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Rollei of America Inc. v. T.I.M.E.-dc Inc.

Decided: March 12, 1976.

ROLLEI OF AMERICA, INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
T.I.M.E.-DC, INC., A CORPORATION, DEFENDANT



Dwyer, J.s.c.

Dwyer

[140 NJSuper Page 562] Rollei of America, Inc., a New Jersey corporation (manufacturer), which manufactures and sells cameras, brought suit against T.I.M.E. -- DC, INC., an interstate common carrier (carrier) to recover value of two cartons of cameras. Manufacturer shipped seven cartons of cameras to a customer in Michigan on September 26, 1972 under one uniform bill of lading issued by carrier. Section 2(b) of the uniform bill of lading, authorized by 49 U.S.C.A. § 20 (11), limits the time within which claims may be made by the following language:

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, damages, injury or delay occurred, * * * within nine months after delivery of the property * * * or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; * * *. [Suit must be instituted within two years after notice given.] 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.

Five of the seven cartons were delivered to manufacturer's customer on October 4, 1972. The delivery documents noted "2 short." On June 5, 1973 manufacturer, which has an experienced freight department, wrote to carrier enclosing a copy of the delivery receipt and stating:

We shall appreciate your advising us the disposition of these two cartons so that delivery may be substantiated or a claim filed for the missing merchandise.

On June 14, 1973 carrier returned a copy of the letter with the notation

[t]his shtg never cleared, 2 short from our terminal in New York.

On August 21, 1973 manufacturer filed a formal claim for the two cartons of cameras in the amount of $7,975.80.

The latter date was ten months after the date of delivery. Carrier denied the claim. Manufacturer then commenced suit. Carrier answered and set up the separate defense of the limitation of time under § 2(b) of the uniform bill of lading. Carrier then moved for summary judgment. The facts are set forth in affidavit and are not disputed.

The novel question presented is whether the limitation is measured by nine months from the date of delivery of the five cartons that were delivered or nine months after a reasonable time for delivery for the two missing cartons. Although the liability of an interstate carrier for loss of, or damage to, goods in an interstate shipment is governed

by federal law, Georgia, Fla. & Ala. Ry. v. Blish Milling Co. , 241 U.S. 190, 36 S. Ct. 541, 60 L. Ed. 948 (1916), neither counsel nor the court found any federal decision on the matter. Research has revealed only one decision of a state court which has passed on the question. Jefferson Mfg. Co. v. Bayou Shoppe , 210 So. 2d 912 (La. App. Ct. 1968). There is a subsidiary question of the adequacy of the notice given by manufacturer. See Johnson & Dealaman, Inc. v. Wm F. Hegarty, Inc. , 93 N.J. Super. 14 (App. Div. 1966). Notice to file a claim is required, for the mere fact that a carrier may have knowledge of the loss or damage within the appropriate time period is not sufficient to allow recovery against a carrier. Id. Although it must be in writing, that notice does not need to be in any particular form, for the notice requirement is addressed to a practical exigency and should be construed in a practical way. Georgia, Fla. & Ala. Ry. v. Blish Milling Co., supra. The purpose of requiring written notice within the stated time is not merely to give a carrier an opportunity to check out the validity of the claim but to prevent the allowance of damage or missing goods claims from being a vehicle for granting rebates from published tariffs where there would be scant documentation because of lapse of time. See the discussion in Johnson & Dealaman, Inc. v. Wm. F. Hegarty, Inc., supra. The significant factor that must be found is a statement of intent to press a claim within the applicable time period as well as notice of the loss. Id. at 27, and cases there cited.

The notice must indicate an intention to claim reimbursement and adequately identify the shipment in question. Such notice is "sufficient if a carrier cannot draw any inference from it other than that a claim for damages was contemplated, even if the writing does not contain a formal demand for damages." Delaware, L. & W.R. Co. v. United States , 123 F. Supp. 579, 582 (S.D.N.Y. 1954). Notice has been found ...


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