of negligence in permitting their (the plaintiff's) switches to become frozen so that said cars could not be delivered to the sidings, causing delay in the aforesaid deliveries, the defendants lost the sales of approximately 40,000 gallons of fuel oil per day, wherefore damages are sought.
In answer to the first count of defendants' counterclaim, plaintiff asserts by way of defense (1) that the counterclaim fails to state a cause of action, and (2) generally denies the allegations therein contained. Taking the second argument first, the plaintiff in support thereof asserts that the contentions of the counterclaim are conclusively refuted by plaintiff's answering affidavits. The answering affidavits do not, however, establish conclusively that there is no genuine issue as to any material fact but conversely they establish the contrary to be the fact and thereby preclude summary judgment.
Of more compelling force is plaintiff's argument that the said count fails to state a cause of action on the ground that defendants have failed to comply with the requirements of the bills of lading applicable to the shipments there involved. The terms and conditions provide inter alia: 'Sec. 2(b) As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine 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 nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.'
No such claims in writing, as are provided for in Sec. 2(b) above, have been filed and plaintiff urges that defendants on that account are barred from asserting their claim. In reply, defendants urge that the plaintiff is equitably estopped from claiming its alleged protection under the quoted section of the bills of lading on the ground that all action the defendants would have taken for the recovery of moneys allegedly due them because of plaintiff's asserted negligence had been halted by the fraudulent representations by plaintiff to the effect that defendants would be relieved of demurrage charges if they would forego their claim for deferred deliveries.
The failure to file written claims which, under section 2(b) above quoted, are a condition precedent to recovery for loss or damage as a result of delay, seems to the court effectively to bar the assertion of any such claim by the defendants at this late date. Defendants' argument that the plaintiff is estoppel is based upon a special agreement under which the defendants were to be relieved of any liability to pay demurrage charges. In effect, such an agreement would give an advantage or preference not open to all, and not provided for in the published rates, and as such it was illegal. Supra. Demurrage charges are part of the tariffs. For the purposes of this motion, defendants are presumed to have known what those tariffs were. Chicago & Alton R. v. Kirby, 225 U.S. 155, 32 S. Ct. 648, 56 L. Ed. 1033. They may not now be heard to complain. Moreover, the Supreme Court in Texas & Pacific R. Co. v. Leatherwood, 250 U.S. 478, 481, 39 S. Ct. 517, 518, 63 L. Ed. 1096, has specifically stated that 'a carrier cannot be prevented by estoppel or otherwise from taking advantage of the lawful rate properly filed under the interstate Commerce Act.'
In the same case it was stated as well that 'the parties to a bill of lading cannot waive its terms nor can the carrier, by its conduct, give the shipper the right to ignore them.' To the same effect are the holdings in Pittsburgh R. Co. v. Fink, supra, and Louisville & Nashville R. Co. v. Central Iron & Coal Co., supra.
In view of the above, it is my conclusion that defendants' failure to file written claims as provided, now effectively bars them from asserting this claim for damages.
The second count of defendants' counterclaim sounds in tort and charges that on or about October 7, 1943, the plaintiff delivered to defendants an 8000 gallon tank car full of oil, representing that the said oil was fuel oil belonging to defendants when in fact the oil delivered was consigned to the United States Navy. There is the further charge that the navy oil was of a different composition than the fuel oil used by defendants, and when that oil was mixed with the fuel in defendants' tank, it adulterated it, so damaging it that it could not be sold. The damages sought are for the losses suffered as a result of such adulteration.
In answer, plaintiff denied the allegations of the second count and counterclaimed, seeking damages against the defendants for the conversion of the oil consigned to the navy as well as for the freight and transportation charges.
In so far as the second count of defendants' counterclaim is concerned, the defendants are not barred from asserting the claim for damages at this time. The claim by defendants is one sounding in tort. No bill of lading was issued to defendants relative to the car of navy oil here involved and there is, therefore, no bar to the action arising out of a contractual relationship between the parties.
In opposition to plaintiff's counterclaim, defendants argue that, taken in its best light, the plaintiff is a joint tort-feasor and seeks to invoke the rule that there is no contribution between joint tort-feasors. On this point the court makes no determination.
At this posture of the case, the Court will not attempt, indeed it may not, to determine the degree or degrees of guilt or wrong conduct of the parties to the latter counts of this action. That there is a factual dispute and that there is a genuine issue of fact, seems in no doubt. Summary judgment, therefore, may not properly enter.
In so far as the first count of defendants' counterclaim is concerned, the court's conclusion is that the failure to comply with the statutory requirement that a written claim be filed within nine months after delivery of the property, effectively bars such claim. Plaintiff's motion for summary judgment on the remaining issue is denied.
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