*2 HUTCHESON, Bеfore TUTTLE Judges. WISDOM, Circuit Judge. WISDOM, Circuit decision, question al The for though narrow, im is of considerable industry. portance shipping to the a carrier decide effect of asked sixty granting shipper extension cargo days, within which sue Judge, Hutcheson, dissented. Circuit beyond one-year pe claim, limitation Carriage provided riod Goods
By Sea Act. stipulation of case tried on that the
facts. The district court held
carrier
year
one-
had waived the
although
suit,
the libel
for
expiration
after
the extension
filed
majority
period.
holds
A
Court
judgment
reversed.
must be
Carriage
By
Act, 46
of Goods
Sea
1303(6), provides:
U.S.C.A. §
“In
event
the carrier
discharged
ship
li-
all
shall be
damage
ability
respect
of loss or
brought within one
unless
goods
year
delivery
or
goods
should have
the date when
been delivered.”
libellant,
Folger Company,
sued
shortage
admiralty
for
to recover
damage
slackage of,
to, a certain
cargo
shipped
one of the
coffee
aboard
belonging
Fruit
the United
vessels
respondent.
Company,
ar-
The vessel
February 14,
Orleans
New
rived
Folger
later, proctors for
Several weeks
Fruit’s claim
with United
conferred
agent agreed
agent.
to recom-
The clаim
payment in settlement of the claim
mend
contingent
shortage
up-
slackage,
damages.
of the claim for
no settlement
agreement could be reached with re-
No
damages. Folger agreed
spect
to fur-
additional information on
as-
nish
III,
Dunbar,
Orleans,
E.
New
Charles
case.
pect Dunbar,
La., Phelps,
Marks, Claverie La.,
Folger
Orleans,
counsel,
January
Sims,
proctors New
stating:
Fruit,
appellant.
wrote
United
“* * *
agent
appreciatе
require addi-
we shall
stated
he would
damage.
proof
alleged
your granting
tional
extension
us an
up
bring suit,
Thereafter,
proctors for
did
time within
attempt
including April J,
reach
Fruit until the
1950. We
*3
4,
day
period, April
may
dispose
last
of the еxtension
to
trust
we
able
that
be
day,
P.M.,
1950. On that
4:45
one
of this
that time.
at
matter within
proctors
Folger telephoned
your
appreciate
shall
“We
also
arrange
Company
United Fruit
for an
to
by
confirming the above extension
appointment
damages
al-
discuss
to
and
letter,
your earliest convenience.”
at
so to obtain an
additional extension.
replied
Company
Fruit
freight claim office
Fruit
of the United
Folger’s
February
granting
1,
re-
1950
Compаny
P.M.,
had
it
closed at 4:30
quest
an
extension:
many years
has for
in New Orleans.
request
in
“In
with
accordance
morning
5, 1950,
April
On the
your
1950,
January 30th,
letter of
Folger’s proctors telephoned respondent’s
granting you
pleasure
we
in
ex-
take
agents
claim
additional
asked for an
in which
sue
tension
to
time
respect
With
this con-
extension.
through April 4th,
account
1950 for
versation,
stipulation
states:
Mayari.
S.S.
through
respondent,
“The
its as-
advising
pleasure in
“We also tаke
freight
agent,
sistant
claim
declined
we have
received the file
now
grant an
additional extension of
glad
principals
we shall be
our
time
declined
settle-
to discuss
you
adjustment
some
discuss
with
ment
The as-
claim further.
week,
you
if
will contact
next
agent explained
sistant
claim
that
by telephone
appointment.
us
for an
additional
been dis-
extension had
given you
full
“The
is
with
above
prior
expiration
cussed
rights
of all other
accru-
resеrvation
original extension;
it
not
that was
ing through
lading
con-
bill
company’s
grant
policy
exten-
otherwise.”
tract and/or
of time
suit
sions
to file
exchange
par-
letters, the
After this
preceding
expired;
extension had
negotiаtions:
engaged
ties
in further
that
was not
authorized
17,
February
there was a conference on
grant any
extension.”
such
Folger
1950;
1950,
2,
stat-
March
wrote
Folger then
libel the afternoon
filed a
ing
“discrepancies
been resolv-
thаt
had
April 5,
“again
ed”
to resume
desired
negotiations looking
settlement”;
prin
question
toward
We do
1950,
7,
bring
ciple
statutory period
were
March
there
discussions
on
ing
may
Company’s
Baskin,
claim
United Fruit
be
Noel
waived.1
depend
Nеvertheless,
1. “The effect of a ‘waiver’ will
similar
treatment.
there
largely
problem
present
estoppel
time when
was made.
it
is a
—not
original
precise
A
contract
waiver
out
cases —as to the
duration of thе
liability
may
period. Thus, although
in
which the
arises
be held
waiver
an indefi
valid,
generally
for it is
the result of an
nite waiver
be held void as
superior bargain
public policy,
undesirable exertion of
for a
waiver
definite time
ing power.
subsequent
generally
aBut
waiver will
will
be enforced on its terms.
ordinarily
freely given by
be
the defend
And even an indefinite waiver will often
ant,
upheld,
upheld
already
and therefore should be
since
as to the time
ex
pired
made,
оften be
the interests
of both
when the waiver
is
so that
parties
postpone
period
suit. The view that
starts
to run anew at
personal
Comment, Developments
the statute of limitations
is a
time.”
