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CADA v. COSTA LINE

United States District Court, Northern District of Illinois, E.D


August 25, 1982

JOSEPH J. CADA, ET AL., PLAINTIFFS,
v.
COSTA LINE, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Joseph and Jean Cada ("Cadas") filed this class action against Costa Line, Inc. ("Line") and its parent company, Costa Armatori, S.p.A. ("Armatori"). Judge McGarr (to whom the case was first assigned) then certified a class of all passengers who have claims arising out of the March 30, 1979 fire on one of Armatori's cruise ships, Angelina Lauro. Defendants (collectively "Costas") have now moved for partial summary judgment, claiming each class member's recovery is limited by Articles 20 and 21 of the passage ticket (the "Ticket") to 120,000 Italian lire (about $150). For the reasons contained in this memorandum opinion and order, Costas' motion is denied.

Costas contend a Ticket was timely delivered to each passenger.*fn1 For purposes of this opinion it will be assumed (without deciding) that Articles 20 and 21, if valid and enforceable, would limit Costas' liability as they claim.*fn2 With that assumption, the question posed by Costas' motion is whether the limitation on liability must be given effect as a matter of law.

Because of the approach taken by the leading cases in this area, it becomes important to describe the Ticket in some detail. It is actually a booklet about 8 1/4 inches by 3 1/2 inches. Its cover features the Costa logo and the words "passage ticket" in English and other languages. At the top of page 2, set off in small but still readable boldface type, is the legend:

  Terms and Conditions of contract of passage and
  baggage.

Each of pages 2 through 10 has two columns of printing almost as fine as the printer's art will allow (they appear to be 3- or 4-point type), in Italian on the left and English on the right. They contain 35 articles (Articles 20 and 21 are on page 7). After Article 35 the following sentence appears on page 10, set in the same slightly larger typeface as the all-capitals Article headings (all errors in grammar, punctuation and spelling are in the original document):

  THE HOLDER OF THIS PASSAGE TICKET, DO HEREBY
  DECLARE TO THE EFFECTS AND UNDER PROVISIONS OF
  ARTT. 1341 and 1342 OF THE ITALIAN CIVIL CODE IN
  FORCE, THAT HE IS AWARE AND ADHERES TO ALL
  CONDITIONS AND CLAUSES SET FORTH IN THIS PASSAGE
  CONTRACT AND THAT HE SPECIFICALLY APPROVES
  CLAUSES Nos. 1, 2, 4, 6, 8, 9, 10, 11, 12, 13,
  14, 15, 16, 20, 21, 23, 24, 25, 26, 27, 28, 29,
  30, 32, 33, and 35.

Next is a foldout page containing a passenger declaration form to be filled out and signed by the passenger. It is headed by several "Notices," none of which refers to baggage or the limitation of liability. Nor does any of the questionnaire blanks contain any provision for declaration of excess baggage value (which Article 20 provides as a condition of greater liability for the carrier).

Finally, near the back of the booklet, is the coupon portion of the Ticket. Each of six coupons, identical except for different letter designations, contains the ticket number, the Costa logo and separate blanks for the name of the ship, port of embarkation, date, class of passage, cabin and berth, passenger's name and the fare. In the upper left-hand corner is the following in Italian and English:

  By accepting or using this ticket the passenger
  agrees to the terms and conditions appearing on
  pages 2/10.

Facts such as these have produced two inconsistent lines of authority among the Courts of Appeals (ours has not spoken on the subject) as to the enforceability of liability-limiting clauses. Compare such cases as Silvestri v. Italia Societa per Azioni di Navigazione,
388 F.2d 11 (2d Cir. 1968) and DeNicola v. Cunard Line, Ltd., 642 F.2d 5 (1st Cir. 1981) (both relying on The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897)) with cases like Miller v. Lykes Bros. S.S. Co., 467 F.2d 464 (5th Cir. 1972) (distinguishing The Majestic).

But the dominant trend is exemplified by Judge Friendly's opinion in Silvestri. Later decisions have taken even "a more expansive view" of the problem (DeNicola, 642 F.2d at 9), and Judge Will of this District Court applied the Silvestri rule with approval from our Court of Appeals, Hahn v. Norwegian America Line, 1973 A.M.C. 794 (N.D.Ill. 1971), aff'd on the opinion below, No. 71-1398 (7th Cir. Apr. 19, 1972) (unpublished order).

