Burdines, Inc. v. Pan-Atlantic Steamship Corp., 14038.
| Decision Date | 12 November 1952 |
| Docket Number | No. 14038.,14038. |
| Citation | 199 F.2d 571 |
| Parties | BURDINES, Inc. v. PAN-ATLANTIC STEAMSHIP CORP. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George J. Baya, Miami, Fla., for appellant.
D. P. S. Paul, Miami, Fla., for appellee.
Before BORAH, STRUM and RIVES, Circuit Judges.
This appeal is from a decree below dismissing a libel in admiralty brought by appellant against appellee to recover for alleged short delivery in a shipment of merchandise consigned by a shipper in New York City to libellant at Miami, Florida, aboard a steamship operated by respondent.
The shipper tendered to respondent with the merchandise a printed bill of lading, prepared by the shipper, containing a provision that suits against the carrier could be instituted "within two years and one day" after notice that the carrier had disallowed a claim of loss. This was not the form of bill of lading ordinarily used by respondent.
Before accepting the goods for shipment, and before executing the bill of lading, the respondent, using a rubber stamp in the presence of the shipper, superimposed in red ink on the face of the bill of lading, over the printed limitation provision, the following:
With this clause thus stamped on its face, the bill of lading was executed by the carrier and delivered to the shipper. The Carriage of Goods by Sea Act contains a provision, 46 U.S.C.A. § 1303(6), requiring suits of this character to be brought within one year after the date when the goods in question were delivered, or should have been delivered. Suit was brought within the two year period, but not within one year.
The sole question here is, which limitation controls. The District Judge held that the one year statute applied, and dismissed the libel for that reason. Appellant contends that by executing the bill of lading and using it as a receipt for the goods, respondent adopted the printed bill of lading, thereby waiving the one year limitation, and that the Clause Paramount stamped thereon created an ambiguity which should be resolved against respondent.
The libel was properly dismissed. Before accepting the shipment, and before issuing the bill of lading, respondent...
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