Fisk Rubber Co. of New York v. New York, New Haven and Hartford Railroad Co.

• Decision Date: 07 November 1921
• Citation: 240 Mass. 40
• Parties: FISK RUBBER COMPANY OF NEW YORK v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 40

FISK RUBBER COMPANY OF NEW YORK v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Hampden.

November 7, 1921

September 23, 1921.

Present: RUGG, C J., DE COURCY, CROSBY, CARROLL, & JENNEY, JJ.

Bill of Lading. Carrier, Of goods. Notice. Contract, Construction, Validity.

A railroad corporation issued to a shipper at Lowell in this Commonwealth a negotiable uniform bill of lading for goods received by it for shipment and delivery to the order of a consignee at Knoxville in the State of

Tennessee, a provision of which was "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 consignor sent the bill of lading with a draft attached to a bank at the place of destination. The goods arrived at their destination on June 22, 1917, and on June 25 were delivered by the carrier without requiring the surrender of the bill of lading, and the draft was not paid. The consignee was not notified and had no knowledge of the delivery until October 30, 1918, and did not bring an action against the railroad corporation until June 27, 1919. Held, that

(1) The requirements of the bill of lading as to notice were not satisfied by letters from the consignor to the railroad corporation on

July 23 and on October 6, 1917, asking that the shipment be traced; (2) A letter from the consignor to the railroad corporation on

December 12, 1917 rehearsing the facts as to the shipment and the requests that it be traced, and stating, "Our customer will not accept this shipment unless it is delivered at once and it will be necessary for us to enter claim with the railroad company covering same. Will you kindly make a special effort and have this shipment wired traced at once," was a notice of claim within the requirements of the bill of lading;

(3) The delivery by the carrier without requiring the surrender of the bill of lading was a "failure to make delivery" in accordance with its terms;

(4) Even assuming that the provision of the bill of lading as to limitation of the time within which actions should be brought was reasonable and valid, this action, upon the facts above described, was brought seasonably;

(5) At the time of misdelivery, the carrier in Tennessee had not assumed the position of warehouseman, and its responsibility as carrier continued;

(6) It was unnecessary to decide whether the misdelivery constituted a conversion and relieved the plaintiff from complying with the stipulations of the bill of lading as to notice and limitation of time within which action should be brought.

CONTRACT OR TORT, with a declaration in two counts, the plaintiff in the first count alleging in substance that the defendant neglected to deliver certain goods shipped by the Auto-Tire Vulcanizing Company at Lowell to the plaintiff at Knoxville in the State of Tennessee upon a uniform bill of lading, described in the opinion, "but delivered the same without surrender of the bill of lading." The second count was for conversion of the goods. Writ dated June 27, 1919.

The defendant's answer alleged a failure of the plaintiff to comply with the requirements of the bill of lading, described in the opinion, as to notice and time within which the action should have been begun.

In the Superior Court, the action came on to be heard before Fessenden, J., upon an agreed statement of facts.

It appeared that, on July 23, 1917, the Auto-Tire Vulcanizing Company wrote to the defendant as follows: "Will you kindly trace our shipment of June 8th, to order of The Fisk Rubber Company, notify International Rubber Sales Co., Knoxville, Tenn.?" On October 6, 1917, the Auto-Tire Vulcanizing Company wrote to the defendant as follows: " Will you please wire trace our shipment of June 8th to Order of The Fisk Rubber Company of N. Y. Notify International Rubber Sales Co., Knoxville, Tenn. 4 boxes, 2 crates, weight 700 lbs. Will you kindly make a special effort to locate this shipment as our customer win refuse to accept same unless it is delivered within the next week. We feel sure that it is not necessary for a shipment to be delayed in this manner, providing the Railroad Company gives a little of their attention."

The foregoing letters were followed, on December 12, 1917, by a further letter from the Auto-Tire Vulcanizing Company to the defendant, which read as follows: "On June 8th we made a shipment consisting of 4 boxes and 2 crates to order of The Fisk Rubber Company, notify International Rubber Sales Co., Knoxville, Tenn. Now this shipment has not as yet arrived in Knoxville, Tenn. altho we have asked you to trace same at several different times. Our customer will not accept this shipment unless it is delivered at once and it will be necessary for us to enter claim with the railroad company covering same. Will you kindly make a special effort and have this shipment wired traced at once."

Other material facts agreed upon are described in the opinion. At the request of both parties, the judge reported the action to this court for determination.

G. A. Bacon & S.

W. Weltman, for the plaintiff, submitted a brief.

A. W. Blackman, for the defendant.

DE COURCY, 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 lading was negotiable, and with draft attached was sent to the City National Bank of Knoxville...