The opinion of the court was delivered by: Sprizzo, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Paula Smith ("plaintiff") brings this action pursuant to the
general maritime law against defendant Commodore Cruise Line Limited
("defendant" or "Commodore") for injuries suffered just prior to boarding
defendant's cruise line while it was moored in Montego Bay, Jamaica.
Defendant moves for summary judgment on the grounds that plaintiff's
claim was brought and served in an untimely manner. For the reasons that
follow, defendant's motion for summary judgment is denied.
On July 31, 1993, with a ticket purchased by her daughter, plaintiff
departed from New Orleans, Louisiana, on a seven-day cruise on the S.S.
Enchanted Seas ("Enchanted"), a cruise line operated by defendant. See
Amended Memorandum of Law in Opposition to Motion for Summary Judgment
dated February 16, 1999 ("Pl. Mem.") at 2. On or about August 4, 1993,
while the ship was docked in Jamaica, plaintiff slipped and fell on the
bathroom floor of a boarding facility being used by the Enchanted,
fracturing her hip and knee. See Pl. Mem., Exhibit ("Exh.") A., Copy of
Medical Service Bill dated August 4, 1993, at 1. She was subsequently
treated for injuries on board the ship, where a ship doctor gave her a
shot and placed a cast on her leg. See id.
At the time of her treatment, plaintiff asked for a copy of her medical
report, but was apparently told by workers for defendant that she needed
to write to Commodore to obtain such documents. See Pl. Mem., Exh. 1,
Letter from Paula Smith to Commodore Cruise Line ("Plaintiff's Letter"),
at 1. Shortly thereafter, on August 9, 1993, plaintiff wrote to defendant
describing her accident and treatment and requested "a copy of everything
for [her] file." See id. Her letter noted that the bathroom floor she
slipped on "was covered with water" and that "[t]here was no sign on the
door saying `out of order'." See id. She further noted that she "would
like to collect for [her] bills, etc." See id. When she received no
response, plaintiff wrote again to defendant on October 24, 1993
requesting her file, but again received no response. See Pl. Mem., Exh.
2, Letter from Paula Smith to Commodore Cruise Line dated October 24,
1993 ("Plaintiff's Second Letter"), at 1.
"The passenger and carrier agree that all disputes and
matters arising under, in connection with or
incidental to the Contract shall be litigated, if at
all before a court located in the State, City, and
County of New York to the exclusion of the courts of
any other country, state, city or county."
See id. at 12, § 27. On August 4, 1994, exactly one year from the
date of her injury, plaintiff filed her original complaint in this action
in the Civil District Court for the Parish of Orleans, a Louisiana state
court. See Memorandum of Law in Support of Defendant's Motion for Summary
Judgment ("Def.Mem.") dated November 6, 1998 at 3-4; Def. Notice, Exh.
2, Petition for Damages dated August 4, 1993 ("Petition"), at 1. The
action was filed pursuant to the General Maritime Law of the United
States and brought under the "saving to suitors" clause of
28 U.S.C. § 1333, a statute which gives state and federal courts
concurrent jurisdiction over personal maritime claims. See Petition at
¶ 2. Rather than serving defendant with process, plaintiff requested
that the Louisiana State Court hold service of process.*fn1 See Petition
at 3, ¶ 10.
Approximately sixteen months later, on December 15, 1995, plaintiff
requested that the Clerk of Court for the Parish of Orleans perfect
service of process and provided an address for such service. See Service
Letter at 1. On both January 12, 1996 and February 12, 1996, service by
certified mail upon defendant's agent for service, Stephen D. Field, was
attempted in Miramar, Florida, and in each case such letters were
returned with notations that Mr. Field had moved with no forwarding
address. See Pl. Mem., Exh. C, D, Certified Mail Envelopes postmarked
January 12, 1996 and February 12, 1996. According to Mr. Field, his
office was temporarily located in Miramar from September 1, 1994 until
March 1, 1995, but he never received corporate mail at this address and
his mailing address was in fact at 800 Douglas Road in Coral Gables,
Florida, an address he claims was on file with the Florida Department of
State.*fn2 See Supplemental Affidavit of Stephen D. Field in Further
Support of Defendant's Motion for Summary Judgment dated March 5, 1999
("Field Supp. Aff.") at ¶ 3. According to plaintiffs, they then again
contacted the Florida Secretary of State in the summer of 1997 and were
at this time given a new, correct address for Mr. Field. See Pl.
Mem. at 6.*fn3 He was subsequently served with process at this new
address on September 19, 1997.*fn4 See Def. Mem. at 4.
Following service of process, defendant removed this action to the
United States District Court for the Eastern District of Louisiana and
filed a motion to dismiss for improper venue. Judge Henry A. Mentz of
that Court transferred the action to this Court pursuant to
28 U.S.C. § 1406, finding that notice of the Passage Contract's forum
selection clause could be imputed to plaintiff and that no other reason
precluded the Court from enforcing such clause. See Smith v. Doe,
991 F. Supp. 781, 782 n. 1, 784 (E.D.La. 1998).
On a motion for summary judgment, a moving party is entitled to a
judgment as a matter of law where a Court finds that there is no genuine
issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). Further, all the evidence considered by the Court must be viewed
in the "light most favorable to . . . the nonmoving party." LaBounty v.
Coughlin, 137 F.3d 68, 71 (2d Cir. 1998).
Federal admiralty law provides that "a suit for recovery of damages for
personal injury or death, or both, arising out of a maritime tort, shall
not be maintained unless commenced within three years from the date the
case of action accrued." 46 App.U.S.C. § 763a (West 2000). This
limitation period may be reduced by contract between the parties, so long
as any such limitations period allows passengers to sue at least one year
from the date of injury.*fn5 See 46 App. U.S.C. § 183b(a).
Moreover, in suits to enforce rights under a federal statute, the
limitations period is tolled by the filing of a complaint pursuant to
Rule 3 of the Federal Rules of Civil Procedure. See Fed.R.Civ.Proc. 3