R. P. Hazzard Co. v. Me. Cent. R. Co.

• Citation: 116 A. 258
• Parties: R. P. HAZZARD CO. v. MAINE CENT. R. CO.
• Decision Date: 13 March 1922
• Court: Supreme Judicial Court of Maine (US)

116 A. 258

R. P. HAZZARD CO.

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

March 13, 1922.

Report from Superior Court, Kennebec County, at Law.

Action by the R. P. Hazzard Company against the Maine Central Railroad Company. On report. Judgment for defendant.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

George W. Heselton, of Gardiner, for plaintiff.

Carroll N. Perkins, of Waterville, for defendant.

CORNISH, C. J. This action is for the nondelivery of a portion of an interstate shipment of goods, under the provisions of the Carmack Amendment to the Interstate Commerce Act, U. S. Comp. St. 1916, vol. 8 § 8604a, the defendant being the initial carrier.

The facts, which are not in dispute, may be thus stated: On May 13, 1918, the plaintiff delivered to the defendant at Gardiner, Me., 25 cases of shoes consigned to F. L. Moore & Co., of Boston, Mass., forwarding agents, 14 cases being intended for reshipment to the Beck Shoe Company of New York City, and being plainly stenciled with the name and address of the last-named company. The shipment arrived in Boston on May, 15, 1918, at 10:45 a. m., having been en route two days, but it was 2 cases short, only 12 of the 14 Beck Shoe Company cases being delivered. The consignee receipted for the 12 cases only. The missing goods were never delivered, and no reason is disclosed for such nondelivery. On November 25, 1918, the plaintiff was advised of the shortage by the Beck Shoe Company. The attention of the defendant's station agent at Gardiner was called to the fact by the plaintiff on the nest day, November 26, and on November 27 the plaintiff claims to have sent the following letter to the defendant at Gardiner:

"Referring to our shipment of May 12th of 14 cases shoes numbers 3683/84 and 8774/8785 inclusive to the Beck Shoe Co., New York, care of F. L. Moore & Co. that Mr. Lasalle had up with you yesterday relative to there being two eases short, numbers 8778 and 8780.

"We trust you can locate the same at once with wire tracer as suggested."

On December 14, 1918, a claim was presented to the defendant in the form of an invoice for the two missing cases, giving their value to be $141, and stating that this shipment of May 13 was short that amount on arrival at Boston.

The shipment was under a bill of lading of the uniform type, and contained the following stipulation and condition:

"Section 3. * * * 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."

The defense is that written claim of loss was not made to the carrier within the prescribed time, and therefore the action cannot be maintained.

1. The validity of this stipulation in the bill of lading has been settled by the federal court. Georgia F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, St. Louis, etc., Ry. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917.

2. Written claim within the meaning of this stipulation was not made upon the company until December 14, 1918.

The letter of November 27, assuming that it was sent and received as the plaintiff contends, did not constitute a claim, and did not purport to make demand for compensation. It was simply an expression of hope that the defendant would be able to locate the goods by means of a wire tracer as suggested in the interview on the preceding day. It stated a desire to have the goods themselves, and not the value thereof nor pay therefor. It made no demand for remuneration.

Such claim need not be phrased in any particular form, but it must possess the characteristics of a claim, and should either amount to a demand for compensation or contain evidence of an intention to claim remuneration for loss suffered. St. Louis, etc., Ry. Co. v. Starbird, 243 U. S. 592, 605, 37 Sup. Ct. 462, 61 L. Ed. 917; Bronstein v. Payne, Director General (Md.) 113 Atl. 648, The distinction between the nature of this letter of November 27 and the written claim of December 14 is recognized by the plaintiff itself. Under date of December 12, 1918, it wrote to the Beck Shoe Company that it had taken the matter up with the local agent of the defendant in Gardiner, and he had advised that he was unable to locate the two missing cases, "therefore we will enter claim at this end and trust the same will be satisfactory." The claim was entered two days later. Again, under date of October 30, 1919, the plaintiff wrote the defendant, "Will you kindly refer to claim No. 260847, our claim of Dec. 14, 1918, amount $141, and return to us all papers, etc." This was the first and only claim the plaintiff intended to make.

The distinction is also noted by the courts. In a very recent case in Maryland the court say:

"This prayer submits the proposition that the letter referred to in the evidence as a 'tracer' sent by Leibowitz & Co. to the Baltimore and Ohio Railroad Company with the bill of lading and paid freight bill together constituted a...