United States District Court, Northern District of Illinois, E.D
January 12, 1984
RYDER TRUCK LINES, INC., PLAINTIFF,
CONSOLIDATED RAIL CORPORATION, RUSS'S MOTOR SERVICE, INC., GENERAL TRAILER SALES CORP. AND AGRI-SHARE COOPERATIVE, INC., DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge:
TXMEMORANDUM OPINION AND ORDER
Plaintiff Ryder Truck Lines ("Ryder") sued Consolidated Rail
Corp. ("Conrail"), Russ's Motor Service, Inc., General Trailer
Sales Corp. and Agri-Share Cooperative, Inc., seeking
indemnity. Jurisdiction is asserted pursuant to 28 U.S.C. § 1337.
Presently before the Court is Conrail's motion to
dismiss Counts I and II. We shall treat Conrail's motion as a
motion for summary judgment.*fn1 For reasons set forth below,
Conrail's motion is granted.
Ryder arranged for the transportation of chocolate products
from Nestle, the shipper, in Fulton, New York, to California
June 10, 1981. Conrail transported the products to Chicago;
Russ's Motor Service, Inc. picked them up and sent them to
another railroad's ramp. From there the Atchison, Topeka and
Santa Fe Railway forwarded the products to California. Upon
their arrival, it was discovered that the chocolate was "heat
struck."*fn2 Nestle submitted a claim for the value of the
shipment to Ryder, who paid the claim on July 22, 1982.
Pursuant to 49 U.S.C. § 11707(a)(1), Ryder as the receiving
carrier was liable to Nestle regardless of whether Ryder caused
such damages. Ryder presently seeks indemnity under 49 U.S.C. § 11707(b),
which provides that
[t]he carrier issuing the receipt or bill of
lading under subsection (a) of this section or
delivering the property for which the receipt or
bill of lading was issued is entitled to recover
from the carrier over whose line or route the
loss or injury occurred the amount required to be
paid to the owners of the property, as evidenced
by a receipt, judgment, or transcript, and the
amount of its expenses reasonably incurred in
defending a civil action brought by that person.
Conrail claims that Counts I and II should be dismissed
because Ryder did not file a written claim against it within
nine months. In support of its argument, Conrail cites the
Carmack amendment, 49 U.S.C. § 11707(e),*fn3
tariff and the bill of lading between Ryder and Conrail.
Ryder has admitted that it did not file a claim for the
alleged damages in writing with Conrail within nine months
after the chocolate products were delivered to Russ's Motor
Service. According to Conrail's Divisions, Charges and Rules,
[a]s a condition precedent to recovery, claims
must be filed in writing with the receiving or
delivering railroad carrier within nine months
after delivery of trailer to motor
carrier. . . .*fn4
In support of its position, Ryder emphasizes the rule that
an indemnity action does not accrue until the indemnitee has
made payment. According to Ryder, the relevant limitations
period did not begin until Ryder paid Nestle, thirteen months
after the loss. In Federal Commerce & Navigation Co. v. Calumet
Harbor Terminals, Inc., 542 F.2d 437
(7th Cir. 1976), the
Seventh Circuit refused to apply a limitations period contained
in a tariff filed with the Federal Maritime Commission. As
Ryder maintains, the Court indeed held that a right of
indemnity accrues when the party asserting it suffers a loss by
being held liable in damages. Id. at 441. But Federal Commerce,
a maritime case, is distinguishable from the present case. No
bill of lading was involved in that action, and the Court held
that "in the absence of actual notice or contract, [the tariff
provision is not] applicable or enforceable to bar or restrict
the alleged claims of Federal for indemnity." Id. at 440. Here,
the bill of lading in effect between Ryder and Conrail
contained a limitations period with which Ryder did not comply.
Such a clause has been enforced in indemnity cases. E.g., U.S.
Steel International, Inc. v. SS Lash Italia, 439 F. Supp. 365
(S.D.N.Y. 1977). See also American Chicle Division, Warner
Lambert Co. v. M/V Mayaguez,
540 F. Supp. 166 (S.D.Tex. 1981) (compliance with nine-month
limitation period in ICC's Uniform Bill of Lading held
mandatory). We therefore believe that Ryder may not presently
assert its claim against Conrail.
Accordingly, Conrail's motion for summary judgment is
granted. It is so ordered.