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WESTHEMECO LTD. v. NEW HAMPSHIRE INS. CO.

February 8, 1980

WESTHEMECO LTD., Plaintiff,
v.
NEW HAMPSHIRE INSURANCE COMPANY and Florida East Coast Railway Company, Defendants and Third-Party Plaintiffs, v. ALBERT PIPE SUPPLY CO., Standard Pipe Protection Division-General Steel Industries, Inc., Tubeco, Inc. and Crippen Pipe Fabrication Co., Third-Party Defendants



The opinion of the court was delivered by: COOPER

Defendant and third-party plaintiff Florida East Coast Railway Company (Fla. Rwy.) moves for partial summary judgment against plaintiff Westhemeco Ltd. (Westhemeco) on the grounds that plaintiff failed to file timely written claims and commence this action within the limitations period prescribed by the Bill of Lading Contract of Carriage entered into by Westhemeco and Fla. Rwy.

We have had occasion to discuss the facts and procedural history of this complex action on two prior occasions. Westhemeco, Ltd. v. New Hampshire Ins. Co., 82 F.R.D. 702 (S.D.N.Y.1979); Commercial Union Ins. Co. v. Albert Pipe & Supply Co., 484 F. Supp. 1153 (S.D.N.Y.D.C.1980).

Since we recognized that the instant motion, if granted, affects approximately three-fourths of Westhemeco's claims against Fla. Rwy., we have repeatedly extended the time for submission of any material bearing on it. Fla. Rwy's Notice of Motion was filed on June 12, 1978. Briefing was completed in early January, 1979. After a full review of the papers, we were satisfied that it was the better part of wisdom to extend the deadline for submissions until completion of discovery between Westhemeco and Fla. Rwy. Counsel in the within action were advised by letter of March 15, 1979 that all discovery was to be completed by July 16, 1979 and that: "We are likewise postponing consideration of defendant Florida East Coast Railway's motion for partial summary judgment until the same adjourned date in the belief that possibly some matter may come to light which may support either the movant or the opponent."

 At the request of plaintiff's counsel, on June 11, 1979 the discovery deadline was adjourned to the first Monday in October, 1979. Our letter to all counsel further stated, "The same adjournment is also applicable to the pending summary judgment motion." Finally, in our memorandum decision of October 5, 1979, we directed that there be "(submission) of any additional papers relating to Fla. Rwy's pending summary judgment motion, under advisement since March, 1979, within forty-five (45) days from the date of the entry of this order."

 Despite the extensions, postponements and adjournments given on this motion, neither party submitted any additional memoranda, documents or affidavits relating to it.

 Facts

 We turn now to a summary of the undisputed facts. Pursuant to the Bill of Lading, Fla. Rwy. agreed to transport pipe for Westhemeco by rail from New York to Florida. These shipments began on November 19, 1973 and continued until July, 1974. The instant motion is concerned solely with the shipments which occurred between November 19, 1973 and March 25, 1974. *fn1"

 TABLE

 After each shipment arrived at its destination, Westhemeco requested an inspection. Thereupon, Fla. Rwy. prepared one inspection report per shipment. The so-called "joint inspection reports" clearly showed that some of the pipe had been damaged by the time it reached Florida. Westhemeco submitted written claims to Fla. Rwy. dated December 30, 1974 and January 13, 1975, received by Fla. Rwy. on January 6, 1975 and January 17, 1975, respectively. The claims dealt, in part, with the shipments here in controversy. *fn2"

 By letter dated January 17, 1975, Fla. Rwy. refused to honor the written claims, stating that the "notice of intent to file claim" of damages was not received within the time limitations prescribed in the Bill of Lading, which provides that notice of intent must be received by the "Origin (sic) or destination carrier within 9 months from the delivery date of the shipment." Fla. Rwy. took the position that it was "prohibited by law from making any payment." Our determination of the application now before us rests to such a large extent upon the letter that we are prompted to set it out in full at this juncture:

 FLORIDA EAST COAST RAILWAY COMPANY

 ONE MALAGA STREET, ST. AUGUSTINE, FLORIDA 32084

 
FEC
 
January 17th.1975

 Mr. J. P. Cronin

 Westhemeco, Ltd Mechanical ...


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