Hopper is a much criticized case that should be limited to its
facts. See Henry Pratt Co. v. Stor Dor Freight Systems, Inc.,
416 F. Supp. 714 (N.D.Ill. 1975). In Hopper, it was undisputed
that the goods were destroyed in a crash between two of the
defendant railroad's trains. The salvage from the wreck was
sold by the defendant, but no accounting was ever given to the
plaintiff. The defendant, therefore, was the only party with
full knowledge of all of the facts surrounding the loss of the
cargo, and had actual notice of everything written notice would
have provided. Failure to file written notice within the
required time period was therefore excused.
Defendants contend that unlike Hopper, it is not clear how
the damage in this case occurred, and they had no knowledge of
the extent of the damage or of Gomiya's intent to hold the
railroads responsible. The Burlington Northern, however, was
promptly notified by Gomiya's receiving agent of the apparent
damage to the shipping crates before they were removed from the
railcars, was given photographs of the crates, and was offered
an opportunity to attend the damage survey. See supra at 395.
Had the railroads participated in the damage survey, they would
have known the full extent of the damage, and we believe that
Gomiya's actions in quickly notifying the Burlington Northern
of the damage and arranging a survey indicate its intent to
seek compensation for its goods.
Contrary to defendants' assertion concerning the viability
of the Hopper doctrine, the Seventh Circuit Court of Appeals
expressly refrained from overruling Hopper in Wisconsin Packing
Co. v. Indiana Refrigerator Lines, 618 F.2d 441, 447-48 (7th
Cir. 1980). The Seventh Circuit instead adopted a practical
approach that examines the extent of actual knowledge in each
case and whether some form of written notice was given. Under
such an approach, Hopper represents one extreme where the
extent of defendant's knowledge obviates any need for formal
notice. The facts of Wisconsin Packing itself represent a
middle ground, where the defendant knew of the damage and the
plaintiff filed an arguably insufficient notice of loss within
the nine-month period. The Seventh Circuit found that the
combination of knowledge and informal notice in that instance
was sufficient to excuse the filing of a more formal written
In this case, there was oral notice to the Burlington
Northern, a delivery of photographs, and an opportunity to
survey the full extent of the damage. In addition, Gomiya
filed written notice in accordance with the Intermodal Bill of
Lading with NYK Line. Given this combination of oral notice,
written notice and actual knowledge, we believe that Gomiya's
failure to file formal written notice of loss with the
railroads is not fatal to its cause of action.
Jurisdiction Over Claim Against NYK Line
The Intermodal Bill of Lading also provides that "In any
event the Carrier shall be discharged from all liability in
respect of non-delivery, misdelivery, delay, loss or damage
unless suit is brought within one year after delivery of the
Goods or the date when the Goods should have been delivered."
Intermodal Bill of Lading, section 25. This provision is a
restatement of the Carriage of Goods by Sea Act ("COGSA"),
46 U.S.C. § 1303(6), which also requires that actions for loss or
damage to cargo be brought within one year of the date of
delivery. The date of delivery in this case was August 27,
1982, but plaintiff's complaint was filed on March 15, 1984.
Plaintiff's suit against NYK Lines is therefore apparently
untimely, under both the terms of the Intermodal Bill of Lading
and COGSA. In that event, we would have to dismiss the case
against NYK Lines, leaving plaintiff's suit against the Union
Pacific and the Burlington Northern.
This prospect raises the question of our jurisdiction over
the case. The complaint asserts federal jurisdiction based on
admiralty, 28 U.S.C. § 1333, and federal question, 28 U.S.C. § 1331.
Without NYK Line, it is questionable whether admiralty
jurisdiction remains. Federal question jurisdiction is based on
plaintiff's allegation that the Carmack Amendment, 49 U.S.C. § 11707,
governs its claims against the railroads. There is some
indication, however that the Carmack Amendment does not apply
to bills of lading issued for goods received for shipment at a
point outside the United States, see Kenny's Auto Parts, Inc.
v. Baker, 478 F. Supp. 461, 464 (E.D.Pa. 1979), although the
Carmack Amendment has recently been amended as part of the
overall revision of federal transportation laws and now covers
freight forwarding provided between "a place in a State and a
place in another State, even if part of the transportation is
outside the United States." 49 U.S.C. § 10561(a)(2)(A);
see 49 U.S.C.A. § 11707 (West 1985 pam.); compare
49 U.S.C. § 20(11).
If the Carmack Amendment does not apply to this case, then
our jurisdiction must rest on diversity of citizenship. We
have no way of knowing at this time whether diversity
jurisdiction exists, as the citizenship of the various parties
has not been established.
Because none of these issues have been addressed by the
parties, we will not rule at this time on the timeliness of
plaintiff's suit against NYK Line or any resulting
jurisdictional questions, and will instead direct the parties
to submit memoranda on the issues.
The motions of defendants Union Pacific Railroad and
Burlington Northern Railroad for summary judgment are denied.
Plaintiff is directed to submit a memorandum addressing (1)
the timeliness of its suit against NYK Line and (2) this
court's jurisdiction over its claims against the railroads if
its case against NYK Line is dismissed. This memorandum should
be filed by August 16, 1985. Defendants will have until August
30, 1985, to respond, after which we will take these issues