The opinion of the court was delivered by: KNIGHT
Defendant has moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., upon the ground that plaintiff failed to commence this action within the time limitation provided by the contract ticket made between the parties.
From the deposition of plaintiff taken by defendant it appears that plaintiff in March, 1950, was a high school teacher; that she took a leave of absence for one month, commencing on the 20th of that month; that she went to the Caribbean, to St. Thomas, St. Kitts and to Trinidad, sailing on the S.S. Fort Amherst of the Furness, Withy Line on March 23d, accompanied by Miss Claire Bell Hammond, secretary to Mr. Schoellkopf of Schoellkopf, Hutton & Pomeroy; that the ticket for the trip was purchased and kept with plaintiff's knowledge by Miss Hammond and she made the arrangements for the tickets and transportation with the American Express at plaintiff's request and with her knowledge; that plaintiff paid her portion of the ticket to the American express.
It appears from the affidavit of William T. Huber, verified October 24, 1951, which is annexed to defendant's moving papers, that he handled the transaction pertaining to the ticket in question for the Buffalo Office of the American Express Company, and on February 28, 1950, he caused the payment for the ticket to be forwarded to the defendant at its New York office; that he received the ticket from the defendant on March 3, 1950, and on the same day caused said ticket to be mailed to Miss Hammond at her place of business, 70 Niagara Street, Buffalo, New York.
Plaintiff's affidavit, verified October 28, 1951, and filed in opposition to defendant's motion, states that this action is brought to recover damages for personal injuries suffered by plaintiff when she fell while aboard the S.S. Fort Amherst on the 24th day of March, 1950; that plaintiff was accompanied by Miss Claire Bell Hammond; that by mutual agreement between plaintiff and Miss Hammond all arrangements for the purchase of the tickets were made by Miss Hammond; that plaintiff paid her share of the fare directly to the American Express Company, which acted as the agent of the defendant in issuing the ticket; that plaintiff never had the ticket in her possession and never saw the ticket, except for the brief moment when it was at the pier on the morning when plaintiff boarded the ship. The affidavit further states:
'That your deponent did not authorize the said Claire Belle Hammond to contract with the defendant in any way which would limit your deponent's rights against the defendant for any reason whatsoever.
'That, specifically, she did not authorize the said Claire Belle Hammond to sign the ticket contract for her.
'That your deponent had no knowledge of anything contained on the said ticket with the exception of the name of the ship on which she was to sail, the ports which would be visited, the class of passage and the amount of fare, which information was given her orally by Miss Hammond.
'That her attention was never called to any stipulations or limitations in the said ticket contained by the representatives of the defendant or by any other person.'
The ticket, No. WI 6360, bearing date March 1, 1950, which is the subject of this dispute, on its face bears the words in bold type at the upper left-hand corner 'Contract Ticket' and indicates that it was issued to Miss Edith A. Rogers (the plaintiff) and Miss Claire Hammond, two adult persons. On the face of the ticket it appears to be for 'First Class passage of person or persons mentioned above' on a 'cruise' from New York to New York' 'South bound on S.S. Fort Amherst Expected to Sail At 11 A.M. N.Y. Time Date March 23, 1950 From Furness Terminal North River, N.Y.C. (Foot of W. 55-57th St.) Berth 2 Beds Room 16' 'Fare Paid Outward 850.00'. Following the foregoing information and occupying more than a third of the face, designated 'page one', of the ticket, commencing with the words 'It is mutually agreed' in bold faced type, appear the terms of the contract ticket which is signed 'For the Shipowner By J. Will as Agent at New York Office' and by 'Claire Bell Hammond', and underneath her signature, printed in heavy type, are the words 'Signature of Passenger, or Agent or Purchaser of Ticket.'
There is no dispute that the ticket was presented for passage of plaintiff and Claire Bell Hammond on the S.S. Fort Amherst Cruise; that the ticket was accepted by the defendant through its representatives and the plaintiff proceeded aboard the S.S. Fort Amherst and took said Cruise. After the Cruise had begun, plaintiff fell and was injured, for which injury this action was brought. Defendant has filed its answer and as one of its defenses has set up a limitation of time as provided in the Contract Ticket, paragraph '14', which reads as follows:
'The shipowner shall not be liable for any claim whatsoever of the passenger * * * unless written notice thereof with full particulars shall be given to the shipowner or agent as follows: (a) within six months after the death or injury occurred in respect of any claim for loss of life or bodily injury in any case where Section 4283A of the Revised Statutes of the United States (46 U.S.C.A. § 183b) shall apply;
'(c) within fifteen days after the passenger shall be landed, or the voyage is abandoned or broken up, in respect of any claim whatsoever unless such claim is included within one of the two categories just mentioned. Suit to recover on any claim shall not be maintainable unless commenced as follows: (1) within one year after the death or injury occurred in respect of any claim for loss of life or bodily injury where said Section 4283A shall apply; (2) within six months after the passenger shall be landed from the vessel or the voyage shall be abandoned or broken up or after the death of the passenger when occurring before landing, which ever may be the case, in respect of any claim whatsoever unless such claim is included within category (1), just mentioned. Any action by the shipowner or its agents or attorneys in considering or dealing with claims where the provisions of this ticket have not been complied with, shall not be considered a waiver of such requirements.'
Nowhere does it appear that written notice was given by plaintiff to defendant as required by paragraph 14 of the Contract Ticket hereinbefore quoted, but defendant has not raised that point. Defendant has made this motion relying on the provisions of the Contract Ticket with respect to the one year time limitation from date of injury for the bringing of this action. Plaintiff has conceded in her brief on this motion that ...