New York Cent. R. Co. v. Lazarus, 89.

• Decision Date: 18 January 1922
• Docket Number: 89.
• Citation: 278 F. 900
• Parties: NEW YORK CENT. R. CO. v. LAZARUS et al.
• Court: U.S. Court of Appeals — Second Circuit

278 F. 900

NEW YORK CENT. R. CO. v. LAZARUS et al.

No. 89.

United States Court of Appeals, Second Circuit.

January 18, 1922

Alex. S. Lyman, of New York City (William Mann, of New York City of counsel), for plaintiff in error.

Harrington Bigham & Englar, of New York City (Arthur W. Clement, of New York City, of counsel), for defendants in error.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MANTON Circuit Judge.

On May 12, 1917, at Singapore, China, there was delivered to the Seattle Vladivostock Steamship Line, 994 slabs of tin to be carried to Seattle, Wash., by the steamship Louise Nielson and then by rail to New York. The tin was consigned to the defendants in error. Eventually the tin was delivered to the defendants in error, all except 183 slabs, which were lost by theft while in its possession. Below the defendants in error have recovered a judgment for the value of these stolen slabs of tin. It was an interstate shipment, and therefore subject to the rules and regulations contained in the interstate tariffs established by the plaintiff in error as required by the Interstate Commerce Act (Comp. St. Sec. 8563 et seq.). There were two through bills of lading issued by the steamship company in China, but they were not on file with the Interstate Commerce Commission. The interstate tariffs established by the plaintiff in error and applicable to this shipment were conditioned on the terms and conditions of the form of the uniform bill of lading. Therefore the liability if any imposed, must be determined by the conditions of the uniform bill of lading. As a defense, the following provision of the uniform bill of lading was pleaded:

'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.'

This action was not commenced within two years and one day after delivery of the property referred to in the complaint, or within two years and one day after a reasonable time for delivery of the property had elapsed. The rate charged by the plaintiff in error for the transportation of the tin was the rate contained in the tariffs and classifications for the transportation of property shipped subject to the terms and conditions of the uniform bill of lading. The tariffs and classifications were fixed at a higher rate for the transportation of property when not subject to all the terms and conditions of the uniform bill of lading. The consignments of tin were received by rail carrier at Seattle, Wash., on June 17, 1917, and delivered in New York City, with the exception of the 183 missing slabs, on the 21st of August, 1917. The rate paid for the transportation was 56.02 cents per 100 pounds, which is the rate contained in the transcontinental east-bound import tariff, duly published and filed with the Interstate Commerce Commission, and in effect at the time the rules and regulations filed with the Interstate Commerce Commission provided that the abovementioned rate applies to properties shipped subject to all the terms and conditions of the uniform bill of lading which are contained in said classification. The rate charged when the consignor notifies the carrier that he elects to have his property transported subject to carrier's common-law and statutory liability, and not subject to all the uniform bill of lading conditions, is 10 per cent. higher than the rate charged for transportation of property subject to all those terms and conditions. No bill of lading was actually issued by this rail carrier. The usual time for transportation of carloads of tin from Seattle to New York and delivered to the consignee is from 20 to 23 days. These cars were in transit approximately 28 days. Claims were presented for the loss of the property in question on August 21, 1917, and investigations and other negotiations were pending up to the time of the commencement of this action.

It is contended that the condition of the bill of lading as to the time within which this action must be commenced was suspended by virtue of the provisions of the Transportation Act of February 28, 1920 (section 206f (41 Stat. 462)). It provides:

'The period of federal control shall not be computed as a part of the periods of limitation in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to federal control.'

Section 206(a) relates to causes of action arising out of federal control, and provides:

'Such actions, suits, or proceedings may, within the periods of limitation now prescribed by state or federal statutes, but not later than two years from the date of the passage of this act, be brought in any court which but for federal control would have had jurisdiction of the cause of action had it arisen against such carrier.'

It is contended that section 206(f) of this act invalidates the period of limitation set forth in the conditions of the uniform bill of lading, and that therefore this action was commenced in time. The argument is that section 206(f) applies to all periods of limitations, whether applied by contract, regulation or statute. As the phrase 'periods of limitation' is used in these sections of the Transportation Act, we think the words apply to limitations 'now prescribed by the state or federal statutes. ' We think Congress did not intend a different meaning in the use of the words 'periods of limitation,' as used in paragraph (f), than their meaning as defined in paragraph (a). A phrase repeated in several sections of the statute will bear the same meaning throughout the statute, unless a different intention clearly appears. It will be presumed to be used in the same sense, and where its meaning is clear in the one instance, the same understanding will be attached to it elsewhere, unless the legislative body makes clear its intention that it be used in a different sense. Wells Fargo & Co. v. Taylor, ...