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SULLIVAN v. AJAX NAVIGATION CORP.

March 27, 1995

MARY CARROL SULLIVAN, Plaintiff
v.
AJAX NAVIGATION CORP. and CELEBRITY CRUISES INC., Defendants.



The opinion of the court was delivered by: DEBORAH A. BATTS

 BATTS, DEBORAH A., U.S.D.J.:

 Defendants Celebrity Cruises, Inc. and Ajax Navigation Corp. move this Court to dismiss plaintiff's personal injury claim. Alternatively, defendants move to strike plaintiff's demand for a jury trial and requests an order that liability be governed by Mexican substantive law. By letter dated March 23, 1995, plaintiff's counsel consented to the dismissal of defendant Ajax Navigation Corp. It is therefore ordered that defendant Ajax Navigation Corp. be and hereby is dismissed from this action. However, for the reasons which follow, Celebrity Cruise Inc.'s ("defendant") motion is denied in its entirety.

 I. FINDINGS OF FACT

 On March 14, 1993, Mary Sullivan ("plaintiff"), a Massachusetts resident, went on a five day cruise with Ann Hawley on the "s/s BRITANIS". At all times relevant to this action, the BRITANIS was operated by the defendant. The cruise ship left Miami on March 14, 1993, for the ports of Key West, Playa del Carmen, Cozumel, and return to Miami. Ms. Hawley purchased both tickets and kept them in her possession until the women boarded the ship.

 As part of the cruise, defendant had arranged for the passengers to go ashore. However, cruise ships such as the BRITANIS calling at Playa Del Carmen must anchor offshore, because of shallow water. A smaller boat, known as a tender, was used to shuttle passengers from the cruise ship to the dock. On March 16, plaintiff went ashore at the port of Playa del Carmen, aboard a tender called the "MEXICO II." Employees of the BRITANIS, including Hagay Meiri, an escort officer, and Diane Hawkins, a nurse, were stationed on the dock.

  Plaintiff returned to the dock to await transport back to the cruise ship. However, the tender operated more slowly than usual, because of the rough seas and inclement weather. Plaintiff sat reading a book on a bollard *fn1" to which another tender, the "PLAYA DEL CARMEN *fn2" " was moored. Plaintiff's injury occurred when one of the mooring lines from the PLAYA DEL CARMEN snapped, recoiled, and struck plaintiff's right foot. She was thrown from the bollard and sustained an open displaced fracture of her right ankle. There is no indication in the record that employees of the BRITANIS either advised plaintiff against sitting on the bollard or warned plaintiff of the dangers inherent in sitting there.

 Plaintiff instituted this personal injury action in federal court, claiming jurisdiction based on diversity of citizenship. Plaintiff timely demanded a jury trial. The cruise ticket, which was purchased and held for her by Ms. Hawley, however, provides that any action against the carrier must be "instituted in the United States District Court for the Southern District of New York as an admiralty or maritime action without demand for a jury trial." The cover of the ticket states in large block letters: "IMPORTANT NOTICE: Please read the terms and conditions of transportation in this ticket which is a contract affecting your legal rights." This notice is repeated in the embarkation coupon.

 II. ANALYSIS

 A. SUMMARY JUDGMENT

 As a preliminary matter, the defendant has made what it terms a "pre-trial motion to dismiss," claiming that Celebrity Cruise did not owe a duty to plaintiff when she was injured. Since plaintiff's sole cause of action sounds in negligence, defendant argues that it cannot be held liable as a matter of law. Defendant's motion is properly cognizable as one for summary judgment, and will be treated accordingly pursuant to Fed. R. Civ. P. 56.

 Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). When deciding a motion for summary judgment, a court must "'resolve all ambiguities and inferences . . . in the light most favorable to the party opposing the motion.'" Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2d Cir. 1986) (citations omitted).

 The moving party bears the initial burden of demonstrating that there exists no material issue of fact and that he or she is entitled to judgment as a matter of law. See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citations omitted). The movant may carry its burden by demonstrating the absence of evidence to support the non-movant's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Motions for summary judgment must be denied if reasonable minds could differ as to the importance of the evidence and if "'there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn.'" Brady v. Town of Colchester, 863 F.2d at 210, citing In re Japanese Elec. Prods. Antitrust Litigation, 723 F.2d 238 (3rd Cir. 1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538.

 It is well settled that a common carrier generally owes a high duty of care to provide its passengers with safe transportation under adequate supervision to and from a dock or pier. Lawlor v. Incres Nassau Steamship Line, Inc., 161 F. Supp. 764, 767 (D. Mass. 1958); Isham v. Pacific Far East Line, Inc., 476 F.2d 835, 836 (9th Cir. 1973); Forrester v. Ocean Marine Indemnity Co., 11 F.3d 1213, 1216 (5th Cir. 1993). Such duty extends at least to the point of embarkation and debarkation. It does not cease at each port of call where the passengers are free to disembark. Rather, it is owed for the ...


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