waiver and estoppel since the defense of laches applies only to claims for equitable relief. The claims here are claims at law, and those sued for are within the period allowed by the 6 year statute of limitations.
On the defenses of waiver and estoppel, the claim made is that bills or invoices for the demurrage charges were not even sent until recently, or, in the alternative, to the extent they were, they were neither kept nor entered on defendants' books as accounts payable, in reliance on the custom of the trade, understanding or express agreement that there would be no charges for demurrage.
While it is true that claims or defenses may be stated in the alternative or hypothetically under F.R.Civ.P. 8(e)(2), it is fundamental that a party may not present diametrically opposed states of fact. For the purposes of the present motion, it will be assumed that defendants' attorney was told by one employee that such invoices as were received were not entered on the books but were discarded, and that some other employee told him that no demurrage invoices were received until recently.
In either case, the facts asserted do not raise a genuine issue on a material fact, as a matter of law. If bills were received but discarded in reliance on the supposed custom, understanding or agreement, the illegality of the practice bars the defense.
On the other hand, if no invoices were sent until recently, no defense arises so long as the bill was sent and suit was filed within the period of the 6 year statute of limitations.
The only precedent defendants have found is the decision in The Argentino, 28 F. Supp. 440 (SD - NY, 1939).
In that case, consignee filed a libel against the ship to recover a claim of $582.53 for damage to eight cars shipped from New York to Buenos Aires. After an offer to pay $100. was rejected, suit was filed. The proctors for the ship then obtained an order to show cause why the libel should not be dismissed on the ground that the libel was not filed within the time limited by law [at that time, one year, under the Carriage of Goods by Sea Act, 46 U.S.C. § 1303(6)]. In response, it was argued that the general claim agent for the respondent had agreed not to raise the statute of limitations, i.e., to extend that time while negotiations were going on.
District Judge Leibell decided no more, in that case, than to deny the order, but without prejudice to the defense of limitations being decided at trial if raised in the answer when filed.
No further report indicates the ultimate disposition, but with a claim of less than $600., and a reluctant offer of $100., it is highly probable that denial of the order induced the ship to settle out on a more realistic basis without incurring costs and expense, and consuming judicial time and effort, on a claim which even if allowed in full was surely de minimis. Giving due regard to the Solomonic style of Judge Leibell in dealing with that libel, this court is of the view that the decision ought not to be followed here.
The motions for summary judgment.
Since the defenses are found to be without support in law, it follows that the motions for summary judgment in favor of plaintiffs should be granted. For the present, this ruling will be limited to the issue of liability, leaving open the matter of damages.
The reason for this is that plaintiffs have not supported their damage claim with references to the filed tariffs, or with copies of the bills or invoices.
Since the tariffs are required to be filed with a federal agency, the court may take judicial notice of them, Fed.Ev. Rule 201(b)(2), and authentication of the tenor is quite simple under Fed.Ev. Rule 902. See, also, N.J.Ev. Rules 9(2) and 68, with particular reference to the note to Rule 68 in regard to filed tariffs, privately published, made by the Rules of Evidence Study Commission of the N.J. Legislature at p. 63 (Gann Law Books, 1967), and the reference to the change effected by that rule and by the amendment in 1960 to N.J.S.A. 2A:82-16, to overcome State v. Black, 31 N.J.Super. 418, 107 A.2d 33 (App.1954).
The problem here arises because defendants say that as a result of the custom of the trade, the understanding or express agreement, they did not keep the bills or invoices but discarded them, if they received them (and without entry thereof on their books and records).
Each of these charges, however, arose in connection with some shipment which ought to reflect on defendants' books and records. Thus, for example, it is not uncommon for imported shipments of alcoholic beverages to be received in a bonded warehouse so that the consignee may postpone payment of both customs duties and of internal revenue taxes until such time as the goods are withdrawn from bond. For each of the shipments involved, the billings or invoices of plaintiffs ought to be capable of verification from the books and records of defendants reflecting the receipt of the goods into inventory and payment, on withdrawal from bond, of customs duties and internal revenue taxes.
On the motion for judgment as to damages, therefore, disposition will be postponed to afford the parties an opportunity to verify the correctness of the charges claimed, both by reference to the tariffs and by inspection of defendants' records reflecting the receipt of the goods and, where applicable, the payment of customs duties and internal revenue taxes. This approach will also dispose of defendants' discovery motion.
If the parties cannot resolve the issue of damages by informal discovery or negotiation on or before June 12, 1978, the court will thereupon appoint an accounting firm as an independent expert pursuant to Fed.Ev. Rule 706 for the purpose of conducting a suitable audit and filing a report with the court. If the issue is not sooner resolved, the parties are required to submit, on or before June 12, 1978, their nominations of an accounting firm, together with the names of their own independent accounting firms who served them in the past, or who are serving them now, and who will not be considered for appointment unless the parties are in agreement.
If this additional step proves necessary, it may be desirable to consolidate the cases for the purpose of ascertaining damages. In that event, the expenses of the independent expert will be allocated pending final outcome at 50% to be paid by plaintiffs in each case, as a group (subdivided pro rata by the amount of each claim), and 50% to the defendant involved. Final allocation as between the parties will abide the outcome.
In gathering data for the issue of damages, the matter of interest will need to be dealt with. The period over which the claims arose include perhaps the highest interest rates in recent memory. Since interest is compensation for the use of money, some rate must be set to strike a balance between the interest saved by defendants and that incurred by plaintiffs. The going rates for commercial paper, as reported monthly by the Federal Reserve Bank of New York, may be a suitable index.
This item should also be discussed by the parties for resolution if they can agree. If not, it can be included in the instructions to the independent expert, who can ascertain the embedded rate of interest for short term borrowings by each plaintiff and for each defendant for the period involved.