Julius Korn v. Royal Caribbean Cruise Line, Inc.

724 F.2d 1397 Julius KORN, Plaintiff-Appellant, v. ROYAL CARIBBEAN CRUISE LINE, INC., Defendant-Appellee. No. 83-5567. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1983. Decided Jan. 31, 1984. Bradley D. Marcus, Beverly Hills, Cal., for plaintiff-appellant. Michael J. Faber, Los Angeles, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before CHOY, WALLACE and ANDERSON, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 Julius Korn appeals a district court denial of his motion for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(c). We granted permission to appeal the interlocutory order based upon the district court's certification under 28 U.S.C. Sec. 1292 (b). We reverse. I. BACKGROUND 2 On August 31, 1980, while a passenger aboard the cruise ship M/S "Song of Norway," Julius Korn suffered a knee injury during a fall on the ship's basketball court. Following a consultation with the ship's doctor and a subsequent visit with an orthopedist in Puerto Rico, Mr. Korn curtailed his cruise and returned to his home in California where he underwent surgery to repair the…

dissenting:

I dissent because I find the record too scanty to conclude, as does the majority, that the required notice of the filing of the action was given.

I gather from the rather incomplete record that RCCL, A/S owns the ship involved in this case. RCCL, Inc. is a separate corporation which books cruises on this and other ships. Apparently, Port Cruise Services, Inc. is an independent corporation, but its stationery suggests that it acts as some type of a general operating agent for RCCL, A/S and its ships. Caribbean Marine Associates, Inc. (CMA) is an independent corporation and a subsidiary of Shipowners Claims Bureau, Inc. It was apparently acting in this instance as a claims agent for RCCL, Inc.

On this record, I cannot agree that notice to an employee of CMA allows us to impute notice of the filing of the action to RCCL, Inc., and that imputed notice to RCCL, Inc. allows us to impute notice to RCCL, A/S. Yet, only through this circuitous imputation *1402 may RCCL, A/S become a new party through substitution by amendment for RCCL, Inc.

Korn gave RCCL, Inc. direct notice of the filing of his suit against it, but only after the applicable limitation period had expired.…

Julius Korn appeals a district court denial of his motion for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(c). We granted permission to appeal the interlocutory order based upon the district court’s certification under 28 U.S.C. § 1292 (b). We reverse.

I. BACKGROUND

On August 31, 1980, while a passenger aboard the cruise ship M/S “Song of Norway,” Julius Korn suffered a knee injury during a fall on the ship’s basketball court. Following a consultation with the ship’s doctor and a subsequent visit with an orthopedist in Puerto Rico, Mr. Korn curtailed his cruise and returned to his home in California where he underwent surgery to repair the damaged knee.

Shortly thereafter, Mr. Korn’s ticket, together with those of his wife and two daughters, were returned to the passenger control officer of Royal Caribbean Cruise Line, Ms. Ordonoz, by the Korns’ travel agent. The agent’s letter informed Ms. Or-donoz of Mr. Korn’s misfortune and requested assistance in obtaining reimbursement for the unused portion of the Korn family’s cruise tickets.

In October, 1980, Bradley D. Marcus wrote to Royal Caribbean Cruise Line, Inc. (RCCL Inc.), informing the corporation that he…