Davenport v. Chesapeake & Ohio Railway Co.

Bijur, J. To an action brought by plaintiff for damage to an interstate shipment of melons caused by the alleged negligent delay of defendant, the defendant-appellant has interposed, among others, the de [304] fense that the claim was not presented within the four months limited by the bill of lading. Respondent concedes that it was not so presented, but claims: (1) That the defense arising out of this delay was waived by defendant’s rejection of the claim on its merits, and (2) that the provision is virtually one to limit or discharge the carrier’s liability for his negligence and, therefore, void under the decisions in this state. I. do not think that it can now be successfully disputed that as the case involves an interstate shipment, the law as interpreted by the federal courts must be accepted as applicable. United Lead Co. v. Lehigh V. R. R. Co., 156 App. Div. 525, 527, 528; Loomis v. Lehigh V. R. R. Co., 208 N. Y. 312, 332. As to respondent’s second contention, i. e., that the stipulation is one to exempt the carrier from liability for his negligence, it has been held by the Supreme Court of the United States that the limitation is valid. Express Co. v. Caldwell, 21 Wall. 264, expressly approved on this point in Queen of the Pacific, 180 U. S. 49. See, also, Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 672, 673. -As to the waiver: Although in our own state a delay of three months for deliberation upon a claim presented after the time limit, and its rejection on the merits without reference to the limitation, has been held to" constitute a waiver (see Isham v. Erie R. R. Co., 112 App. Div. 612), the insistence on.other defenses has been held in the federal courts not to constitute a waiver. Lehigh Valley R. R. Co. v. Providence Washington Ins. Co., 172 Fed. Repr. (C. C. A.) 364. Moreover, it is exceedingly doubtful in my mind whether, under the provisions of the Interstate Commerce Act, and in view of the fact that the form of "the bill of lading under which- this shipment was made [305] was approved by the interstate commerce commission, the carrier has power to waive its provisions. Interstate Commerce Opinion No. 4844, Feb. 9,1914. Judgment reversed, with costs, and complaint dismissed on the merits. Seabury and Cohalan, JJ., concur. Judgment reversed, with costs.