period had passed. This eventuality would not only read the nine-month requirement out of the bill of lading, but would undermine its purpose of providing prompt notice to the carrier to facilitate investigation.
Moreover, the parties agreed that the terms of the Uniform Straight Bill of Lading, which provides that Primary Coal had nine months to file a claim for damages, governed the shipments. Neither the four contracts at issue, the Uniform Straight Bill of Lading, nor the ICC regulations indicate that the notification period under the Carmack Amendment is tolled upon filing a suit for freight charges. While it may seem that Conrail receives a "windfall" from Primary Coal's delay, the blame is "properly traced, not to the existence of the regulations, but to shipper's unexcused failure to comply with a reasonable condition contained in bills of lading." Pathway, 630, F.2d at 903, n.5. Therefore, because § 2(b) is not a "statute of limitations" but a prerequisite to establishing a claim, and because the parties' agreements are silent on the issue of tolling, we hold that the claim filing period provided for in 49 U.S.C. § 11707 is not tolled or waived upon the filing of an action for freight charges.
Based on a series of letters it sent to Conrail during September and October 1991, Primary Coal next argues that Conrail had notice of its claims for damages within the nine-month period. Since the parties have specifically incorporated 49 C.F.R. § 1005 into their shipping agreements, the Court must determine whether these letters satisfy the regulatory notice requirements. See also Pathway, 630 F.2d at 904. That section requires that a notice be in writing and 1) contain sufficient facts to identify the shipment, 2) assert liability for damages against the carrier, and 3) make a claim for a specified and determinable amount of money. 49 C.F.R. § 1005.2(b). In applying these requirements, courts should liberally construe the nature of the writing required to determine whether a claim has been made. Georgia, Florida & Alabama Ry. v. Blish Milling Co., 241 U.S. 190, 198, 60 L. Ed. 948, 36 S. Ct. 541 (1916); Westhemeco, 484 F. Supp. at 1162. Even under this relaxed standard, however, although arguably the letters assert liability and identify the shipments, they cannot constitute a claim as required under the Uniform Straight Bill of Lading since none of them specify a determinable amount of damages.
On September 5, 6, 12, and 19 of 1991, Primary Coal sent letters by telefax to Conrail protesting delays that prevented the loading of various vessels at the Consol Terminal in Baltimore.
In addition, in the September 6th letter, Primary Coal indicated its intent to hold Conrail "fully responsible" for dead freight charges on vessels due to Conrail's failure to provide equipment at mines for two specific trainloads. In each of these letters Primary Coal indicated its intent to "hold Conrail fully responsible for any such damages should they be incurred."
On October 1, Primary Coal sent a letter to Conrail outlining a list of vessels to which coal shipments had been late, indicating the delay associated with each vessel, and requesting the reasons for the delay to substantiate its claims of force majeure against the vessel owners, who were asserting demurrage and damages costs. As a supplement to this letter, on October 9 Primary Coal provided a list of the dates that each trainload was scheduled to be dumped at the terminal, when it was actually dumped, and the resulting delay for each vessel. Apparently in response, Conrail issued a series of form letters denying liability for each of the alleged delays.
Although Primary Coal's letters did identify the affected shipments and clearly asserted Conrail's liability for any damage, none of them asserted a specified or determinable amount of damages. Taking all inferences in Primary Coal's favor, while it is clear that Conrail was aware of the potential liability Primary Coal faced, and arguably that it might also face, this notice does not constitute a claim for damages. Courts have consistently held that notice of damage is not a claim for damages under the Uniform Straight Bill of Lading. R.T.A. Corp., 594 F. Supp. at 209-10 (S.D.N.Y. 1984) (citing Pathway).
Primary Coal counters that even if its letters failed to specify a dollar amount, they satisfied the spirit of the notice requirement. Although some Circuits have apparently relaxed the determinable damage requirement, see, e.g., Insurance Co. of N. America v. G.I. Trucking Co., 1 F.3d 903, 907 (9th Cir. 1993), cert. denied, 126 L. Ed. 2d 658, 114 S. Ct. 690 (1994); Wisconsin Packing Co. v. Indiana Refrigerator Lines, Inc., 618 F.2d 441, 446-48 (7th Cir.), cert. denied, 449 U.S. 837, 66 L. Ed. 2d 44, 101 S. Ct. 112 (1980), this Circuit has not. Pathway, 630 F.2d at 904. As such, in Bobst Division of Bobst Champlain, Inc. v. IML-Freight, Inc., 566 F. Supp. 665 (S.D.N.Y. 1983), this Court found a claim insufficient on facts more favorable to the shipper than here. In that case, Judge Haight held that a notice that estimated the amount of damage as approximately $ 100,000.00 was insufficient under the ICC regulations. As the court stated:
. . . a claim for an "uncertain amount" cannot be regarded as constituting compliance with the minimum filing requirements. . . .
Id. at 669. Given that none of the notices to Conrail projected, estimated, or remotely attempted to calculate a damage amount, they cannot be considered claims for damages. Moreover, the author of all but the October 1 letter indicated that to the best of his knowledge, Primary Coal never filed a claim for damages with Conrail. Kuepper Aff. P 7. Accordingly, we hold that the letters submitted to Conrail did not constitute claims for damages within the meaning of the Uniform Straight Bill of Lading and 49 C.F.R. § 1005.2.
3. The Pathway Footnote
Apparently relying on the concluding footnote in Pathway, Primary Coal argues that because it was unable to determine its damages within the nine-month period and/or because Conrail's form denials of liability misled it to believe no further notice was required, the nine-month period should be waived. That footnote provides:
Had any conduct on the part of Penn Central misled Pathway Bellows into believing that there was no need to file a claim, or that the letter of May 12, 1975 was sufficient to constitute a claim, Penn Central might be held estopped from insisting on Pathway Bellows's compliance with the timely written claim requirement contained in the bill of lading. See, e.g., Perini-North River Associates v. Chesapeake & O. Ry., 562 F.2d 269, 272-73 (3d Cir. 1977). Similarly, if Pathway Bellows could not, in the exercise of reasonable diligence, have ascertained the extent of its loss within the 9 month claim filing period, untimely filing of a completed claim might be viewed as excusable. See Ex Parte No. 263, supra, 340 I.C.C. at 554-55.