The opinion of the court was delivered by: Grady, Chief Judge.
Plaintiff Marine Office of America brings this action as the
insurer and subrogee of Gomiya (U.S.A.), Inc. ("Gomiya") to
recover damages for a breach of contract which occurred when
a cargo of machinery shipped by Gomiya was damaged in transit.
Defendants in this case are NYK Line and its vessel, M/V HIEI
MARU, the Union Pacific Railroad and the Burlington Northern
Railroad. Both railroad companies have moved for summary
judgment arguing that Gomiya failed to provide them with
written notice of a claim for damages within nine months after
the delivery of the cargo as required by the bill of lading
issued by the railroads.
The cargo at issue in this case was shipped by Gomiya
Company, Ltd. in Japan to Gomiya (U.S.A.), Inc. by sea, aboard
the M/V HIEI MARU, discharged in Los Angeles, and transported
from Los Angeles to Chicago first by the Union Pacific
Railroad and then the Burlington Northern Railroad. Upon
arrival in Chicago, the cargo was
delivered to Omni Overseas Freighting, Inc., apparently as
agent for Gomiya, on August 27, 1982. As the crates were being
lifted from the rail cars, damage to the shipping crates was
observed, and the crane operators were instructed to hold the
crates in place while the Burlington Northern was notified of
the damage. Affidavit of Clarence J. Calabria, ¶ 3. Joseph
Calabria and Clarence Calabria of Omni telephoned the
Burlington Northern and informed Betty Kastner of the damage.
Kastner replied that the railroad's surveyors were unavailable
to inspect the damage, and instructed Omni to photograph the
damage. Id., ¶¶ 4-5. Two photographs of the damaged crates were
taken, and a set was hand-delivered to Kastner. Id., ¶¶ 6-7.
A survey of the damage was arranged by Gomiya and took place
on August 31, 1982. According to John Terada, the office
manager for Gomiya, a representative of NYK Line was present.
The Burlington Northern was notified of the survey and invited
to attend, but apparently did not. Affidavit of John Terada,
¶¶ 2-3. A letter was sent by Terada on August 31, 1982, to NYK
Line informing it of the damage to the cargo, which was
apparently due to the shifting of the machinery inside the
crate while in transit to Chicago. The letter indicated that
the extent of the damage was not yet known, but that Gomiya
intended to hold NYK Line responsible. Motion for Summary
Judgment, attachment, August 31, 1982, letter from John Terada.
NYK Line apparently never transmitted a notice of claim to
the Union Pacific, Affidavit of Carl D. Summerfield, and did
not send written notice to the Burlington Northern until July
14, 1983. Affidavit of John C. Bilek, Jr. The defendant
railroads contend that according to the terms of their bill of
lading, written notice of a claim for damages must be filed
within nine months of delivery of the goods:
(b) 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 the
case of export traffic, within nine months after
delivery at port of export) or, in the case of
failure to make delivery, then within nine months
after a reasonable time for delivery has elapsed;
and suits shall be instituted against any carrier
only within one year when letter mailed from the
day when notice in writing is mailed by the
carrier to the claimant that the carrier has
disallowed the claim or any part or parts thereof
specified in the notice. Where claims are not
filed or suits are not instituted thereon in
accordance with the foregoing provisions, no
carrier hereunder shall be liable, and such
claims will not be paid.
Motion for Summary Judgment, attachment Union Pacific Railroad
Company UP Exempt 2-A, Section 2(b), at 5-6. Because no such
written notice was filed with the railroads within the
specified time period, defendants argue that they are entitled
to summary judgment.
Nine-Month Written Notice to Railroads
Plaintiff maintains that it complied with the requirements
of the Intermodal Bill of Lading executed between Gomiya and
NYK Line, and that it is the Intermodal Bill of Lading that
governs this case. In the alternative, plaintiff argues that
under the doctrine of Hopper Paper Co. v. Baltimore & O.R. Co.,
178 F.2d 179 (7th Cir. 1949), written notice is unnecessary
where it is demonstrated that the defendant carrier had actual
notice of the damage.
(3) Claim for loss or damage against the Carrier
[NYK Line] shall be given and suit commenced as
provided in Article 25. Claim for loss of or
damage to the Goods against a U.S. Inland Carrier
[the railroads] shall be made in writing within
nine months after delivery of the Goods by such
Inland Carrier or, in case of failure to make
delivery, then within nine months after a
reasonable time for delivery has elapsed; and
suits shall be instituted against a U.S. Inland
Carrier only within two years and one day from
the day when notice in writing is given by such
Inland Carrier to the claimant that it has
disallowed the claim or any part or parts thereof
specified in the notice. Where claims are not
filed or suits are not instituted against a U.S.
Inland Carrier in accordance with the foregoing
provisions, it shall not be liable for loss of or
damage to the Goods. The filing of a claim under
this Bill of Lading with the Carrier shall also
constitute a filing of a claim with the Inland
Carrier. The filing of a claim under this Bill of
Lading with the Inland Carrier shall also
constitute the filing of a claim with the
Carrier.
This section obviously reiterates the nine-month notice
requirement contained in the railroad bill of lading, but adds
that the filing of written notice with NYK Line constitutes
the filing of written notice with the Inland Carriers, in this
case, the Union Pacific and Burlington Northern. This allows
a shipper who may not discover the identity of the various
inland carriers who transported the goods within nine months
to comply with the notice requirement by filing a claim with
the carrier it does know. It is undisputed that plaintiff
filed written notice with NYK Line on August 31, ...