Before MOORE, KAUFMAN and HAYS, Circuit Judges.
The only issue presented by this appeal is whether a clause in the contract of passage between passenger and shipowner requiring that an action for wrongful death be "commenced and process served * * * within one (1) year from the date when the death * * occurred" is invalid under Section 4283A of the Revised Statutes which makes unlawful maritime contract provisions which provide for "a shorter period * * * for the institution of suits on * * * claims [for loss of life or bodily injury] than one year" from the date of injury, or in the case of death, from the appointment of decedent's legal representative*fn1 The libelant argues that Article 13 of the contract quoted above provides a period of limitations for "institution" of suit shorter than one year (1) because of the inclusion of the words "and process served" and (2) because the time is to run from the date of death rather than from the date of appointment of decedent's legal representative. This second claim was not raised in the district court and cannot be raised for the first time here. Safeway Stores, Inc. v. Oklahoma Retail Grocers Ass'n, 360 U.S. 334, 342, 79 S. Ct. 1196, 3 L. Ed. 2d 1280 n. 7 (1959); Scott v. Central Commercial Co., 272 F.2d 781 (2d Cir. 1959), cert. denied, 363 U.S. 806, 80 S. Ct. 1241, 4 L. Ed. 2d 1149 (1960); Patent & Licensing Corp. v. Olsen, 188 F.2d 522, 525 (2d Cir. 1951); Wiper v. Great Lakes Eng'r Works, 340 F.2d 727, 731 (6th Cir. 1965).
As to the first claim libelant asserts that since suit is commenced in the federal admiralty courts by the mere filing of a libel, Admiralty Rule 1, the contractual requirement that suit be commenced "and process served" within one year has the effect of shortening the limitation period to less than the one year permitted by statute. The district court rejected this argument, denied libelant's motion to strike respondent's defense based on the contractual period of limitation, and granted respondent's cross-motion for summary judgment dismissing the libel. 223 F. Supp. 374 (1963). We affirm.
The facts of the case are undisputed. Libelant Mary A. Schwartz is the widow and executrix of Dr. Samuel H. Schwartz. She and her husband purchased a first-class passage for a cruise aboard respondent's S.S. Nassau from New York to Bermuda and return. On the face of the ticket reference was made to "the contract terms and conditions * * * set forth on this page and the over-page, to which passenger expressly agrees and which are to apply and govern the relations whatever they may be between passenger and the carrier * * *" Article 13, printed on the back of the ticket, reads in pertinent part as follows:
"Suit to recover on any claim shall not be maintainable unless commenced and process served as follows:
(1) 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 said Section 4283A [of the Revised Statutes] shall apply * *"
Article 15 of the contract states that:
"The terms of this passage contract shall be separable and the illegality or invalidity of any article, paragraph, clause, or provision of this passage contract, in whole or in part, shall not affect or invalidate any other article, paragraph, clause or provision thereof."
While on board the vessel Dr. Schwartz became ill. The ship's physician was consulted and that same day Dr. Schwartz was removed by helicopter to a hospital in North Carolina, where he died about 2:00 A.M., the following day, May 8, 1960.
Mrs. Schwartz was appointed executrix under Dr. Schwartz's will on May 20, 1960. She originally brought suit against respondent for wrongful death in a New York court by service of summons on August 8, 1961, more than fourteen months after her appointment as executrix, and fifteen months from the date of Dr. Schwartz's death.
She filed a libel against respondent in the United States District Court on May 3, 1962, five days less than two years from her husband's death.
Section 4283A applies generally to all personal injury and wrongful death cases in which "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 parts" has provided "by rule, contract, regulation, or otherwise" a time period within which a claimant must give notice or bring suit. The statute is one "of general import, enacted for the purpose of regulating the relationship between a common carrier * * * and passengers with reference to duties, obligations and restrictions of the carrier in connection with its issuance of tickets and its liability to passengers for safe passage thereunder," Moore v. American Scantic Line, Inc., 30 F. Supp. 843, 845 (S.D.N.Y.1939), aff'd, 121 F.2d 767 (2d Cir. 1941); accord, Scheibel v. Agwilines, Inc., 156 F.2d 636, 638 (2d Cir. 1946), and is applicable in state as well as federal courts, see Ayoub v. Moore-McCormack Lines, Inc., 17 Misc.2d 519, 191 N.Y.S.2d 411 (App.T.1958); Glusman v. United States Lines Co., 39 Misc. 2d 845, 241 N.Y.S.2d 960 (Sup.Ct.1963).
The purpose of the statute of which Section 4283A is a part, "was to encourage shipbuilding and [its provisions] * * * should be liberally construed in the ship-owner's favor." Section 4283A "is not * * * an isolated enactment whose negative language should be narrowly construed, but is a declaration of Congressional policy as to lawful ...