                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2002

Gibbs v. Carnival Cruise
Precedential or Non-Precedential: Precedential

Docket No. 01-4101




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_2002/801


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PRECEDENTIAL

       Filed December 20, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4101

CHRISTIAN JOSEPH GIBBS,
an infant by his Guardian
ad Litem SUZANNE GIBBS;
SUZANNE GIBBS;
RICHARD GIBBS, Individually

v.

CARNIVAL CRUISE LINES;
CARNIVAL CORPORATION;
ABC COMPANIES 1-10, (said
names being fictitious as
their identities are
presently unknown);
JOHN DOES 1-10, (said names
being fictitious as their
identities are presently
unknown)

Christian Joseph Gibbs;
Suzanne Gibbs;
Richard Gibbs, Appellants

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 00-cv-04089)
District Judge: Honorable Katherine S. Hayden

Argued: October 16, 2002

Before: BECKER, Chief Judge, ROTH and ROSENN,
Circuit Judges.




(Filed: December 20, 2002)

       JOANNE SORRENTINO, ESQUIRE
        (ARGUED)
       ROBERT FRANCIS GOLD, ESQUIRE
       Gold and Albanese
       48 South Street
       Morristown, NJ 07960

       Counsel for Appellants

       MICHAEL E. UNGER, ESQUIRE
        (ARGUED)
       PAMELA A. WHIPPLE, ESQUIRE
       Freehill, Hogan & Mahar
       850 Bergen Avenue
       Jersey City, NJ 07306

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

46 U.S.C. S 183b, a statute that regulates the contractual
limitations on time for passengers to bring a lawsuit
against maritime carriers, provides that carriers may not
impose time-bars of less than one year. This minimum one
year time-bar is tolled, however, for injured minors
pursuant to S 183b(c); in such cases, the clock starts
ticking only when the minor’s "legal representative has been
appointed," so long as such appointment occurs within
three years of the minor’s injury. Id. This appeal concerns
the application of this statute to the personal injury claims
of Christian Joseph Gibbs, a minor, and his parents
Suzanne and Richard Gibbs (collectively, "the Gibbses"),
who challenge the District Court’s dismissal of their lawsuit
against Carnival Corporation, d/b/a Carnival Cruise Lines
("Carnival"), charging Carnival with negligence, infliction of
emotional distress, and breach of contract in connection
with injuries suffered by Christian Gibbs aboard one of
Carnival’s cruise ships on August 25, 1998.

                                2


The passenger ticket contract between the Gibbses and
Carnival included a provision that contained the minimum
one year limitation allowable under the statute. The
Gibbses and Carnival disagree as to when (or whether)
Suzanne Gibbs was appointed guardian ad litem of
Christian in order to serve as his "legal representative."
Carnival contends that the appointment occurred on March
25, 1999, the date of a letter from the Gibbses’ attorney
informing Carnival that he "has been retained by Suzanne
Gibbs, individually and as Guardian ad Litem for Christian
Joseph Gibbs." Under this interpretation, the one year
time-bar to file suit would have ended on March 25, 2000,
well before the Gibbses filed this action before the District
Court on August 21, 2000. The Gibbses respond that this
letter has no legal effect, and that under New Jersey Court
Rule 4:26-2, a parent of a minor "shall be deemed to be
appointed guardian ad litem of the child" in negligence
actions only "upon the filing of a pleading or certificate
signed by an attorney." According to this Court Rule, the
Gibbses submit, Suzanne Gibbs was appointed legal
representative of Christian Gibbs only when the complaint
was filed in the District Court. Since they commenced this
suit within the three-year period available to appoint a legal
representative for an injured minor under S 183b(c), they
dispute Carnival’s claim that the time had run.

