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MULVIHILL v. FURNESS

November 14, 1955

Frances MULVIHILL, Plaintiff,
v.
FURNESS, WITHY & CO., Ltd., Defendant



The opinion of the court was delivered by: HERLANDS

The question of the validity of a time limitation-of-liability clause in a steamship ticket is presented by this motion for summary judgment by defendant.

Plaintiff, an American citizen and a New York resident, brought a civil action on April 14, 1955 against defendant, a British corporation. Defendant owns, operates and controls a vessel, the S.S. Ocean Monarch, which is registered under the laws of the United Kingdom of Great Britain.

The complaint alleges that plaintiff, while a passenger on defendant's vessel, was injured by a fall when a defective wooden reclining deck-chair collapsed or broke under her while she was attempting to seat herself in it. This alleged incident and injury occurred on or about September 18, 1952, when the vessel was on its return trip from Bermuda to New York. Plaintiff had boarded the vessel on or about September 13, 1952, when it left New York for Bermuda. The complaint, pleading two causes of action, seeks damages totaling $ 30,000. One cause of action (for $ 15,000 damages) is based on defendant's alleged negligence. The second cause of action (for $ 15,000 damages) is based on defendant's alleged breach of contract for the safe carriage and transportation of plaintiff.

 Defendant denies the material allegations of the complaint and also sets up seven defenses. For purposes of this motion, we need mention only the fifth and sixth defenses. The fifth defense alleges that the complaint was not filed within one year after the cause of action arose. The sixth defense alleges that plaintiff failed to give defendant written notice of her claim, with full particulars, within six months after the date of injury. Both of these defenses are predicated upon paragraph '14' of the contract of carriage contained in the long-form ticket.

 Paragraph '14' of the contract of carriage reads as follows:

 '14. The shipowner shall not be liable for any claim whatsoever of the passenger, his heirs, executors, administrators, assigns, next of kin, dependents or personal representatives 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: (b) within two months after the death of the passenger when occurring before landing or within fifteen days after landing or the abandonment or breaking up of the voyage in respect of any claim for loss of life, except where said Section 4283A 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.'

 From the pleadings, examination before trial of plaintiff, and memoranda submitted by the parties, the following additional facts appear: Plaintiff is a registered nurse. She herself purchased the ticket about two weeks before she actually boarded the vessel. At the time she purchased the ticket from Thomas Cook & Sons, travel agent, she personally signed the ticket. The ticket remained in her possession until the day she sailed, September 13, 1952, at which time she turned in the ticket upon boarding the vessel. Plaintiff did not read the provisions contained in the ticket.

 Plaintiff claims that, as a matter of law, the above quoted provisions of paragraph '14' are not binding upon her; that the ticket does not specifically direct the passenger's attention to the terms and conditions of the contract embodied in the ticket; that, whereas all of the essential parts of the contract are printed in bold black print, paragraph '14' appears in much lighter print; and finally, that paragraph '14' does not appear on the face of the contract, but 'only on the third and fourth pages in very small print.'

 Defendant argues that the words 'Contract Ticket' appear in bold black type in the upper righthand corner of the ticket; that this constitutes adequate notice to the passenger; that the contract is introduced by the clause beginning with the words: 'It Is Mutually Agreed,' which words appear over plaintiff's signature on the first page of the ticket; that paragraph '14' is an integral part of the contract; and that, as a matter of law, the time limitations prescribed in paragraph '14' are valid, binding and conclusively determinative of the motion at bar.

 A photostatic copy of the contract ticket is before the Court; and all of the other relevant and material facts are not in dispute. In the interest of a fuller description of the ticket, the following details may be added to those already cited:

 On 'Page One' of the contract ticket, the following provision appears:

 'It Is Mutually Agreed between the shipowner and the passenger named herein, that in consideration of the payment to the shipowner of the passage money by or on behalf of the passenger, the shipowner will provide the said passenger with passage as stated herein, unless prevented by some unforeseen circumstance, on the terms hereinafter stated, which shall govern the relations between the shipowner, vessel and passenger in every possible contingency wheresoever occurring and even in the event of deviation or unseaworthiness of the vessel at the inception of the voyage or subsequently and whether or not this ticket has been signed by, or on behalf of the passenger.

 'These terms supersede all representations, promises and agreements whatsoever that may have been made, or may be claimed to have been made, to or with the intending passenger by anyone on behalf of the shipowner. These terms shall not be considered modified or waived except by an express written ...


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