144 S.E. 715 | W. Va. | 1928
This case is the sequel of the case of Wholesale Coal Company
v. Price Hill Colliery Company reported in
The Hepburn Act passed by Congress in 1906 has been repeatedly declared by the Supreme Court of the United States *55
to embrace the liability of the carrier in interstate transportation. It is equally well settled by federal decisions that a proper bill of lading issued in compliance with the requirement of that Act contained "the entire contract upon which the responsibilities of the parties rested". St. LouisRy. Co. v. Starbird,
"(b) Claims for loss, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export), or, in case of failure to make delivery, then within six months (or nine months in case of export traffic) after a reasonable time for delivery has elapsed; provided that if such loss, damage, or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. Suits for loss, damage, injury, or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed: Provided, That in case the claim on which suit is based was made in writing within six months, or nine months in case of export traffic (whether or not filing of such claim is required as a condition precedent to recovery), suit shall be instituted not later than two years and one day after notice in writing is given by the carrier to the claimant that the carrier has disallowed the *56 claim or any part or parts thereof specified in the notice."
It is well settled that such stipulations in bills of lading are "valid if the terms are reasonable". St. Louis etc. Ry. Co. v. Starbird, supra (see p. 604). The reasonableness of the terms is not questioned by the plaintiff, but it contends that the stipulations cease to apply where the carrier "having accepted the shipment, wholly abandons its agreement and obligation to transport the product, and converts the property to its own use," citing cases from the Supreme Courts of Georgia and South Carolina. That contention, however, is opposed by Mosser Co. v. Payne,
The leading case on the subject is Georgia etc. Ry Co. v.Blish,
The failure of plaintiff to make claim for loss or to commence litigation within the time required in the bill of lading, therefore bars recovery. The judgment of the lower court in its favor will be reversed and the action dismissed.
Reversed and action dismissed.