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Roszak v. Princess Cruises8/30/1993
Per Curiam.
This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs of counsel. Plaintiffs-appellants, Elizabeth and Casimer Roszak, timely appeal the decision of the lower court which granted the motion for summary judgment filed by defendant-appellee, Princess Cruises, Inc.
Appellants' amended complaint alleged that Mrs. Roszak, while a passenger on a vessel owned and/or operated by Princess Cruises, was injured, due to the negligence of Princess Cruises and/or its employees, when a fellow passenger fell on top of her. Princess Cruises duly answered and denied any allegations of negligence. As an affirmative defense, Princess Cruises asserted that the "plaintiff did not commence this action within one year as required by the passage contract which plaintiff entered into with defendant."
Princess Cruises moved for summary judgment on the ground that appellants' claim was time-barred by a clause in the passage contract limiting the time in which a passenger may file suit for injury against Princess Cruises to one year after the date of injury. Attached to Princess Cruises' motion is the affidavit of Mary Van Hyning, an employee of Princess Cruises. Van Hyning averred that:
"Plaintiff claims she suffered an injury aboard the Sky Princess on February 7, 1991. The ship was at anchor off the island of St. Maarten at the time of the alleged injury. The Sky Princess was stopped at St. Maarten as an intermediary port during a seven day voyage from and returning to Fort Lauderdale, Florida. The document attached to this affidavit is an example of the ticket of passage issued to the plaintiff by Princess Cruises, Inc. as agent for the carrier. The entire contract of passage is printed on the passage ticket.
"Princess Cruises, Inc. forwards the passage ticket to all passengers prior to the voyage. Upon boarding the ship for the beginning of the voyage the top page or 'embarkation copy' of the ticket is surrendered to the appropriate personnel aboard ship. The remainder of the passage ticket, including all the terms and conditions, is retained by the passengers.
"Paragraph 16 of the passage ticket contains an express provision regarding the proper forum for bringing any law suits relating to the voyage. The passage ticket requires that any such law suit must be commenced within one year of the incident that is the basis for the law suit. The law suit is also required to be brought in a court located in the County of Los Angeles, California, and in no other location."
The sample passage ticket is composed of seven full pages, including three front pages nominally titled, in red ink, "OFFICE COPY," "EMBARKATION COPY," and "PASSENGER COPY." Each of the front pages contains on the bottom left-hand corner the following notice, also in red ink:
"IMPORTANT NOTICE"
"This ticket includes the Passage Contract Terms on the succeeding pages which are binding on you. Please read them carefully."
The title to the passage ticket and the notice are the only provisions on the passage ticket in red ink.
On the last page of the passenger ticket is found the following time limitation for personal injury claims:
"16. TIME LIMITATION; NOTICE BY YOU OF CLAIMS AND SUITS; ONLY PLACE TO SUE.
"In cases involving claims for bodily injury to or death of any Passenger, no lawsuit may be brought against the Carrier, Captain, any of the officers, crew and agents of the ship unless (i) written notice giving full particulars of the claim
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