Thompson v. James G. McCarrick Co.

• Decision Date: 20 August 1953
• Docket Number: No. 14277.,14277.
• Citation: 205 F.2d 897
• Parties: THOMPSON v. JAMES G. McCARRICK CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

205 F.2d 897 (1953)

THOMPSON v. JAMES G. McCARRICK CO., Inc.

No. 14277.

United States Court of Appeals Fifth Circuit.

June 30, 1953.

Rehearing Denied August 20, 1953.

Leslie S. Lockett, Corpus Christi, Tex., Hutcheson, Taliaferro & Hutcheson, Houston, Tex., Kleberg, Mobley, Lockett & Weil, Corpus Christi, Tex., of counsel, for appellant.

John C. North, Jr., Corpus Christi, Tex., North, Blackmon & White, Corpus Christi, Tex., for appellee.

Before HOLMES, BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This consolidated appeal from judgments in two cases involves appellee's right to recover damages to four carload shipments of tomatoes, forwarded through appellant as initial carrier from the Rio Grande Valley of Texas and delivered in New York City by the Pennsylvania Railroad. The three claims involved in C.A. 579 were addressed to the Pennsylvania Railroad but were delivered to the Railroad Perishable Inspection Agency (hereinafter referred to as the R.P.I.A.), while the one claim involved in C.A. 580 was delivered to an agent of the Pennsylvania Railroad.

The parties have stipulated that the only question for determination with respect to the claims involved in C.A. 579 is whether they constituted valid claims in writing filed with an authorized agent of the carrier as required by the bills of lading. There is no dispute that the claim in C.A. 580 was filed with the proper agent of the carrier, and the only inquiry is whether the written instrument filed constituted a valid claim.

The District Court found there was a valid claim filed as to each of the four shipments and that the R.P.I.A. was authorized to act for appellant in receiving the three claims in which its agency was disputed. Judgments were accordingly entered for appellee for the stipulated amounts due, from which judgments appeals were taken and here consolidated.

Each of the four shipments upon which the claims in suit are based were transported under a separate bill of lading form approved by the Interstate Commerce Commission, with a provision known as 2(b) in pertinent part as follows:

"As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property * * *. Where claims are not filed * * * in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid."

The above provision of the bills of lading is authorized by that part of the Carmack Amendment, 49 U.S.C.A. § 20(11), reading as follows:

"Provided further, That it shall be unlawful for any such receiving or delivering common carrier to provide by rule, contract, regulation, or otherwise a shorter period for the filing of claims than nine months, and for the institution of suits than two years, such period for institution of suits 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".

Thus the statute and the bill of lading provision drawn thereunder, though authorizing and providing for a period of limitation within which "claims" for damaged shipments must be filed, do not specify what shall constitute a valid claim, or the essential elements thereof. The type instrument filed and relied upon by appellees as a claim with respect to the three shipments in C.A. 579 is in each instance entitled "Statement of Protest", and with variations as to dates, car numbers and claimed condition of individual shipments upon arrival, reads in accordance with sample form as follows:

"XXXXXX-XX

Statement of Protest.

5/26/44 Pier 28 Place Penna. R.R. Yeckes & Eichenbaum Consignee By virtue of authority vested in us by -------------------------------------- We hereby protest car 93305 Commodity Tomatoes for the following condition Decay 5/27/44 — 1:00 a R P I A M 19 W C

As a means of cooperation if each and every condition is not verified a joint inspection is requested.

If not verified notify consignee or writer immediately.

McCabe Inspection Service

Inspectors of Perishable Commodities

97 Warren Street 3854 New York City, Cortlandt 7 3853 By J. A. Coma This is Consignee's Claim For $150.00 More or Less" The instrument relied upon as a claim in C.A. 580 is termed by appellant a "Placement Notice" and reads as follows:

"ordered 12:30 PM 5/23 XXXXXX-XX (3013) Telephone CAnal 6-1500 Yeckes-Eichenbaum, Inc 335 Washington Street New York 13, N. Y 5/23/1944 Penna. R. R. N. R. Car No. FGE 35424 Pier File No. 3013

Dear Sir:

Confirming phone conversation of today, please have available at P 29 for MARKET OF 5/24/44 car of Toms for L&Ry (sic). We are protesting this car for any loss, damage and/or delay, that has occurred to this property and are hereby also entering claim for $100.00 subject to correction for such loss, damage and/or delay.

You are hereby notified that we are agents only and have no beneficial title in the property contained in this car. M 14 The beneficial owner is Name ________________________________ Address _____________________________ Very truly yours, Yeckes-Eichenbaum, Inc. By (Illegible signature) _____________________ Traffic Department. This notice is given pursuant to the provisions of amended par. (2) of Sec. 3 of the Interstate Commerce Act, effective March 4, 1927."

The validity and proper construction of a bill of lading covering an interstate shipment is governed by Federal law. Adams Express Co. v. Croninger, 226 U.S. 491, 507, 508, 33 S.Ct. 148, 57 L.Ed. 314; Cleveland, C. C. & St. L. Ry. v. Dettlebach, 239 U.S. 588, 593, 36 S.Ct. 177, 60 L.Ed. 453; Southern Ry. Co. v. Prescott, 240 U.S. 632, 636, 36 S.Ct. 469, 60 L.Ed. 836; St. Louis, Iron Mountain & Southern Ry. Co. v. Starbird, 243 U.S. 592, 37 S. Ct. 462, 61 L.Ed. 917. Moreover, the Carmack Amendment "casts upon the initial carrier responsibility with respect to the entire transportation" and a provision in a bill of lading requiring notice of claims for damaged shipments "is not to be construed in one way with respect to the initial carrier, and in another with respect to the connecting or terminal carrier." Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190, 196, 36 S.Ct. 541, 544, 60 L.Ed. 948. "The purpose of the stipulation is not to escape liability, but to facilitate prompt investigation." Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., supra; see Minot Beverage Co. v. Minneapolis & St. Louis Ry. Co., D. C., 65 F.Supp. 293, 295. In holding a telegraphic notice of claims for damage to a shipment of flour sufficient in the Blish Milling Co. case, 241 U.S. at page 198, 36 S.Ct. at page 545, the Court laid down the rule thus:

"Granting that the stipulation is applicable and valid, it does not require documents in a particular form. It is addressed to a practical exigency and it is to be construed in a practical way. The stipulation required that the claim should be made in writing, but a telegram which, in itself, or taken with other telegrams contained an adequate statement, must be deemed to satisfy this requirement."

In an action brought under the Carmack Amendment, 49 U.S.C.A. § 20 (11), all the shipper and holder of a bill of lading is required to do to establish a prima facie case is to show delivery in good condition, arrival in damaged condition, and the amount of his damages, whereupon the burden shifts to the carrier to show the cause of damage and that it is not liable therefor. Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., 6 Cir., 188 F. 2d 343; Lee Roy Crawford Produce Co. v. Thompson, Tex.Civ.App., 228 S.W.2d 344. As the District Court held, the details as to origin of shipment, place or cause of damage, and whether it is due to fault of the carrier or shipper, which appellant insists are essential elements of a valid claim, are actually defensive matters as to which the carrier can and should exercise its investigative powers...