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Marek, Harriet and Marek v. Marpan Two Inc.

filed: May 1, 1987; As Amended May 11, 1987.

MAREK, HARRIET AND MAREK, SAMUEL HUSBAND AND WIFE, APPELLANTS
v.
MARPAN TWO, INC. AND BAHAMA CRUISE LINE, INC.



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 84-2214.

Higginbotham and Stapleton, Circuit Judges, and Rodriguez, District Judge.*fn*

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This appeal continues the long line of cases, going back at least as far as The Majestic, 166 U.S. 375, 41 L. Ed. 1039, 17 S. Ct. 597 (1897), involving the enforcement of contractual conditions that are invariably located deep in the fine print of cruise ship tickets. Because the ticket at issue here was reasonably communicative in giving notice of the existence and importance of, and in expressing, its limiting conditions, we will affirm the district court's entry of summary judgment for appellees.

I.

The following facts are taken from appellants' complaint and from the affidavit of appellant Harriet Marek ("Marek"). At some point prior to March 1983, Marek and her friend Jackie Toombs made arrangements through the Warren County Motor Club of Warren, Pennsylvania, for a cruise aboard the S.S. VERACRUZ. Marek and Toombs traveled to Tampa, Florida, prior to the vessel's sailing date of March 12, 1983. They did not receive their cruise ticket folder, however, until they boarded the ship for departure in Tampa, at which time they together were given one ticket folder. In the boarding process, ship personnel removed one sheet of paper from this joint ticket folder. The folder, a cover containing the two remaining pages, was thereafter retained by Toombs. Marek recalls that she and Toombs, sometime after they had boarded ship, "scanned the written material on the inside of the front cover of the ticket folder, but . . . [they] did not read every word that was there because the print was so small and crowded and because [they] couldn't understand most of what was printed there." Marek also recalls that they "glanced at printed material on the outside of the back cover of the ticket folder, although [she] doesn't recall what that material said." Marek, at that time and later, neither read nor became aware of the printed material on the ticket's inside back cover.

The ticket folder shared by Marek and Toombs includes, as one of its terms and conditions, the following language:

6. (a) Neither the Carrier nor the Vessel shall be liable for any claim for loss of life or personal injury, whatsoever and wheresoever arising and howsoever caused, unless written notice thereof, with full particulars be given to the Carrier within six (6) months from the date of such loss of life or injury.

(b) Suit to recover on any such claim against the Carrier or the Vessel shall not be maintainable unless:

(1) The Passenger has complied with the above notice provisions; and (2) Suit is instituted within one (1) year from the date of the loss of life or bodily injury.

These time limits on the filing of personal injury actions are implicitly authorized by federal statute. 46 App. U.S.C. ยง 183b(a) (Supp. III 1985).*fn1 Other physical characteristics of the ticket folder are described below in section III.

On March 18, 1983, while the S.S. VERACRUZ was at sea, Marek slipped while walking down a stairway in the vessel, sustaining a number of severe personal injuries. More than one year later, on May 8, 1984, Marek and her husband, appellant Samuel Marek, filed this diversity action in the Eastern District of Pennsylvania against appellee Marpan Two, Inc., which owned at the relevant times the S.S. VERACRUZ, and appellee Bahama Cruise Line, Inc., which chartered the vessel for this fateful cruise.

The district court granted appellees' summary judgment motion. Marek v. Marpan Two, Inc., No. 84-2214 (E.D. Pa. July 15, 1986). Marek admittedly failed to file this suit within one year of her accident, in clear violation of paragraph 6(b)(2) of her ticket contract, and the district court ...


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