amount of money, and therefore must fail. For this Court to agree with defendant, NACT's contention, this court must find that plaintiff's preliminary notice of claim, dated July 30, 1990, failed to follow the mandatory requirements as set out in the carrier's tariff and ICC regulations set forth above.
The clear language of the carrier's Tariff calls for the filing of any claim against the carrier to be made within nine months and to fulfill the three subcategories set out in the minimum filing requirements. For our analysis, the focus is whether the fact that the July 30, 1990 claim omitted any dollar amount for damages is a fatal flaw to plaintiff's claim since it was filed within nine months of delivery as required. From case law, the terms and conditions of an ICC-filed Tariff have the binding effect of a federal statute and also constitute the contract as a matter of law. North American Philips Corp. v. Emery Air Freight, 432 F. Supp. 519, 522 (S.D.N.Y. 1977), aff'd 579 F.2d 229 (2d Cir. 1978). In addition, the nine month filing period cannot be extended by the carrier nor can the carrier be estopped from asserting it as a defense. Chesapeake & O. R. Co. v. Martin, 283 U.S. 209, 221, 51 S. Ct. 453, 75 L. Ed. 983 (1931); Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d Cir. 1980). Therefore, claims are barred if they are not made in accordance with the tariff. Keogh v. Chicago & N.R. Co., 260 U.S. 156, 163, 43 S. Ct. 47, 67 L. Ed. 183 (1922). In Pathway Bellows, the plaintiffs had submitted a "claim letter" which did not contain an assertion of liability and a specific dollar amount of damages within the allowed nine month period. Pathway Bellows, 630 F.2d at 902. The court held, "As Pathway Bellows failed to comply with the contractually imposed condition precedent to maintain an action to recover its damages, the defendant-Trustees were entitled to prevail on their motion for summary judgment." Pathway Bellows, 630 F.2d at 904.
Because plaintiff did not comply with the terms of the tariff by failing to specify an amount in its July 30, 1990 notice of claim to NACT, its claim is barred. Neither plaintiff nor Nippon Express filed a written claim fulfilling the three requirements, in particular the third requirement of a specific dollar amount of damages claimed within nine months of delivery. The Tariff mandates that all conditions be met for a valid claim and timely filing. This court finds that as a matter of law the plaintiff did not submit a proper claim within the nine month period.
IV. Plaintiffs' Claim is Barred by ICC Regulations as applied in the 2nd Circuit.
The leading case in this Circuit regarding ICC Regulations is Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d Cir. 1980). This case and its progeny have made it clear that these regulations "provide the appropriate standard for assessing the sufficiency of all claims irrespective of the way they may subsequently be resolved or adjudicated." Pathway Bellows, 630 F.2d at 904.
A case very similar on its facts to the case at hand is Insurance Co. of North America v. s/s/ "Transworld Bridge," et al., 1994 U.S. Dist. LEXIS 2597, 1994 WL 75249 (S.D.N.Y. March 7, 1994). The many parties in this case had a contract of shipment for vacuum cleaners which were shipped via train. There was a derailment which damaged some of the shipment. Sixteen days after the accident a letter was submitted that claimed to fulfill the requirements of the ICC Regulations but did not provide a dollar amount of damages; instead, the claimants said they would provide one when they received the figures themselves. Insurance Co. of North America, 1994 WL 75239, at *1. They submitted the precise figure well past the nine month time period. Judge McKenna wrote, "no amount, estimated or otherwise, was even alleged in Mitsui's preliminary claim. A fortiori, such a claim does not satisfy the standards promulgated by the ICC." Insurance Co. of North America, 1994 WL 75239, at *3. As a result, the claim was dismissed. Judge McKenna added:
Although one might question the wisdom of the exacting damages amount requirement in light of the difficulty a shipper may undergo in determining a precise claim within the period provided, especially in view of the fact that such a claim often requires the carrier's cooperation in gathering the necessary information, the rule in the Second Circuit is clear. In Pathway Bellows, Inc. V. Blanchette, 630 F.2d 900 (2d Cir. 1980), the Court of Appeals reversed Judge Sand's ruling that a claim mailed on the last day of the nine month claims period, but received the following day, was timely filed. The court in Pathway Bellows stated that strict adherence to the claims filing period was justified in part because the ICC regulations also imposed "numerous obligations upon carriers, which are triggered by the receipt of a 'claim' . . . We think it 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." Insurance Co. of North America, 1994 U.S. Dist. LEXIS 2597 at *12, 1994 WL 75249, at *3.