The District Court declined to resolve this aspect of the
dispute. Instead, it concluded that the March 25, 1999
letter from the Gibbses’ attorney to Carnival was legally
binding and estopped the Gibbses from arguing that the
New Jersey Court Rule applied. Determining that the March
25, 1999 date of the letter is the time that Christian Gibbs
received a legal representative, the Court granted Carnival’s
motion to dismiss the case because it was filed after the
one year time-bar expired.

Before we address the estoppel issue, however, we must
first clarify the appropriate choice of law. Although it
appears that the District Court considered this case to be
one that sounded in admiralty, it did not specify whether it
applied the federal admiralty law of estoppel or New
Jersey’s standard. This omission is reflected in the briefs of
the parties, which referred only to New Jersey law. At oral

                                3


argument before us, Carnival conceded that federal
admiralty law governs, but the Gibbses maintained that we
should apply New Jersey law. We agree with Carnival.
Because Christian Gibbs’s injuries occurred aboard a
cruise ship in navigable waters, his cause of action
contains the traditional nexus for maritime torts.

In order to sustain a claim of estoppel under federal
admiralty law, a party must show that it relied in good faith
on a misrepresentation of another party, and that this
reliance caused it to change its position for the worse.
Evidence of detrimental reliance or prejudice is a critical
element of estoppel, and Carnival fails to satisfy this
burden. Moreover, the District Court should not have
precluded the Gibbses from presenting their argument,
which we find meritorious, that the time-bar in the
passenger ticket contract had not expired because no legal
representative had yet been appointed for Christian Gibbs.
Accordingly, the Court’s use of equitable estoppel was
mistaken, and we will therefore set aside the order
dismissing Christian Gibbs’s claims.

Having disposed of the estoppel issue, we must still
determine whether the Gibbses’ claim is barred by the suit
time provision in the passenger ticket contract. This
presents the question not directly addressed by the District
Court: How is a legal representative "appointed" within the
meaning of 46 U.S.C. S 183b(c)? To answer this, we must
turn to Federal Rule of Civil Procedure 17, which explains
how to determine when a legal representative has been
appointed to protect a minor’s interests. The first step of
the Rule 17 inquiry is to look to the law of the minor’s
domicile to see if the minor already has a legal
representative appointed for him. Since Christian Gibbs is
a domiciliary of New Jersey, we apply New Jersey Court
Rule 4:26-2, which states that a parent is appointed
guardian ad litem of her child only upon the filing of a
pleading or certificate with a court. Since the Gibbses did
not file any papers with a court before commencing this
action in the District Court, at the time the complaint was
filed no legal representative had yet been appointed for
Christian Gibbs under the laws of New Jersey. This takes
us to the second step of Rule 17, which is the requirement

                                4


that a district court appoint a guardian ad litem for a minor
who is otherwise not represented under the law of the
minor’s domicile. The court should take into account all
factors relevant to the protection of the minor’s interests
when selecting a guardian ad litem, but need not look to
the procedures specified in the state law. In this case, the
complaint before the District Court specified that Suzanne
Gibbs would represent Christian as his guardian ad litem,
and there is no reason to suggest that the Court should not
have accepted this appointment.

Therefore, under the guardian ad litem appointment
process envisioned by Rule 17, no legal representative had
been appointed for Christian until the Gibbses commenced
this lawsuit before the District Court, which was within the
three year time period under 46 U.S.C. S 183b(c) to appoint
a legal representative. Accordingly, Christian’s claim is not
time-barred under the passenger ticket contract and
S 183b(c). For these reasons, we will vacate the order
dismissing Christian’s claim and remand this action to the
District Court for further proceedings.

I.

On August 25, 1998, while accompanying his parents on
a cruise, Christian Gibbs suffered second degree burns on
the soles of his feet when he stepped onto the hot surface
of the deck of the Carnival vessel, The Destiny . He was in
the care of Carnival employees at the time as part of the
Camp Carnival child care program. His parents, Suzanne
and Richard, decided to interrupt their vacation and return
home to New Jersey with Christian to care for his injuries.

After engaging in settlement discussions with Carnival,
the Gibbses retained the Law Offices of Gold and Albanese
("Gold and Albanese") to represent their interests. On
March 25, 1999, Robert Francis Gold, an attorney at Gold
and Albanese, wrote to Carnival informing it that the firm
"has been retained by Suzanne Gibbs, individually and as
Guardian ad Litem for Christian Joseph Gibbs, to represent
their interests in connection with certain burn injuries
suffered by Christian Joseph Gibbs." Carnival responded
with a letter dated April 9, 1999 acknowledging receipt of

                                5


Mr. Gold’s correspondence and asking that any relevant
information be forwarded to the company. There was no
subsequent contact between the parties until an attorney at
Gold and Albanese sent a copy of Christian Gibbs’s medical
records to Carnival on or about May 17, 2000.
Subsequently, Carnival notified Gold and Albanese by mail
that the Gibbses’ claim was time-barred according to a
provision in the passenger ticket contract that limited the
time available for filing of a suit against Carnival to one
year after the date of injury.

The Gibbses then commenced this action in the District
Court on August 21, 2000, alleging that Carnival was liable
for negligence, infliction of emotional distress, and breach
of contract. The complaint sought relief on behalf of
Christian as well as his parents. Carnival moved to dismiss
the case pursuant to Fed R. Civ. P. 12(b)(6). Carnival’s
motion argued alternatively that: (1) the suit was untimely
because of the time-bar provision in the passenger ticket
contract; (2) the District Court lacked in personam
jurisdiction over Carnival; and (3) the District Court lacked
jurisdiction over the claim because of a forum selection
clause in the ticket contract specifying a court in Florida as
the exclusive forum to resolve disputes arising from the
contract.

The District Court granted Carnival’s motion on the first
ground--untimeliness according to the one year time-bar in
the passenger ticket contract. Finding that the passenger
ticket contract contained an enforceable provision allowing
only one year to file suit on any claims arising from the
contract, the Court applied the provision against the
Gibbses and dismissed Suzanne and Richard Gibbs’s
individual claims. Maritime carriers are entitled to impose
contractual limitations on the time to bring a lawsuit so
long as the allowable period is no less than one year. 46
U.S.C. S 183b(a). Such suit time provisions in passenger
ticket contracts must be written in language that meets a
"standard of reasonable communicativeness," which
involves a liberal examination of the provision for clarity,
physical placement, and ease of understanding. Marek v.
Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir. 1987); see
also Schenk v. Kloster Cruise Limited, 800 F. Supp. 120,

                                6


122-23 (D. N.J. 1992). The Gibbses are not contesting the
District Court’s finding that the suit time provision in their
passenger ticket contract is legally valid and binding under
federal admiralty law. Moreover, they do not dispute the
District Court’s dismissal of Suzanne and Richard Gibbs’s
individual claims against Carnival. The District Court
correctly dismissed these claims, since this lawsuit was
filed just short of two years after their cause of action
accrued -- well after the one year time-bar in the passenger
ticket contract.

The Court also dismissed Christian Gibbs’s claims, but
on a different theory. Noting that Christian was a minor
and therefore that 46 U.S.C. S 183b(c) applied, the Court
read this statute as allowing a three-year period in which to
appoint a legal representative for Christian. Once a
representative was appointed, the Court explained, the one
year time-bar for filing a suit on Christian’s claims would
commence. The District Court did not specify what process
would be used for determining when a legal representative
was appointed within the meaning of S 183b(c). Rather, the
Court applied the doctrine of equitable estoppel essentially
to preclude the Gibbses from denying that the March 25,
1999 letter from their counsel, Gold and Albanese,
constituted the appointment of Suzanne Gibbs as guardian
ad litem or legal representative of Christian under
S 183b(c).

