in Opposition, Plaintiff asserts that neither she nor any
other employee of Canyon Ranch received passenger ticket
contracts for the March 24-April 8, 1990 cruise of the STELLA
SOLARIS. Kientzler Aff. ¶ 2. Plaintiff refutes Defendants'
arguments based on statute of limitations and disclosed
principal defenses with the sole assertion that she never
received the ticket; thus, she argues that she did not receive
proper notice either of the one-year limitations period or of
the existence of the Owner, Sun Line Agency's principal. See
Pl. Mem. in Opp. at 2. Plaintiff concedes that the latter is
clearly disclosed in the ticket contract. Id.
2. Evidence Pertaining to Receipt of the Cruise Ticket
Defendants offer considerable, albeit circumstantial,
evidence to support their claim that Plaintiff, or a Canyon
Ranch employee acting as her agent, received the passenger
ticket contract. They offer proof showing that (1) Canyon
Ranch paid for a ticket for Karma Kientzler at a reduced rate,
Trott Supplemental Aff. Exh. D, (2) a coupon from a cruise
passenger ticket contract was issued on March 13, 1990 in Ms.
Kientzler's name, Trott Aff. Exh. B, and (3) a Federal Express
"Sender Activity Summary" listed an entry for a priority
letter mailed to "Karam Kienzler [sic]" at Canyon Ranch on the
day after the Owner issued the cruise ticket in Ms.
Kientzler's name.*fn1 Trott Supplemental Aff. Exh. I.
Affidavits by two Sun Line Agency employees assert the
following: (1) in Sun Line Agency's usual course of business,
cruise passenger ticket contracts are mailed to the passenger
or her agent,*fn2 Trott Supplemental Aff. ¶ 4; (2) in Sun Line
Agency's usual course of business, passengers or their agents
must present a cruise passenger ticket contract at the
embarkation point, i.e. Miami in this case, Trott Supplemental
Aff. ¶ 6; (3) Paul Trott and Tammy Varnavas, Sun Line Agency
employees who collected coupons from cruise passenger ticket
contracts for the March 24, 1990 cruise, collected the
appropriate cruise ticket coupons from each passenger in Miami,
after which they were forwarded to the vessel in Rio de Janeiro
and in due course to the Owner, Trott Supplemental Aff. ¶ 12;
Varnavas Aff. ¶¶ 5, 7; (4) no person would have been allowed
past the embarkation point in Miami unless a cruise passenger
ticket contract was presented by the passenger or her agent,
Trott Supplemental Aff. ¶ 14; Varnavas Aff. ¶¶ 5, 7; (5) the
only cruise tickets brought by Sun Line Agency to Miami were
blank contracts in case a passenger forgot her ticket, and none
of these blank tickets were used on March 23, 1990, Varnavas
Aff. ¶ 6. The Owner has forwarded from its files the original
copies of the two company-retained coupons from Ms. Kientzler's
cruise ticket. Trott Supplemental Aff. Exhs. G and H.
Plaintiff, on the other hand, offers affidavits by three
persons who simply deny that they received Plaintiff's
passenger ticket contract for the March 24, 1990 cruise. These
persons are Plaintiff herself, Christina Chapman (a Canyon
Ranch employee also assigned to the cruise), and Jerrold Cohen
(the president of Canyon
Ranch).*fn3 Although Plaintiff states that "[n]o other
employee of Canyon Ranch" received any passenger ticket
contracts, she does not explain the grounds for this
assertion. Kientzler Aff. ¶ 2. Similarly, Jerrold Cohen can
only state that he was not "aware of any employee of Canyon
Ranch receiving these tickets and contracts." Cohen Aff. ¶¶
Although this cruise apparently was a "joint venture"
between Sun Line Agency and Canyon Ranch and indeed was
entitled "A Taste of Canyon Ranch at Sea," Solomon Aff. ¶ 3 and
Exh. C, no affidavit is offered from any Canyon Ranch employee,
including L. Ayala, demonstrating any detailed knowledge of the
cruise arrangements, nor is any explanation for the absence of
such an affidavit proffered. No information is provided
explaining how travel by Canyon Ranch employees assigned to
such cruises is generally arranged. Plaintiff's own description
of her "on board status" is vague. See, e.g., Solomon Aff. ¶ 3.
While it was asserted that she was seeking certain information
that "may shed light on her status," id., no such information
has been provided to this Court.*fn4 In sum, Plaintiff has
alleged no specific facts to support her assertion that neither
she nor any other employee at Canyon Ranch acting as her agent
received her passenger ticket contract for the cruise. See
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Nor has she
offered any explanation of what occurred in Miami when Trott
and Varnavas obtained ticket coupons for retention by the
Owner. Accordingly, the Court finds that there is no genuine
issue of fact as to the receipt of the cruise ticket by an
employee of Canyon Ranch.
3. Statute of Limitations
Assuming, then, that an employee at Canyon Ranch did receive
Plaintiff's cruise passenger ticket contract, it must be
determined whether her cause of action against the Owner is
barred by the one-year limitations period contained in the
passenger ticket contract. 46 U.S.C. § 183b authorizes a
shipowner to limit contractually the time for commencement of a
suit by a passenger to recover for personal injuries to one
year from the day the alleged injuries occurred. A notice
printed in bold on the jacket of the ticket at issue in this
case states, "IMPORTANT NOTICE — READ BEFORE ACCEPTING,"
underneath which is typed:
Please read carefully the terms of this ticket
beginning on page one and continuing through page
4. All these terms are an integral part of the
contract between passengers and the Carrier. In
accepting this contract, you agree to the terms.
Attention is particularly drawn to the Carrier's
right of exemption and limitation set forth in
Clauses 12 and 13 (pages 3 and 4).
Additionally, the portion of the ticket presented for passage
refers in two places to the conditions printed on the cover of
the ticket and state that they form part of the contract.
Clause 13 of the ticket states in pertinent part: