FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK OLTMAN, individually and as 

Executor of the Estate of Bernice

Oltman; SUSAN OLTMAN,

Plaintiffs-Appellants, No. 07-35135

v. D.C. No.  CV-05-01408-JLR HOLLAND AMERICA LINE, INC., a

Washington corporation; HOLLAND OPINION

AMERICA LINE—USA, INC., a

Delaware corporation,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted

July 9, 2008—Seattle, Washington

Filed August 19, 2008

Before: Richard R. Clifton and N. Randy Smith,

Circuit Judges, and Brian Sandoval,* District Judge.

Opinion by Judge Clifton

*The Honorable Brian Sandoval, United States District Judge for the

District of Nevada, sitting by designation. 

10985
COUNSEL

Noah C. Davis (argued), In Pacta, PLLC, Seattle, Washington, for the plaintiffs-appellants. 

John P. Hayes (argued) and Paul S. Smith, Forsberg &

Umlauf, P.S., Seattle Washington, for the defendantsappellees. 

10988 OLTMAN v. HOLLAND AMERICA LINE
OPINION

CLIFTON, Circuit Judge: 

Jack Oltman and his mother, Bernice Oltman,1 allege that

they both contracted a serious gastrointestinal illness on a

cruise ship operated by Defendants Holland America Line,

Inc. and Holland America Line—USA, Inc. (collectively,

Holland). Together with Jack’s wife Susan, they filed an

action against Holland in Washington state court, which later

dismissed the action based on a forum selection clause in the

cruise contract.2 The same day the state court dismissed the

action, the Oltmans filed an essentially identical action

against Holland in the federal court specified in the forum

selection clause. Holland moved for summary judgment,

arguing that the federal filing was too late based on a one-year

limitations clause contained in the cruise contract. The Oltmans objected, arguing, among other things, that their filing

in state court had been timely even though the one-year period

had expired prior to their federal filing. The district court

granted summary judgment on all claims in favor of Holland

after concluding the claims were time-barred under the contract. 

The primary question presented by this appeal is whether

the contractual limitations period should have been equitably

tolled based on the timely filing of the state court action and

the prompt filing in federal court after the state action was

dismissed. We answer that question in the affirmative and

reverse.

1Bernice passed away on September 19, 2006. Her interests in this lawsuit are now represented by Jack, as the executor of Bernice’s estate. 

2Because Jack, Bernice, and Susan Oltman share the same last name, in

this opinion they are identified by their first names. 

OLTMAN v. HOLLAND AMERICA LINE 10989
I. Background

Jack booked a cruise for himself and his mother, Bernice,

on March 18, 2004. They boarded Holland’s ship, the MS

Amsterdam, in Chile less than two weeks later, on March 31,

2004, and arrived in San Diego, California, as scheduled on

April 17. They received their travel documents at the time

they boarded the ship in Chile.3

The travel documents were contained in a travel booklet,

which included their itinerary, the contract governing the

cruise (the cruisetour contract), and cancellation information.

The contract began on page 11 of the booklet and stated that

it was “ISSUED SUBJECT TO THE TERMS AND CONDITIONS ON THIS PAGE AND THE FOLLOWING PAGES.”

The contract advised the Oltmans to “READ TERMS AND

CONDITIONS CAREFULLY.” The contract noted that

“THIS DOCUMENT IS A LEGALLY BINDING CONTRACT” and included a forum selection clause stating that

any lawsuit arising out of the cruise or contract must be litigated in the United States District Court for the Western District of Washington or, if that court lacked subject matter

jurisdiction, “in the courts of King County, State of Washington.” 

The contract also informed the Oltmans that “YOUR

ATTENTION IS ESPECIALLY DIRECTED TO” various

clauses in the contract, including clause A.3, which provided:

3. Time Limits for Noticing Claims and Filing

and Service of Lawsuits. In any case governed by

3According to Jack, they received their travel documents either “six

days prior to the cruise[ ] or at the time [they] boarded the cruise ship in

Valparaiso, Chile.” Construing this evidence in the light most favorable to

the Oltmans, for purposes of this appeal we assume they received the

travel documents at the time they boarded the ship. See Olsen v. Idaho

State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). 

10990 OLTMAN v. HOLLAND AMERICA LINE
46 United States Code Section 183b, which is a

United States statute that permits any shipowner to

limit the time during which a passenger may file a

claim or commence suit against a shipowner, you

may not maintain a lawsuit against us or the Ship for

loss of life or bodily injury unless written notice of

the claim is delivered to us not later than six (6)

months after the day of death or injury, the lawsuit

is commenced not later than one (1) year after the

day of death or injury, and valid service of the lawsuit on Owner, the HAL Company or the Ship, as

applicable, is made within thirty (30) days following

the expiration of that one-year period. For all other

claims, including but not limited to claims for loss or

damage to baggage, breach of contract, illness or

death or injury, not governed by 46 United States

Code Section 183b, you may not maintain a lawsuit

against us or the Ship, nor will we or the Ship be liable therefore, unless we are provided with written

notice of claim within thirty (30) days after conclusion of the Cruise or Cruisetour, the lawsuit for such

claim is commenced not later than one-year after

conclusion of the Cruise or Cruisetour, and valid service of the lawsuit on Owner, the Ship or the HAL

Company, as applicable, is made within thirty (30)

days following the expiration of that one-year

period. 

While on the cruise, Jack and Bernice allege that they contracted “a severe gastrointestinal disease [that] broke out and

infected many of the passengers.” On April 16, 2004, the day

before the ship arrived in San Diego, Jack visited the ship’s

infirmary for “stomach discomfort.” That night, Jack “felt

much better.” The next morning, however, his “disposition

changed drastically” and he “fell horribly ill” with “pounding

in my head,” “aching throughout my body,” and “feelings of

being hot and cold” and “nauseas with diarrhea.” Jack and

OLTMAN v. HOLLAND AMERICA LINE 10991
Bernice continued to suffer from the “illness, its symptoms

and/or side effects” for more than a year. 

On March 30, 2005, shortly before expiration of the oneyear time limit set by the contractual provision quoted above,

the Oltmans, who were then residents of California, filed a

complaint against Holland in King County Superior Court. It

alleged, among other things, that Holland’s negligence led to

the illnesses of Jack and Bernice. The complaint also included

a claim by Susan for loss of consortium. 

Holland moved to dismiss that action on the ground that the

forum selection clause required the action to be filed in the

U.S. District Court for the Western District of Washington.

On August 12, 2005, the state trial court granted that motion.

The Oltmans appealed that state court dismissal, but to protect

themselves, they also filed the current action in the Western

District of Washington on the same day the state court action

was dismissed. 

That was, however, more than one year after Jack and Bernice became ill and their cruise trip ended. Holland brought

a motion for summary judgment in federal district court on

the ground that the federal action was filed after the one-year

limitations period established by the contract. The district

court granted that motion with regard to the claims brought by

Jack and Bernice. The court concluded that the one-year limitations period in the cruise contract was reasonably communicated and was fundamentally fair, so it was effective and

barred the claims brought by Jack and Bernice, both of whom

were parties to the contract. The court denied summary judgment on Susan’s loss of consortium claim, however, concluding that the contract, including its limitations clause, did not

apply to Susan, as she was not a party to the contract. 

Holland subsequently brought another motion for summary

judgment on Susan’s loss of consortium claim on a different

ground, arguing that her claim must be dismissed because

10992 OLTMAN v. HOLLAND AMERICA LINE
Jack contracted his illness outside of United States territorial

waters while federal maritime law recognizes such a claim

only where the illness was contracted within territorial waters.

After that motion was filed but before it was resolved, the

Washington Court of Appeals, on appeal from the state trial

court’s dismissal, concluded that the cruise contract does

apply to Susan. See Oltman v. Holland Am. Line USA, Inc.,

148 P.3d 1050, 1058 (Wash. Ct. App. 2006), overruled in part

by 178 P.3d 981, 990, 995 (Wash. 2008). The district court

honored that ruling by granting Holland’s motion for summary judgment on Susan’s claim on collateral estoppel

grounds, holding that Susan’s loss of consortium claim, like

the claims of Jack and Bernice, was time-barred under the

contract. The court did not address Holland’s argument based

on the contention that Susan’s claim should not be recognized

because Jack did not become ill within U.S. territorial waters.

The Oltmans later brought two separate motions, one each

under Rules 59 and 60(b) of the Federal Rules of Civil Procedure, for the court to reconsider its summary judgment orders.

They argued that the limitations period should have been

equitably tolled and cited for the first time two cases in support of that argument: Burnett v. N.Y. Cent. RR. Co., 380 U.S.

424 (1965), and Berry v. Pac. Sportfishing, Inc., 372 F.2d 213

(9th Cir. 1967). The district court denied both motions. 