The Court therefore refused to entertain the Gibbses’
submission that Suzanne Gibbs was not appointed legal
representative for Christian by the March 25 letter because
New Jersey Court Rule 4:26-2 states that a parent may
become the guardian ad litem of her child in negligence
actions only upon the filing of a pleading or certificate
before a court. Under this theory, which the Court did not
take into account, the Gibbses should be allowed to
proceed on Christian’s claim because the complaint was
filed before the three years allowed under S 183b(c) to
appoint a legal representative for an injured minor. Since
the appointment of the legal representative and the filing of
the suit occurred simultaneously, the Gibbses argued, the
time-bar had not run.

                                7


Instead, the Court looked at the language of the March
25 letter and found that it clearly communicated to
Carnival that Suzanne Gibbs had been appointed legal
representative of Christian on or about that date. The Court
chose to apply the law of estoppel because it believed that
allowing the Gibbses to disavow the depiction of Suzanne
Gibbs as legal representative for Christian in the March 25
letter in favor of their new theory "squarely brings into play
the concept of estoppel which goes right to the fairness
issue." Accordingly, the Court ruled that the Gibbses
should have filed Christian’s claims within one year after
March 25, 1999. Since the complaint was not filed in the
District Court until August 21, 2000, the Court held that it
was untimely. The Gibbses’ appeal of the District Court’s
order granting Carnival’s 12(b)(6) motion that dismissed
Christian Gibbs’s claims is the issue before this court. We
have appellate jurisdiction under 28 U.S.C. S 1291, and our
review over the District Court’s order granting a 12(b)(6)
motion is plenary. Semerenko v. Cendant Corp. , 223 F.3d
165, 173 (3d. Cir. 2000). We review the Court’s
interpretation of 46 U.S.C. S 183b, like any other matter of
statutory interpretation, de novo. See United States v.
Zwick, 199 F.3d 672, 678 (3d Cir. 1999).

II. Choice of Law

In their complaint, the Gibbses invoked diversity
jurisdiction, pursuant to 28 U.S.C. S 1332, as the basis of
their claim before the District Court. Although both parties
refer to this case as one concerning admiralty, they cited
only to New Jersey law in the briefs. At oral argument in
response to questions from the court, Carnival conceded
that admiralty law governs, but the Gibbses maintained
their position that New Jersey law governs. Normally, this
court would apply the choice of law rules of the forum state
-- in this case, those of New Jersey -- in order to determine
what substantive law governs a diversity action. See Klaxon
Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487 (1941).
However, if the case sounds in admiralty, it would be
inappropriate to apply New Jersey law or any other state’s
law, instead of federal admiralty law.

                                8


The initial step in the choice of law analysis is to
determine whether this case "sounds in admiralty." In
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527 (1995), the Supreme Court summarized prior
precedent and articulated a three-point test for ascertaining
when a case sounds in admiralty. First, the incident must
have "occurred on navigable water or . . .[be an] injury
suffered on land [that] was caused by a vessel on navigable
water." Id. at 534. Second, a court must"assess the general
features of the type of incident involved to determine
whether the incident has a potentially disrupting impact on
maritime commerce." Id. (internal quotations omitted).
Finally, a court must "determine whether the general
character of the activity giving rise to the incident shows a
substantial relationship to traditional maritime activity." Id.
(internal quotations omitted).

We are satisfied that the Gibbses’ claims sound in
admiralty under this analysis. First, the injuries to
Christian Gibbs transpired on the Carnival Cruise Lines
vessel, The Destiny, which was traveling in navigable
waters. Second, ocean-going passenger vessels are clearly
engaged in maritime commerce. See East River S.S. Corp. v.
Transamerica Delaval, 476 U.S. 858, 864 (1986). Finally,
the defective design or manufacture of parts of a boat
designed for maritime use, such as the deck of a cruise
ship, bears a substantial relationship to traditional
maritime activity. E.g., Mink ex rel. Ins. Co. of N. Am. v.
Genmar Indus., 29 F.3d 1543, 1547 (11th Cir. 1994) (citing
cases where products liability actions involving pleasure
craft in navigable waters sounded in admiralty law).

