Defendant's motion for summary judgment. Plaintiff's motion for summary judgment as to certain defenses.
Conlon, J.c.c. (temporarily assigned).
The plaintiff sues in two counts to recover approximately $25,000 as a consequence of damage to three pieces of electrical equipment known as current limiting reactors while in transit over the defendant railroad from the General Electric Company plant at Pittsfield, Massachusetts, to the plaintiff's siding on the defendant road at Port Reading, New Jersey.
The determination of the two motions before the court involves the construction and application of the Interstate Commerce Act, 49 U.S.C.A. sec. 20(11), sec. 2(b), the pertinent part of which provides as follows:
"* * * as a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing the bill of lading, or carrier on whose line the loss, damage, injury, or delay occurred within nine months after delivery of the property. * * *"
The defendant contends that no notice of claim was given as provided by the statute and moves for a summary judgment
of dismissal on the ground that plaintiff's claim is thereby barred.
Plaintiff, on the other hand, contends that notice of claim was substantially given in accordance with the statutory requirement and seeks to strike that separate defense interposed to each of the two counts of the complaint.
The matter is presented on motion, counter-motion and affidavits. The facts, except as to one material situation, are not in dispute. They are substantially as follows: On June 6, 1948, defendant made delivery of the two reactors, which are the subject of the first count, to plaintiff's siding at Port Reading, New Jersey. On June 9, 1948, delivery was made in similar fashion of the reactor which is the subject of the second count. On June 21, 1948, the defendant sent to plaintiff a written notice of arrival specifying among other things the following: "2 reactors damaged in transit." On June 28, 1949, a similar notice of arrival was received by the plaintiff containing the following: "1 reactor damaged in transit."
Defendant does not deny that it had notice of the damage (as distinguished from notice of claim), and in fact the parties agree that after the discovery of the damage the equipment was examined by representatives of both the plaintiff and the defendant on the defendant's cars. The examination of the first shipment was made on June 11, 1948, and of the second shipment on June 25, 1948. Exactly what transpired at those examinations is not fully disclosed by the moving papers. It is agreed, however, that as a result of them and presumably with the concurrence of the representatives of both parties, the equipment was returned to the General Electric Company in Pittsfield. Whether the reshipment was to ascertain the cause or extent of the damage or to consider whether the reactors should be repaired or scrapped is not clear. Presumably, therefore, questions of fact are involved as to which the parties are not now in agreement. Plaintiff did not ascertain the amount of damage to the equipment, i.e. , the cost of repair, until December, 1949
(some 18 months after the shipment) at which time it notified the defendant of its ...