Cruise Ship Law

FLOYD RESNICK, Plaintiff, -against- VANTAGE DELUXE WORLDTRAVEL, INC., Defendant.

03 Civ. 1114 (LAK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 22904
November 12, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger was injured in a slip and fall aboard a ship. The passenger alleged that defendant owner owned, operated, maintained and controlled the ship, and that the passenger was injured in consequence of unspecified negligence. The passenger motioned for partial summary judgment of liability and for other relief and the owner's motion for summary judgment dismissing the complaint.

OVERVIEW: The passenger contended that the owner waived its ticket limitations by failing to plead them as affirmative defenses. The court noted that even assuming that a plaintiff's allegation of compliance with contractual conditions could overcome a defendant's failure to plead the defense affirmatively, the passenger never alleged timely institution of the action. The owner's failure to plead that the action was not timely commenced therefore waived any such defense. There was a genuine issue of material fact as to what documents were given to the passenger and as to their contents. It was impossible to determine on motion what if any notice was required, let alone whether legal standards determining the sufficiency of limitation in passenger tickets were satisfied. There was ample evidence to go to the jury on the issue whether the owner had constructive notice of a dangerous condition that was a proximate cause of the accident. The passenger was entitled to partial summary judgment to the extent that he fell as a proximate consequence of getting his shoes wet by walking across the mat and then slipping. There was no competent evidence as to the extent of his injuries.

OUTCOME: The passenger's motion for partial summary judgment was granted to the extent that the passenger was injured in a fall caused in part by a wet mat and the owner was estopped to deny that, at the time of the accident, it was the owner of the vessel; the motion was denied in all other respects.