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United States District Court, Northern District of New York

June 11, 1991


The opinion of the court was delivered by: McCURN, Chief Judge.



Plaintiff, Davis Acoustical Corporation ("Davis"), is seeking to recover for damage to a shipment of pine wood, which allegedly occurred while that wood was being shipped via defendant, Carolina Freight Carriers Corporation ("Carolina Freight"), an interstate common carrier. In connection with that shipment Davis and Carolina Freight entered into a bill of lading agreement. See Affidavit of Richard Scanlon (November 29, 1990) ("Scanlon Affidavit I"), Ex. B thereto (copy of bill of lading). On the front of that bill of lading it specifically provides, in relevant part:

  [t]hat every service to be performed hereunder
  shall be subject to all the bill of lading terms
  and conditions in the governing classification on
  the date of shipment.

    Shipper hereby certifies that he is familiar
  with all the bill of lading terms and conditions
  in the governing classification and the said terms
  and conditions are hereby agreed to by shipper the
  accepted for himself and his assigns.

Id. (emphasis in original). Here, the "governing classification" refers to the National Motor Freight Classification — a publication of the American Truck Associations, Inc. See Affidavit of Richard Scanlon (April 24, 1991) (Scanlon Affidavit III), Ex. 2 thereto. The classification in effect during the relevant time period basically required that as a condition precedent for recovery against the carrier, Carolina Freight, a written claim had to be filed within nine months after the delivery of the property.*fn1

On October 21, 1988, Davis mailed a letter to Carolina Freight which stated:


  This letter will act as notice of claim for
  damages occurring during shipment by Carolina
  Freight of specialty wood being shipped from Davis
  Acoustical, 155 Mullet Hill Road, Southbury, CT
  06488, to T.C. Finishing, 2501 S. Hume,
  Marshfield, WI 54449.

  The date of the receipt of the damaged cargo in
  Marshfield was 3/29/88. The goods were rejected
  and returned to the factory. Please be advised
  that your company is being held liable for the
  value of this cargo which $70,000.

Scanlon Affidavit I, Ex. E thereto. That letter concluded:

  If you have any questions, please contact our
  insurance carrier:

    The Hartford
    P.O. Box 536
    Albany, N Y 12201
    (518) 447-9600
    Claims Rep., Joseph F. Weber

Id. A copy of that letter was also sent to Mr. Weber. Id. See Affidavit of Joseph F. Weber (February 5, 1991) at ¶ 4.

Carolina Freight is now moving for summary judgment because, in its view, Davis did not timely file a written claim — a condition precedent to recovery under the terms and conditions of the bill of lading, as amplified by the governing classification. Carolina Freight further argues that summary judgment in its favor is mandated because Davis' letter of October 21, 1988 ("the claim letter") does not meet the minimum filing requirements of 49 C.F.R. § 1005.2(b) (or "the regulation").

Plaintiff's response is twofold. First, it contends that Carolina Freight's summary judgment motion must be denied because there is a question of fact regarding filing of a notice of claim by Davis. Second, Davis believes that summary judgment is not appropriate because its claim letter was in full compliance with § 1005.2(b) "as a matter of law."*fn2 Alternatively, Davis claims that a factual issue exists as to the sufficiency of the claim letter. The court will consider those arguments in reverse order, because, if the claim letter is not legally sufficient, as Carolina Freight contends, then the issue of whether it was timely filed would obviously be moot.


I.  Adequacy of Written Claim

The Second Circuit has expressly held that the Interstate Commerce regulations at 49 C.F.R. § 1005 apply to litigated claims for loss or damage against interstate carriers. See Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900, 904 (2d Cir. 1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67 L.Ed.2d 340 (1981). In a section entitled "minimum filing requirements," § 1005.2(b) sets forth the three elements which must be included in a claim, such as the one at issue here. Thus, after Pathway, the court must examine the claim letter in light of those regulatory requirements.

A. Assertion of Liability

The second "minimum filing requirement[]" of § 1005.2(b) is that the claim must "[a]ssert[] liability for alleged loss, damage, injury, or delay,. . . ." 49 C.F.R. § 1005.2(b)(2). 49 C.F.R. § 1005.2(b)(2) (1990). The issue of whether Davis' claim letter satisfies that requirement need not detain the court for long. That is so because Carolina Freight does not seriously contend that the claim letter does not comply with the second requirement of § 1005.2(b). Indeed, Carolina Freight concedes that the letter does comport with § 1005.2(b)(2) by expressly stating, "Arguably, the October 21, 1988 letter sufficiently meets the second minimum filing requirement of asserting liability for alleged loss damage, injury or delay." Defendant's Memorandum of Law at 11. That admission is based upon the language in the claim letter stating, "[y]our company [Carolina Freight] is being held liable for the value of the cargo. . . ." Scanlon Affidavit I, Ex. E thereto.

