113 A. 648 | Md. | 1921
This is an appeal from a judgment of the Superior Court of Baltimore City, entered in an action brought by the appellants against the appellee to recover the value of a bale of woolen rags which had been delivered by the appellants to the appellee and by it accepted for transportation from Baltimore to New York, where it was to have been delivered to designated consignees, but which in fact was never delivered.
It was conceded that the carrier had received the goods from the shipper, that it lost them, and that neither the shipper nor his consignee received either the goods or their value, but the appellee refused to pay for them on the ground that no written claim for damages had been filed within the time limited by the bill of lading under which they were shipped. Whether, under the circumstances of the case, that defense should have been allowed, is the sole question we are called upon to consider upon this appeal.
The facts, which are not in dispute, may be thus stated: On April 24th, 1918, the appellants shipped, over the B. O.R.R., nine bales of rags to L. Leibowitz Sons Co., 69 Mercier Street, New York, and received a standard bill of lading covering the shipment, which among its other provisions contained this, that is:
"Except where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded or damaged in transit by carelessness or negligence, 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."
Of the nine bales so shipped only eight were delivered, and on June 4th, 1918, Leibowitz Company, the consignee, wrote the "B. O. Railroad Company, Pier 22, North River, New York," a letter reading as follows: *118
"Please find B/L and paid freight bill for nine compressed bales of rags, of which we only received eight. Kindly trace the bale that's short and acknowledge the receipt of this letter and enclosures."
This letter was not acknowledged then, and the bill of lading and freight bill inclosed with it were mislaid by the appellee, and although the consignee's representative went three or four times to the appellee to get those papers back, "to file a claim for the monetary value of the 1st bale," they were not returned until some time in January, 1919, and on January 16th, in connection with their return, the appellee sent Leibowitz the following letter, to wit:
"This is to acknowledge receipt of the original bill of lading and paid freight bill covering shipment of 9 bales of compressed rags, covered by our Pro-M-9902, April 20, 1918, delivered to us on June 4th for the purpose of tracing 1 bale which checked short.
"These documents later delivered to you on January 14th, 1919, for the purpose of filing claim."
After receiving these papers the appellants on January 15th, 1919, filed their claim with the appellee for the monetary value of the bale, in which its value was stated to be 1070 lbs. at 35 1/2 cents a pound, which with the freight paid to the defendant, aggregated $381.85.
The appellants knew the value of the bale of rags at the time it was lost, and also knew then exactly how much money they had lost.
On January 22nd the appellee notified the appellants that the claim would not be considered, because it had not been filed within six months after a reasonable time for delivery had elapsed, as required by the bill of lading. A reasonable time for the transportation of less than carload shipments from Baltimore to New York at that time was from seventy-two hours to seven days, although there may have been instances in which more time was taken. *119
In the following September, the appellants, having received neither the goods nor compensation for the loss of them, brought this action to recover the value thereof.
The case was tried before the court sitting as a jury, and at the conclusion of all the testimony each side offered one prayer. The plaintiffs' prayer was refused and the defendant's prayer granted. The ruling of the court in respect to these prayers is the subject of the only exception presented by the record.
In granting the defendant's prayer, the court in effect ruled that, if the plaintiffs failed to file with the defendant their written claim for compensation for the loss of the goods in question within six months after a reasonable time for delivery of said goods at New York City had elapsed, its verdict should be for the defendant. The legal proposition thus stated is in our opinion correct, and the only objection which could have been urged to the prayer was that it ignored the testimony tending to show that the carrier had waived the requirements of the bill of lading covering the shipment, or had by its conduct estopped itself from asserting them, but if the carrier could neither waive those provisions nor estop itself from asserting them, there was no occasion to refer to the evidence relating to waiver or estoppel. The question therefore is, could the carrier estop itself from asserting the provisions of the bill of lading or waive the right to take advantage thereof.
The shipment in this case was made under and was subject to the federal statutes relating to interstate commerce, and the bill of lading was described as the "standard bill of lading," and was issued pursuant to the authority of the Interstate Commerce Act and the amendments thereof. Its force and the nature and extent of the obligations created by it are federal questions, and in passing upon them we are bound to accept as final the construction and the interpretation placed by the United States Supreme Court upon those laws and things done pursuant to the authority thereof. This Court decided January 13, 1914, that provisions similar to those *120
in the bill of lading under consideration could be waived.Peninsula Prod. Exch. v. N.Y., P. N.R.R.,
This brings us to a consideration of the plaintiffs' prayer which was refused. This prayer submits the proposition that the letter referred to in the evidence as a "tracer," sent by Leibowitz Co. to the B. O. Railroad Company, with the bill of lading and paid freight bill together, constituted a written claim for the loss, and as such complied with that provision of the bill of lading which required a written claim to be filed within a certain limited time. This proposition we are unable to approve, because the tracer possessed none of the characteristics of a claim, as that expression is ordinarily understood. The tracer was a mere request made by the shipper of the carrier to locate certain goods which had not been received. Whereas the "claim," which should have been filed in accordance with the terms of the bill of lading, could mean nothing less than a demand for the value of goods which had been lost. This distinction was very clearly pointed out by Joseph L. Bronstein, one of the appellants, in his testimony. He was asked to "explain what a claim tracer" was and he said, "a claim tracer means that the party wants to trace the bale of rags; he don't want the money * * *"; and he further testified in reference to the same matter: "Q. In other words you notified the railroad at first that you wanted the bale instead of the money? A. Yes. Q. You claimed the bale first? A. Yes. Q. And when the railroad could not find the bale you made claim for the monetary value? A. You could not make claim until you had the original papers." Of course the interpretation thus given by the witness to the word claim cannot be regarded as authoritative or conclusive, but it is consistent with common sense, and is supported by reason and authority. The section of the bill of lading under consideration provides that "as conditions precedent to recovery, claims must be made in writing * * * within six months * * * after a reasonable time for delivery has elapsed." And in construing a similar provision the court in St. Louis, I.M. S.R. Co. v.Starbird, *122
Judgment affirmed, with costs to the appellee. *124