On February 26, 2007, the Oltmans appealed the district

court’s summary judgment orders and orders denying relief

under Rules 59 and 60(b). While this appeal was pending, the

Washington Supreme Court reversed the state court of

appeals’ decision that Susan is bound by the cruise contract,

held that the contract does not apply to Susan, and remanded

her loss of consortium claim to the King County Superior

Court. See Oltman, 178 P.3d at 990, 995. The state supreme

court, in effect, reached the same conclusion that the district

court reached when it first considered the issue. Because this

case was already on appeal, though, the district court has not

OLTMAN v. HOLLAND AMERICA LINE 10993
been able to revisit that question, and it is left for us to take

into account this subsequent development. 

II. Discussion

The Oltmans seek reversal of the district court’s summary

judgment orders. They contend that the one-year limitations

clause in the contract is invalid because it was not reasonably

communicated and is fundamentally unfair. They further

assert that, even if the limitations clause is enforceable, the

limitations period should have been equitably tolled during

the pendency of the state court action. Lastly, the Oltmans ask

this court to remand Susan’s loss of consortium claim in light

of the Washington Supreme Court’s recent decision. 

We review a district court’s decision to grant summary

judgment de novo. Olsen, 363 F.3d at 922. Under Federal

Rule of Civil Procedure 56, we must determine whether,

viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact

and whether the district court correctly applied the relevant

substantive law. Id.; see generally Fed. R. Civ. P. 56.

A. Validity of the One-Year Limitations Clause

1. Reasonable Communicativeness Test 

[1] This court employs the two-pronged “reasonable communicativeness test” to “determine under federal common law

and maritime law when the passenger of a common carrier is

contractually bound by the fine print of a passenger ticket.”

Wallis v. Princess Cruises, Inc., 306 F.3d 827, 835 (9th Cir.

2002). The first prong of the test “focuses on the physical

characteristics of the ticket” and requires courts to “assess

features such as size of type, conspicuousness and clarity of

notice on the face of the ticket, and the ease with which a passenger can read the provisions in question.” Id. (internal quotation marks and brackets omitted). The second prong

10994 OLTMAN v. HOLLAND AMERICA LINE
“requires us to evaluate the circumstances surrounding the

passenger’s purchase and subsequent retention of the ticket/

contract,” including “the passenger’s familiarity with the

ticket, the time and incentive under the circumstances to study

the provisions of the ticket, and any other notice that the passenger received outside of the ticket.” Id. at 836 (quotation

marks and emphasis omitted). 

[2] Jack and Bernice were given a travel booklet that

included their itinerary and the cruise contract. The table of

contents appears before the itinerary and lists four items,

including “CONTRACT (PLEASE READ),” which begins on

page 11. On the third page of the contract, the passengers’

cabin number is listed, under which the following appears:

“ISSUED SUBJECT TO THE TERMS AND CONDITIONS

ON THIS PAGE AND THE FOLLOWING PAGES. READ

TERMS AND CONDITIONS CAREFULLY.” The upper

right side of that page states “CRUISE AND CRUISETOUR

CONTRACT” and the word “CONTRACT” appears in large

print on the right margin of that page. The next page is entitled “IMPORTANT NOTICE TO PASSENGERS” and states

that “THIS DOCUMENT IS A LEGALLY BINDING CONTRACT” and that “YOUR ATTENTION IS ESPECIALLY

DIRECTED TO CLAUSES A.1, A.3, . . . WHICH CONTAIN IMPORTANT LIMITATIONS ON YOUR RIGHT TO

ASSERT CLAIMS AGAINST US.” The top of the next page

says “IMPORTANT TERMS AND CONDITIONS OF

CONTRACT—READ CAREFULLY BEFORE ACCEPTING.” The following page contains clause A.3, to which passengers are “especially directed,” and is entitled “Time Limits

for Noticing Claims and Filing and Service of Lawsuits.” That

clause clearly states that “you may not maintain a lawsuit

against us or the Ship for loss of life or bodily injury unless

. . . the lawsuit is commenced not later than one (1) year after

the day of death or injury.” Based on the physical characteristics of the contract, the terms and conditions of the one-year

limitations clause are sufficiently conspicuous and meet the

first prong of the test. See Wallis, 306 F.3d at 835-36. 

