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DECARLO v. ITALIAN LINE

July 22, 1976

ALICE DeCARLO and PETER DeCARLO, Plaintiffs,
v.
ITALIAN LINE, Defendant


Knapp, District Judge.


The opinion of the court was delivered by: KNAPP

KNAPP, District Judge.

In this diversity action to recover damages for a shipboard accident, defendant moves, pursuant to Rules 12(b)(6) and 56 of the F.R.C.P., for an order dismissing the complaint on the ground that it was not filed within one year from the occurrence of the alleged accident and is therefore time barred under the provisions of 46 U.S.C. § 183 (b) and the passage contract. Given the present state of the law in this Circuit, we must grant the motion.

 Plaintiffs commenced this action for personal injury and loss of consortium on February 28, 1975, nearly 20 months after the accident aboard the defendant's vessel which gave rise thereto. By failing to sue within one year of the accident, plaintiffs' complaint is -- on the face of it -- barred by the provisions in 46 U.S.C. § 183b and Articles 13 and 14 of the passage contract. Foster v. Cunard White Star (2d Cir. 1941) 121 F.2d 12, McQuillan v. Italia Societa Per Azione di Navigazione (S.D.N.Y. 1974), aff'd, 516 F.2d 896 (2d Cir. 1975).

 Section 183b authorizes a shipowner to contractually limit the time for commencement of a suit by a passenger to recover for personal injuries to one year from the day when the alleged injuries occurred. Article 13 and 14 of the passage contract here involved adopt such a time limitation, providing in pertinent part,

 "Art. 13 -- NOTICE OF CLAIM --

 
(a) The Company shall not be liable for any claim for loss of life or injury unless written notice thereof with full particulars be lodged with the Company or its agents within six (6) months from the day when the death or injury occurred in respect of any claim where Section 4283A of the Revised Statutes of the United States shall apply.
 
* * *

 Art. 14 -- TIME LIMIT ON CLAIMS --

 
Suit to recover on any claim against the Company shall be instituted:
 
(a) as to claims mentioned in subdivision (a) of Article 13 above, within one (1) year from the day when death or injury occurred; . . ."

 Just recently, the Second Circuit Court of Appeals upheld the validity of the same provision in an identical passage contract issued by the same defendant, and dismissed the complaint as time barred. McQuillan v. Italia Societa Per Azione di Navigazione, supra.1 The only question, therefore, remaining for us to resolve is whether the present plaintiff was legally chargeable with notice of its provisions.

 Plaintiff Alice DeCarlo swears to the following facts in her affidavit in opposition to the instant motion:

 
1. In April, 1973, she "made arrangements to take a cruise on the defendant steamship, S. ...

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