DocketNumber: Civ. No. 17690
Citation Numbers: 157 F. Supp. 52
Judges: Rayfiel
Filed Date: 12/10/1957
Status: Precedential
Modified Date: 11/26/2022
The defendant, Compagnie Generale Transatlantique, hereinafter called the French Line, moves, before answer, pursuant to Rules 12(b) and 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A., to dismiss the complaint on the ground that none of the causes of action set forth therein states a claim upon which relief can be granted.
The complaint, a copy of which is attached to the moving papers, sets forth three causes of action on behalf of the infant plaintiff, Richard A. Burd, for personal injuries sustained by him when bitten by a dog, while he was a passenger aboard the French Line’s vessel, the lie de France, on May 25, 1954, and one cause of action, by the plaintiff, Virginia Burd, his mother, for medical expenses and loss of services.
The moving papers allege, and the plaintiffs do not deny, that the action was commenced in the Supreme Court of the State of New York, County of Nassau, by the service on the defendant, French Line, on May 22, 1957, of the verified complaint, and on May 23, 1957, of the summons without notice; that the action was then removed to this Court by the defendant, French Line, on June 7, 1957; that, although the complaint, verified May 22, 1957, alleges that an order was made prior thereto appointing Virginia Burd Guardian Ad Litem for her son, the order appointing her was actually signed by Hon. Cortland A. Johnson, a Justice of the Supreme Court of the State of New York on May 28, 1957.
French Line further contends that the said provision in the passage contract is a valid limitation of time pursuant to Section 183b of Title 46, U.S.Code Annotated, which reads as follows: “Stipulations limiting time for filing claims and commencing suit (a) it shall be unlawful for the manager, agent, master, or owner of any sea-going vessel (other than tugs, barges, fishing vessels and their tenders) transporting passengers or merchandise or property from or between ports of the United States and foreign ports to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily injury, than six months, and for the institution of suits on such claims, than one year, such period for institution of suits to be computed from the day when the death or injury occurred. * * * (c) If a person who is entitled to recover on any such claim is mentally incompetent or a minor, or if the action is one for wrongful death, any lawful limitation of time prescribed in such contract shall not be applicable so long as no legal representative has been appointed for such incompetent, minor, or decedent’s estate, 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.”
I have considered plaintiffs’ contentions (1) that the instant motion was prematurely made, and that the statute of limitations should be pleaded as an affirmative defense, (2) that under the law of New York and France the infant plaintiff would have the right, through his minority, and for a period subsequent to attaining his majority, to institute suit, and (3) that the failure to have a guardian ad litem appointed for the infant was a mere irregularity which may be remedied by the appointment of the guardian ad litem nunc pro tune. I find all of these contentions without merit. So far as the first contention is concerned, Rules 12(b) and 56 (b) of the Federal Rules of Civil Pro
Accordingly, the motion is granted and the complaint herein is dismissed.