
USCA1 Opinion

	




          March 23, 1994    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1802                            MARIAN RAMS AND LEONARD RAMS,                               Plaintiffs, Appellants,                                          v.                         ROYAL CARIBBEAN CRUISE LINES, INC.,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET               The  opinion of  this  court issued  on  March 3,  1994,  is          amended as follows:               On page 2, line 9, change "May 8, 1992," to "April 6, 1990."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1802                            MARIAN RAMS AND LEONARD RAMS,                               Plaintiffs, Appellants,                                          v.                         ROYAL CARIBBEAN CRUISE LINES, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, U.S. Senior District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                         _____________                                 ____________________            James M. Lynch  with whom Geoffrey  A. Domenico was  on brief  for            ______________            _____________________        appellants.            Frank H. Handy, Jr. for appellee.            ___________________                                 ____________________                                    March 3, 1994                                 ____________________               COFFIN,  Senior  Circuit  Judge.    This  appeal  tests  the                        ______________________          applicability of a  one year limitation provision  in a passenger          cruise  ticket to an injury suffered by a passenger while ashore,          on  hotel property  owned  by the  same  entity which  owned  and          operated the cruise vessel.               In the  spring of 1990, plaintiffs, Marian and Leonard Rams,          residents of Massachusetts, embarked  on a Caribbean cruise  on a          ship  owned by defendant,  Royal Caribbean Cruise  Lines, Ltd., a          Florida  corporation.   On  April  6,  1990,  while  on  a  shore          excursion in Haiti at  a tourist resort owned by  defendant, Mrs.          Rams fell on a  walkway, sustaining injuries.  A little  over two          years  later,  both  Rams  filed suit,  alleging  that  defendant          "negligently maintained a  defective and dangerous  condition" on          the walkway, and seeking damages  for personal injuries and  loss          of consortium.                 On  the  strength of  an affidavit  containing  a copy  of a          ticket contract identical to  that given to plaintiffs, defendant          moved for summary judgment,  asserting that plaintiffs had failed          to  institute  suit within  the one  year  period allowed  by the          contract.1   The Rams argued that their  claim was not covered by                                        ____________________               1The contract provides, in relevant part:                    In  no  event shall  the  Carrier  be  liable  for  any               accident or harm to the Passenger which occurs off the               Vessel itself.                    . . .                     NO SUIT  SHALL BE  MAINTAINABLE AGAINST THE  CARRIER OR               VESSEL FOR  DELAY,  DETENTION, PERSONAL  INJURY, ILLNESS  OR               DEATH  OF THE PASSENGER UNLESS WRITTEN  NOTICE OF THE CLAIM,               WITH  FULL PARTICULARS, SHALL BE DELIVERED TO THE CARRIER OR               ITS AGENT AT  ITS OFFICE AT  THE PORT OF  SAILING OR AT  THE                                         -3-          this time limitation, and urged the court to apply the three year          statute of limitations for tort actions provided by Massachusetts          law, Mass. Gen. L. ch. 260   2A (1992).               The  district court engaged in  a maritime tort law analysis          and,  apparently on the  assumption that the  complaint alleged a          failure  to  warn,  concluded  that  a  carrier's  duty  to  warn          passengers  of  on-shore hazards  was  so  intimately related  to          traditional carrier-passenger relationships that the tort in this          case  was maritime in nature even though occurring at the resort.          It  then  disavowed part  of  the ticket  contract  exempting the          carrier  for  liability for  off-the-ship  injuries  as being  in          contravention of public policy; noted that the ticket's  one year          limitation  provision complied with governing  law, as it met the          statutory requirement of 46 U.S.C.   183b(a)  (making it unlawful          for owners of passenger-transport  ships to provide a statute  of          limitations  of less than one  year for institution  of suits for          loss   of   life  or   bodily   injury),   and  the   "reasonable          communicativeness" standard  applicable to contracts  of passage,          see,  e.g., Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 8-9          ___   ____  ___________    _____________________          (1st Cir.  1991); and applied  the limitation provision  to grant          summary judgment for defendant.                                        ____________________               PORT  OF TERMINATION WITHIN SIX (6) MONTHS FROM THE DAY WHEN               SUCH DELAY, DETENTION, PERSONAL  INJURY, ILLNESS OR DEATH OF               THE PASSENGER OCCURRED AND  IN NO EVENT SHALL ANY  SUCH SUIT               FOR  ANY CAUSE  AGAINST  THE CARRIER  OR  VESSEL FOR  DELAY,               DETENTION, PERSONAL INJURY, ILLNESS OR DEATH BE MAINTAINABLE               UNLESS SUCH SUIT SHALL BE COMMENCED WITHIN ONE (1) YEAR FROM               THE DAY WHEN THE  DELAY, DETENTION, PERSONAL INJURY, ILLNESS               OR  DEATH OF  THE  PASSENGER OCCURRED,  NOTWITHSTANDING  ANY               PROVISION OF LAW OF ANY STATE OR COUNTRY TO THE CONTRARY.                                         -4-               Our own view is that this case does not require  us to delve          into either  the locality  or nexus  requirements for  a maritime          tort under  Executive Jet Aviation,  Inc. v. Cleveland,  409 U.S.                      _____________________________    _________          249 (1972).  We view this as a straightforward contract case.  