Although the Gibbses’ complaint alleged more than mere
products liability--they also claimed breach of contract,
infliction of emotional distress, and negligence on the part
of Carnival employees--the analysis pointing to a nexus
with maritime commerce is still present. See Fedorczyk v.
Caribbean Cruise Lines Ltd., 82 F.3d 69, 73 (3d Cir. 1996)
(concluding that a slip in a bathtub in a ship cabin"has a
nexus to ‘traditional maritime activity"’ despite the fact that
the injury was not a uniquely maritime occurrence);
Friedman v. Cunard Line Ltd., 996 F. Supp. 303, 307
(S.D.N.Y. 1998) (noting that "even assuming that a

                                9


maritime nexus is necessary to establish admiralty
jurisdiction over a tort committed on the high seas (a
question the Supreme Court left open in East River
Steamship Corp. and does not appear to have subsequently
addressed), that nexus is established by the role that
ocean-going cruise ships play in maritime commerce"). The
Court of Appeals for the Ninth Circuit has also specifically
held that intentional infliction of emotional distress torts
that occur on board cruise vessels are governed by
maritime law. Wallis ex rel. Wallis v. Princess Cruises, Inc.,
306 F.3d 827, 840 (9th Cir. 2002).

Moreover, as to the contract claims, it is settled
jurisprudence that passenger ticket contracts for cruises
are maritime contracts governed by federal admiralty law.
Carnival Cruise Lines v. Shute, 499 U.S. 585, 590 (1991);
see also Schenck v. Kloster Cruise, Ltd., 800 F. Supp. 120,
122 (D.N.J. 1992), aff’d, 993 F.2d 225 (3d Cir. 1993);
Vavoules v. Kloster Cruise Ltd., 822 F. Supp. 979, 982-83
(S.D.N.Y. 1993) (stating that since 1946, "courts, without
exception, have applied federal maritime law in cases
involving passenger cruise tickets and other maritime
contracts," and citing examples).

Since we conclude that this case sounds in admiralty, we
apply federal admiralty law and not the law of New Jersey
or any other state. That the District Court took this case
under diversity jurisdiction, rather than admiralty
jurisdiction under 28 U.S.C. S 1333, does not affect this
determination. See Pope & Talbot, Inc. v. Hawn, 346 U.S.
406, 410-11 (1953) (holding that courts apply substantive
admiralty law to claims that sound in admiralty regardless
of whether the complaint invokes diversity or admiralty
jurisdiction); Edynak v. Atlantic Shipping, Inc. , 562 F.2d
215, 221 n.11 (3d Cir. 1977). Thus, for cases such as this
that sound in admiralty, we need not look to the general
choice of law rules articulated in Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938), and Klaxon, supra, that typically apply
to suits brought in diversity jurisdiction. See Scott v.
Eastern Air Lines, Inc., 399 F.2d 14, 25 (3d Cir. 1968)
(noting that "admiralty standards define liability for a
maritime tort, whether the proceeding is instituted in
admiralty or on the law side of the court").

                                10


III. Estoppel

With the choice of law issue resolved, we turn to a review
of the District Court’s order dismissing Christian Gibbs’s
claims. According to federal maritime law, the doctrine of
"equitable estoppel is grounded on a notion of fair dealing
and good conscience. It is designed to aid the law in the
administration of justice where without its aid injustice
might result." Marine Transp. Svcs. Sea-Barge Group, Inc. v.
Python High Perf. Marine Corp., 16 F.3d 1133, 1138 (11th
Cir. 1994) (internal quotation omitted). In Oxford Shipping
Co., Ltd. v. New Hampshire Trading Corp., 697 F.2d 1, 4
(1st Cir. 1982), (then) Judge Breyer explained:

       Traditionally, the doctrine of equitable estoppel
       operates to preclude a party who has made
       representations of fact through his words or conduct
       from asserting rights which might perhaps have
       otherwise existed as against another person, who has
       in good faith relied upon such conduct, and has been
       led thereby to change his position for the worse, and
       who on his part acquired some corresponding right.

