No. 7562 | W.D. Wash. | Jun 1, 1923
It is contended by the libelant that the action is based upon a common-law liability, and that the condition-is an exception which must be asserted as a defense. Southern Ry. Co. v. Mooresville Cotton Mills, 187 F. 72" court="4th Cir." date_filed="1911-02-07" href="https://app.midpage.ai/document/southern-ry-co-v-mooresville-cotton-mills-8779017?utm_source=webapp" opinion_id="8779017">187 Fed. 72, 109 C. C. A. 390; The H. S. Grove (D. C.) 283 F. 1019" court="W.D. Wash." date_filed="1922-10-25" href="https://app.midpage.ai/document/the-henry-s-grove-8827382?utm_source=webapp" opinion_id="8827382">283 Fed. 1019. The recovery in the instant caséis- clearly upon the contract of shipment evidenced by the bill of lading.
“It will be observed that this cause of action is based upon the common-law liability of the defendant as a common carrier. * * * It nowhere appears in the complaint that the plaintiff relies on any contract of carriage. 15 * * ”
In the Henry S. Grove, supra, the action was not predicated on the bill of lading, nor was it attached to the libel.
The rule, I think, is well settled that á stipulation that damages to cargo must be asserted within a given time, if reasonable, is binding. The Henry S. Grove, supra, and cáses cited. The provision in the. bill of lading being a condition precedent to a right of action, the performance must be stated, or a waiver pleaded, or excuse given for noncompliance, 31 Cyc. 58; 10 C. J. 364; Metropolitan Trust Co. v. Toledo & Co. (C. C.) 107 F. 628" court="None" date_filed="1901-03-23" href="https://app.midpage.ai/document/metropolitan-trust-co-of-new-york-v-toledo-st-l--k-c-r-8743738?utm_source=webapp" opinion_id="8743738">107 Fed. 628; The Arctic Bird (D. C.) 109 F. 167" court="N.D. Cal." date_filed="1901-05-27" href="https://app.midpage.ai/document/the-arctic-bird-8744545?utm_source=webapp" opinion_id="8744545">109 Fed. 167. In The Westminster, 127 F. 680" court="3rd Cir." date_filed="1904-02-11" href="https://app.midpage.ai/document/the-westminster-8753189?utm_source=webapp" opinion_id="8753189">127 Fed. 680, 62 C. C. A. 406, the court said that the giving of notice is an affirmative matter, and the burden is upon libelants to show such notice "as a condition of the right to recover.” ’ By the same token notice must be alleged, or waiver pleaded. The Persiana, supra. The Tampico (D. C.) 151 F. 689" court="N.D. Cal." date_filed="1907-02-16" href="https://app.midpage.ai/document/the-tampico-8763034?utm_source=webapp" opinion_id="8763034">151 Fed. 689, emphasized' by the respondent, I do not think is to the contrary. While some language employed by Judge De Haven seemed to contravene what he said in The Arctic Bird, which case was not referred to, there were many other elements considered. At page 691 he said;
“It undertook in express terms to waive the maritime lien which attaches to a vessel for the satisfaction of damages which the shipper may sustain in the event of a breach of the contract of carriage, and there can be no doubt that, if valid, it was a waiver upon the part of the libelants of the right to proceed in rem against the vessel for the recovery of the damages claimed by them in this action, because, unless there is a lien or charge against the vessel for such damages, the action in rem will not lie.”
The greater portion of the discussion, is upon this phase of the issue, and I think, in view of the authorities, must have been decisive in the judge’s mind. The stipulation ih the bill of lading being a part of the contract, the performance of which is a condition precedent to recovery, the burden being upon the respondent to show that the condition was performed or was waived, and this not being pleaded, the libel fails to state a cause of action.
The exception is sustained.