*1 SPRECHER, Before CUMMINGS BONSAL, Judges, and Dis Senior Judge.* trict BONSAL, Judge. District Senior (“Wisconsin Pack- Wisconsin Co. appeals from ing”), plaintiff-appellant, granting district court defend- order Refrigerator Lines’ ant-appellee, Indiana (“IRL”), summary judgment. motion for 29, 1974, shipment July On was tendered pounds of frozen meat to IRL Supply to the Naval Cen- from Milwaukee Virginia. ter in rejected shipment claiming Navy temperature of the meat was 1.2 acceptable tol- degrees Fahrenheit over the set forth in the handbook erance standard IRL returned the military regulations. * Dudley Judge sitting by Senior District B. Bonsai Southern District of New York is designation. *2 sufficient written notice of its claim of Packing in Milwau- shipment to Wisconsin Moreover, damage. Packing Wisconsin con- kee, August it. accept refused to On which necessary tends that written notice was not Brown, an officer of Wis- Mr. Karl knowledge since IRL had actual of Wiscon- Mr. James Packing, wrote Steven- consin' (Hopper, supra) IRL, Packing’s sin claim and son, for Manager Terminal Milwaukee disputed appli- issues of fact as to the that follows: as granting cability Hopper precluded Packing Company refuses to “Wisconsin summary judgment. 4013 because of accept meat on trailer no. temperatures averag- Army rejection of agree with the district court We acceptable allowance ing degrees over 1.2 August that the letter of from Wis temperatures Return temperatures. Packing consin and the invoices did not ranged from nine to checked out and constitute a sufficient notice of twenty-five degrees.” meaning claim within Interstate Packing eventually disposed of Wisconsin regulations Act and Commerce thereunder. shipment. shipment was evidenced Uniform Lading provided Bill of that Wiscon Packing On Wisconsin obligated give Packing sin IRL writ against pursuant IRL brought this action for loss or damage ten notice of claim Act, the Interstate Commerce 49 U.S.C. nine months after the damage later than 20(11) claiming damages in the amount of § regulations allegedly prom occurred. $13,192.66. ulgated by the Interstate Commerce Com September the district court mission, Fed.Reg. 49 C.F.R. § summary judg granted IRL’s motion (1972), provide part that notice of (1) that grounds ment on the Wisconsin damage writing, claim for loss or shall be in Packing give failed to IRL sufficient writ identify ship contain facts sufficient to ten notice of its claim within nine months involved, liability alleged ment assert of the occurrence of the as damage, loss or claim and make for the Lading Bill by the Uniform payment specified of a or determinable Interstate Commerce Act 1005.2(b). money. amount of 49 C.F.R. § thereunder; (2) IRL was issued Moreover, 1005.2(c) provides: 49 C.F.R. § chargeable knowledge with actual of all “(c). constituting claims. Documents not alleged damages the conditions to the reports reports, appraisal Bad order provided written notice would have shortages damage, notations of or dam and which would have excused the lack of both, bills, delivery age, freight or formal notice under Co. v. receipts, or other documents Baltimore Ry., & O. standing not be considered shall alone cert. comply with the carriers as sufficient (1950). 94 L.Ed. 1359 filing requirements speci minimum claim respect ground, With to the first the dis- (b) of this section. paragraph fied trict court held that Commerce Com Although the Interstate letter, only communication regulations “shall states that such mission made Packing Wisconsin loss, processing of claims for govern the period, nine-month and the invoices held property . injury delay or . . IRL indicating shipment that the had been . foreign commerce in interstate or rejected did not constitute sufficient writ- Act,” Commerce subject to the Interstate ten notice of claim because did not 1005.1),they provide the identify the C.F.R. speci- with sufficient § what should guide as to con ficity nor state with a useful IRL was liable for of claim. 