The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Union Carbide Corporation ("Union Carbide") sues Consolidated
Rail Corporation ("Conrail") for its alleged breach of a bill of
lading transportation contract. Conrail claims Union Carbide
cannot recover because it failed to file a claim of damages
against Conrail within the time period required by Section 2(b)
of the bill of lading ("Section 2(b)"). Both parties have moved
for summary judgment. For the reasons stated in this memorandum
opinion and order Union Carbide's motion is granted and Conrail's
On July 16, 1976 Union Carbide delivered to Conrail a hopper
carload of polystyrene plastics (the "shipment") for
transportation from S. Bound Brook, New Jersey to consignee
Sweetheart Plastics, Inc. ("Sweetheart") in Manchester, New
Hampshire. Conrail agreed to transport the shipment pursuant to
Bill of Lading No. 352388 (the "bill of lading"), Section 2(b) of
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 failure to make
delivery, then within nine months after a reasonable
time for delivery has elapsed. . . .
In fact Conrail's second message was entirely false, for the
derailment had caused serious damage and the first shipment was
never sent on to Sweetheart. Instead Conrail turned over what
remained of the shipment after the derailment to a salvor, who in
turn sold the shipment (originally worth some $56,000) for
$11,824. Conrail did not inform Union Carbide of the sale in
advance, nor did it advise Union Carbide of the non-delivery to
Union Carbide began investigating the circumstances in late
February 1977 when Sweetheart refused to make payment,
maintaining that it had never received the original shipment.
Union Carbide asked Eastern Regional Transportation in Bound
Brook to obtain a Proof of Delivery, and when none was
immediately forthcoming it made several subsequent requests.
Finally on July 25, 1977, having concluded that Sweetheart must
be right in claiming nondelivery, Union Carbide filed a written
claim (the "claim") with Conrail for loss of the shipment.
On January 31, 1978 Conrail advised Union Carbide by letter
that it rejected the claim as untimely because of the year's
lapse between the July 1976 notice of derailment and the July
1977 filing of the claim. Conrail concluded that the nine months
plus "reasonable time for delivery," as provided in Section 2(b),
had expired. Conrail's January 31, 1978 letter for the first time
informed Union Carbide of the sale of the derailed shipment and
offered to tender to it the proceeds of that sale (those proceeds
were later paid to Union Carbide).
On October 15, 1979 Union Carbide filed this action under the
Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707.
It seeks to recover the difference between the shipment's
alleged value ($56,376) and the proceeds of the salvage sale.
Union Carbide filed its summary judgment motion June 2, 1980 and
Conrail filed its cross-motion for summary judgment June 27,
1980. Those motions were fully briefed on July 14, 1980 and July
24, 1980, respectively. On April 30, 1981 this action was
transferred to the docket of this Court.
Conrail's Section 2(b) Defense
Section 2(b) is copied from Section 2(b) of the Uniform Bill of
Lading and tracks the language of the Carmack Amendment. That
statute renders a carrier liable for any damage it causes to
property it transports. In that respect the statute prohibits a
carrier from providing "a shorter period for the filing of claims
than nine months." Though the statute does not specify that such
claims be in writing, regulations promulgated thereunder contain
such a requirement. 49 C.F.R. § 1005 (1972).
There is no dispute that absent the controversy as to Union
Carbide's claim, Conrail would be liable here. Conrail maintains
that the language of Section 2(b) and decisions interpreting the
Carmack Amendment bar recovery by Union Carbide. In support of
its position Conrail cites a long line of decisions in which the
nine-month requirement has been strictly enforced. See, e.g.,
Gooch v. Oregon S.L.R. Co., 258 U.S. 22, 42 S.Ct. 192, 66 L.Ed.
443 (1922); ...