Based upon that concession, and the fact that the court is convinced that the quoted language fulfills the § 1005.2(b)(2) assertion of liability requirement, the court concludes that Davis' claim letter is legally sufficient with respect to this element of the regulation. Indeed, the language used by Davis to assert liability against Carolina Freight is remarkably similar to that used by the shipper in Bobst Div. Of Bobst Champlain, Inc. v. IML-Freight, 566 F. Supp. 665 (S.D.N Y 1983). In Bobst the court held that the language "we hold your company liable for said damages" was adequate to satisfy the second minimum filing requirement of § 1005.2(b). Id. at 668.

B. "Specified or Determinable Amount of Money"

The court is equally certain that Davis' claim letter conforms to the third requirement of § 1005.2(b), which is that there must be a "[c]laim for the payment of a specified or determinable amount of money, . . . ." 49 C.F.R. § 1005.2(b)(3) (1990).*fn3 In the present case, the claim letter specifically stated that Davis was holding Carolina Freight "[l]iable for the value of this cargo which is $70,000." Scanlon Affidavit I, Ex. E thereto. It is Carolina Freight's belief that the quoted language does not satisfy § 1005.2(b)(3).

The cases relied upon by Carolina Freight to support its position are readily distinguishable, however. In both R.T.A. Corp. v. Consolidated Rail Corp., 594 F. Supp. 205 (S.D.N.Y. 1984), and Pathway, 630 F.2d 900, the shippers completely failed to mention a dollar amount in their respective claim letters, and thus those courts rightly concluded that the claims were insufficient under § 1005.2(b)(3). See RTA, 594 F. Supp. at 210; and Pathway, 630 F.2d at 902-905. Bobst is also easily distinguishable because the shipper there sought to hold the carrier liable for an "estimated amount of damage [of] approximately $100,000.00," and the court reasoned that because of the uncertainty of that amount, the shipper was not in compliance with the minimum filing requirements of § 1005.2(b)(3). Bobst, 566 F. Supp. at 669. Obviously, in the present case, there was a specific dollar amount in the claim letter — not a mere estimate. Therefore, the court is of the view that Davis has complied with the third requirement of § 1005.2(b).

Lastly, although somewhat more factually analogous to the present case than the cases just discussed, the court is not convinced that Norton Spiel Associates, Inc. v. Carolina Freight Carriers Corporation, No. Cv 89-2317 (RR) (E.D.N Y February 6, 1991), another case relied upon by Carolina Freight, mandates a different conclusion here. In Norton Spiel plaintiff's claim letter contained no claim for a specific amount of damages. Id. at 13. Furthermore, that letter "[e]xpresse[d] a desire to `settle' a claim, suggesting some flexibility in the amount to be paid." Id. Attached to that letter was a report from an independent inspection company reporting "[o]nly that the `cost of the damaged article is `$35,000.00 est.'" Id. at 13-14 (emphasis in original). Relying upon Bobst, the court held "[t]hat the . . . correspondence, with its mere statement that the estimated cost of the damaged equipment was $35,000, does not satisfy the requirements of law for filing a claim against an interstate carrier." Id. at 15 (emphasis added).*fn4

There are two meaningful distinctions between Norton Spiel and the present case. The first and most important distinction is that, unlike Norton Spiel, the value in this claim letter was not estimated. Moreover, this claim letter, unlike the Norton Spiel letter, does not evince any indication on the part of Davis to settle or negotiate this claim; there is no suggestion of flexibility by Davis with respect to the amount of damages alleged. Consequently, the court finds that Davis' claim letter satisfies & 1005.2(b)(3).

C. Facts Sufficient to Identify Shipment

The issue of whether Davis' claim letter is sufficient in light of the first element of § 1005.2(b) is a much closer call. Basically it is Carolina Freight's position that the claim letter cannot satisfy the first filing requirement under § 1005.2(b) because of certain omissions, such as no reference to a bill of lading or way bill pro number and no reference to a shipment date. Carolina Freight further maintains that the claim letter does not comply with § 1005.2(b)(1) because of errors therein, such as listing the wrong consignee and giving the wrong delivery date. Carolina Freight also claims that the claim letter is deficient because of an ambiguous reference to the shipped cargo. (The claim letter refers to a shipment of specialty wood, "whereas the bill of lading refers only to `eight crates of IT 113620.'" Defendant's Memorandum of Law at 12.)

