Hartness v. Iberia & V. R. Co.
| Decision Date | 22 March 1924 |
| Docket Number | 17051. |
| Citation | 297 F. 622 |
| Court | U.S. District Court — Eastern District of Louisiana |
| Parties | HARTNESS v. IBERIA & V.R. CO. |
Abraham Goldberg, of New Orleans, La., and Mac Asbill, of Atlanta Ga. (Dufour, Goldberg & Kammer, of New Orleans, La., of counsel), for petitioner.
Denegre Leovy & Chaffe, and Harry McCall, all of New Orleans, La for defendant.
Spencer Gidiere, Phelps & Dunbar, of New Orleans, La., amici curiae.
This is a suit to recover damages for delay in delivering 606 pockets of rice shipped from Abbeville, La., to Charleston, S.C., over the defendant railroad. The material allegations of the petition are substantially these: That the rice was shipped on March 20, 1920; that a reasonable time for delivery is three weeks, but the rice was not delivered until September 9, 1920, a delay of over five months; that it was not properly cared for in transit, so that it arrived in a damaged condition.
An exception of prescription, based on the law of Louisiana (Act 223 of 1914), was filed by defendant. The act relied on provides that all actions for loss or damage to shipments of freight shall be prescribed in two years, such prescription to run from date of shipment. The plaintiff relies upon a clause in the bill of lading, the pertinent part of which is:
'As conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after the delivery of the property or, in case of failure to make delivery 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. * * * '
The petition was filed August 20, 1922, more than two years after the date of shipment, but less than two years after the date of delivery.
It is contended by defendant that the only federal statute applicable to the case is section 438 of the Transportation Act (Comp. St. Ann. Supp. 1923, Sec. 8604a), which reads as follows:
'That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days, for the filing of claims than four 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.'
Further that this law was not complied with in the clause printed in the bill of lading, and therefore the whole clause is void, and the limitation of the action must be governed by the law of Louisiana quoted above; that, if the bill of lading be considered as a contract, no valid agreement could be made waiving prescription before it had accrued (article 3460 of the Civil Code of Louisiana); that section 438 of the Transportation Act is not a statute of limitation, but merely a regulation of...
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