The opinion of the court was delivered by
Trenchard, J.
This action (known as the thirteen count case) was brought to recover damages for deterioration in condition of thirteen carloads of watermelons consigned from points in North Carolina to the plaintiff in Jersey City; the deterioration being averred to have resulted from unnecessary delay in transportation.
The defendant company received each of these carloads in good condition from an intermediate carrier at Edgemoor, Delaware, and within a reasonable time after shipment by the initial carriers, the delay occurring after delivery to the defendant company.
The jury, at the Hudson Circuit, found for the plaintiff and the defendant appeals from the consequent judgment.
We are of the opinion that the judgment must be reversed for reasons we will now state.
We think there was error in the refusal of the learned trial judge to direct a verdict for the defendant company with respect to the claim for loss of certain of the carloads of melons and also in his charge to the jury respecting them.
Each of the initial carriers of these carloads of melons executed and delivered to the plaintiff or its representative a bill of lading therefor, pursuant to the Carmack amendment (sec[243] tion 20 of the Interstate Commerce act, as amended June 29th, 1906, 34 U. S. Stat. at L., pp. 593, 595, ¶ 7).
Twelve of these hills of lading contained a condition that “claims for loss or damage shall be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than ten days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.” The other bill of lading contained a like provision excepting that the limitation therein was four months.
It appeared beyond dispute at the trial that no claim, as required by the bills of lading, was made for loss or damage respecting the twelve carloads within ten days after the delivery of the property to the plaintiff, and that fact was made the basis of a motion to direct a verdict as to those twelve carloads.
The trial judge denied such motion and instructed the jury, on this phase of the case, that they might find for the plaintiff if they found that the defendant company had waived that condition of the bills of lading.
Appropriate exceptions to such refusal and instruction raise the question wdiether it W’as open to the jury to find a waiver of such conditions.
We are constrained to think it was not.
Since the passage by congress of the Carmack amendment, all questions of a common carrier’s liability for loss or damage to interstate shipments are to be determined thereunder, and by the rules declared by the federal courts, this legislation having superseded all regulations and policies of a particular state upon the subject. Spada v. Pennsylvania Railroad Co., 86 N. J. L. 187; Missouri, Kansas and Texas Railway Co. v. Harriman, 227 U. S. 657; Adams Express Co. v. Croninger, 226 U. S. 491.
We have also held in this court that a provision in a bill of lading that in case of loss or damage occurring to property consigned to a common carrier, before delivery, claim for such loss or damage shall be made in writing within ten da]rs after delivery, is valid in cases of interstate shipments, and [244] the acceptance by the shipper of the bill of lading containing such provision, constitutes a binding contract on his part, and if made with the initial carrier, enures to the benefit of the connecting carrier. Spada v. Pennsylvania Railroad Co., supra.
Moreover, the validity of the limitation of time within which the shipper shall make his claim against the carrier for loss or damage to the goods shipped occurring before delivery thereof to the consignee, is established by the decision in Southern Express Co. v. Caldwell, 88 U. S. 264, where it was held that an agreement between the shipper and the carrier that the latter should not be liable for failure to deliver the goods received by it for transportation unless a claim shall be made by the shipper within a specified period, if that period be a reasonable one, is not against the policy of the law and is valid; and by the later decision in Missouri, Kansas and Texas Railway Co. v. Harriman, supra, where it was decided that a provision in a bill of lading, limiting the time within which suit may be brought for loss or damage to the property transported by the carrier, is not objectionable, provided the time limit be a reasonable one, and that “there is nothing in the policy of the Carmack amendment that is violated thereby.”
Since in the present case it is not contended that the time limit for filing claims is an unreasonable one, we conclude that the condition of the twelve bills of lading is valid and constitutes a binding contract on the part of the plaintiff.
By the failure of the plaintiff to make claim within the time limit the rights of the parties became fixed. It is not contended that there was an express waiver at any time. The sole contention must be and is that there was a constructive waiver after the expiration of the time limit, because it appears that before the time limit expired the defendant company said and did nothing. The only evidence from which this alleged waiver is said to be implied is the mere fact that the defendant company wrote to the plaintiff that the claim was rejected upon other grounds, after it had been presented out of time.