In support of its position, Carolina Freight relies on several cases, including R.T.A., 594 F. Supp. 205. In R.T.A., the court strongly implied that a letter "merely" stating that "`[a] loaded trailer was received with damage to the trailer itself, as well as the cargo inside,'" did not satisfy the first requirement of § 1005.2(b). Id. at 209-210. The court observed that plaintiff's letter did not include the delivery date, the trailer number, nor the contents of the trailer. Id. at 209. The court further recognized that even though the defendant carrier had sent out an inspector prior to the time plaintiff had sent its claim letter, that fact could not save it, because "[t]he regulations, . . ., make no exceptions to compliance with any of their provisions in the case of actual knowledge by the carrier." Id. at 209-10 (citing Pathway Bellows, Inc., 630 F.2d 900).

Two other cases referred to by Carolina Freight provide additional insight into how courts have construed the § 1105.2(b)(1) sufficiency of identity requirement. In Pathway, the shipper sent a letter to the carrier referencing the freight inspection report, the way bill covering the shipment, and the railroad car in which the shipment was transported. The district court implicitly found that that information was sufficient to satisfy § 1005.2(b)(1), and, on appeal, the Second Circuit did not reverse on that basis. Therefore, from Pathway it can be inferred that a similar description would meet the first requirement of § 1005.2(b).

Similarly, in Bobst the court held that the shipper's letter did sufficiently identify the shipment. That letter contained the approximate delivery date; the ocean bill of lading, as opposed to the motor carrier's bill of lading, references to the machine model; and the consignee's name. More important to the Bobst's court determination that the claim adequately described the shipment, however, was the fact that one of defendant's terminal managers had no difficulty identifying the shipment on the basis of the letter containing the information just described. See Bobst, 566 F. Supp. at 668.

The difficulty in the present case arises from the fact that, in this court's view, Davis' claim letter falls somewhere in between those discussed above. Clearly, more information was to provided to the carrier here than in the letter at issue in RTA. Davis' letter did not, however, contain the type of information which would assist a carrier in conducting an investigation, such as that provided by the shipper in Pathway. Likewise, this claim letter did not include references to any type of bill of lading, as did that in Bobst. Moreover, as set forth below, also unlike Bobst, Carolina Freight was unable to locate the shipment which is the subject of this litigation based solely upon Davis' claim letter.

Carolina Freight's Director-Cargo Claims, Richard Scanlon, submitted an affidavit detailing the difficulties in conducting an investigation in this case due to the deficiencies in the claim letter mentioned above. Specifically, Mr. Scanlon opined:

  [I] can state for this Court that, based upon the
  information that was allegedly contained in the
  letter, Carolina could not conduct an
  investigation with respect to the shipment in

Scanlon Affidavit (March 20, 1991) ("Scanlon Affidavit II") at ¶ 5. Mr. Scanlon further explained:

  The reason that we could not perform an
  investigation is that the letter does not describe
  the shipment in question — the letter does not
  contain a copy of the bill of lading nor does the
  letter indicate our bill of lading or pro number.
  Our shipments are indexed by pro number. That is
  that number that we use to transport the shipment
  under and it also is the number under which we
  would send our

  freight bill. This is the number generally
  referred to by most claimants when they file a
  claim. However, it is not necessary for a claim to
  contain a copy of the bill of lading or the pro
  number so long as there is sufficient specific
  information in the letter that enables us to
  identify the particular shipment and meets the
  Interstate Commerce Commission's requirements of a
  claim. The mentioning of the shipper's name and
  address, or the insurance company's name and
  address, nor the incorrect name of the consignee,
  nor an incorrect date of delivery, would not
  enable us to find a record of the shipment. If the
  letter had been received, we would have checked
  our shipment manifests to try to find information
  to locate a valid pro-number and/or bill of


In light of the foregoing, plaintiff's bald assertion that "[i]t is reasonable to conclude that the information contained in the notice of claim was sufficient to identify the wood shipment in question . . .," seems rather disingenuous. See Plaintiff's Memorandum of Law at 7. In support of that statement plaintiff cites to Westhemeco Ltd. v. New Hampshire Ins. Co., 484 F. Supp. 1158 (S.D.N.Y. 1980), but that case is inapplicable for several reasons. First, it does not hold, as Davis suggests, that whether a notice of claim is sufficient is a question of fact. Rather, in Westhemeco the court, in dicta, stated that it could not decide as a matter of law whether the defendant carrier had actual knowledge of plaintiff's intent to file a claim because of the "scanty record" before it. Id. at 1163.

