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MILANOVICH v. SJK ENTERPRISES

August 17, 1990

GREGORY MILANOVICH, et ux., Plaintiffs,
v.
SJK ENTERPRISES, INC., et al., Defendants


Thomas Penfield Jackson, United States District Judge.


The opinion of the court was delivered by: JACKSON

THOMAS PENFIELD JACKSON, UNITED STATES DISTRICT JUDGE

 Plaintiffs Gregory and Marjorie Milanovich are residents of the District of Columbia. Defendant Costa Crociere, S.p.A., is an Italian cruise ship owner, and defendant Costa Cruises, Inc., is a Florida-based New York corporation that functions as the general sales agent for cruises on Costa Crociere's vessels.

 Mr. and Mrs. Milanovich booked passage, through Costa Cruises, on Costa Crociere's M.V. Carla Costa departing San Juan, Puerto Rico, on February 6, 1988, for a week's cruise in the Caribbean Sea. On the morning of February 7, 1988, while the ship was in international waters, a deck chair on the Carla Costa's lido deck in which Gregory Milanovich was sitting collapsed, allegedly causing him serious injury.

 The two defendants remaining in this tort action for that injury have moved for summary judgment on the basis of what they contend is a contractual provision of their agreement with plaintiffs purporting to limit to one year the time within which to bring such an action. *fn1" The facts pertinent to the motion for summary judgment are not in dispute. The result, unfortunately for the Milanoviches, is dictated as a matter of law by a discrete line of cases, dating from the 19th century, respecting terms and conditions of a shipowner's liability expressed in and imposed by the text of cruise tickets.

 I.

 Plaintiffs' tickets came in a 13-page booklet, measuring 8 1/2 by 3 1/2 inches, setting out the terms of carriage in very small, but legible, print. See Exhibit D to defendants' memorandum. A legend on the front of the booklet read, in red uppercase letters on a white background:

 
"IMPORTANT NOTICE
 
Each passenger should carefully examine this ticket, particularly the conditions on pages 2-10."

 One of those conditions, Article 30, established a one-year time limit for bringing personal injury actions. Milanovich was injured on February 7, 1988; he filed this action on March 31, 1989, 51 days out of time, and defendants have thus moved for summary judgment under Article 30. Plaintiffs respond that another provision of the ticket, Article 35, purports to adopt Italian law as the "ruling law of this contract," and they offer proof, in the form of an affidavit of an Italian lawyer, that the one-year limitations period would be unenforceable against plaintiffs under Italian law in the circumstances of this case.

 The maritime law of the United States governs disputes arising out of contracts for the transportation of goods or passengers on the high seas. The Moses Taylor, 71 U.S. (4 Wall.) 411, 18 L. Ed. 397 (1867). A cruise for hire is a maritime contract to be enforced in accordance with U.S. maritime law, by reference to which, in the first instance, it must be determined which nation's substantive law shall apply, irrespective of any private understandings to the contrary. Although the federal maritime choice-of-law rules may ultimately remit the parties to foreign substantive law, they do so by identifying the "center of gravity" of the case, not merely by ascertaining the contractual intent of the parties. DeNicola v. Cunard Line Ltd., 642 F.2d 5, 7 n. 2 (1st Cir. 1981); McQuillan v. "Italia" Societa Per Azione Di Navigazione, 386 F. Supp. 462, 468 (S.D.N.Y. 1974), aff'd, 516 F.2d 896 (2d Cir. 1975); see also Hodes v. S.N.C. Achille Lauro, 858 F.2d 905 (3rd Cir.), cert. dismissed, 490 U.S. 1001, 109 S. Ct. 1633, 104 L. Ed. 2d 149 (1988). *fn2"

 II.

 Having concluded that U.S. substantive law must apply, it remains to be decided whether a contract provision in the nature of Article 30 is valid under U.S. maritime law and, if so, whether it has been effectively incorporated into the "contract" between plaintiffs and defendants represented by the cruise ticket. The validity of such a time limitation is ...


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