80 F. Supp. 694 | D. Mass. | 1948
In this action the plaintiff seeks to recover damages alleged to have been suffered by reason of the negle-ct of the defendant in transporting certain products to the West Coast.
Findings of Fact.
The plaintiff is a manufacturer of writing ink. On January 13, 1943, it shipped -to the U. S. Naval Supply Depot at Oakland, California, approximately 55,000 bottles of ink in fluid form. Through a trucking concern, which was its own agent, the plaintiff delivered the ink .to the defendant in Boston. The defendant was the initial carrier and, by virtue of 49 U.S.C.A. § 20(11), commonly called the Carmack Amendment, is liable for any neglect on its own part as well as neglect on the part of succeeding carriers.
The u-sual running time for such a -shipment would -be" approximately twelve days. The shipment in question was delayed at several points by reason of war priorities, and it took twenty-five days to complete the trip from Boston to Oakland, California. When delivery of the ink was made to .the defendant carrier, the plaintiff did not specify a particular type of -car or whether or not it wanted -the car heated. The railroad provides a faeat-er service at a higher tariff than for the non-heater -service. While the -plaintiff says -that it did not in fact know about the heater -service at the time of this particular -shipment, I find this hard to believe, as the plaintiff -has been in this same business for a great many years and has shipped on a worldwide basis.
The defendant provided -the ordinary box -car and transported the -car to Green-ville, New Jersey, where it turned it over t-o another carrier. When -the goods reached California on February 7 they were rejected by the consignee because a number of -the car.ton-s had burst as a result of the ink having -frozen. The consignee later accepted some of the goods, and others which -had been reconditioned. The plaintiff was out-of-po-cket about $853.65 as a resul-t of the freezing of the, ink and its loss or reconditioning.
When the bill of lading was made out by ■the plaintiff, in addition -to routine instruc■tons there appeared on it-the following:
“War Materials — Urgent, Rush — Do Not Delay”
“Keep on Most Southerly Route to Avoid Freezing”
The plaintiff alleges that the defendant wa-s guilty of neglect in at least two instances: first, in failing to provide a heated car, and, -second, by reason of the delay in transporting the shipment to its destination. Ink has a freezing point of about 28° F. It must be borne in mind tha-t this shipment was made at the very height
Conclusions of Law.
From the foregoing I conclude and rule that the defendant railroad was not negligent in transporting the plaintiff’s goods. I also conclude and'rule,that the defendant was 'Under no obligation to provide heat to prevent the ink from freezing since the ■shipper had not contracted for this service.
The action is therefore to be dismissed.