Ray Racca v. Celebrity Cruises, Inc. , 376 F. App'x 929 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13343 ELEVENTH CIRCUIT
APRIL 27, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 08-21135-CV-WMH
RAY RACCA,
Plaintiff-Appellant,
versus
CELEBRITY CRUISES, INC.,
ROYAL CARIBBEAN CRUISES LTD.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 27, 2010)
Before EDMONDSON, PRYOR and COX, Circuit Judges.
PER CURIAM:
The issue in this case is whether a contractual provision in a cruise ticket which
limits a passenger’s right to sue for personal injuries to one year was reasonably
communicated to the Plaintiff Ray Racca. After review, we affirm the district court’s
grant of summary judgment to Defendants.
Racca filed suit against Celebrity Cruises, Inc. and Royal Carribean Cruises,
Ltd. on April 22, 2008, alleging that he injured his knee by stepping into a hole
beneath the carpet in the hallway near his room on the ship on April 30, 2006. The
injury resulted in Racca undergoing several surgeries and a complete knee
replacement. Because Racca did not bring suit within one year of the date of injury,
the district court granted summary judgment to Celebrity and Royal Caribbean,
holding that Racca’s suit was barred by the limitations period in the cruise ticket.
Racca filed a motion to reinstate and/or motion for a new trial. The district court
denied this motion. Racca appeals.
The contract in Racca’s passenger ticket issued by Celebrity provides:
No suit shall be maintainable against carrier, the vessel or the transport
for any claim, including but not limited to delay, detention, personal
injury, illness or death of passenger unless written notice of the claim,
with full particulars, shall be delivered to carrier at its principal office
within six (6) months from the day the cause of action occurred; and in
no event shall any such suit for any cause against carrier, the vessel, or
the transport be maintainable unless such suit shall be commenced
(filed) within one (1) year from the day when the cause of action
occurred and process was served within thirty (30) days after filing,
notwithstanding any provision of law of any state or country to the
contrary.
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(R.1-6, Cruise/CruiseTour Ticket Contract at ¶ 12(B).) Title 46 U.S.C. § 30508(b)(2)
specifically authorizes cruise lines to place a one-year limitations period on the right
of passengers to file personal injury law suits. “Courts will enforce such a limitation
if the cruise ticket provided the passenger with reasonably adequate notice that the
limit existed and formed part of the passenger contract.” Nash v. Kloster Cruise A/S,
901 F.2d 1565, 1566 (11th Cir. 1990) (citations omitted).
Racca contends that the district court erred because the limitations provision
in the contract was not reasonably communicated to him: “[t]he ticket is roughly 100
pages and even though the ticket does provide some notice to the guest (on the front
cover) that something important is contained inside[,] the font directing the guest to
the specific section(s) does not stand out from the other words on the cover nor is the
language distinguishable by any highlight, bolding, italics or underlines.”
(Appellant’s Br. at 10). In addition, Racca notes that he is in his late-70's.
The district court concluded that the limitations provision in the cruise ticket
was binding on Racca. The brochure does contain one hundred pages. The district
court concluded, however, that:
the ticket contract is only three (3) pages within the entire “Guest
Vacation Brochure” [Racca] received prior to the cruise. Indeed, the
warning that the contract “contains important limitations on the rights
of passengers” appears on the face of the Guest Vacation Brochure
received by [Racca], and an index to the Brochure appears on page 1,
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noting that the ticket contract can be found on page 67 of the Brochure.
. . .[Further], despite all of his complaints about Defendant and the ticket
contract, [Racca] does not dispute that he received the ticket contract
and that the unambiguous limitations language is contained therein.
[Racca] apparently had an attorney as early as July 2007, but still waited
until April 2008 to file this action. [Racca’s] surgeries occurred within
months of the accident in 2006, but there is no record that [he] provided
Defendant with written notice of his claim at any time prior to the filing
of this lawsuit.
(R.1-19 at 3-4.) Based on these findings, the district court held that Racca did not
“raise[ ] a sufficient basis to avoid the binding provisions of this contract and the
terms of the contract are enforceable against [him].” (R.1-19 at 4.)
We find no error in the district court’s grant of summary judgment to Celebrity.
A passenger’s failure to actually read the contractual provision at issue does not
preclude his being bound. Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (5th Cir.
1979). The question is whether Racca received adequate notice of the limitations
provision.
Although a passenger may almost never read all of the fine print on the
ticket upon purchase, or as pleasure reading in the berth the first night
at sea, the same passenger might very well be expected to consult the
multifarious terms and conditions of the ticket/contract in the event of
an accident resulting in a loss or injury.
Nash, 901 F.2d at 1568 (quotation and citation omitted). Here, after his injury, or
certainly after one of his surgeries, it is not unreasonable to expect Racca to read the
three-page contract which the face of the brochure directed him to. Moreover, even
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though he consulted an attorney by July 2007, Racca waited another nine months to
commence this lawsuit. We do not consider Racca’s argument regarding his claims
under Texas Consumer Protection Statutes because he failed to raise it in the district
court. See Krenkel v. Kerzner Int’l Hotels, Ltd., 579 F.3d 1279, 1282 n.3 (11th Cir.
2009). Racca’s contention that there was unfairness, bad faith, and/or fraud is
meritless. Finally, Racca’s argument that the district court erred in granting Royal
Caribbean summary judgment because Royal Caribbean was not a party to the
agreement between Racca and Celebrity is without merit because he presents no
argument on this appeal supporting liability on the part of Royal Caribbean.
AFFIRMED.
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