Id. (quotations and alterations omitted). 1

The District Court did not explicitly state the factors that
led it to prevent Suzanne Gibbs from asserting that she
became the legal representative of Christian Gibbs only
when the Gibbses filed this lawsuit. However, what plainly
(and understandably) disturbed the Court was that
Suzanne Gibbs "could on the one hand assert guardian ad
litem status in March of 1999, for purposes of asserting
Christian’s interests. And then disavow that status for
purposes of resisting the challenge to this lawsuit as being
out of time." Finding this to be unfair, the Court "estopped
[the Gibbses] from denying that Christian Gibbs had the
same guardian ad litem," Suzanne Gibbs, from the date
that the March 25, 1999 letter was sent to Carnival.
_________________________________________________________________

1. We acknowledge that this formulation is not materially different from
the New Jersey standard of estoppel cited by the parties. See Barone v.
Leukemia Soc. of America, 42 F. Supp.2d 452, 464 (D. N.J. 1998);
Highway Trailer Co. v. Donna Motor Lines, Inc., 217 A.2d 617 (N.J. Sup.
Ct. 1966).

                                11


Although the Gibbses’ actions might be off-putting, they
do not rise to the level of injustice that the law of estoppel
is designed to redress. The Gibbses argue that the District
Court erred on two scores. First, the March 25, 1999 letter
was merely advisory and had no legal weight because of the
New Jersey Court Rules on the appointment of guardians
ad litem. Second, Carnival exhibited no detrimental reliance
on the letter and suffered no prejudice.

The Gibbses do not deny that the letter represented
Suzanne Gibbs’s purported status as legal representative of
Christian, even though they contend it had no legal effect,
nor do they dispute that Carnival relied on this letter in
good faith. Carnival asserts that its reliance on the March
25, 1999 letter was to its detriment because "[h]ad Carnival
known the true legal status of Suzanne Gibbs it could have
taken appropriate steps to protect its interests in not only
its investigation of the extent of Christian Gibbs’s injury
and overall negotiation of the claim, but also in terms of
assertion of the time-bar provisions in the passenger ticket
contract." [Carnival Br. at 8.] We find this response to be
underwhelming. Leaving aside the question whether
Carnival could rely on counsel’s representation as to legal
status, Carnival fails to present any evidence of detrimental
reliance. See Clauson v. Smith, 823 F.2d 660, 663 (1st Cir.
1987) (declining to apply estoppel when the moving party
failed to prove that he "relied to his detriment on the
interdicted behavior"). And, as stated above, the letter had
no legal weight. For these reasons, the Gibbses should not
have been estopped from presenting their theory that the
appointment of a legal representative for Christian Gibbs
did not occur until they filed this lawsuit.

IV. Appointment of a Legal Representative

Having determined that the application of estoppel was
inappropriate, we must now decide whether the District
Court was nonetheless correct in dismissing Christian
Gibbs’s claims as time-barred according to the provision in
the passenger ticket contract limiting the time to bring suit
to one year.

                                12


A. The Meaning of 46 U.S.C. S 183b(c)

The Gibbses contend that the time-bar was not triggered
because Christian Gibbs’s complaint was filed within the
safe-harbor of 46 U.S.C. S 183b(c), which mandates the
tolling of suit time-bars in passenger ticket contracts for
minors who suffer injury aboard maritime carriers. This
statute provides in relevant part:

       If a person who is entitled to recover on any such claim
       is . . . a minor . . . any lawful limitation of time
       prescribed in such contract shall not be applicable so
       long as no legal representative has been appointed for
       such . . . minor . . . but shall be applicable from the
       date of the appointment of such legal representative:
       Provided, however, that such appointment be made
       within three years after the date of such death or
       injury.

