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June 21, 1983

IML-FREIGHT, INC., Defendant

Haight, District Judge.

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

 At the conclusion of plaintiff's case, I dismissed the complaint with prejudice. This Opinion sets forth my reasons.

 Plaintiff Bobst Division of Bobst Champlain, Inc. ("Bobst") is a New Jersey corporation. Its corporate parent is Bobst S.A., a Swiss corporation ("Bobst S.A."). Bobst S.A. manufactures heavy machinery at its plant in Lausanne, Switzerland. Plaintiff Bobst is concerned with sales of the machinery to customers in the United States.

 The Longview Fibre Company of Fridley, Minnesota is a customer of Bobst's. Longview purchased a paper box machine from Bobst. The machine, which is very large, was packed in fourteen separate cases, containing its component parts, and entrusted by Bobst to defendant IML-Freight, Inc. ("IML") for carriage by truck from the Port of New York to Longview's plant in Minnesota. IML picked up the cases of machinery at the pier to which they had been discharged from the M.S. ATLANTIC COGNAC which had performed the ocean carriage. IML received the shipment under a uniform straight bill of lading (PX2). During transit, the cases were transferred from IML to trucks belonging to Admiral Merchants Motor Freight, Inc., which then delivered them to Longview. IML received a clean receipt from Admiral. Upon arrival at Longview's plant in Minnesota, case number 11 was found to be broken, and the piece of machinery contained therein damaged. The machine was surveyed on behalf of Bobst's underwriters on January 31, 1978. Not later than one or two days thereafter, John Kowalski, the sales superintendent at Bobst in New Jersey, was aware that the machine could not be repaired in the United States. The choice therefore lay in abandoning the machine for scrap value, or in returning it to Bobst S.A. in Switzerland for repairs. Sensibly, Bobst decided upon the latter course.

 The damaged machinery was an integral part of the entire machine. Without the damaged part, nothing would work. Time was of the essence for Bobst's client, Longview. Accordingly Bobst gave priority to having a replacement part sent from Switzerland to Longview as quickly as possible. The damaged part was destined to be returned to Switzerland, repaired, and then resold to someone else.

 Kowalski was responsible for collecting the documents to support a claim on Bobst's underwriters. To that end, he had several telephone conversations with Ron Mardenly, the terminal manager for IML at North Bergen, New Jersey. With Mardenly's assistance, Kowalski obtained a copy of Admiral's receipt evidencing delivery to the consignee, dated January 24, 1978, claused to reflect damage to the crate in question. According to the time stamp, Kowalski at Bobst received this document from Mardenly on February 16, 1978. This is the only document Kowalski could recall receiving from Mardenly pursuant to that request.

 During his conversations with Kowalski, Mardenly sensed an uncertainty on Kowalski's part with respect to the procedures to be followed for filing a claim against the carriers. Mardenly advised Kowalski "you'd better send us a letter notifying us." Mardenly had not been involved in any claims with Kowalski previously. Regarding Kowalski as a valued customer, Mardenly's purpose was in trying to give Kowalski assistance if the latter wanted to "start the proceedings." Mardenly did not forward any claims forms to Kowalski; nor did he suggest the text of any letter that Kowalski might write.

 In point of fact, Kowalski did write Mardenly a letter (PX4). It is dated March 23, 1978. I reproduce its text in full:

 Mr. R. Mardenly

 I.M.L. Freight Company

 3445 Paterson Plank Road

 North Bergen, New Jersey 07047

Subject: Machine damage to BOBST Model SPO1600 with 2-Color Flexo
Longview Fibre Company, Minneapolis, Minnesota
Reference: Vessel MS "Atlantic Cognac" Bill of Lading No. 3 -- dated December 12, 1977
Dear Mr. Mardenly:
Please be advised that the above referenced machine which arrived in Port Newark on or about December 26, 1977 was found to be damaged. The estimated amount of damage is approximately $100,000.00.
By notice of this letter, we hold your company liable for said damages. A claim will be filed on our behalf by our insurance company, who will ...

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