Carbide itself did not) almost immediately after the derailment.
2. Conrail's post-derailment assurance to Union Carbide that
the shipment was still en route to Sweetheart operates to estop
Conrail from asserting its Section 2(b) defense. Perini-North
River Associates v. Chesapeake & Ohio Ry. Co., 562 F.2d 269 (3d
1. The Hopper Rule
Viewed alone, Hopper would plainly compel summary judgment in
favor of Union Carbide. All the undisputed facts — particularly
those as to Conrail's knowledge of the damage to the shipment —
bring this case precisely within the exception to the nine-month
requirement recognized in Hopper. Hopper is the prototype of the
researcher's dream: the controlling precedent on all fours.
Conrail scarcely essays to distinguish Hopper on its facts.
Instead it claims that (1) Hopper is contrary to the great weight
of authority, including Supreme Court cases (like Gooch) in which
the nine-month requirement has been strictly enforced, and (2)
Hopper has not survived the decision of our own Court of Appeals
in Wisconsin Packing Co., Inc. v. Indiana Refrigerator Lines,
Inc., 618 F.2d 441 (7th Cir. 1980), cert. denied, 449 U.S. 837,
101 S.Ct. 112, 66 L.Ed.2d 44 (1980).
As for the first of those contentions, it is true that a number
of courts have criticized Hopper, but a number have followed it
as well. See cases cited in Wisconsin Packing, 618 F.2d at 448
n. 7. For a District Judge in this Circuit, however, the answer
is both short and simple. It is neither permissible nor seemly to
engage in the weighing of other authority in the presence of a
direct precedent from our Court of Appeals.*fn2
Conrail's second contention — that Hopper is no longer viable
after Wisconsin Packing — is equally untenable. At issue in
Wisconsin Packing was whether a shipper's letter to a carrier,
though it did not comply with the technical notice requirements
of the bill of lading, constituted sufficient "notice of a claim"
anyway in light of all the circumstances (including the carrier's
own knowledge of the damages claimed). Our Court of Appeals,
sitting en banc, held that it did and overruled the original
panel's divided affirmance of the District Court's summary
judgment for the carrier. Hopper was put squarely in issue by
dissenting Judges Sprecher and Pell, who urged that it be
overruled. Not only did the other seven members of the Court
reject that proposition (618 F.2d at 447-48) but they went on to
say that "Hopper is not the derelict the dissent implies it is"
and to cite a number of cases in which Hopper had been followed.
Id. at 448 n. 7.
Again the duty of this Court is plain. Hopper must be viewed as
good law in this Circuit and, as such, as authority this Court is
bound to follow. Conrail's "actual knowledge of all the
conditions as to the damages that a written notice could give" —
to use the language of Hopper itself — is undisputed.*fn3 Hopper
effectively excuses Union Carbide's otherwise untimely filing of
Even apart from Hopper, on the facts of this case Conrail must
be estopped from asserting its Section 2(d) defense. Union
Carbide's failure to file a timely claim is directly attributable
to Conrail's own false and misleading representation
that the derailed shipment was in fact en route to Sweetheart.
Given that representation Union Carbide had no reason to believe
it even possessed a claim until Sweetheart refused to pay for the
original shipment. When that occurred Union Carbide promptly and
conscientiously made efforts to discover what had happened to the
shipment. It thus bears no blame for its failure to file a
"timely" claim. On the other hand, Conrail not only made the
initial misrepresentation*fn4 but perpetuated its effects by not
telling Union Carbide of the real disposition of the shipment —
the sale of the salvage.
It would be difficult to posit a stronger case for estopping a
carrier from asserting a Section 2(b) defense. Again Conrail's
citation to the line of authority enforcing the nine-month
requirement strictly is unpersuasive. None of those cases dealt
with circumstances remotely similar to those presented here.
Perini, on the other hand, dealt with analogous facts and held
the carrier estopped.
Perini is both well reasoned and persuasive here. There the
Court of Appeals for the Third Circuit held that although the
nine-month requirement was designed to "benefit the carrier by
providing a reliable record of potential liabilities," it is
quite another matter to apply that requirement to insulate a
carrier from liability for its own misconduct. To have rejected
estoppel in Perini would have been to reward the carrier's
misrepresentation to the shipper.
Precisely the same situation exists for Conrail. This Court
concurs in the Perini view that Section 2(b) should not be
interpreted to permit that abuse. Nothing in the policy
underlying strict enforcement of the nine-month requirement
compels a different result.
Two independent reasons compel summary judgment for Union
Carbide. There is no genuine issue as to any material fact, and
Union Carbide is entitled to a judgment for $44,552 (plus
interest from the dates stated in the Complaint) as a matter of