49 sufficient notice nor the stitute a amount of dam- 1005.2(b). Henry Pratt Co. v. ages that would appeal, be claimed. In its Freight Systems, Dor contends that Stor dis- trict determining court erred in agree Wis- (N.D.Ill.1975). We the dis provided had not IRL with consin that the letter of trict court require- circumstances, not meet ment motion. Under these did invoices Act Commerce Interstate IRL of the fact of merely ments of the thereunder. promulgated damage, while in the defendant had full of all the conditions of the no of the written Accordingly, summary judgment damage. alert tice is to *3 properly granted was to IRL.1 to make a full opportunity it an allow Alabama Florida & (Georgia, investigation AFFIRMED. 190, Co., Milling 241 U.S. v. Blish Railway CUMMINGS, Judge, dissenting. (1916)), we held in 541, 60 L.Ed. 948 36 S.Ct. before the rele was decided Hopper, which majority opinion, plaintiff As noted in the that promulgated, vant defendant motor carrier for shipper sued a written claim as need for despite the $13,192.66 damages caused defendant’s Lading Bill of Uniform required by the 32,340 delivery pounds of of frozen meat in Act, a failure to Interstate Commerce damaged “in condition of a claim for statutory notice give the consumption or for unsuitable for human the carrier has “where damage is excused brought The suit purchaser’s use.”1 was actual of chargeable with or is 20(11) of the Interstate Com- under Section as to all the conditions (49 20(11)), Act known as merce U.S.C. § give.” 178 F.2d at 181. could written notice Amendment, making the Carmack carriers Americas Accord, Graphic Systems MGD shippers’ property liable for to de- F.Supp. Freight, 437 Acme Fast Co. v. spite any attempted exemption from liabili- Stearns-Roger Corp. (N.D.Ill.1977); and 10 ty by the carrier. Railway, F.Supp. 356 Western v. Norfolk & require shippers does not to Hopper, In we held statute (N.D.Ill.1973). 1238 knowledge of writing. had actual file their claim in The bill of lad- the carrier would have however, a written notice ing, requires the facts which written notice of paper of There the provided. claims to sent to the carrier within nine be collision between two trains destroyed in a Supreme has of the loss. The Court months gave carrier which then of the defendant requirement in a bill of held that such a consignor loss to both the notification of the enforceable, special but no lading is upheld the district consignee. We Informal notice is ade- required. .form finding that: court’s the carrier an quate long as as it affords destroyed knew that it had investigate “[defendant to circumstanc- opportunity as much if paper such and had at least Georgia, Florida loss. & Alabama es of the in relation to the not more Milling Compa- v. Blish Railway Company 178 question plaintiff.” 60 L.Ed. ny, 241 U.S. F.2d at 181. Louis, Iron Mountain Southern Rail- St. Starbird, Company v. way U.S. only document submitted Additionally, L.Ed. 917. nine- to IRL within the Hopper Paper held in Co. v. Balti- month was the letter (7th R. 178 F.2d 179 Cir. more & Ohio dispute Although 1974. there was a as to 1949), certiorari 339 U.S. agent whether an of Wisconsin told 94 L.Ed. that actual notice IRL on that Wisconsin Pack adequate, though the loss is even ing seeking reimbursement for its would be shipper apparently sent at all to losses, the district court assumed this specified time.2 A purposes summary judg- true for the may disagree approved opinion 2. The result in in Perini- as this Insofar Chesapeake Ry., River Associates v. North & Ohio Baltimore Co. v. & O. (3d 1977), it has been circulated F.2d estopped the court held that carrier was among judges regular court in active all of this rehearing raise the lack of written notice as a defense. did not favor service. A question. in banc on that complaint. Par. of amended age. Consequently, the' court cases cited the defendant held that number requirements of proposition that the uniform bill of support fact is irrelevant and the written notice Interstate Commerce form of Commission inspect opportunity regulations (discussed infra) that the carrier’s were satisfied Miller key factor. In damaged goods inspector’s report is the and a claim for Transport, freight damage v. Aaacon Auto form that did not state example, the court held (S.D.Fla.1978), for despite amount of claim from the informal letters regulation that the written speci- It con- sufficient notice. the carrier were fy the money amount of claimed cluded: 1005.2(b)).

