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FUGARO v. ROYAL CARIBBEAN CRUISES LTD.

April 7, 1994

ELIZABETH FUGARO as Parent and Natural Guardian of JENNA FUGARO, an Infant and ELIZABETH FUGARO, Individually, Plaintiffs,
v.
ROYAL CARIBBEAN CRUISES LTD., Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case involves an accident on board a cruise ship of the defendant Royal Caribbean Cruises Ltd. ("Royal"). The plaintiff's daughter is alleged to have been injured on August 20, 1992, due to a fall on a pool deck and onto drinking glasses on its floor causing a deep right leg laceration. Royal has moved for summary judgment based upon a one-year time limitation upon such lawsuits set forth in the ticket covering the voyage. The motion is denied.

 II

 The NYNEX Manhattan White Pages for 1990-1991 include a listing for "Royal Caribbean Cruises" at "10 Pier 92 North River."

 A ticket for the voyage on which the incident occurred was furnished to plaintiff, so far as the evidence now indicates, after space on the voyage had been ordered and payment or a commitment to payment made. The ticket contained in prominent contracting colors a statement indicating that any personal injury suits such as that involved here must be brought within one year.

 III

 A threshold problem confronted by Royal is whether or not the restrictions set forth in the ticket are binding upon plaintiff. Litigation surrounding the effectiveness of a "contract ticket" containing limitations on lawsuits for injury has focused on the necessity for the format, type size and language to "impress the importance of the terms and conditions upon the passenger." Spataro v. Kloster Cruise Ltd, 894 F.2d 44 (2d Cir 1990). As in that case, this test appears to have been met by Royal's ticket which uses contrasting colors.

 Despite language indicating that a customer agrees to the terms by accepting the actual voyage after receiving the ticket, it is unclear that this can form a binding agreement if the customer has already paid or initiated payment for the trip before receiving the ticket. A party must not only be told of the contents of a contract, but manifest agreement at a time when a meaningful choice can be made without incurring a disadvantage because of timing within the control of the other party to the transaction. See Jones v. Wide World of Cars, 820 F. Supp. 132 (SDNY 1993). Unilaterally imposed "contracts" unsigned by the party to be bound and furnished only after consideration has passed are noncontractual in nature. See Bier Pension Plan Trust v. Estate of Schneierson, 74 N.Y.2d 312, 545 N.E.2d 1212, 546 N.Y.S.2d 824 (1989); Sandler v. Commonwealth Station Co, 307 Mass. 470, 30 N.E.2d 389 (1940).

 Spataro and other cases upholding time limits on lawsuits contained in oceangoing voyage tickets do so by treating the limitation involved as a "contractual limitations period." 894 F.2d at 45. The ability of ocean carriers to impose time limits on customer lawsuits is, however, regulated by 46 USC Appendix 183b, which provides in part:

 
(a) It shall be unlawful for the . . . owner of any sea-going vessel . . . to provide by rule, contract, regulation, or otherwise a shorter period . . . for . . . institution of suits on [claims for bodily injury] than one year . . . .

 Although § 183b does not affirmatively authorize a "regulation" not constituting a contract to limit the time for bringing lawsuits against operators of vessels, it is written in such a way as to appear to assume that such a regulation is permissible if the time limit is within the scope allowed by the statute (as is Royal's here). Such a legislative assumption must be given weight if it serves the purposes of ...


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