The statute does not specify the process by which a"legal
representative" is appointed. Carnival contends that this
appointment occurred on or about March 25, 1999, when
the Gibbses retained counsel and notified Carnival that
Suzanne Gibbs was appointed guardian ad litem for
Christian. The Gibbses respond that under New Jersey
Court Rule 4:26-2(b)(2), in negligence actions a parent shall
not "be deemed to be appointed guardian ad litem of the
child without court order" until "the filing of a pleading or
certificate signed by an attorney." Id. Therefore, they submit
that Suzanne Gibbs was not appointed legal representative
of Christian Gibbs within the meaning of S 183b(c) until the
Gibbses filed their complaint before the District Court.
Since the complaint was filed on August 21, 2000, well
before the three-year limit to appoint a legal representative
specified in the statute, the Gibbses argue that the time-bar
provision in the passenger ticket contract did not expire.

While the New Jersey Court Rule is relevant to our
inquiry and will be discussed further in the next section, we
do not begin our analysis with this Court Rule. Instead, we
must look to Federal Rule of Civil Procedure 17, which
explains the capacity of a party to sue or be sued, and may
therefore be used to determine how a person is appointed
a "legal representative" within the meaning ofS 183b(c). We

                                13


apply the Federal Rules instead of the New Jersey Court
Rules because state rules regarding the appointment of
guardians ad litem are procedural and therefore do not
apply, in the first instance, to cases brought in federal
courts. See M.S. v. Wermers, 557 F.2d 170, 174 n.4 (8th
Cir. 1977); 6A C. Wright & A. Miller, Federal Practice and
Procedure S 1571, at 511-12 (1991); see generally Hanna v.
Plumer, 380 U.S. 460, 471-72 (1965) (federal courts apply
on-point Federal Rules of Civil Procedure instead of state
procedural practices).

B. Fed. R. Civ. P. 17

Fed. R. Civ. P. 17 prescribes a two-part inquiry. Rule
17(b) incorporates state law practice and provides,"The
capacity of an individual, other than one acting in a
representative capacity, to sue or be sued shall be
determined by the law of the individual’s domicile." Rule
17(c) refers specifically to infants:

       Whenever an infant or incompetent person has a
       representative, such as a general guardian, committee,
       conservator, or other like fiduciary, the representative
       may sue or defend on behalf of the infant or
       incompetent person. An infant or incompetent person
       who does not have a duly appointed representative may
       sue by a next friend or by a guardian ad litem. The
       court shall appoint a guardian ad litem for an infant or
       incompetent person not otherwise represented in an
       action or shall make such other order as it seems
       proper for the protection of the infant or incompetent
       person.

Fed. R. Civ. P. 17(c) (emphasis added).

Under this two-step process, a federal court must first
determine whether the infant has a "duly appointed
representative" who has the capacity to bring the action on
behalf of the infant. McSparran v. Weist, 402 F.2d 867, 869
(3d Cir. 1968). Rule 17(b) instructs the court to look at the
"law of the individual’s domicile," in this case New Jersey,
to ascertain whether a representative has been duly
appointed. Hence, we apply the New Jersey Court Rules.

                                14


N.J. Court Rule 4:26-2(b)(2) states that the "Appointment
of Parent in Negligence Actions" as guardian ad litem is not
consummated until "the filing of a pleading or certificate
signed by the attorney" containing certain relevant
information, including a statement showing the absence of
a conflict of interest between parent and child. Under the
plain meaning of this rule, Suzanne Gibbs was not
appointed guardian ad litem because she never filed any
papers with a court. New Jersey vests sole authority of
appointment in negligence actions in courts, not private
actors, in order to ensure that the child’s interests are
protected. See Moscatello ex rel. Moscatello v. Univ. of Med.
and Dentistry of N.J., 342 N.J. Super. 351, 360-61 (N.J.
Super. Ct. App. 2001) (noting that a "child’s separate claim
for tort damages cannot be prosecuted except by a
guardian ad litem" and that a court must authorize a
guardian’s settlement of a child’s cause of action). Absent
the filing of papers before a court, Suzanne Gibbs cannot
be construed as having the capacity to sue on behalf of her
son under Fed. R. Civ. P. 17(b).

