Appeal from the United States District Court for the Eastern District of Wisconsin. No. 76-C-611 -- John W. Reynolds, Judge.
Before Cummings and Sprecher, Circuit Judges, and Bonsal, Senior District Judge.*fn*
Wisconsin Packing Co. ("Wisconsin Packing"), plaintiff-appellant, appeals from an order of the district court granting defendant-appellee, Indiana Refrigerator Lines' ("IRL"), motion for summary judgment.
On July 29, 1974, a shipment of 32,340 pounds of frozen meat was tendered by Wisconsin Packing to IRL for shipment from Milwaukee to the Naval Supply Center in Norfolk, Virginia. On July 31, 1974, the Navy rejected the shipment claiming that the temperature of the meat was 1.2 degrees Fahrenheit over the acceptable tolerance standard set forth in the handbook of military regulations. IRL returned the shipment to Wisconsin Packing in Milwaukee, which refused to accept it. On August 2, 1974, Mr. Karl Brown, an officer of Wisconsin Packing, wrote Mr. James Stevenson, Milwaukee Terminal Manager for IRL, as follows:
"Wisconsin Packing Company refuses to accept meat on trailer no. 4013 because of Army rejection of temperatures averaging 1.2 degrees over acceptable allowance temperatures. Return temperatures checked out and ranged from nine to twenty-five degrees."
Wisconsin Packing eventually disposed of the shipment.
On July 20, 1976, Wisconsin Packing brought this action against IRL pursuant to the Interstate Commerce Act, 49 U.S.C. § 20(11) claiming damages in the amount of $13,192.66.
On September 5, 1978, the district court granted IRL's motion for summary judgment on the grounds (1) that Wisconsin Packing failed to give IRL sufficient written notice of its claim within nine months of the occurrence of the damage as required by the Uniform Bill of Lading and the Interstate Commerce Act and regulations issued thereunder; and (2) that IRL was not chargeable with actual knowledge of all the conditions as to the alleged damages that a written notice would have provided and which would have excused the lack of formal notice under Hopper Paper Co. v. Baltimore & O. Ry., 178 F.2d 179 (7th Cir. 1949), Cert. denied, 339 U.S. 943, 70 S. Ct. 797, 94 L. Ed. 1359 (1950).
With respect to the first ground, the district court held that the August 2, 1974 letter, the only written communication made by Wisconsin Packing within the nine-month period, and the invoices held by IRL indicating that the shipment had been rejected did not constitute sufficient written notice of claim because they did not identify the shipment with sufficient specificity nor state that IRL was liable for damages nor the specific amount of damages that would be claimed. In its appeal, Wisconsin Packing contends that the district court erred in determining that Wisconsin Packing had not provided IRL with sufficient written notice of its claim of damage. Moreover, Wisconsin Packing contends that written notice was not necessary since IRL had actual knowledge of Wisconsin Packing's claim (Hopper, supra ) and that disputed issues of fact as to the applicability of Hopper precluded the granting of summary judgment.
We agree with the district court that the letter of August 2, 1974 from Wisconsin Packing and the invoices did not constitute a sufficient written notice of claim within the meaning of the Interstate Commerce Act and regulations thereunder. The shipment was evidenced by a Uniform Bill of Lading which provided that Wisconsin Packing was obligated to give IRL written notice of claim for loss or damage no later than nine months after the damage allegedly occurred. The regulations promulgated by the Interstate Commerce Commission, 49 C.F.R. § 1005, 37 Fed.Reg. 4258 (1972), provide in part that any notice of claim for loss or damage shall be in writing, contain facts sufficient to identify the shipment involved, assert liability for alleged loss or damage, and make claim for the payment of a specified or determinable amount of money. 49 C.F.R. § 1005.2(b). Moreover, 49 C.F.R. § 1005.2(c) provides:
"(c). Documents not constituting claims. Bad order reports, appraisal reports of damage, notations of shortages or damage, or both, on freight bills, delivery receipts, or other documents . . . shall standing alone not be considered by carriers as sufficient to comply with the minimum claim filing requirements specified in paragraph (b) of this section.
Although the Interstate Commerce Commission states that such regulations "shall govern the processing of claims for loss, damage, injury or delay to property . . . in interstate or foreign commerce . . . subject to the Interstate Commerce Act," (49 C.F.R. § 1005.1), they provide the Court with a useful guide as to what should constitute a sufficient notice of claim. 49 C.F.R. § 1005.2(b). See Henry Pratt Co. v. Stor Dor Freight Systems, Inc., 416 F. Supp. 714 (N.D.Ill.1975). We agree with the district court that the letter of August 2, 1974 and the invoices did not meet the requirements of the Interstate Commerce Act and regulations promulgated thereunder.
Since the purpose of the written notice is to alert the carrier of the damage and allow it an opportunity to make a full investigation (Georgia, Florida & Alabama Railway v. Blish Milling Co., 241 U.S. 190, 36 S. Ct. 541, 60 L. Ed. 948 (1916)), we held in Hopper, which was decided before the relevant regulations were promulgated, that despite the need for a written claim as required by the Uniform Bill of Lading and the Interstate Commerce Act, a failure to give the statutory notice of a claim for damage is excused "where the carrier has or is chargeable with actual knowledge of all the conditions as to the damages that a written notice could give." 178 F.2d at 181. Accord, MGD Graphic Systems Americas Co. v. Acme Fast Freight, Inc., 437 F. Supp. 10 (N.D.Ill.1977); and Stearns-Roger Corp. v. Norfolk & Western Railway, 356 F. Supp. 1238 (N.D.Ill.1973). In Hopper, we held that the carrier had actual knowledge of the facts which a written notice would have provided. There the shipment of paper was destroyed in a collision between two trains of the defendant carrier which then gave notification of the loss to both the consignor and consignee. We upheld the district court's finding that:
"(defendant) knew that it had destroyed such paper and had at least as much if not more knowledge in relation to the damage in ...