United States District Court, Eastern District of New York
August 22, 1990
ELROY ENTERPRISES, INC., PLAINTIFF,
ROADWAY EXPRESS, INC., DEFENDANT.
The opinion of the court was delivered by: Mishler, District Judge.
MEMORANDUM OF DECISION AND ORDER
Defendant moves for summary judgment, dismissing the
complaint. Plaintiff opposes the motion.
The following facts are undisputed or conceded:
Plaintiff, Elroy Enterprises, Inc. ("Elroy"), is a New York
corporation. Defendant, Roadway Express, Inc. ("Roadway"), is
an interstate motor carrier engaged in the business of
In May 1987, Elroy and Roadway entered into an agreement
whereby Roadway was to ship cartons containing records and
tapes from Port Washington, New York, to WEA Central Returns
("WEA") in Bensonville, Illinois. The two shipments were
delivered to WEA on May 12 and 21, 1987. WEA executed delivery
receipts, noting that the shipments were "received subject to
count and examination." (Roadway's 3(g) statement, Exhs. C and
On or about August 6, 1987, WEA advised Elroy that some
cartons had been lost and that Elroy should file a notice of
claim with Roadway. According to Elroy, WEA also stated that
it had notified Roadway of the missing cartons. (Elroy's 3(g)
statement, ¶ 4). However, appended to Elroy's 3(g) statement as
Exhibit A is a notice from WEA which states that, in May 1987,
its Bensonville office notified Elroy (not Roadway) of the
The Uniform Straight Bill of Lading ("bill of lading"),
which evidences the agreement between Elroy and Roadway,
contains the following provision, prescribed and approved by
the Interstate Commerce Commission ("ICC"):
As a condition precedent to recovery, claims must
be filed in writing with the receiving or
delivering carrier, or carrier issuing this bill
of lading, or carrier on whose line the loss,
damage, injury or delay occurred, within nine
months after delivery of the property . . . or,
in the case of failure to make delivery, then
within nine months after a reasonable time for
delivery has elapsed; and suit shall be
instituted against any carrier only within two
years and one day from the day when notice in
writing is given by the carrier to the claimant
that the carrier has disallowed the claim or any
part or parts thereof specified in the notice.
Where claims are not filed or suits are not
instituted thereon in accordance with the
foregoing provisions, no carrier hereunder shall
be liable, and such claims will not be paid.
Uniform Straight Bill of Lading, Terms and Conditions, Section
2B. See Russell Aff., Exh. A (copy of Section 2B appended).
Kenneth Cocharine, accounts payable clerk for Elroy, states
that he mailed a copy of Elroy's notice of claim to Roadway on
or about January 26, 1988. Each time Roadway receives a notice
of claim, it must register the claim in its records and
acknowledge receipt of the notice, in writing, to the
claimant. This procedure is mandated by
49 C.F.R. § 1005.3.*fn1 See also Smith Aff. ¶ 10 and Exh. H. Roadway's
records reveal that it received a written claim from Elroy on
April 18, 1988. This claim had been mailed to them on April 11,
1988, by Margie Russell, a sales representative in Roadway's
Deer Park, New York, office. Russell received the written claim
on April 6, 1988, when it was hand-delivered to her at Elroy's
Port Washington office. Roadway's records therefore state that
the notice of claim was filed on April 6, 1988.
On August 23, 1988, Roadway disallowed Elroy's claim on the
ground that it was not timely filed.
Elroy commenced this action in the Supreme Court of New
York, Nassau County, on January 3, 1990. Roadway removed the
action to this court on January 16, 1990. Roadway moves for
summary judgment on the ground that Elroy failed to file a
notice of claim within the required time period.
Summary judgment is proper when no material questions of
fact remain to be decided by the factfinder; the movant
bears the burden of establishing the absence of any genuine
issues of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d
265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.
1990). The nonmovant's evidence is to be believed, and all
ambiguities and inferences to be drawn from the underlying
facts should be resolved in favor of the nonmovant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513,
91 L.Ed.2d 202 (1986); Thompson, supra.
When the nonmovant bears the burden of proof on an issue,
the movant can discharge the burden imposed by Rule 56(c) by
showing that there is no proof to support the nonmovant's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct.
2548, 2553, 91 L.Ed.2d 265 (1986). If the movant is able to do
this, the burden shifts to the nonmovant, who must produce some
evidence which shows that a genuine issue of material fact
remains to be decided. Matsushita Electric Industrial Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356,
89 L.Ed.2d 538 (1986).
Plaintiff maintains that two factual issues remain to be
1. Whether Roadway received Elroy's notice of
claim in January, within the nine-month period
for filing claims.
2. Whether the "reasonable time for delivery"
clause set forth in the bill of lading extended
the nine-month period for filing claims, thus
making the April 6, 1988, delivery of the
original notice of claim timely.
The issues before us are governed by federal law:
[S]ince [the bill of lading] was issued in
respect of an interstate shipment pursuant to an
act of Congress, the bill of lading is an
instrumentality of such commerce, and the
question whether its provisions have been
complied with is a federal question to be
determined by the application of federal law.
Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209
, 213, 51
S.Ct. 453, 455, 75 L.Ed. 983 (1931).
Compliance with the terms of the bill of lading is
mandatory. B.A. Walterman Co. v. Pennsylvania R.R. Co.,
295 F.2d 627 (6th Cir. 1961) (per curiam). Cf. Chesapeake, supra,
283 U.S. at 212-13, 51 S.Ct. at 454-55 (provisions in bill of
lading authorized by federal statute are valid and applicable);
Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900, 904 n. 7 (2d
Cir. 1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67
L.Ed.2d 340 (1981) (ICC regulations apply to all claims filed
against interstate carriers).
Roadway's receipt of Elroy's notice of claim
For purposes of our discussion we assume that Elroy mailed
a notice of claim to Roadway on or about January 26, 1988.
The word "filed," as used in Section 2B of the bill of
lading, is defined in the traditional legal sense of the word.
Pathway Bellows, Inc. v. Blanchette, supra, 630 F.2d at 902
(Notice of claim mailed on last day of the nine-month period
for filing, and received one day later, was not timely filed).
That is, "a paper will not be considered `filed' until it has
been delivered to and received by the party with whom it is to
be filed." Id. (citations omitted).
The mailing of the notice of claim on or about January 26,
1988, does not satisfy the filing requirement in the bill of
lading. There is no question regarding this issue. Roadway has
provided the court with uncontroverted proof that the notice
of claim was not filed until April 6, 1988, when it was
hand-delivered to a Roadway employee. See Russell Aff., ¶ 3.
The affidavit of Dennis L. Smith, claims analyst-legal for
Roadway, details the recordkeeping procedures followed by
Roadway in tracking and handling written claims filed with the
company. Smith Aff., ¶ 11. Smith state that he searched the
business records of Roadway, and they show that Roadway did not
receive a written notice of claim from Elroy until April 1988.
Smith Aff., ¶¶ 2, 9-11.
No question of fact remains to be decided on the issue of
when Roadway received Elroy's notice of claim.
Reasonable time for delivery
Elroy argues that the April 6, 1988, filing falls within the
nine-month period specified in Section 2B of the bill of
lading because that nine-month period did not begin to run
until August 6, 1987, when WEA notified Elroy it could not
issue a credit to Elroy, as it did not receive the complete
shipment from Roadway.*fn2
Roadway notes that WEA "claimed a shortage of 20 cartons on
the May 12, 1987, shipment, and a shortage of 27 cartons on
the May 21, 1987, shipment." (Roadway's 3(g) statement, ¶ 11).
Roadway does not provide the court with the basis of this
knowledge. However, even if WEA had directly notified Roadway
of the shortages, "notations of shortage" do not constitute
claims. 49 C.F.R. § 1005.2(c). See Pathway Bellows, supra, at
904. See also 49 C.F.R. § 1005.2(b).*fn3
Even if it were true that Elroy first learned of the
shortages in August 1987, this does not mean that the
nine-month period within which to file a notice of claim began
at that time.
Section 2B of the bill of lading provides that, "in case of
failure to make delivery," the time within which claims must
be filed is "within nine months after a reasonable time for
delivery has elapsed." In Chesapeake, supra, the Supreme Court
What constitutes a reasonable time [for delivery]
depends upon the circumstances of the particular
case. As applied to a case like this [carload of
potatoes shipped by two common carriers], it
means such time as is necessary conveniently to
transport and make delivery of the shipment in
the ordinary course of business, in light of the
circumstances and conditions surrounding the
283 U.S. at 213, 51 S.Ct. at 455.
We state without reservation that, considering the
circumstances of this case, wherein a shipping contract
provides for goods to be shipped by common carrier from New
York to Illinois, the nearly three-month period suggested by
plaintiff is not a reasonable time for delivery. Id., 283 U.S.
at 216, 51 S.Ct. at 456 (district court's ruling — to the
effect that a jury could find 20 days constituted a reasonable
time for delivery — was erroneous. At most, delivery would
reasonably have taken 8 days).
We find, as a matter of law, that Roadway's transportation
schedules establish the reasonable time for delivery.
See Smith Aff., Exh. E. The schedule shows that delivery to the
Bensonville, Illinois, area generally takes four days.
Plaintiff does not submit proof which tends to show that
delivery would have, reasonably, taken longer than the
scheduled time. Elroy merely asserts that a genuine question
exists on the issue of what constitutes a reasonable time for
delivery. "[P]laintiff may not defeat a motion for summary
judgment merely by pointing to a potential issue of fact;
there must be a genuine issue of material fact." City of
Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988),
citing Liberty Lobby, supra, 477 U.S. at 247, 106 S.Ct. at
Roadway has shown to the court that no material factual
questions remain to be decided by the trier of fact. Summary
judgment is, therefore, proper.
Defendant's motion for summary judgment dismissing the
complaint is granted.
The Clerk is directed to enter judgment in favor of the
defendant, Roadway Express
Inc., and against plaintiff Elroy Enterprises, Inc.,
dismissing the complaint.