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October 18, 1994


The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY



 Plaintiff Home Insurance Company, Inc. brings this action against defendants to recover damages in the amount of $ 201,851.61 paid to its subrogatee, Nippon Express U.S.A., Inc. (Nippon). The matter is now before the court on defendant's, North American Van Lines, Inc., Commercial Transport Division (NACT) motion for summary judgment.

 Nippon had entered into a contract with N.H.K. Enterprises U.S.A., Inc. (N.H.K.) which owned "high definition television" equipment. N.H.K. is not a party in this action. Nippon agreed to transport high definition television equipment to New York for use in an AIDS benefit. Nippon's business is contracting for the shipment of goods. It then subcontracts with other parties to do the actual delivery. Consequently, Nippon subcontracted with Rail Express, Inc. to transport the goods from California to New York. Rail Express, Inc. shipped the equipment in a truck owned by (NACT).

 At the time of delivery, July 9, 1990, Nippon and NACT both made written reports for their own records of the fact that many pieces of the equipment were damaged as a result of their transport across the country. It was also at that time that defendant NACT had the opportunity to inspect the damage. On July 23, 1990 Nippon submitted a Notice of Claim to Rail Express. Soon afterwards, on July 30, 1990 Rail Express filed a written notice of claim with NACT. On May 1, 1991, plaintiff, Home, sent a written notice of claim to Rail Express specifying for the first time the damages to be $ 205,000.

 Plaintiff claims that the notice of claim sent to NACT by Rail Express on July 30, 1990 was timely, specific as to the equipment damaged, the vehicle involved, and stating that it was holding defendant NACT responsible for the damage. In addition, plaintiff alleges that at the time of delivery, the monetary amount of damages to the equipment was not then ascertainable. As soon as they were able to do so, plaintiff submitted the dollar amount on May 1, 1991. Plaintiff also asserts that because NACT was able to make an inspection of the damaged equipment at the time of the arrival of the shipment, NACT had sufficient notice of the damage claim within the time allowed by its Tariff.

 As may be expected, all defendants deny that they received legally sufficient notice of the claim within the time allowed by the Tariff and by law. Since no written claim for a specified amount was filed by plaintiff Home or Nippon with defendants within the requisite ICC nine month period after delivery of the goods, NACT asserts that it cannot be held liable for plaintiff's loss. Accordingly, NACT has moved for summary judgment on all claims of plaintiff. This court heard oral argument on the motion on September 30, 1994. For the reasons discussed below, the court grants defendant, NACT's motion for summary judgment in its favor.

 II. Defendant's Summary Judgment Motion

 A court may grant summary judgment only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of Law." Fed.R.Civ.P. 56 (c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 Where, as in this case, the nonmoving party has the burden of proof at trial, the moving party need only demonstrate that there is a lack of evidence to support the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the movant has established a prima facie case demonstrating the lack of a genuine issue of material fact, the nonmoving party must provide enough evidence to support a jury verdict in its favor. Anderson, 477 U.S. at 249; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) cert. denied, U.S. , 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). All of the facts must be read in the most favorable manner for the nonmoving party. Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994). At that point, the court must determine whether the evidence presents a "genuine factual issue [] that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. The court may grant summary judgment only when "no rational jury could find in favor of the nonmoving party." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994). Based upon the evidence submitted by the parties on defendant's motion, there are no genuine issues of material fact. Accordingly, defendants are entitled to summary judgment as a matter of law.

 III. The Defendant's liability is governed by the terms of the tariff.

 The rights of the parties to this action are governed by the carrier's tariff as filed with the ICC and cannot be enlarged. Maislin Indus., U.S., Inc. v. Primary Steel, 497 U.S. 116, 126, 110 S. Ct. 2759, 111 L. Ed. 2d 94 (1990). In Section 2 (b) and Item 225 of NACT's Tariff No. NOAM 100, there is the requirement that as a necessary condition to bringing a suit against NACT, that a written notice of claim be filed with NACT within nine months from delivery. In relevant part, Section 2 (b) states:

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 in possession of the property when the loss, damage, injury or delay occurred, within nine months after delivery of the property. . . Where claims are not filed or suits are not instituted thereon in accordance with ...

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