Next we look to Rule 17(c). It explains that "[a]n infant
. . . who does not have a duly appointed representative may
sue by a next friend or by a guardian ad litem." Since
Suzanne Gibbs had not been "duly appointed" guardian ad
litem under New Jersey law, "[t]he court shall appoint a
guardian ad litem for an infant . . . not otherwise
represented in an action or shall make such order as it
deems proper for the protection of the infant." Fed. R. Civ.
P. 17(c). A district court need not look to the state law,
however, in determining what factors or procedures to use
when appointing the guardian ad litem. See M.S. , 557 F.2d
at 174 n.4. Rather, its polestar appears to be the protection
of the infant’s interests. See Garrick v. Weaver, 888 F.2d
687, 693 (10th Cir. 1989); Noe v. True, 507 F.2d 9, 11-12
(6th Cir. 1974). This makes particular sense when
appointing a legal representative within the scope of 46
U.S.C. S 183b(c), since that statute is designed to protect
injured infants by ensuring that proper legal representation
is appointed who will advance the best interests of the
child. See Fugaro v. Royal Carribean Cruises Ltd., 851 F.
Supp. 122, 125 n.3 (S.D.N.Y. 1994).

                                15


In their complaint before the District Court, the Gibbses
specified that Christian Gibbs is to be represented by
Suzanne Gibbs as his guardian ad litem. There appears to
be no conflict of interest between Suzanne Gibbs and her
son, nor any other reason why she might not protect
Christian’s interests. Therefore, we detect no reason to
suggest that the District Court should not have accepted
the appointment of Suzanne Gibbs as guardian ad litem for
Christian in this action. Because no legal representative for
Christian Gibbs had been appointed until the Gibbses
commenced the instant action before the District Court,
where a legal representative was first appointed for
Christian, we hold that his claims against Carnival are not
time-barred under the special tolling provisions for minors
in S 183b(c).

V. Conclusion

We will therefore affirm the District Court’s order
dismissing Suzanne and Richard Gibbs’s individual claims,
but will vacate the Court’s order dismissing Christian
Gibbs’s claims and remand for further proceedings
consistent with this opinion.2 Parties to bear their own
costs.
_________________________________________________________________

2. In its 12(b)(6) motion to dismiss before the District Court, Carnival
raised the alternative theory that the Court lacked jurisdiction over this
case because of a forum selection clause in the passenger ticket contract
specifying a court in Florida as the sole forum in which to bring suit.
The District Court noted that it would likely enforce the forum selection
clause under the principles articulated by the Supreme Court in Carnival
Cruise Lines v. Shute, 499 U.S. 585, 595 (1991) (validating the identical
forum selection clause present in the Gibbses’ passenger ticket contract),
but the District Court instead dismissed this case as untimely.

Since the validity of the forum selection clause was not raised on
appeal, we will not address it here. We note in this regard, however, that
should the District Court choose to enforce this clause on remand, our
holding in this opinion that the Gibbses have standing to bring
Christian’s claims under the terms of the passenger ticket contract and
46 U.S.C. S 183b(c) means that the Gibbses will have the opportunity to
re-file Christian’s claim in a Florida court. Further, if this case
resurfaces in Florida, that state’s laws on the appointment of guardians
ad litem would not be relevant to the standing analysis conducted here.
This is because Fed. R. Civ. P. 17(b) commands a district court to look
to the law of the minor’s domicile, here New Jersey, to determine
whether a guardian ad litem has been appointed for a minor. If no
guardian has been appointed, then the court acts in accordance with
Rule 17(c) under its own consideration of the interests of the minor.

                                16


A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                17