[245] Kow we think that the liability of the defendant company cannot be predicated upon that ground. As we have pointed out, by virtue of the Carmack amendment congress has taken possession of the subject of the liability of a common carrier for the loss or damage to an interstate transportation and such questions are to be determined under the rules as declared by the federal courts.
If, therefore, the federal courts have announced a rule which is logically determinative of the question under consideration we should follow it, though it he contrary to the decisions of state courts upon the same topic of which Merchants, &c., Transportation Co. v. Eichberg, 109 Md. 211; 71 Atl. Rep. 993, is an example.
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The opinion of the court was delivered by
Trenchard, J.
This action (known as the thirteen count case) was brought to recover damages for deterioration in condition of thirteen carloads of watermelons consigned from points in North Carolina to the plaintiff in Jersey City; the deterioration being averred to have resulted from unnecessary delay in transportation.
The defendant company received each of these carloads in good condition from an intermediate carrier at Edgemoor, Delaware, and within a reasonable time after shipment by the initial carriers, the delay occurring after delivery to the defendant company.
The jury, at the Hudson Circuit, found for the plaintiff and the defendant appeals from the consequent judgment.
We are of the opinion that the judgment must be reversed for reasons we will now state.
We think there was error in the refusal of the learned trial judge to direct a verdict for the defendant company with respect to the claim for loss of certain of the carloads of melons and also in his charge to the jury respecting them.
Each of the initial carriers of these carloads of melons executed and delivered to the plaintiff or its representative a bill of lading therefor, pursuant to the Carmack amendment (sec[243] tion 20 of the Interstate Commerce act, as amended June 29th, 1906, 34 U. S. Stat. at L., pp. 593, 595, ¶ 7).
Twelve of these hills of lading contained a condition that “claims for loss or damage shall be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than ten days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.” The other bill of lading contained a like provision excepting that the limitation therein was four months.
It appeared beyond dispute at the trial that no claim, as required by the bills of lading, was made for loss or damage respecting the twelve carloads within ten days after the delivery of the property to the plaintiff, and that fact was made the basis of a motion to direct a verdict as to those twelve carloads.
The trial judge denied such motion and instructed the jury, on this phase of the case, that they might find for the plaintiff if they found that the defendant company had waived that condition of the bills of lading.
Appropriate exceptions to such refusal and instruction raise the question wdiether it W’as open to the jury to find a waiver of such conditions.
We are constrained to think it was not.
Since the passage by congress of the Carmack amendment, all questions of a common carrier’s liability for loss or damage to interstate shipments are to be determined thereunder, and by the rules declared by the federal courts, this legislation having superseded all regulations and policies of a particular state upon the subject. Spada v. Pennsylvania Railroad Co., 86 N. J. L. 187; Missouri, Kansas and Texas Railway Co. v. Harriman, 227 U. S. 657; Adams Express Co. v. Croninger, 226 U. S. 491.
We have also held in this court that a provision in a bill of lading that in case of loss or damage occurring to property consigned to a common carrier, before delivery, claim for such loss or damage shall be made in writing within ten da]rs after delivery, is valid in cases of interstate shipments, and [244] the acceptance by the shipper of the bill of lading containing such provision, constitutes a binding contract on his part, and if made with the initial carrier, enures to the benefit of the connecting carrier. Spada v. Pennsylvania Railroad Co., supra.
Moreover, the validity of the limitation of time within which the shipper shall make his claim against the carrier for loss or damage to the goods shipped occurring before delivery thereof to the consignee, is established by the decision in Southern Express Co. v. Caldwell, 88 U. S. 264, where it was held that an agreement between the shipper and the carrier that the latter should not be liable for failure to deliver the goods received by it for transportation unless a claim shall be made by the shipper within a specified period, if that period be a reasonable one, is not against the policy of the law and is valid; and by the later decision in Missouri, Kansas and Texas Railway Co. v. Harriman, supra, where it was decided that a provision in a bill of lading, limiting the time within which suit may be brought for loss or damage to the property transported by the carrier, is not objectionable, provided the time limit be a reasonable one, and that “there is nothing in the policy of the Carmack amendment that is violated thereby.”
