Culver v. Boat Transit, Inc.
| Decision Date | 14 January 1986 |
| Docket Number | No. 84-4152,84-4152 |
| Citation | 782 F.2d 1467 |
| Parties | Larry CULVER and Marine Office of America Corporation, Plaintiffs-Appellants, v. BOAT TRANSIT, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Katherine H. O'Neil, Wood, Tatum, Mosser, Brooke & Holden, Portland, Or., for plaintiffs-appellants.
Emil Berg, Hallmark, Griffith & Keating, P.C., Portland, Or., for defendant-appellee.
Appeal from the United States District Court for the District of Oregon.
Before SKOPIL and FLETCHER, Circuit Judges, and REED, * District Judge.
We are asked to determine if a shipper's failure to strictly comply with a written notice of claim requirement in a carrier's bill of lading as required by the Carmack Amendment, 49 U.S.C. Sec. 11707(e) (1982), precludes the shipper and his insurer from maintaining an action against the carrier. The district court found that strict compliance was required and granted the carrier's motion for summary judgment. We reverse.
Boat Transit, Inc. ("Boat Transit"), a common carrier, agreed to ship Larry Culver's ("Culver") sailboat. Marine Office of America Corporation ("MOAC") insured the sailboat. During shipment, the truck carrying the sailboat collided with a truck. The sailboat fell off its trailer and was damaged.
A Boat Transit vice president in charge of damage claims phoned Culver and told him that his sailboat had been damaged in the accident. Later, both parties, along with their claim surveyors, met at Seattle Marine boat yard to jointly inspect the damage. In the presence of both parties' surveyors, Culver paid the C.O.D. charges for delivery of the sailboat and had the Boat Transit driver note the following damage on the bill of lading:
Section 2(b) of the bill of lading provides that, as a condition precedent to recovery, claims must be filed in writing with the carrier within nine months after delivery. The requirements of section 2(b) comes from an industry-standard Uniform Bill of Lading. The provision incorporates statutory time limitations for the filing of damage claims, 49 U.S.C. Sec. 11707(e), and regulatory requirements for claim forms, 49 C.F.R. Secs. 1005.1-.3 (1984). In addition to section 2(b), language in the bill of lading states that any damage or shortages must be noted on the bill of lading at delivery and concealed damage must be reported to the carrier within fifteen days of delivery.
Representatives of Boat Transit and Culver agreed that the sailboat had been damaged too extensively to be repaired at Seattle Marine. Boat Transit representatives conferred with Boat Transit headquarters in California and agreed to move the sailboat to Holiday Marine for repairs. The two parties' surveyors later met again and compared surveys. The Boat Transit surveyor agreed to the repairs as outlined by Culver's surveyor. A Boat Transit representative told Culver to have his insurance company pay for the repairs and Boat Transit would then settle with Mr. Culver and MOAC. Repairs were undertaken and completed. MOAC paid Holiday Marine the full amount of its invoice and sought reimbursement from Boat Transit. Boat Transit denied MOAC's claim because Boat Transit had not received written notice of the claim within nine months of delivery.
Both parties moved for summary judgment on the question of whether Culver and MOAC were required to give Boat Transit written notice of the claim within nine months when Boat Transit had actual notice of the claim. Boat Transit complained, however, that plaintiff's motion was filed too late to allow a response prior to the court's consideration of Boat Transit's motion. The district court granted Boat Transit's motion for summary judgment and dismissed the plaintiffs' action. Culver and MOAC appealed.
Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). Our review is de novo. Id.
The Carmack Amendment, 49 U.S.C. Sec. 11707(e), requires that a carrier provide a minimum period of nine months for filing a written claim of damage. The purpose of the written claims requirement is to facilitate prompt investigation of damage claims by shippers, not to allow a carrier to escape liability. Georgia, Florida & Alabama Railway v. Blish Milling Co., 241 U.S. 190, 196, 36 S.Ct. 541, 544, 60 L.Ed. 948 (1916).
Written notice of claim which will call the carrier's attention to the condition of the freight, enabling the carrier to investigate the claim, generally is required. E.g., Northern Pac. Ry. v. Mackie, 195 F.2d 641, 642-43 (9th Cir.1952). In Mackie, we held that oral notice coupled with the carrier's actual knowledge of damage was not sufficient to meet the written claim requirement. Id.
Mackie initially appears controlling. In a case decided after the district court dismissed this action, however, we concluded that "the formal requirement that the written communication inform the carrier that it is being held responsible for the damage may be relaxed when the carrier is given written notice of the fact of damage, has conducted a full inquiry, and is aware, through other communications,...
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