertinent part: "It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel * * * 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.”

p. 484
the Passenger shall be landed from the Vessel or the Voyage shall be abandoned or broken up * * * in respect of any claim whatsoever unless such claim is included within category (1) just mentioned.”

Plaintiffs flew from New York to Brussels and from there to Venice where they embarked. On August 7, the vessel ran aground near Patmos, Greece, injuring plaintiff, Evelyn Lerner. After they reported the accident to defendant’s representative and settlement negotiations proved fruitless, plaintiffs, on November 11, 1982, commenced this action to recover damages for personal injuries, loss of consortium and breach of contract.

After interposing an answer asserting various affirmative defenses, including that "[pjlaintiffs are timebarred from maintaining this action by provisions of the contract of carriage, applicable statute of limitations and loches”, defendant moved for summary judgment dismissing the complaint. Special Term denied the motion,[2] concluding that the passenger ticket constituted a contract or agreement involving a consumer transaction within the meaning of CPLR 4544,[3] and "that the time limitation provisions contained in said contract do not meet the minimum type size requirements of the statute, which bars its enforcement.” A divided Appellate Division modified,[4] on the law, by granting defendant’s motion for summary judgment dismissing the complaint, holding, in essence, that CPLR 4544 had been preempted by Federal maritime law, which specifically authorizes a contractual one-year limitations period for the commencement of actions on bodily injury claims by ship passengers.

The Federal Judiciary Act, by virtue of its "saving to suitors” clause ( 28 USC § 1333 [1]) vests original jurisdiction of all admiralty and maritime cases concurrently in the Federal District and State courts. In maritime cases, State courts must

2 A cross motion seeking leave to amend the complaint to substitute the name of proper party defendant was granted and is not at issue on this appeal.

3 CPLR 4544 provides, in pertinent part: "The portion of any printed contract or agreement involving a consumer transaction * * * where the print is not clear and legible or is less than eight points in depth or five and one-half points in depth for upper case type may not be received in evidence in any trial, hearing or proceeding on behalf of the party who printed or prepared such contract or agreement, or who caused said agreement or contract to be printed or prepared.”

4 The Appellate Division let stand that portion of Special Term’s order which granted plaintiffs’ cross motion.

p. 485
apply Federal law "to secure a single and uniform body of maritime law” (Matter of Rederi [Dow Chem. Co.], 25 NY2d 576 , 581, cert denied 398 US 939 ; see also, Ugarte v United States Lines, 64 NY2d 836 , rearg denied 64 NY2d 1041 ; Alvez v American Export Lines, 46 NY2d 634 , affd 446 US 274 ). A State court may not limit a party’s substantive rights by applying its own procedural rules if those rules would "significantly affect the result of the litigation, i.e., would be outcome determinative” (Matter of Rederi [Dow Chem. Co.] supra, at p 581). Thus, CPLR 4544, which is a rule of evidence may not be employed to nullify a contractual limitation enforceable under Federal maritime law.

Maritime law provides that, when a limitation is "wrought into the tissue * * * inseparably integrated” into the ticket, which is a contract between the passenger and the carrier (Murray v Cunard S. S. Co., 235 NY 162 , 166), the passenger is bound by that limitation because "[i]n such circumstances, the act of acceptance [of the ticket] gives rise to an implication of assent” (id.). Whether or not the limitation is "wrought into the tissue” of the ticket so as to result in a binding contract depends on whether "the steamship line ha[s] done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting bis legal rights” (Silvestri v Italia Societa Per Azioni Di Navigazione, 388 F2d 11 , 17).

Federal courts examine where the conditions of limitations are placed in respect to the balance of the ticket; whether the passenger is given appropriate notice of the conditions of limitation; the placement of that notice; the size of the type used; and the existence of any other conspicuous lettering or symbols designed to call attention to the conditions and limitations (see, e.g., Shankles v Costa Armatori, S.P.A., 722 F2d 861 ; DeNicola v Cunard Line, 642 F2d 5 ; Silvestri v Italia Societa Per Azioni Di Navigazione, 388 F2d 11 , supra; McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , affd 516 F2d 896 ; Lipton v National Hellenic Am. Lines, 294 F Supp 308 ; Ann., 5 ALR Fed 394 ).

