Opinion
No. 13561/09.
2010-03-24
Nancy HODDER a/k/a Nancy Morrissey, Plaintiff, v. NORWEGIAN CRUISE LINE LIMITED, Defendant.
Junge & Miele, LLP, New York, for Defendant. James S. Morris, Esq., Bronxville, for Plaintiff.
Junge & Miele, LLP, New York, for Defendant. James S. Morris, Esq., Bronxville, for Plaintiff.
ORAZIO R. BELLANTONI, J.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law. See Andre v. Pomeroy, 35 N.Y.2d 361 (1974). The movant must set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
The instant action arose on September 1, 2008 at approximately 5:15 P.M. Estonia time while plaintiff and her husband were on a thirteen day Baltic cruise on defendant NCL (Bahamas) Ltd. s/h/a Norwegian Cruise Line Limited's vessel Norwegian Jewel. After taking a photograph of the City of Tallinn along the railing of the ship's thirteenth deck, she tripped and fell over a 12–14 inch high ramp as she turned to return inside.
Defendant asserts that the contractual relationship between it and plaintiff is governed by the terms and conditions of the passenger ticket which was issued by way of plaintiff's travel agent before her cruise began and contains a Miami–Dade County, Florida forum selection clause. See the affidavit in support of Jane E. Kilgour and Exhibit C annexed thereto.
It is well settled that the forum selection clause is enforceable under the general maritime law of the United States and that the contract of passage governs the rights and liabilities between passengers and an ocean carrier. See The Moses Taylor, 71 U.S. (4 Wall) 411 (1886) and The Majestic, 166 U.S. 375 (1897); see also Wilburn Boat Company v. Fireman's Fund Insuranc Company, 348 U.S. 310 (1955) and Vavoules v. Kloster Cruise Ltd., 822 F.Supp 979 (E.D.N.Y.1993). Moreover, federal maritime law governs even though plaintiff has brought the case at bar in state court. See Lerner v. Karageorgis Lines, Inc., 66 N.Y.2d 479 (1985). Finally, forum selection clauses in maritime contracts are prima facie valid unless there is some independent justification for refusing to enforce it. See The Bremen v. Zapata Off–Shore Company, 407 U.S. 1 (1972); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (forum selection clause in passenger ticket contract within meaning of federal statute outlining permissive limitations on passenger rights [46 USC § 183c] ), Melnik v. Cunard Line Limited, 875 F.Supp 103 (NDNY 1994), and Lieb v. Royal Caribbean Cruise Lines, Inc., 645 F.Supp 232 (SDNY 1986). Travel agents are to be construed as agents of the ticket purchaser, and passengers are charged with constructive knowledge of ticket terms and conditions while the tickets are in their agent's possession. See Noboa v. MSC Crociere S.p.A., 2009 WL 1227451 (SDNY 2009); see also Lurie v. Norwegian Cruise Lines, Ltd., 305 F.Supp 2d 352 (SDNY 2004) and Ames v. Celebrity Cruises, Inc., 1998 WL 427694 (SDNY 1998).
Plaintiff's statements that she did not receive the passenger ticket contract are unconvincing and insufficient to overcome the other testimony and evidence presented here. It is uncontroverted that defendant properly transmitted the passenger and guest ticket contracts to plaintiff via her travel agent Club ABC Tours d/b/a Rona Travel. See the reply affidavit in further support of Robert S. Paris.
Accordingly, since defendant has established its defense “sufficiently to warrant the court as a matter of law in directing judgment” in its favor, the granting of summary judgment is appropriate. See Spataro v. Kloster Cruise Ltd., 894 F.2d 44 (2nd Cir1990); see alsoCPLR 3212(b).
Settle judgment on ten (10) days notice within thirty (30) days hereof.