To          illustrate why  we think maritime tort  considerations merely fog          the  issue, we hypothesize the  following: if the  ticket in this          case  had explicitly set forth  a one year  limitation period for          any personal injury claims, whether the injuries were suffered on          ship  or shore,  we  strongly suspect  that  this suit  would  be          barred,  whether or not the tort were maritime in nature, because          such  a  provision would  meet  the  threshold one  year  minimum          requirement of 46 U.S.C.   183b(a).                 The  salient   question  in  our  minds   is  whether  this          particular  ticket  contract  limitations  provision  applies  to          claims based  on injuries suffered  on shore after  the passenger          clearly  has left the ship.  The  contract in this case being one          for "transportation of the plaintiff," it is a maritime contract.          The Moses  Taylor, 71  U.S. 411,  427 (1866); see  also Hodes  v.          _________________                             ___  ____ _____          S.N.C.  Achille Lauro  ed Altri-Gestione, 858  F.2d 905,  909 (3d          ________________________________________          Cir. 1988).   We see, however, nothing in this fact to change the          ordinary strictures  governing our plenary review  of the meaning          of a written contract,  including the principle that "in  case of          doubt, an instrument  is to be taken against  the party that drew          it."  Chelsea Industries, Inc. v. Accuray Leasing Corp., 699 F.2d                ________________________    _____________________          58,  61 (1st  Cir. 1983).   On  the contrary,  if there  were any          difference  in  approach  between  maritime and  common  law,  we                                         -5-          suspect  that the  former would  be more  solicitous of  those in          plaintiffs' position.   Cf. Moragne  v. States Marine  Lines, 398                                  ___ _______     ____________________          U.S. 375, 387 (1970).               Our inquiry into intent  and ambiguity yields the following.          The  ticket  booklet given  plaintiffs  bears  the cover  caption          "Passenger  Ticket  CONTRACT."    The term  "passenger"  is  then          defined  as "all persons travelling under this ticket."  The word          "carrier"  is defined as  "Royal Caribbean Cruises  Ltd.2 and all          Vessels  either  chartered,  operated,  or  controlled  by  Royal          Caribbean Cruises Ltd."  Subsequent  provisions exclude liability          of the carrier "for  any accident or harm to the  Passenger which          occurs off the vessel itself" or "occurring onshore"  and specify          that  "[s]hore excursions are operated by independent contractors          and the Carrier shall not be responsible . . . for . . . injury .          .  .  arising out  of any  service  provided by  such independent          contractors."               These  provisions  are followed  by the  limitations clause,          which  states,  in  bold  letters,   that  "[n]o  suit  shall  be          maintainable against the  carrier or  vessel for .  . .  personal          injury .  . .  of the passenger  unless written  notice . .  . is          delivered to  the carrier .  . . within  six (6) months  from the          [date of personal  injury] . . .  and in no event  shall any such                                        ____________________               2The name  of the defendant appearing in  all the pleadings,          motions, memoranda  of law,  and the  district  court opinion  is          "Royal Caribbean  Cruise Lines, Ltd." or  "Royal Caribbean Cruise          Lines,  Inc."   In the  ticket contract,  however, it  appears as          "Royal Caribbean Cruises Ltd."  There has been no explanation for          this  discrepancy.   We  do  not  suggest  that  this  has  legal          consequences, in light of our conclusion.                                         -6-          suit . . .  be maintainable unless  such suit shall be  commenced          within one (1) year from the day when the . . . personal injury .          . . occurred . . . ."                  Reading the  contract  as  a whole,  we  conclude  that  its          reasonable  intendment is to  refer to  claims of  passengers for          injuries while  on board ship.   Not only does  the definition of          passenger as one "travelling under this ticket" smell of the sea,          but this  interpretation is  strongly reinforced by  the explicit          avoidance of liability for injuries sustained on shore.  There is          even the added statement  that shore excursions are in  the hands          of independent contractors  for whose actions the  carrier has no          liability.   Finally, the definition  of carrier refers  to Royal          Caribbean  Cruises Ltd.  "and all vessels  . .  . owned"   by it.          There is no mention of "hotels or resorts" owned by it.  As Judge          Aldrich wrote for our court in Chelsea Industries, "He who speaks                                         __________________          should speak  plainly or the other  party may explain to  his own          advantage."   699  F.2d at  61 (quoting  Opportunity Consultants,                                                   ________________________          Inc. v. Tugrul, 354 N.E.2d 698, 699 (Ohio 1976)).          ____    ______               Although  we believe  that the above  reading of  the ticket          contract  is  correct,  we  have absolutely  no  doubt  that  the          contract is at  the very  least ambiguous and  that therefore  it          must  be construed against the  defendant.  Finally,  even if the          relevant provisions were to escape the meaning we ascribe to them          and to hurdle the  obstacle of ambiguity, they would fail to meet          our  standard of "reasonable  communicativeness" under such cases          as  Lousararian.   We  could not  say,  for example,  that  after              ___________                                         -7-          examining "the facial  clarity of the  ticket contract" that  the          "language   and   appearance   make   the   relevant   provisions          sufficiently obvious and understandable."  Id. at 8.                                                     ___               The grant of  summary judgment for defendant is reversed and               ____________________________________________________________          the  case  is  remanded  to   the  district  court  for   further          _________________________________________________________________          proceedings consistent with this opinion.          _________________________________________                                         -8-