just quirement ty of treatment “The investigation ^[*] claims, 9(1 is not to avoid the but to facilitate the of of the written claim claims and insure among shippers. ^[*] ^[*] payment ^[*] equali- ^[*] re- few informed *4 ed. intention to file a claim the loss and actually In the It was days present case, of the claim by of the loss. The letter was in- orally informed of the shipper’s had the the carrier knew of letter, and was goods all within a inspect- again if is satisfied tended to position memorialize the of “[T]he supply ‘sufficient in- written instruments the carrier would be held re- upon sponsible formation and com- for the loss. It had asserted this ” plete investigation may position be based.’ 447 orally at the time the rep- carrier’s (citations omitted). F.Supp. at 1204 resentatives inspected rejected ship- ment. The concludes that because Accord, Thompson v. James G. McCarrick this letter did not comply with the form of Co., Inc., (5th 1953); Cir. Love required notice by certain Interstate Com- Carloading Distributing less v. Universal & merce Commission regulations, the claim Inc., (10th 225 F.2d Company, 637 Cir. However, must fail. regulations those do 1955); America, Inc., Rollei of v. T. I. M. require not the result reached by major- C., Inc., E. — D. N.J.Super. 140 357 A.2d ity, which is in conflict previously with the (1976).3 33 It has also been noted that cited holding cases adequate that notice is if employee where an of actually practical as a matter it allows the carrier loss, investigates the it is much easier to identify and inspect disputed shipment. writing infer that an informal was suffi Atchison, cient Topeka notice. and Santa regulations promulgated The in Fe Railway Leasing Co. v. Littleton 1972 in an attempt by the Interstate Com- Inc., Company, Investment 582 F.2d prevent merce Commission to carriers from (10th 1978). 1241 Cir. settling discriminating among customers spurious or in their Similarly, Trucking frivolous claims favor. Gay in v. Graves Line, Inc., Ex Parte Kan.App.2d 1 573 P.2d No. 340 I.C.C. 529, 530, 544, 547-548, 553, The (1977), 634 the court noted that federal 605-606. regulations appended are Ex Parte construing the No. decisions have been liberal in provide part 263 and in pertinent sufficiency shippers’ and timeliness of writ- * * * * * particular no form of ten claims and that “A claim for damage to need the necessary, cargo voluntarily is nor shall paid by written claim not be * * * of the dam- carrier particulars out all the unless filed in claim set Corp. Railroad Foods Illinois Central which have held v. Cases cited the defendant general (6th refused lack of Another case that ly notice absolved the F.2d 343 apparently though shipper’s involved in which even situations to allow the claim notice, a claim was written notice or actual notice of carrier had because no actual Atchison, required requisite any received within the time. claim in form was filed Topeka and Santa Fe Co. Littleton informal written time. Since there was at least Inc., Leasing Company, here, and Investment distinguishable. even that case is 1978); Henry Dealaman, F.2d 1237 Pratt Com Hegar- Inc. v. William F. Johnson & Inc., Freight Systems, pany v. Stor Dor (1966). ty, N.J.Super. 224 A.2d 510 (N.D.Ill.1975); Delphi F.Supp. Frosted delivering receiving or event it did not have authority to do with the so. * * * limits specified Therefore, time within I.C.C. at 542. as in * * * law, by] the Paper Co. v. Baltimore & supra, Ohio R. [or * * * lading of of the bill terms certiorari 1005.- supplied.) (Emphasis 94 L.Ed. in a contested case failure to in 340 I.C.C. at 718. 2(a), reproduced give formal written notice aof claim for damages within the provided nine months lading specified that the bill The the bill does not control the filed within claim must be shipper’s outcome the district court. Such lack of alleged nine months excused, formal written notice “is or is in permitted by Carmack shortest applicable the carrier has or [as gov- here] further Amendment. chargeable with actual of all notice, requiring it to form of the ern the damages the conditions as to the shipment specifically, to state identify the give.” written notice [formal] [would] carrier would be held specifically F.2d at 181-182. This Court noted that the and to claim a damages liable requiring filing of a claim “is 1005.2(b)). C.F.R. § amount escape liability, but to facilitate majority opinion has construed these * * * prompt investigation is ad [and] imposed as if substantive * * practical dressed to a exigency and damage claims and therefore fore- limits on practical to be construed in a way.”4 Ac though claim even closed *5 Co., cordingly, Hopper Paper in we held as had actual record shows that the carrier (at 182): page follows necessary knowledge facts within of all the “In the instant case it is undisputed However, damage. nine months of the agents defendant and its were fully accompanying the report the Commission’s cognizant aware and of the existence of clear, they do not control regulations makes concerning all the facts the wreck and take to be effec- the form that notice must destruction of paper. the carload of In such as this. The in a contested case tive such a situation a by plain- formal notice was to make claims Commission’s intent tiff to the defendant could not have ac- by providing expeditious settlement more complished anything Hence, more. we voluntary disposition of procedures for the may conclude that the carrier not use the Simultaneously, the by claims carriers. provisions of lading the bill of [requiring guard against were intended to written notice to the carrier within nine in the claims settle- potential the for abuse months delivery after of the damaged that no volun- process by providing ment property] to shield itself from liability the be made unless the tary settlements could imposed upon by it the statute and the rigid requirements rather written common law for negligent its destruction report were met. As the Commission’s shipper’s property. the To hold other- clearly contemplated, penalty the for fail- wise construing would not be the bill of required by the notice comply ure to with ” practical way.’ ‘in a the claimant must the is that time-consuming expensive the take observed, Hopper permitting As the in the district litigating route of his claim knowledge substitute the carrier’s to for a utilizing court rather than the settlement discriminatory written notice is not nor a procedures regulations. authorized the preference and therefore the was See 340 I.C.C. at 614. The Commission did permitted escape liability on the not intend to erect a imposed substantive barrier to technicality present majori- the recovery claims acknowledged ty opinion.5 in Georgia, Flori- quotation from was taken 4. certiorari 275 U.S. Milling Ry. Alabama Co. v. Blish 432; da & L.Ed. and was discussed 541, 544-45, approval in Loveless v. Universal Carload- 36 S.Ct. U.S. Co., Inc., ing Distributing & 225 F.2d 637 948. L.Ed. Delaware, 1955); and was followed in L & Lehigh and cited States, was consistent with R. v. W Co. Russia, (2d Valley R. v. State of (S.D.N.Y.1954); Steams-Rogers Co. Corporation personnel military of mained there while test- my shipper’s the letter judgment, In carrier, 2,1974, together with to the it was the meat and found that still 1.2 ed in iden- the carrier’s file documents over tolerances. The degrees the goods tifying shipment, quantity of the of the returned meat was carrier’s tender damage, shipped, extent and cause the shipper. the At the same refused then surrounding circumstances plus dis- time, checked the representative the carrier record, gave “actu- the carrier closed trailer, refrigeration was told that on of all the conditions as to al shipper look to the carrier for would give.” notice would that a written reimbursement, and afterwards tested the 181.® supra, F.2d at refrigeration for an unit additional receipt delivery (Memo Thus carrier’s days premises. three the carrier’s on 59515) goods were received shows that the 5,1974, the carrier’s Milwaukee ter- 29,1974, from the shipper July manager shipper minal advised the he had temper- at to be maintained zero dispose unable of the meat and had been Supply en to the Center ature route Naval dispose take meat back Norfolk, were to be on the carrier’s behalf.6 Thus within a few shipper’s delivered on days of the the carrier had all the (Memo 59557) delivery receipt shows it needed to defend necessary information delivery Supply the Naval Center refused claim, against including (1.2 high was too temperature because the tolerances), shipper, so was degrees over that all informal from the shipper. meat to the was to returned certainly “to facilitate in- enabled also shows that the meat was The record Co., supra, 241 vestigation” (Blish Milling possession from exclusively in carrier’s at Butler, Wisconsin, its from lading merely required The bill of Norfolk, Virginia, of the and back. One spec- claims of without further when representatives carrier’s ificity (Supp.App.112). the seal was broken and trailer fact *6 opened in the the extent of the reasons 1974, and when the tests were made which rejection consignee, the the a for more the determined that meat not within complete written notice than was contained acceptable military so that it was standards August 2, shipper in the letter to the rejected. Thereupon gave carrier unnecessary.8 its first notification the loss and was informal written the refrigeration had unit on the trailer notice contained in the Shipper’s Pittsburgh, checked Pennsylvania, on the letter fulfilled the bare of the Norfolk, Virginia. return bill of that written notice be sent trip from A car- nine within months of the loss. carrier representative rier was also at the had both informal written notice and actual shipper’s premises re- when the meat was notice which was similar to the actual no- turned there on and re- Freight like See East Texas Motor es these. F.Supp. Norfolk and Western States, Lines v. United 239 F.2d 420 n.10 (N.D.Ill.1973); Graphics Systems MGD Inc., Freight, Americas Co. v. Acme Fast (N.D.Ill.1977). Summary judgment throughout entered in MGD later for facts dissent 7. The described Graphics only subsequent plaintiff’s pur- because its affidavit For the are version events. summary showed the carrier of the determining propriety poses of extent of the loss. Here Indiana Re defendant, judgment must of course we unsuccessfully frigerator had tried to sell prove plaintiff could its assertions. assume damaged knew meat and therefore how drasti 1005.2(c), supra, on 49 C.F.R. § cally damaged it was and the outer limits of its relies, majority inapplicable because that en- is liability. being regulation geared to claims volun tire 1005.- tarily paid by 49 C.F.R. a carrier. applying Hopper have 6. Cases not to their facts 2(a), supra. questioned applicability its to circumstanc- Hopper. adequate tice held of no- form requiring voluntary settle- only to applicable

tice are

ments, change precedential they do not cited previously

value of In these authorizing informal notice.

cases for the

circumstances, summary judgment improper Ac- gave windfall. it should be remanded the cause

cordingly,

a new trial.

ORDER petition for re- of the On consideration rehearing en

hearing suggestion for

banc above-entitled cause filed in the

plaintiff-appellant Wisconsin a vote of active members requested, majority

Court was and a

active of the Court have voted to members although a rehearing en banc grant a original panel judges on the rehearing. deny panel

had voted to

Accordingly, case IT ORDERED that IS en banc.

reheard

Mary CARROLL, M. on behalf of herself situated, similarly

and all others

Plaintiff-Appellant,

TALMAN FEDERAL AND SAVINGS CHICAGO,

LOAN ASSOCIATION OF

Defendant-Appellee.

No. 78-1458. Appeals, States

Seventh Circuit.

Argued Dec. Aug.

Decided Welch, Strawn, Michael T. Winston & Rehearing and Rehearing En Banc 111., Chicago, plaintiff-appellant. 18, 1979. Oct. Denied Deane, Chicago, 111., Robert A. for de- fendant-appellee. CASTLE, Judge,

Before Senior Circuit PELL, CUMMINGS and Judges.