Since in the present case it is not contended that the time limit for filing claims is an unreasonable one, we conclude that the condition of the twelve bills of lading is valid and constitutes a binding contract on the part of the plaintiff.
By the failure of the plaintiff to make claim within the time limit the rights of the parties became fixed. It is not contended that there was an express waiver at any time. The sole contention must be and is that there was a constructive waiver after the expiration of the time limit, because it appears that before the time limit expired the defendant company said and did nothing. The only evidence from which this alleged waiver is said to be implied is the mere fact that the defendant company wrote to the plaintiff that the claim was rejected upon other grounds, after it had been presented out of time.
[245] Kow we think that the liability of the defendant company cannot be predicated upon that ground. As we have pointed out, by virtue of the Carmack amendment congress has taken possession of the subject of the liability of a common carrier for the loss or damage to an interstate transportation and such questions are to be determined under the rules as declared by the federal courts.
If, therefore, the federal courts have announced a rule which is logically determinative of the question under consideration we should follow it, though it he contrary to the decisions of state courts upon the same topic of which Merchants, &c., Transportation Co. v. Eichberg, 109 Md. 211; 71 Atl. Rep. 993, is an example.
Kow in Phillips Co. v. Grand Trunk Railway, 236 U. S. 662, a recent case, one of the questions before the United States Supreme Court was whether the carrier could waive a statute of limitations relative to the filing of claims with the Interstate Commerce Commission. Mr. Justice Lainar, speaking for the court, said: “The obligation of the carrier to adhere to the legal rate, to refund only what is permitted by law, and to treat all shippers alike would have made it illegal for the carriers, either by silence or by express waiver, to preserve to the Phillips company a right of action which, the statute required should be asserted within a fixed period. To have one period of limitation where the complaint is filed before the commission and the varying periods of limitation of the different states, where a suit was brought in a court of competent jurisdiction; or to permit a railroad company to plead the statute of limitations as 'against some and to waive it as against others would be to prefer some and to discriminate against others in violation of the terms of the Commerce act which forbids all devices by which such result may be accomplished. The prohibitions of the statute against unjust discrimination reíale not only to inequality of charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defences open to the carrier. The railroad company therefore was bound to claim the benefit of the statute here,” &c.
[246] That reasoning seems to be controlling in the case at bar. True that case dealt with the waiver of a limitation provided for by statute, and here the limitation arises out of the contract, but in either case the liability was at an end. The point is that the Interstate Commerce act prohibits the “giving of preferences by means of consent judgments or the waivers of defences open to the carrier.” Certainly this defence was “open to the carrier.” That to permit such waiver would open the door to preferences is demonstrated by the mere statement of the proposition and is illustrated by the series of cases before the court at this term. The question whether by conduct misleading the shipper prior to the expiration of the time limit for filing claims the carrier might estop itself from such defence it is not necessary now to determine.
We conclude, therefore, that liability of the defendant company cannot be predicated upon the mere fact that it rejected the 'claims for other reasons when they were presented out of time. ■
We are also of the opinion that there was error in the refusal to charge the ninth request.
These twelve bills of lading contained a stipulation as follows:
“In consideration of the rate at which the freight is taken for carriage, and the special service to be performed, it is agreed by and between the carriers and the shipper, as owner or agent for owner, that the said freight is not to be carried and delivered for or with reference to any particular market or market -hour at destination, nor in any special time, but only with such reasonable dispatch with reference to other business of the carrier as the general business permits.”
The defendant company requested the trial judge to charge as follows: “That the defendant was not bound to carry or transport the watermelons by any particular train, nor within any particular time, nor in time for any particular market, nor otherwise than with reasonable dispatch with reference to other business of the defendant as its general business permitted.”
[247] Manifestly this request should have been charged because it embodied the unobjectionable special contract between the parties with reference to the subject-matter covered by it.
Since claim was made in time respecting one of the carloads of melons, a retrial is necessary, and we remark that we have examined all the other reasons for reversal and find no merit in them.
But for the reasons stated the judgment below' will be reversed and a venire de novo awarded.