OLTMAN v. HOLLAND AMERICA LINE 10995
[3] Regarding the Oltmans’ “purchase and subsequent

retention of the ticket/contract,” see id. at 836 (quotation

marks omitted), construing the evidence in their favor, they

received the travel booklet at the time of departure because

Jack purchased the tickets only thirteen days prior. Although

the Oltmans may not have read the terms and conditions

before departing, they were free to read them at their leisure

and presented no evidence that their travel booklets were

taken away from them during or after the cruise trip. Because

the Oltmans had the opportunity to read the contract at any

point before filing their first complaint, they had the “ability

to become meaningfully informed,” and the second prong of

the reasonable communicativeness test is met. See id. (emphasis and quotation marks omitted). Accordingly, we uphold the

district court’s decision that the limitations clause was reasonably communicated to Jack and Bernice. 

2. Fundamental Fairness 

[4] Cruisetour contract clauses are also “subject to judicial

scrutiny for fundamental fairness.” Carnival Cruise Lines,

Inc. v. Shute, 499 U.S. 585, 595 (1991). Courts focus on

whether the clause was included because of “bad-faith

motive” and whether the clause was “a means of discouraging

cruise passengers from pursuing legitimate claims.” Id. Here,

there is no evidence that Holland included the limitations

clause out of bad faith or that the clause was intended to discourage legitimate claims. Moreover, “Congress has . . . indicated that [cruisetour] contracts may legally shorten the

limitations period to one year.” Dempsey v. Norwegian Cruise

Line, 972 F.2d 998, 999 (9th Cir. 1992) (per curiam). 

[5] In determining whether the clause is fundamentally fair,

this court also considers whether Holland obtained Jack’s and

Bernice’s “accession to the . . . clause by fraud or overreaching.” Shute, 499 U.S. at 595. The Oltmans argue that Holland

“either induced Plaintiffs to enter into this contract based

upon the misrepresentations (that the trip was safe and enjoy10996 OLTMAN v. HOLLAND AMERICA LINE
able) and the failure to disclose (that there had been at least

863 other cases of gastrointestinal illness aboard the [ship]

. . .) or [Holland] breached this covenant.” In order to establish fraudulent inducement, the Oltmans must show, among

other things, that Holland knew of the falsity and intended

that they rely on that falsity. See Webster v. L. Romano Eng’g

Corp., 34 P.2d 428, 430 (Wash. 1934). The Oltmans offer no

evidence establishing whether Holland intended that they rely

on the alleged misrepresentations or otherwise acted with

fraud. The limitations clause is therefore fundamentally fair,

and we uphold the district court’s conclusion that the one-year

limitations clause is valid and enforceable. 

B. Equitable Tolling of the Limitations Period

The Oltmans contend that, even if the limitations clause is

enforceable, the district court erred in dismissing their claims

as time-barred because the limitations period should have

been tolled during the pendency of the state court action. The

Oltmans rely on Burnett v. N.Y. Cent. RR. Co., 380 U.S. 424

(1965), and Berry v. Pac. Sportfishing, Inc., 372 F.2d 213 (9th

Cir. 1967).4

In Burnett, the plaintiff timely filed his action under the

Federal Employers’ Liability Act (FELA) in Ohio state court,

where the defendant moved to dismiss based on improper

venue. 380 U.S. at 424-25. Eight days after the state court dismissed the action on that ground, the plaintiff brought an

identical action in federal court. Id. at 425. Because the federal complaint was filed after the limitations period had

4Although the Oltmans did not cite these cases in their summary judgment papers, we consider all pertinent legal authority when conducting a

de novo review. See Thomas v. Or. Fruit Prods. Co., 228 F.3d 991, 995

(9th Cir. 2000) (noting that under de novo review, a court “consider[s]

anew both the legal and factual aspects of” a claim). Moreover, the Oltmans raised the issue of tolling in their summary judgment papers, in

some fashion at least, when they urged that “this suit was a continuation

of the state court action.” 

OLTMAN v. HOLLAND AMERICA LINE 10997
expired, it was dismissed as untimely. Id. The dismissal was

affirmed on appeal, and the Supreme Court granted certiorari

to determine “whether petitioner’s suit in the Ohio state court

tolled the FELA statute of limitations.” Id. at 425-26. 

