The opinion of the court was delivered by: LEISURE
This is a personal injury action by Yetta Lieb and a loss of consortium action, derivative of this first claim, by her husband, Frank Lieb. Defendant, Royal Caribbean Cruise Line, Inc. ("RCCL"), removed to this Court on the basis of diversity, pursuant to 28 U.S.C. § 1332 (1977). Defendant RCCL then moved for summary judgment pursuant to Fed. Rule Civ. P. 56 on the ground that the Liebs' claims are barred by the statute of limitations contained in the cruise ship ticket governing the terms of the cruise. The only issue before this Court is whether the time limitation stated in the cruise ship ticket language is valid under 46 U.S.C. § 183 (1979).
The material facts are not in dispute. On July 1, 1983, plaintiffs were issued a passenger ticket, which Frank Lieb signed, for a Bahama Islands cruise aboard the "Song of America," a cruise ship owned and operated by RCCL. The Liebs, both of whom are deaf-mutes, were passengers on the "Song of America" from July 17 to July 24, 1983. On the second day of the cruise, Yetta Lieb fell and broke her left arm, thereby suffering the injuries which gave rise to this lawsuit.
The ticket purchased by the Liebs consists of the ticket itself and a three-page "CONTRACT FOR CARRIAGE OF PASSENGERS" set forth in small but readable type. At the bottom of the ticket, there is a dark blue box next to the area designated for the passenger's signature. In the blue box, set forth in white capital letters, the following words appear:
TICKET SUBJECT TO TERMS OF CONTRACT ON PAGES 1, 2 & 3
Paragraph 2(VII) of the passenger contract provides:
The Carrier and the Vessel shall not be liable for any claims whatsoever of the Passenger unless full particulars thereof in writing be given to the Carrier within six months and one day after the Passenger shall be landed from the Vessel . . . Suit to recover any claim shall not be maintained in any event unless commenced within one year and one day after the time of the Passenger's landing from the Vessel.
On July 26, 1983, plaintiffs' counsel sent a Notice of Claim to defendant, advising RCCL of the Liebs' claim that Mrs. Lieb's fall was due to RCCL's negligent maintenance of its cruise ship. RCCL responded by letter dated August 11, 1983, in which defendant denied all liability for Mrs. Lieb's injuries. RCCL's letter also included the sentence: "Please be advised that all the discussions and negotiations are without prejudice to the rights of either party and are subject to the terms and conditions of the contract of passage." The Court has not been made aware of any further communications between the parties until the commencement of this action on July 7, 1985. nearly two years after the Liebs' trip to the Bahamas.
On a motion for summary judgment, as provided for by Fed. R. Civ. P. 56, the court's purpose is not to try issues of fact, but rather to determine whether or not there are material issues of fact to be tried. Burroughs Wellcome Co. v. Commercial Union Ins. Co., 632 F. Supp. 1213, 1217 ...