Here, the ticket was contained in an oblong booklet measuring eight inches by three and five-eighths inches and bound on the left side. Set out in bold type on the first page are "General Conditions,” which alert the passengers that:

"THE CONTRACT TERMS AND CONDITIONS REFERRED IN THIS TICKET AND SET FORTH ON THIS AND

p. 486
THE FOLLOWING PAGES TO WHICH PASSENGER EXPRESSLY AGREES AND WHICH ARE TO APPLY TO AND GOVERN THE RELATIONS WHATEVER THEY MAY BE BETWEEN PASSENGER AND THE CARRIER MASTER VESSEL OWNER OFFICERS, CREW AND AGENTS IN EVERY CONTINGENCY WHATSOEVER AND WHERESOEVER OCCURRING AND EVEN IN THE EVENT OF OR DURING DEVIATION OF UNSEAWORTHINESS OF THE VESSEL AT THE INCEPTION OF THE VOYAGE OR SUBSEQUENTLY AS FOLLOWS: THE TERMS OF THIS PASSAGE CONTRACT SUPERSEDE ALL RESPRESENTA-TIONS, PROMISES AND AGREEMENTS WHATSOEVER THAT MAY HAVE BEEN MADE OR MAY BE CLAIMED TO HAVE BEEN MADE TO OR WITH THE PASSENGERS OR HIS AGENT OR REPRESENTATIVE BY ANYONE ON BEHALF OF THE CARRIER.

"NOTICE: The Passenger’s attention is particularly directed to the terms and the limitations of this contract.”

The terms and conditions on the following pages are set out in small but legible type, and while it may be difficult to pick out any one of the conditions, no reason is advanced why plaintiffs, one of whom is a lawyer, could not have located the time-bar provisions and timely commenced suit (see, Haroski v Home Line Cruises, 1983 AMC 1217 [App Term, 1st Dept]).

There is a second prong to the "reasonable communicativeness” standard applied by the Federal courts in determining whether a passenger is properly to be bound by limitations on notice and commencement of suit contained in tickets of passage: "That is, that the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/ contract may be of equal importance as the prominence of warnings and clarity of conditions * * * the question of whether the passenger is bound by the ticket provisions should also take into account the circumstances of the passenger’s possession of and familiarity with the ticket” (Shankles v Costa Armatori, S.P.A., 722 F2d 861 , 865, supra).

Here, it is undisputed that plaintiffs possessed their tickets for some four months prior to the cruise, and there is no allegation that they were required to surrender them when they boarded the vessel (cf. McQuillan v "Italia” Societa Per Azione Di Navigazione, 386 F Supp 462 , supra [tickets picked up by the defendant just prior to boarding and were never signed or seen again by the plaintiff]). Plaintiffs had "both

p. 487
ample time and a powerful incentive to study the passage contract ticket promptly after [the accident] occurred” (Lipton v National Hellenic Am. Lines, 294 F Supp 308 , 311, supra; Geller v Holland-America Line, 201 F Supp 508 , affd 298 F2d 618 , cert denied 370 US 909 ; Miller v Lykes Bros. S. S. Co., 467 F2d 464 ). "[T]he passenger who has the ticket in his possession and fails to read it takes the risk of such omission” (Geller v Holland-America Line, 201 F Supp 508 , 509, supra).

Subparagraph (1) of clause 13, by its terms, unambiguously provides that it shall be operative only "in any case where * * * [46 USC § 183b (a)] shall apply.” That statute, in turn, unambiguously states that it shall apply only to "any seagoing vessel * * * transporting passengers * * * from or between ports of the United States and foreign ports” (emphasis added). It is undisputed that the S.S. Nacarino touched no United States port, therefore, the one-year limitations period embodied in clause 13 of the General Conditions cannot bar plaintiffs’ action.[5] However, the residuary six-month period does therefore apply. Plaintiffs do not claim that such limitation is unenforceable under substantive United States maritime law.[6]

Having themselves conceded "that the Courts of New York must apply Federal Maritime Law to this lawsuit”, plaintiffs did not below and do not here suggest that the law of any nation other than the United States should govern. Although the courts below were entitled to take judicial notice of any potentially applicable foreign law even absent a request from the parties (CPLR 4511 [b]), it simply cannot be said that they abused their discretion as a matter of law in declining to do so

5 Clause 13 also provides in part that "any action against the Carrier must be brought only before the courts of Piraeus, Greece, to the jurisdiction of which Passenger submits himself formally excluding the jurisdiction of all and other court or courts of any other country or countries which court or courts otherwise could have been competent to deal with such action.” Defendant has not relied on this clause, the validity of which is therefore not before us.

6 Jansson v Swedish Am. Line ( 185 F2d 212 ), is not to the contrary. In Jansson the contract specifically provided that Swedish law would apply and both parties raised the possibility that the law of another nation might apply. Under such circumstances, CPLR 4511 might well require New York courts to consider foreign law. Here, however, "neither party has offered proof of, or otherwise sought to rely on [foreign] law at any stage of this proceeding” (DeNicola v Cunard Line, 642 F2d 5 , 7, n 2 [applying general maritime law although the ticket provided that "(a)ll questions arising on this contract ticket shall be decided acccording to English law with reference to which this contract is made”]).

p. 488
under these circumstances (see, Watts v Swiss Bank Corp., 27 NY2d 270 , 275, 276).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye and Titone concur; Judge Simons taking no part.

Order affirmed, with costs.

Cases cited

Statutes and regulations cited