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MCQUILLAN v. "ITALIA" SOCIETA PER AZIONE DI NAVIGA

November 18, 1974

William McQUILLAN, Plaintiff,
v.
"ITALIA" SOCIETA PER AZIONE DI NAVIGAZIONE, Defendant


Werker District Judge.


The opinion of the court was delivered by: WERKER

MEMORANDUM AND ORDER

WERKER, District Judge.

 This is but one more in a long line of "passage contract" cases reaching back at least as far as The Majestic, 166 U.S. 375, 17 S. Ct. 597, 41 L. Ed. 1039 (1897). Plaintiff and his wife were passengers on a Caribbean cruise on the defendant's vessel, the S.S. Michelangelo. On February 7, 1973, four days after the start of the cruise, the plaintiff was injured when a deck chair on which he attempted to sit collapsed under him.

 On April 5, 1974, the plaintiff, alleging negligence on the part of the defendant, filed suit in the Supreme Court of the State of New York. Following what has become a common pattern in these cases, the defendant removed the case to this court on diversity grounds and then moved pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure for summary judgment based on a condition in the passage contract which limited the time for bringing suits against the defendant to one year from the date of the injury. *fn1"

 It is uncontroverted that the plaintiff purchased two tickets in New York from a travel agent for a cruise aboard the S.S. Michelangelo from New York to the Caribbean and back to New York. After making reservations and leaving a deposit in October, 1972, the plaintiff paid the balance due on January 12, 1973. The passage tickets were received by the plaintiff approximately one week before sailing, and according to the plaintiff's affidavit, were picked up by the defendant just prior to boarding and were never signed or seen by the plaintiff again.

 In response to defendant's motion for summary judgment, the plaintiff argues that the terms and conditions contained in the "passage contract" were not incorporated into any "contract" because the standards for incorporation recently enunciated by this Circuit in Silvestri v. Italia Societa Per Azioni Di Navigazione (Italian Line), 388 F.2d 11 (2d Cir. 1968), were not satisfied. In Silvestri, Judge Friendly analyzed in detail the two distinct lines of passage ticket contract cases which have involved the issue of incorporation of the numerous terms and conditions which every steamship company seems to include in their passenger tickets. One line originates with the doctrine established in The Majestic and disallows incorporation, *fn2" while the other follows Judge Cardozo's opinion in Murray v. Cunard Steamship Co., 235 N.Y. 162, 139 N.E. 226 (1923) and allows incorporation. *fn3" According to Judge Friendly:

 
"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." *fn4"

 After a detailed comparison of the ticket at issue in Silvestri with the forms used by other steamship companies, Judge Friendly concluded that "the Italian Line's ticket alleged to effect incorporation fell below what could reasonably have been expected" since "nothing whatever was done to impress the importance of the terms and conditions upon the passenger." Silvestri, supra, 388 F.2d at 17. The task for this court then is to determine whether the passage contract in issue meets the Silvestri standards. In order to make this determination, a detailed examination of the defendant's passage contract must be made. *fn5"

 As a starting point, it should be noted that the defendant in Silvestri and the defendant in this action are one and the same, the Italian Line. Thus, the defendant's new form of passage contract must be "significantly more eye-catching" than its old one. Although the plaintiff has gone into excruciating detail to distinguish the Italian Line's new ticket from the Silvestri ticket and other tickets where incorporation was found, *fn6" it is the court's conclusion that the new passage contract meets the standards set out in Silvestri, i.e., it is significantly more eye-catching, and it reasonably communicates to the passenger the fact that the terms and conditions are important matters of contract affecting his legal rights.

 In Silvestri, supra, at 14, the ticket was described as follows:

 
[A] "box" bore in the upper right hand corner the words:
 
Biglietto Di Passagio
 
Passage Contract
 
followed by an identifying number, and in the lower right hand corner the validating stamp of the issuing travel agent. Almost all of the captions in the "box" were in capital or bold face letters, the major exception being the following statements, which appeared in the upper left ...

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