[6] The Supreme Court first examined FELA’s congressional intent, acknowledging that the “basic question to be

answered in determining whether, under a given set of facts,

a statute of limitations is to be tolled, is one ‘of legislative

intent whether the right shall be enforceable after the prescribed time.’ ” Id. at 426 (ellipses and internal citation omitted). The Court also observed the general policies underlying

statutes of limitations and equitable tolling, noting that statutes of limitations “are primarily designed to assure fairness

to defendants” and to “promote justice by preventing surprises

through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and

witnesses have disappeared.” Id. at 428 (quotation marks and

citation omitted). The Court also stated, however, that “[t]his

policy of repose . . . is frequently outweighed . . . where the

interests of justice require vindication of the plaintiff’s

rights.” Id. The Court observed that “[b]oth federal and state

jurisdictions have recognized the unfairness of barring a

plaintiff’s action solely because a prior timely action is dismissed for improper venue after the applicable statute of limitations has run.” Id. at 430, 434 (“[B]oth Congress and the

States have made clear, through various procedural statutes,

their desire to prevent timely actions brought in courts with

improper venue from being time-barred merely because the

limitation period expired while the action was in the improper

court.”). 

[7] The Court ultimately concluded that the FELA statute

of limitations was tolled. Id. at 427-28. This decision “effectuate[d] the basic congressional purposes” behind FELA. Id. at

427. The Court also reasoned that tolling applied because the

plaintiff “did not sleep on his rights but brought an action

within the statutory period in the state court.” Id. at 429. The

10998 OLTMAN v. HOLLAND AMERICA LINE
Court noted that the plaintiff’s failure to file in federal court

was “not because he was disinterested, but solely because he

felt that his state action was sufficient.” Id. Further, the defendant “could not have relied upon the policy of repose

embodied in the limitation statute, for it was aware that petitioner was actively pursuing his FELA remedy; in fact, [the

defendant] appeared specially in the [state] court to file a

motion for dismissal on grounds of improper venue.” Id. at

430. 

In Berry, which the Oltmans also cite, the plaintiff brought

a claim for the wrongful death of her husband, which

occurred on the high seas. 372 F.2d at 213-14. The plaintiff

had filed a timely action in state court and later filed an

untimely claim in federal court, after realizing that the federal

court had exclusive jurisdiction over her claim. Id. This court

applied Burnett’s reasoning to conclude that the limitations

period was tolled during the pendency of the state action, noting that “the claim certainly had not been allowed to slumber

until evidence had been lost, memories had faded, and witnesses had disappeared” because the plaintiff “had been pressing her suit” in state court. Id. at 215. Because the state court

action “accomplished the purposes referred to in the Burnett

case, . . . the statute of limitations was tolled.” Id.

[8] Holland argues on appeal that Burnett and Berry are

distinguishable because they dealt with statutory limitations

periods, while the limitations period in this case was “set by

contract.” Holland asks this court to instead follow Levick v.

Steiner Transocean Ltd., 377 F. Supp. 2d 1251, 1258 (S.D.

Fla. 2005), which concluded that “[t]he instant case is distinguishable from Burnett in that the limitations period at issue

arises out of a contract.” (Emphasis added). We note, however, that the court to which appeals from the Southern District of Florida are taken—the Eleventh Circuit—recently

described Levick’s distinction between statutory and contractual limitations periods to be “dubious” and “questionable”

and observed that it “had expressly rejected this distinction

OLTMAN v. HOLLAND AMERICA LINE 10999
in” a case that pre-dated Levick. See Booth v. Carnival Corp.,

522 F.3d 1148, 1151 n.4 (11th Cir. 2008) (noting that the

Eleventh Circuit had previously rejected Levick’s distinction

in Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1579

n.3 (11th Cir. 1985)). 

The Eleventh Circuit’s decision in Booth is also pertinent

because it addressed the very issue currently before us. Booth

concerned a wrongful death action that stemmed from a fatal

scuba diving accident that occurred while the decedent was a

passenger on a Carnival cruise ship. 522 F.3d at 1149. The

cruise contract contained clauses specifying a one-year limitations period and designating the Southern District of Florida

as the appropriate forum. Id. The plaintiff, Victor Booth, as a

personal representative of the decedent’s estate, filed a timely

action against Carnival in state court where it was dismissed

for improper venue. Id. at 1149-50. More than five months

after filing the state court complaint, Booth filed an identical

action in the proper federal court, after the limitations period

had expired. Id. at 1150. Carnival challenged the federal complaint as untimely, but the district court ruled that “the contractual limitation period was subject to equitable tolling.” Id.

