The opinion of the court was delivered by: LOWE
MEMORANDUM OPINION AND ORDER
In this action plaintiff, R.T.A. Corporation ("R.T.A."), seeks to recover $75,000.00 from defendant, Consolidated Rail Corporation ("Conrail"), for alleged damage sustained by a shipment of RCA products of which R.T.A. was the consignee.
Plaintiff initially filed suit in the Supreme Court of the State of New York against Conrail, alleging that Conrail, through its negligence, breach of bailment and breach of the terms of the bill of lading governing the shipment, caused the alleged damage to the merchandise. On or about November 30, 1983, this action was removed, on Conrail's petition, from the Supreme Court of the State of New York to the United States District Court for the Southern District of New York.
Defendant is a railroad subject to the provisions of the Interstate Commerce Act, 49 U.S.C. § 1 et seq, and the regulations promulgated thereunder by the Interstate Commerce Commission ("ICC") 49 C.F.R. § 1, et seq.
Before the Court is defendant's motion for an order pursuant to Fed.R.Civ.P. 12(b)(6) granting dismissal due to plaintiff's failure to state a claim upon which relief may be granted. Defendant argues that the action is time-barred due to plaintiff's failure to file a proper written claim with defendant as required by Section 2(b) of the Uniform Domestic Straight Bill of Lading which governed the short-form Straight Bill of Lading pursuant to which the shipment in question was transported.
Both plaintiff and defendant submitted to the Court affidavits and other evidence in addition to the pleadings.
Fed.R.Civ.P. 12(b) provides that "if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . ." In view of the foregoing, this Court shall treat defendant's 12(b)(6) motion as a motion for summary judgment.
It is undisputed that on or about May 28, 1982, defendant delivered by rail a shipment of RCA products to plaintiff in Albany, New York. Said shipment had been transported by defendant from Bloomington, Indiana pursuant to a short-form Straight Bill of Lading. The bill of lading incorporated the provisions of the Uniform Domestic Straight Bill of Lading.
Defendant asserts that plaintiff rejected the shipment due to the alleged damage to the shipment. Plaintiff contends that it accepted the shipment with damage noted under protest.
Both parties agree that following the delivery, plaintiff sent to W. F. Mahoney, an employee of defendant, a letter, dated September 28, 1982, which reads as follows:
Due to your negligence, a loaded trailer was received with damage to the trailer itself, as well as the cargo inside. Kindly ...