—Stat
pervades
Limitations,
defеnse
much of
the law —for
utes of
63 Harv.L.Rev.
example,
permitted
(1950).
Dawson,
Estoppel,
defendant
to re
1233
See also
by acknowledging
debt;
Limitation,
move the bar
and Statutes
34 Mich.L.
voluntary relinquishment
(1935).
of the statu
Rev. 1
The cases аre collected
tory
by
express promise
benefit
supplementing
in
669
July 27, 1938,
and it was
F.2d 231.
not until
1942, U.S.App.D.C.
finally rejected.
In the
the
meantime,
principle
claim was
question the
we
Nor do
by
may,
pointed out:
respondent
as the
cаse,
court
proper
in a
conduct,
representations, promises, or
parties
“Both
their conduct
Glus
estopped
statute.
during
assert
next
[after
months
few
Terminal,
Brooklyn
District
recognized
Eastern
the ex-
March
1938]
760, L.Ed.
Respond-
359 U.S.
istence of such extension.
through
agents
2d
ent
its
in-
still
vestigating
considering the
waiver was
ease, however, the
were
claim. Offers
of settlement
only.
period
There
for a definite
*4
sixty-
thereafter
discussed.
made and
filed
the
аfter
waiver as
suit
no
to
* * *
July
and it
not until
was
day
period.
extension
reject-
27, 1938,
finally
was
that it
Folger’s
requesting
extension
an
letter
ed.”
acknowledgment
carri-
the
of
is itself an
pub-
no
right
The Court
ex-
held
there
plead
after
that
to
statute
er’s
the
answering
against
policy
lic
one-year
the
piration
the extension of
In
of the extension.
gave no-
U.S.C.A.
Folger,
Company
46
clause of
United Fruit
1303(6);
pre-
to
an issue of fact
not waive
intended
tice that the carrier
sented as to
carrier was
statutory
whether the
period
to
the
as
estopped
brought
4,
to assert
the time limitation.
April
We read
after
holding.
agree
Argentino
together
constituting
with the
as
a
both letters
Expressеd
waiver,
in
the carri-
in
terms
parties,
of
contract between the
agreed
period
er
to extend the limitation
considera-
is
the essence.
time
of
negotiate
necessary
party
a
of
the time
to
set-
ex-
tion is
each
the
to
benefit
reject
tending
reach a
tlement
the claim.
period in order
or conclude to
to
the
Expressed
estoppel,
satisfactory
it is a
of
settlement.
terms
question of
whether the con-
fаct as to
agreement
why
We see no reason
the
during
the
the course
duct of
carrier
according to its
should not be enforced
negotiations
shipper into
the
the
misled
statutory lim-
terms.
the
A waiver of
a detrimental reliance
agreement
the carrier’s
against a
itation is enforced
defendant
extend the time-for-suit
to
attempts
plead
when
to
the
the defendant
period.
contrary
waiv-
to
terms of the
statute
the
Baking
agreement
Argentino,
Campbell
the
J.
v. Holsum
Unlike
the
er.
Co.
A.
333;
agreement
Co., 1942,
239,
pe-
for a
15
130 P.2d
the
here was
fixed
Wash.2d
Co.,
Argentino,
Aeroplane
facts in
v. Curtiss
riod. Unlike the
the
States
Cir.,
Correspond-
1945,
stipulation in
2
the
the instant case shows
undisputed time-barred suit was facts the year period con limitation the one Carriage By Sea Goods tained in the Act, Margaret BEHRINGER and Lewis 1303(6). The dis U.S.C.A. Sec. Behringer, Appellants, holding that, judge, settled under trict law, year period one MORGAN, Appellees. LYBRAND bringing and that it waived stipu waived, on the INC., concluded BEHRINGER’S, the Matter of corporation, Bankrupt. timely facts, filed. the libel lated judge, and, agree with the district Margaret I Lewis BEHRINGER Behringer, Appellаnts, opinion of the dissent from the therefore majority reversing judgment. Harry PRIEST, Attorney Trustee, W. me law clear to It seems Appellee. judge district settled acted which Nos. 6023. by the authorities in favor of his action cited, a ref- added Appeals Court of United States Am.Jur., “Limitation of Ac- to 34 erence Tenth Circuit. Estop- tions”, Subdiv. “Waiver Sept. 1959. pp. pel”, 405 to 318-325. 46 Secs. “Carriage 1303(6) of Goods U.S.C.A. year By as the Act” fixes one Sea for suit and under settled law period can be contracted for. no shorter Argentino, D.C., F.Supp. 440. Co., F.Supp. & v. United Fruit Co.