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Axelrod v. Incres Steamship Co.

decided: July 19, 1966.

ANITA AXELROD AND ALFRED AXELROD, PLAINTIFFS-APPELLANTS,
v.
INCRES STEAMSHIP CO., LTD., DEFENDANT-APPELLEE, AND INCRES LINE AGENCY INC., BARBER STEAMSHIP LINES, INC., HENRIKSEN DONGFIN & KERR STEAMSHIP CO., INC., DEFENDANTS



Waterman, Moore and Anderson, Circuit Judges.

Author: Moore

MOORE, Circuit Judge.

On February 3, 1961, plaintiffs were passengers on the S.S. Nassau when that ship collided with the M/V Brott. On February 3, 1962, plaintiffs filed an initial complaint for negligence on behalf of plaintiff Anita Axelrod and for loss of service on behalf of her husband, plaintiff Dr. Alfred Axelrod, naming as defendants Henriksen Dongfin and Kerr Steamship Co. as the alleged owners of the Brott and Barber Lines and Incres Line Agency, Inc. as the alleged owners of the Nassau.

On October 3, 1962, more than one year from the date of the alleged injury, plaintiffs were granted leave to file an amended complaint naming an additional defendant, Incres Steamship Co., Ltd., as the true owner of the Nassau. Plaintiffs consented to the two conditions on which the motion to amend was granted: the amended complaint was not to relate back to the time of the filing of the original complaint, and plaintiffs were not to argue that it did. The amended complaint was filed on December 20, 1962.

The newly added defendant Incres Steamship Co. moved for summary judgment on the ground that the action against it was time-barred by a provision in the contract of passage which called for the commencement of of an action for personal injuries within one year from the date of injury. The District Court granted the motion. From that judgment, plaintiffs appeal.

Appellants vigorously contend that the time-bar provision was not within the contract of passage, either expressly or by reference, and that therefore Mrs. Axelrod would not be bound by the timebar provision unless it was somehow brought to her attention. The Majestic, 166 U.S. 375, 17 S. Ct. 597, 41 L. Ed. 1039 (1897); The Kungsholm, 86 F.2d 703 (2d Cir. 1936); Maibrunn v. Hamburg-American S.S. Co., 77 F.2d 304 (2d Cir. 1935). The appellee just as vigorously maintains that the time-bar was incorporated into the contract of passage, at least by reference, and so was binding on both appellants whether or not they read the fine print on the ticket. Geller v. Holland-America Line, 298 F.2d 618 (2d Cir.), cert. denied 370 U.S. 909, 82 S. Ct. 1256, 8 L. Ed. 2d 403 (1962); Baron v. Compagnie Generale Transatlantique, 108 F.2d 21 (2d Cir. 1939). We do not find it necessary to decide this appeal by application of what "concededly * * * is a very formal doctrine," The Kungsholm, 86 F.2d at 704, since we conclude that even if the time-bar provision were binding on both appellants, the appellee Incres Steamship Co. is in no position to assert that suit against it was not commenced within one year from the date of injury. We base our conclusion both upon the ambiguity engendered by the defendants as to the ownership of the Nassau and on the ample notice of the pendency of the action received by the appellee within the contractual period of limitations.

The ambiguity as to the ship's ownership began with the passenger ticket Dr. Axelrod received from his travel agency in Philadelphia. The ticket heading was as follows:

INCRES LINE

OWNER

INCRES STEAMSHIP COMPANY, LTD.

E INCRES LINE AGENCY INC. E

PASSAGE General Agents for North America PASSAGE

CONTRACT 39 BROADWAY -- NEW YORK 6, N. Y. CONTRACT

The heading raises many questions. Who owns the vessel Nassau? The bold face type at the top, over the word "OWNER," indicates that "INCRES LINE" is the proprietor. But then who is "Incres Steamship Company, Ltd."? And who is "INCRES LINE AGENCY INC."? Is it the agent for the owner, which is either "INCRES LINE" or "Incres Steamship Company, Ltd."? Or are both "Incres Steamship Company, Ltd." and "Incres Line Agency Inc." "general agents for North America" for "INCRES LINE, OWNER"? All we can say with some degree of assurance is that all of ...


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