The second, and more significant reason, which renders Westhemeco inapplicable here is that it is a district court case decided prior to Pathway. In Pathway the Second Circuit essentially held that despite the fact that the defendant carrier had complete knowledge of all the relevant facts pertaining to the damaged shipment, that knowledge did not dispense with the Interstate Commerce Commission ("ICC") regulatory requirements. See also, Allianz-Ultramar CIA v. Norfolk & W. Ry. Co., 668 F. Supp. 518, 519-20 (E.D.Va. 1987) (and cases cited therein) ("By the great weight of authority, compliance with the written notice requirement of . . . the bill of lading is mandatory, and verbal notice and even actual notice on the part of the carrier's employees will not suffice.") The Second Circuit's decision to require strict compliance with the minimum filing requirements of § 1005.2(b) was motivated, in part, by the fact that "[t]he regulations impose numerous obligations upon carriers, which are triggered by the receipt of a `claim.'" Id. 630 F.2d at 904 (footnote omitted). The Court therefore reasoned:

  Having thus required a carrier to take certain
  actions once a claim is received, we think it is
  neither inappropriate nor beyond the authority of
  the ICC at the same time to provide a carrier with
  some guidance as to what constitutes a claim, so
  that a carrier may know one when it sees one.

Id. Therefore, because plaintiff has failed to provide any persuasive legal support for its conclusion that the sufficiency of a claim presents a factual issue for the jury; or more specifically that it is for a jury to decide whether a given claim sufficiently identifies the damaged shipment, and because the Second Circuit has unequivocally held that claims must be examined in light of the ICC regulations, the court cannot agree that defendant's motion should be denied on the basis of a purported factual issue raised by Davis.

Davis next argues that in determining whether it sufficiently identified the damaged shipment in its claim letter, the court should also consider the inspection report requested by Carolina Freight and provided by an independent inspection agency. That report is dated April 6, 1988 — approximately five and one half months prior to the date Davis allegedly submitted its claim letter to Carolina Freight. See Affidavit of David J. Pollock (February 8, 1991), Ex. J thereto. Unlike the claim letter, that report does contain a pro number, the accurate deliver date and the correct name of the consignee. Based upon that report, Davis asserts that "[i]f defendant could not identify the shipment with the notice of claim alone, . . ., the defendant clearly could have identified the shipment by reference to the inspection report and the notice of claim." Id. at ¶ 22.

Davis overlooks the fact, however, that a carrier's actual or constructive knowledge is irrelevant in assessing a claim under § 005.2(b). RTA, 594 F. Supp. at 209-10 (and cases discussed therein). Accord, Gooch v. Oregon Short Line R.R. Co., 258 U.S. 22, 24, 42 S.Ct. 192, 193, 66 L.Ed. 443 (1922); St. Louis, Iron Mountain & So. Ry. Co. v. Starbird, 243 U.S. 592, 603-04, 37 S.Ct. 462, 467, 61 L.Ed. 917 (1917) (even where a carrier has actual knowledge of a shipper's claim, the bill of lading requirement that a claim be submitted must be adhered to by the shipper). In addition, even assuming for the sake of argument that the court should examine the inspection report as well as the claim letter, to determine the legal sufficiency of the latter, nonetheless, the court must conclude that Davis' claim letter falls short of meeting the sufficiency of identity requirement. That is so because, as persuasively explained by the statement of Mr. Scanlon:

  It is true that we had a shipment inspected by
  Western Weighing and Inspection Bureau, but all
  such inspections go into a general file and they
  are held into a general file by pronumber until
  such time as we receive a claim that we can relate
  to the shipment. The Interstate Commerce
  Commission Regulations (49 U.S.C. [sic] §
  1005.2(c)) specify that an inspection report is not
  a claim and the inspection report, on its face,
  specifies that it is not a claim. Based upon the
  information contained in the letter, had we
  received the claim, we would not have been able to
  match up the inspection report issued by Western
  Weighing on a shipment delivered April 4th with the
  claim letter sent by the plaintiff. If the
  plaintiff had attached a copy of the joint
  inspection report, we would have been able to
  locate the shipment in question in order to do an
  investigation. However, based upon the information
  contained solely in the letter, we could not
  conduct an investigation since we did not have in
  that letter sufficient information to identify the

Scanlon Affidavit II at ¶ 7.

Given that undisputed proof, the court is convinced that Davis' letter of October 21, 1988 does not satisfy the first element of § 1005.2(b). It does not sufficiently identify the damaged cargo because, as Carolina Freight has convincingly shown, assuming it received that letter, it would have been unable to conduct an investigation, as it must in accordance with 49 C.F.R. § 1005.4. Consequently, because the court has decided that Davis' claim letter is legally insufficient under § 1005.2(b), defendant's motion for summary judgment is granted. Having made that determination, the court need not address defendant's argument that that letter was not timely filed.


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