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September 29, 2000


The opinion of the court was delivered by: Sprizzo, Senior District Judge.


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 ticket used by plaintiff contained a passage contract ("the Passage Contract" or "the Contract") that contained provisions relevant to this lawsuit regarding the statute of limitations and forum selection for litigation pursuant to the Passage Contract. See Defendant's Notice of Motion for Summary Judgment ("Def.Notice"), Exh. 1C, Passage Contract at 1. In particular, a boxed-off warning in red print on the lower right hand side of page three of the Passage Contract provided that "[e]ach passenger should carefully examine all of the conditions of this contract, particularly the provisions on pages 4-12." Id. One such provision referenced by this warning was located on page eleven of the Passage Contract and provided in part that "[s]uit to recover on any claim against the Carrier and/or vessel shall not be maintainable unless . . . [s]uit 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." Id. at 11, § 21(b)(1). Another provision referenced by the warning was located on page ten of the Passage Contract and provided that "[t]he carrier . . . shall not be liable for any claim whatsoever of the Passenger . . . unless written notice thereof with full particulars shall be delivered to the Carrier or its agent . . . [w]ithin six (6) months from the day when the death or injury occurred." Id. at 10, § 21(a)(1). Finally, a provision on page twelve provided that

"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).

Statute of Limitations

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. ยง 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 (providing ...

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