Fisk Rubber Co. v. New York, New Haven & Hartford Railroad

DeCourcy, J. The plaintiff, holder of an order bill of lading, seeks in this action to recover from the initial carrier the value of certain machinery shipped from Lowell, Massachusetts, and consigned to the order of the plaintiff, “Notify International Rubber Sales Co., At Knoxville, State of Tenn.” The bill of [43] lading was negotiable, and with draft attached was sent to the City National Bank of Knoxville. The goods arrived at the destination, Knoxville, on the lines of the Southern Railway Company; and the International Rubber Sales Company was notified of said arrival on June 22,1917. On June 25 the Southern Railway Company delivered the goods without requiring the surrender of the bill of lading. The draft was not paid; and as the bill of lading was not called for, it later was returned by said bank to the shipper. The defendant did not notify the plaintiff until October 30, 1918, that delivery had been made; and until then the plaintiff had no knowledge of said delivery. The writ is dated June 27, 1919. Section 3 of the bill of lading contains the following provision: “Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims, must be made in writing to the originating or delivering carrier within six months after delivery of the property ... or, in case of failure to make delivery, then within six months . . . after a reasonable time for delivery has elapsed; and suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.” The case comes before us on the report of a judge of the Superior Court, made at the request of both parties. The questions presented are whether notice of the claim was seasonably filed, and whether the action was brought within the time prescribed by the bill of lading. 1. The letters of July 23 and October 6, 1917, standing alonej, do not satisfy the requirements of the bill of lading as to notice' of claim. They are no more than mere tracers. The letter of December 12, 1917, is much more. It accurately describes the date, contents and destination of the shipment; specifies the name of the consignee and the customer; and sets forth the fact that the defendant, to whom the notice was sent, had been asked: several times to trace the shipment. While the notice is not in: terms a formal claim for damages, it states “Our customer will' not accept this shipment unless it is delivered at once and it will [44] be necessary for us to enter claim with the railroad company covering same.” Construing this in a practical way, and in the light of the existing facts as known to the parties, we are of opinion that the defendant was thereby notified in substance that it was charged with liability for the non-delivery of the goods. It is a federal question whether this notice of claim sufficiently complied with the requirement of the bill of lading. It seems to us that the case comes within the authority of Georgia, Florida & Alabama Railway v. Blish Milling Co. 241 U. S. 190, where a telegram “We will make claim against railroad for entire contents of car at invoice price” was held to be in substance the making of a claim within the meaning of the stipulation. There are State decisions to the same effect. In Hyatt Roller Bearing Co. v. Pennsylvania Railroad, 92 N. J. L. 94, where the consignor merely wrote a letter to the carrier reciting the facts and informing it that the goods had not been delivered, it was said: “The liberality of interpretation placed upon that term [viz. claim] by the Federal Supreme Court, and the courts of sister States, where the question has arisen,. evinces that the fundamental reason for the requirement is to enable the carrier to trace the goods within a reasonable period after the delivery, or the failure to deliver, so as to protect itself from resulting loss, upon a subsequent claim for damage. Manifestly the delivery of a notice of the loss, from which no other inference is reasonably derivable than that the loss has occurred, and giving the substantial particulars as in the case sub judice, and which resulted in an investigation, by the carrier, is substantially a claim or a notice of a claim within the reasonable construction of the bill of lading.” In E. H. Emery & Co. v. Wabash Railroad, 183 Iowa, 687, it was held that a notice that the consignee “will file a claim,” though in the future tense, sufficiently complied with this requirement. See also 14 Ann. Cas. 416 note. 1 A. L. R. 900 note. 2. The misdelivery was made on June 25, 1917. This action was brought June 27,1919. Even assuming that the above quoted provision in the bill of lading, limiting the institution of actions to two years and one day, is reasonable and valid (see Decker & Sons v. Director General, 55 I. C. C. Rep. 453, United States v. Alaska Steamship Co. 253 U. S. 113, Leigh Ellis & Co. v. [45] Payne, 274 Fed. Rep. 443), yet it does not bar the plaintiff’s right to recover. Here there was a “failure to make delivery” in accordance with the terms of the bill of lading; and the plaintiff was not informed thereof until October 30, 1918, or more than sixteen months after it occurred. At no time was a written declination of the claim made by the defendant. On the facts shown, it seems to us that the plaintiff’s action was seasonably begun. After the commencement of this action, the eleventh paragraph of § 20 of the interstate commerce act was further amended by § 438 of the transportation act, making it unlawful to provide a shorter period for the institution of suits than two years, and further providing that such period is “to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.” 3. At the time of the misdelivery, the carrier had not assumed the position of warehouseman, and its responsibility was that of carrier. See Newcomb v. Boston & Lowell Railroad, 115 Mass. 230; South Deerfield Onion Storage Co. v. New York, New Haven & Hartford Railroad, 222 Mass. 535. 4. In view of the conclusion reached, it is unnecessary to decide whether the misdelivery constituted a conversion, and relieved the plaintiff from complying with the above stipulations in the bill of lading. See Georgia, Florida & Alabama Railway v. Blish Milling Co. 241 U. S. 190, 197; Pere Marquette Railway v. J. H. French & Co. 254 U. S. 538, 546. Judgment is to be entered for the plaintiff in the sum of $186.05, with interest from the date of the writ; and it is So ordered.