271 F. 93 | S.D.N.Y. | 1921
(after stating the facts as above). I find it necessary to decide only two out of the three questions raised in this case: (a) May the carrier take advantage of the provisions of its bill of lading, as filed, without showing that the shipper had accepted it, or even that the carrier had issued any bill at all ? (b) Does section 206 (f) of the Federal Transportation Act extend the time, fixed by the bill of lading as filed, within which action may be brought?
See. 206: “(f). The period of federal control shall not be computed a¡? a part of the. periods of limitation in actions against carriers * * * for canses of action arising prior to federal control.”
The defendant argues that the phrase “periods of limitation” must refer only to limitation by statute, and cannot include a limitation such as this derived from the bill oE lading filed with the Commission. In corroboration of that construction it appeals to section 206 (a), which reads in part as follows:
“Such actions factions arising out of federal control], 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,” etc.
There is good reason for interpreting the phrase “periods of limitation” in the same way in each subsection, and I accept the defendant’s argument pro tanto. But I believe that, at least in the absence of a
Assuming, then, that section 20 does not “prescribe” the period, because of the addition of one day, yet it remains true that it is not by contract, but by legislative permission, that any period at all is fixed, and the issue turns upon the merely verbal question whether though in substance fixed by the right granted the carrier by statute, the period is “prescribed by * * * federal statutes.” I think that the language -should be referred rather to the substance of the situation than to its form. The clause was apt to cover all those limitations which got force from positive law rather than from contract, and if the defendant relies upon the statute to limit the period, it must not blow hot and cold, by denying the application of all relevant amendments. To be sure, section 206 (a) might have read “periods of limitation, prescribed or derived from state or federal statutes”; but that would have been a blind and clumsy phrase, and there can, I believe, be little doubt that the intent went to all limitations forced upon the shipper without his consent. Furthermore, the Transportation Act went into effect February 28, 1920, more than two years after the President had seized the railroads. Actions for personal injuries not infrequently have a period of limitation of only three years or less, and actions on contracts of carriage are generally limited to two years under section twenty. Unless section 206 (f) has the effect of extending the period of limitations already expired, it will have a very small operation at all, and will probably fail to include tire great majority of those cases which were pending on December 28, 1917. It seems to me, therefore, judged merely as matter of intent, that section 206 (f) tolled the limitation.
Verdict directed for the plaintiff on both causes of action.
On Rehearing.
If the tin had a market value, or a value which could be ascertained by any “recognized standard,” Demotte v. Whybrow, 263 Red. 366, rules this case. I recall no evidence on that point, but I shall assume that this was the fact, unless the defendant disputes it and wishes lo insist upon the production of proof by the plaintiff. In such case, if the defendant will move for a new trial on that issue within' 10 days, I will grant it, and the plaintiff must produce evidence. Otherwise, the verdict will be directed for interest, as well as principal, from the date of the loss; i. e., the arrival of the cars in New York.