The opinion of the court was delivered by: BATTS
DEBORAH A. BATTS, United States District Judge.
Plaintiffs Vincent and Susan Marchewka bring this action against Defendant Bermuda Star Lines, Inc. ("BSL") for injuries and loss of consortium resulting from a fall from a ladder aboard a cruise ship belonging to the Defendant.
Defendant now moves for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on the ground that the action is time barred under the provisions of the passage contract. Defendant also claims that Plaintiffs fail to make out a prima facie case of negligence against BSL.
On July 4, 1987, Vincent Marchewka, his wife Susan Marchewka, and two of their children boarded the Bermuda Star, a cruise ship, in New York for a seven day trip to Bermuda. (Vincent Marchewka Dep. at 15-16, 19.) The Marchewkas received the passage contracts for their cruise at their home approximately six weeks prior to the departure date. (Susan Marchewka Dep. at 6.) On July 8, 1987, the fourth day of the cruise, Mr. Marchewka awoke at approximately 7:00 a.m. in the top bunk bed of the room he shared with his wife and children aboard the Bermuda Star. (Vincent Marchewka Dep. at 21, 24.) He attempted to climb down the ladder from the bed to reach the floor. (Vincent Marchewka Dep. at 23, 25.) As Mr. Marchewka placed his right foot on the top rung of the ladder, the rung broke away from its sides and Mr. Marchewka fell to the floor. (Vincent Marchewka Dep. at 25-26, 28; Susan Marchewka Dep. at 8.) Mr. Marchewka injured his right ankle, right shin, right knee, upper back, buttocks, the back of his head, and the back of his neck. He had not experienced any problems with the ladder prior to his fall. (Vincent Marchewka Dep. at 24-25.)
Stephen Field, BSL's claim manager at the time of the accident, testified that after the accident, personnel of the Bermuda Star's machine shop repaired the ladder by welding the rung back into place. He further testified that the ladder was then returned to the Marchewkas' cabin. According to his testimony, no records were kept of the repair and routine inspections of ladders were not conducted. (Field Dep. at 11-12, 32-33, 41.)
About thirty minutes after the accident, a ship employee took Mr. Marchewka to the ship's infirmary in a wheelchair. (Vincent Marchewka Dep. at 43-44.) Dr. Isagani Cruz examined him and put an ace bandage on Mr. Marchewka's knee, bandaged a wound on his shin, and gave him Ibuprofen for the pain. (Martocci Aff. Ex. E.) Dr. Cruz signed a "Report of Personal Accident or Illness to Passenger or Visitor" documenting statements made by and treatment given to Mr. Marchewka. (Martocci Aff. Ex. E.)
At the time of the accident, BSL issued two types of passage contracts, a group passage contract and an individual passage contract. The two contract types contained identical terms and conditions, only the face sheet on the embarkment copy was different. (Field Dep. at 24-25.) These passage contracts at paragraph 22 state:
(a) the Carrier and/or vessel shall not be liable for any claim whatsoever of the Passenger howsoever and wheresoever arising unless written notice thereof with full particulars shall be delivered to the Carrier or its agents as follows:
1. Within (6) six months from the day when the death or injury occurred in respect of any claim for loss of life or bodily injury in any case where section 4283A
of the Revised Statutes of the United States shall apply.
1. Suit is initiated within one (1) year from the date when death or injury occurred in respect of any claim for loss of life or bodily injury in any case where said Sec. 4283A shall apply.
(Martocci Aff. Ex. B at 3.) This provision appears on page four of the passage contract.
Mr. and Mrs. Marchewka have no recollection of what happened to their passage contract after embarking on the Bermuda Star. However, the sample passage contract presented at the taking of the deposition was similar to the passage contract they received. (Susan Marchewka Dep. at 6-7.) Mr. Field testified as follows regarding the handling of passage contracts upon embarking:
The terminal has an area where we can set up a desk for embarkation and the passengers go through embarkation. They go through usually by cabins. So one desk would handle cabins 1 to 100 and another would be 101 to 200. Until we get up to all the cabins. On board the passengers would have to, obviously, get on line. When they get to the embarkation desk they ask for their tickets, passage contract tickets. The person working the embarkation desk would then take the embarkment copy of the passage contract ticket and retain that. The ...