Silvestri itself concluded, 388 F.2d at 17 (emphasis added):

  However, the thread that runs implicitly through
  the cases sustaining incorporation is that
  the steamship line had done all it reasonably could
  to warn the passenger that the terms and conditions
  were important matters of contract affecting his
  legal rights.

And the most recent word from a Court of Appeals on the issue, DeNicola, 642 F.2d at 9, summarized the current state of the law this way:

  Subsequent decisions, however, have taken a more
  expansive view, suggesting

  that the Silvestri approach should govern the
  analysis in most if not all steamship ticket cases.
  Specifically, the courts appear to have
  deemphasized such traditionally significant factors
  as the placement of the carrier's signature and the
  contents of the contract proper and focused instead
  on the adequacy of notice appearing anywhere in the
  ticket documents.

Thus Costas may prevail on their motion only if as a matter of law they did "all [they] reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights." After examining the Ticket and comparing it to those in cases in which summary judgment was granted, this Court concludes a factual issue exists as to the "reasonable communicativeness" of the warnings in the Ticket.

DeNicola granted summary judgment for defendants, as did both Hahn and McQuillan v. "Italia" Societa per Azione di Navigazione, 386 F. Supp. 462 (S.D.N.Y. 1974), aff'd on the opinion below, 516 F.2d 896 (2d Cir. 1975). Comparison of the notice provisions in those three cases with the Ticket is illuminating:

    1. In DeNicola the format of the ticket was
  similar to Costas', but the following appeared on
  the cover page:

Terms and conditions of contract

    Notice. The attention of passengers is
    especially directed to the terms and conditions
    of this contract appearing within and it is
    mutually agreed that this contract ticket is
    issued by Cunard Line Limited and accepted by
    the passenger subject to such terms and
    conditions.

    2. Hahn also featured far better notice than is
  present here — the following all-capitals legend
  printed in red ink on the cover of the ticket:

    IMPORTANT NOTICE: THE ATTENTION OF PASSENGERS IS
    ESPECIALLY DIRECTED TO THE TERMS AND CONDITIONS
    OF THE "CONTRACT OF CARRIAGE" AND IT IS MUTUALLY
    AGREED THAT THE CONTRACT TICKET IS ISSUED BY THE
    COMPANY AND ACCEPTED BY THE PASSENGER SUBJECT TO
    THE TERMS AND CONDITIONS SET FORTH. A COPY OF THE
    "CONTRACT OF CARRIAGE" APPEARS ON THE REVERSE
    SIDE OF THIS PAGE AND CONTINUED ON THE INSIDE
    COVER OF THIS TICKET.

3. McQuillan, 386 F. Supp. at 465-66, also involved a notice beginning in prominent lettering on the cover page of the booklet and continuing onto the second page:

Terms of Passage Contract.

  Passengers are kindly requested to read the
  conditions of this contract before accepting.
  "Italia," Societa per Azioni di Navigazione,
  hereafter referred to as "the Company," agrees to
  provide the transportation described herein to
  the person or persons named herein, subject to
  the terms set forth in this passage contract,
  printed on this page and on pages 3, 4, 5, 6.

As recently noted by Judge Werker (who authored McQuillan) in Raskin v. Compania de Vapores Realma, S.P., 521 F. Supp. 337, 341 (S.D.N.Y.):

  I find it significant that the line of
  post-Silvestri cases enforcing contractual periods
  of limitations have all involved tickets or coupons
  with conspicuous facial warnings.*fn3

There was no such clear facial warning in this case. It is at least possible that a jury could reasonably find as to the Ticket:

    1. Its one-sentence statement (not phrased as a
  "notice" or warning), located in the upper
  left-hand corner of the page containing the
  filled-in blanks, was insufficiently

  conspicuous (and perhaps its reference to "pages
  2/10" was ambiguous to a person whose native
  tongue and usage are American English).

    2. Its legend following Article 35 was
  insufficiently brought to the passenger's
  attention by a notice in a more conspicuous
  location.

Thus it cannot be said that the notice provided by Costas met the Silvestri standard as a matter of law.*fn4

Conclusion

Costas' motion for partial summary judgment based on Articles 20 and 21 of the Ticket is denied.


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