Sperry Flour Co. v. Coastwise Steamship & Barge Co.

NETERER, District Judge. Libelant seeks to recover damages in rem and in personam for value of shortage of cargo. Four causes of action are set out, covering as many shipments, whieh were delivered to the steamship James Griffiths pursuant to bills of lading attached, the bills of lading providing, among other things, that unless written demand for the payment of the claims of shipper or consignee, etc., “ * * * or of misdelivery or of delay in delivery * * * shall be presented to Carrier or its Agent within thirty days after removal of the merchandise from the Carriers custody, all such claims shall be taken to have been waived, and no suit shall thereafter be maintainable to recover any such claims. * * * Nothing shall be deemed a waiver of the provisions of this paragraph except a written express waiver signed hy the Carrier.” Like exceptions are made by the McCormick Steamship Company, James Griffiths & Sons Company, and the Coastwise Steamship & Barge Company as to each cause of action, with the added exception of the Coast-wise Steamship & Barge Company to the second paragraph of article 9 of the first cause of action, the second paragraph of article 3 of the second eatise of action, and the second paragraph of article 3 of the third cause of action, claiming that said causes are improperly included and form no part of the cause or causes of action set forth, and should be stricken. This exception of the Coastwise Steamship & Barge Company, in view of the conclusion, can well be passed without discussion. The challenge to the libel can be disposed of on the exception challenging the sufficiency of the statement to constitute a cause of action. This court has heretofore disposed of that issue in The Sagadahoc, 291 F. 920, wherein eases set out by the libelant were discussed and distinguished, except the libel-ant urges that the court failed to refer to The Feltre (C. C. A.) 30 F.(2d) 62. The question of notice was not raised in that case and was clearly waived. Judge Gilbert, for the court, at page 65, says: “There was no allegation, however, in either answer that the notice had not been given or that a claim had not been filed, or thai the libel was barred for that reason, and so far as is shown by the records in the court below, at no time was any [686] such defense suggested by tbe appellant until after the court bad made its findings some two months after tbe submission of tbe ease, nor was there then an offer to amend tbe answers and plead that defense.” In tbe instant ease tbe sufficiency, by absence of notice, is challenged at tbe first opportunity and tbe question is clearly raised at tbe inception of the litigation, and tbe duty imposed upon tbe court to determine that issue of law raised by,tbe exceptions. Tbe. libelant in the instant case could have raised tbe same issue by answer, but tbe question is properly raised by exceptions in tbe interest of economy of tbe court’s time as well as of tbe litigants, rather than to raise tbe question upon tbe trial. Tbe fact that tbe carrier bad knowledge that there was shortage of delivery did not relieve tbe libelant from complying with tbe provisions of tbe bill of lading, and serve notice of nondelivery. The Supreme Court, in Southern Pacific Co. v. Stewart, 248 U. S. 446, 39 S. Ct. 139, 140, 63 L. Ed. 350, said: “Considering tbe principles and conclusions approved by our opinions in St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592, 61 L. Ed. 917, 37 S. Ct. 462, and Erie R. Co. v. Stone, 244 U. S. 332, 61 L. Ed. 1173, 37 S. Ct. 633 (announced since tbe judgment below), and tbe cases therein cited, no extended discussion is necessary to show that upon tbe facts here disclosed tbe stipulation between tbe parties as to notice in writing within ten days of any claim for damages was valid. And we also think those opinions make it clear that tbe circumstances relied upon by tbe shipper are inadequate to show a waiver by tbe carrier of written notice as required by tbe contract.” By tbe same token, this expression applies here. In Gooch v. Oregon Short Line R. Co., 258 U. S. 22, 42 S. Ct. 192, 193, 66 L. Ed. 443, Justice Holmes, for the court, said: “Of course too, actual knowledge on tbe part of employees of tbe company was not an excuse for omitting tbe notice in writing. St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592, 61 L. Ed. 917, 37 S. Ct. 462.” See, also, The Queen of the Pacific, 180 U. S. 49, 21 S. Ct. 278, 45 L. Ed. 419. What was said in Tbe Sagadahoc, supra, is reaffirmed. Nor is tbe allegation that “libelant has complied with and performed all tbe conditions of said bill of lading on its part to be performed” a statement of fact. Nor is tbe letter from claimant, with other statements, tbe following, “Assuring you of our earnest desire to assist you in every way possible,” a waiver of “written demand for tbe payment of tbe claims * * Waiver implies election to forego a right or privilege, Supreme Lodge, K. P., v. Quinn, 78 Miss. 525, 29 So. 826; to abandon an assertable advantage, Warren v. Crane, 50 Mich. 300, 15 N. W. 465; Cable v. U. S. L. Ins. Co. (C. C. A.) 111 F. 19; intentional relinquishment of an existing known right, Lehigh Valley R. Co. v. Providence-Washington Ins. Co. (C. C. A.) 172 F. 364. There is not even an attempt to waive “written demand.” Nor is there anything operating against respondents or claimant by way of estoppel. Exceptions are allowed except as to those, as stated, passed without discussion.