Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DAVIS ACOUSTICAL v. CAROLINA FREIGHT

June 11, 1991

DAVIS ACOUSTICAL CORPORATION, PLAINTIFF,
v.
CAROLINA FREIGHT CARRIERS CORPORATION, DEFENDANT.



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

MEMORANDUM — DECISION AND ORDER

Background

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:

Gentlemen:

  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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.