On appeal, the Eleventh Circuit concluded that “Burnett’s

reasoning extends beyond the FELA context and sheds important light on the instant case.” Id. at 1151 n.4. The court noted

that, although the Burnett Court examined the legislative

intent behind FELA, “the Court did not limit its analysis to a

FELA-specific inquiry; rather, the Court articulated several

general principles that supported equitable tolling under the

circumstances.” Id. at 1151 (footnote omitted). Because Booth

“timely filed suit in a state court,” the Eleventh Circuit concluded that “Booth in no way slept on his claims.” Id. at 1152.

Further, the court stated that, “[e]ven though Booth filed the

instant federal suit after the contractual limitation period had

run, Carnival was aware within the limitation period that

Booth was actively pursuing his cause of action.” Id. Finally,

the court observed that the “underlying policy of repose . . .

11000 OLTMAN v. HOLLAND AMERICA LINE
is not violated by equitable tolling in this case” because

“Booth diligently pursued his claim.” Id. at 1152-53. The

Eleventh Circuit therefore “equitably tolled the parallel federal action during the pendency of the state suit.” Id. at 1153.

We conclude, like the Booth court, that Burnett guides our

decision in the present case. Burnett articulated general principles concerning equitable tolling and statutes of limitations

that are applicable to this case. Further, we previously noted

that “[e]quitable tolling is routinely held to be proper where,

as here, a claimant filed suit in a venue without jurisdiction

over the claim.” Sloan v. West, 140 F.3d 1255, 1262 (9th Cir.

1998) (applying equitable tolling to Title VII discrimination

claims). 

[9] Holland acknowledged that it would not be prejudiced

by a decision to toll the limitations period. The Oltmans did

not sleep on their claims, but brought a timely action in state

court. See Burnett, 380 U.S. at 429. Holland was served process and notified of the claims on a timely basis. Holland was

aware that the Oltmans were actively pursuing their claims

and even “appeared specially in the [state] court to file a

motion for dismissal on grounds of improper venue.” See id.

at 430. Like in Burnett, the Oltmans’ failure to file suit in federal court was “not because [they were] disinterested, but

solely because [they] felt that [their] state action was sufficient.” See id. at 429. Further, as the Oltmans note, during the

state court hearing on Holland’s motion to dismiss the original complaint, Holland’s counsel stated his understanding that

the Oltmans could “refile in federal court.” Had Holland

removed the case to federal court rather than moved to dismiss it, the timeliness of the Oltmans’ claims would have

been preserved. Under the circumstances of this case, where

the Oltmans’ timely state court complaint was dismissed for

improper forum, they then promptly filed in federal court, and

Holland is not prejudiced by tolling the limitations period, we

hold that the policy of repose is outweighed by the interests

of justice and that the limitations period should have been

OLTMAN v. HOLLAND AMERICA LINE 11001
equitably tolled. See Burnett, 380 U.S. at 428, 434-35; Booth,

522 F.3d at 1152-53. We therefore reverse the district court’s

dismissal of the claims via summary judgment as time-barred.5

C. Loss of Consortium Claim

Even if Susan’s claims were deemed subject to the oneyear limitations period, those claims would similarly be entitled to equitable tolling. In light of the subsequent reversal by

the state supreme court, Holland acknowledges that the decision of the state court of appeals, on which the district court

expressly relied in granting summary judgment to Holland on

Susan’s claim, is no longer good law, such that Susan is not

subject to the one-year contractual limitations period in any

event. We agree. Summary judgment on that basis must be

reversed. 

[10] Holland argues that we should affirm the judgment

against Susan’s claim on other grounds, however, offering to

us the argument that was presented to but not ruled upon by

the district court, that Susan’s claim cannot be recognized

because Jack became ill outside of U.S. territorial waters.

Because the district court did not address the merits of this

argument and the Oltmans’ other claims have been revived,

we decline the invitation to take up Holland’s argument at this

time, reverse the district court’s summary judgment as to

Susan’s loss of consortium claim based on the purportedly

untimely filing, and remand that claim to the district court for

further consideration. 

III. Conclusion

Under the circumstances of this case, equitable tolling

applies and the Oltmans’ claims were not untimely. We there5Because we reverse the district court’s summary judgment, we need

not and do not decide whether the Oltmans were entitled to relief under

Federal Rules of Civil Procedure Rules 59 or 60(b). 

11002 OLTMAN v. HOLLAND AMERICA LINE
fore reverse the district court’s orders granting summary judgment on the Oltmans’ claims and remand the claims to the

district court for further proceedings. 

REVERSED and REMANDED.

OLTMAN v. HOLLAND AMERICA LINE 11003