The Eldridge

• Citation: 295 F. 696
• Decision Date: 11 February 1924
• Docket Number: 5102.
• Court: U.S. District Court — Western District of Washington
• Parties: THE ELDRIDGE. v. UNITED STATES. JARDINE, MATHESON & CO.

295 F. 696

THE ELDRIDGE.

JARDINE, MATHESON & CO. v. UNITED STATES.

No. 5102.

United States District Court, W.D. Washington, Northern Division.

February 11, 1924

Bogle Merritt & Bogle, of Seattle, Wash., for libelant.

Grosscup & Morrow, of Seattle, Wash., for respondent and claimant.

NETERER District Judge (after stating the facts as above).

The libelant contends that the libel is based upon tort, and that the stipulation only has relation to contract, and that in any event the stipulation is without binding force as to the entire cargo. The libel clearly seeks to recover on contract of shipment. The testimony supports the shipping contract the bill of lading being in evidence containing the stipulation as above set out.

A stipulation in a bill of lading limiting the time within which claim for loss or damage shall be presented, and within which actions may be instituted, is valid, if reasonable and, unless good reason for delay is given, is binding. The time stipulated is 40 days, and the testimony shows that no action was commenced for 117 days, nor is excuse offered, and demand made only shortly previous to institution of suit. The Supreme Court in Georgia, Fla. & Ala. Ry. v. Blish Co., 241 U.S. 190, 36 Sup.Ct. 541, 60 L.Ed. 948, held as a prerequisite of an action that the notice of claim as required by the bill of lading must be given. To the same effect is Southern Pacific Co. v. Stewart, 248 U.S. 446, 39 Sup.Ct. 139, 63 L.Ed. 350; The Turret Crown (C.C.A.) 284 F. 439; The Arctic Bird (D.C.) 109 F. 167; The Verdi (C.C.A.) 282 F. 572.

In Gooch v. Oregon Short Line, 258 U.S. 22, 42 Sup.Ct. 192, 66 L.Ed. 443, the court declined to entertain an action where a party was riding upon 'drover's pass,' which contained a provision that a claim for injury should be presented in writing within 30 days. The party was injured and taken to the hospital by the railway company and treated by its physician more than 30 days; the party failing to give written notice to the railway company of claim for damages. The court held his failure to give the written notice barred his recovery.

The wood oil was unloaded October 18, 1919. The notice for claim for damages was verified December 18th following, and was indorsed as received by the claimant January 2, 1920. The action was commenced February 17, 1920. The limit of time stipulated in the contract of shipment within which action may be commenced, if reasonable, is no longer an open question. The Henry S. Grove (D.C.) 283 F. 1019. See, also, Gulf, C. & S.F.R. Co. v. Gatewood, 79 Tex. 89, 14 S.W. 913, 10 L.R.A. 419; McCarty v. Gulf, C. & S.F. Ry. Co., 79 Tex. 33, 15 S.W. 164; Gulf, C. & S.F. Ry. Co. v. White (Tex. Civ. App.) 32 S.W. 322; McCormack v. U.S. (D.C.) 298 F. 824, 1923 A.M.C. 678.

The libelant cites in support of his contention the cases noted in the margin, ^[1] but these have no controlling application to the facts in this case.

The libel is therefore dismissed.

---------

Notes:

^[1] In St. Louis, I.M. & S. Ry. v. Starbird 243 U.S. 595, 37 Sup.Ct. 462, 61 L.Ed. 917, the court upheld a time limit of 36 hours for perishable commodities. See also, Persiana, 185 F. 396, 107 C.C.A. 416; Austriaca De Navigazione v. Leon G. Tujague & Co., 231 F. 427, 145 C.C.A 421; The San Guglielmo, 249 F. 588, 161 C.C.A. 514; Kidwell v. Oregon Short Line, 208 F. 1, 125 C.C.A. 313; Olson v. C.B. & Q. Ry. Co., 250 F. 372, 162 C.C.A. 442; Chesapeake & Ohio Ry. Co. v. McLaughlin, 242 U.S. 142, 37 Sup.Ct. 40, 61 L.Ed. 207; Erie R.R. v. Stone et al., 244 U.S. 332, 37 Sup.Ct. 633, 61 L.Ed. 1173; B. & O.R.R. Co. v. Leach, 249 U.S. 217, 39 Sup.Ct. 254, 63 L.Ed. 570; Erie R.R. Co. v. Shuart, 250 U.S. 465, 39 Sup.Ct. 519, 63 L.Ed. 1088; The Tampico (D.C.) 151 F. 689, 694; Central Vermont R.R. Co. v. Soper et al., 59 F. 879, 8 C.C.A. 341; Klair v. Railroad Co., 2 Boyce, 274, 78 A. 1085, 1097; B. Presley Co. v. I.C.R. Co., 120 Minn. 295, 139 N.W. 609; Cox v. Vermont Central R. Co., 170 Mass. 129, 49 N.E. 97; Kelly v. Southern R.R. Co., 84 S.C. 249, 66 S.E. 198, 137 Am.St.Rep. 842; Southern Railway Co. v. Bunch, 27 Ga.App. 689, 109 S.E. 523; Atlantic Refining Co. v. Railroad Co., 270 Pa. 415, 113 A. 570; Phillips v. R.R. Co., 172 N.C. 86, 89 S.E. 1057; Railroad Co. v. Hays, 13 Tex.Civ.App. 577, 35 S.W. 476; Railway Co. v. Reeves, 90 Tex. 499, 39 S.W. 564; Railway Co. v. Crowley (Tex. Civ. App.) 86 S.W. 342; Railway Co. v. Boshear (Tex. Civ. App.) 108 S.W. 1032; Railroad Co. v. Bryce, 49 Tex.Civ.App. 608, 110 S.W. 529; Malloy v. Railway Co., 109 Wis. 29, 85 N.W. 130; Hatch v. Railway Co., 15 N.D. 490, 107 N.W. 1087; 10 Corpus...