The opinion of the court was delivered by: JOHNSON
DiPaolo Machine Works, Ltd. ("Plaintiff" or "DiPaolo") filed suit against Trism Specialized Carriers, Inc. ("Defendant" or "Trism") for breach of contract in failing to safely and properly transport and deliver Plaintiff's boring mill from Houston, Texas to Mississauga, Ontario. Presently before this Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which this Court is converting into a motion for summary judgement pursuant to Fed.R.Civ.P. 56(c). For the reasons stated herein, Defendant's motion is granted.
On or about June 30, 1993, Plaintiff agreed to purchase a used boring mill from Prestige Equipment Corporation ("Prestige") to be shipped and delivered from Monterrey, Mexico to Ontario, Canada. (Complaint P 10). Defendant agreed to transport the components of the mill from Houston, Texas to Mississauga, Ontario and issued ten separate bills of lading, one for each shipment of components. (Affidavit of Randy Arnold PP 5-6, Appendix 2 of Trism's Notice of Motion to Dismiss); (Defendant's Rule 3(g) Statement PP 6-7). Each bill of lading was a Uniform Straight Bill of Lading and contained pre-printed language stating that it was subject to the "classifications and tariffs in effect" on the date of its issue. (Affidavit of Randy Arnold P 6); (Def's Rule 3(g) Statement P 7).
Section 2(b) of the Uniform Straight Bill of Lading in Trism's Rules Tariff provided:
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 on whose line the loss, damage, injury, or delay occurred, or carrier in possession of the property when the loss, damage, injury, or delay occurred, within nine months after delivery of the property . . . and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier will be held liable, and such claims will not be paid.
(See Exhibit C to the affidavit of Randy Arnold); (Def's Rule 3(g) Statement P 8) (emphasis added).
The boring mill was transported overland from Mexico to Canada via the United States. Upon the arrival of the shipments to Mississauga on or about July 24, 1993, Plaintiff discovered that the boring mill had been damaged. (Complaint P 15); (Plaintiff's Rule 3(g) Statement P 1). At the time of delivery, Plaintiff indicated on several of the bills of lading that it received various parts of the boring mill in damaged condition. (Exhibit A to the affidavit of Randy Arnold).
On September 3, 1993, DiPaolo's representative, Tim Robinson of Transport Fleet Services ("TFS"), wrote a letter to Trism advising it that four of the ten shipments transported to DiPaolo in Mississauga had arrived in damaged condition. (Pl's Rule 3(g) Statement P 2). In the letter, Robinson claimed that the damage had occurred "as a result of inadequate and/or improper preparation for road transport" and stated that additional information would be sent as to the "extent of the damages and the amount of loss." (Exhibit D to the affidavit of Randy Arnold).
On September 23, 1993, Randy Arnold, Trism's cargo claims manager, wrote DiPaolo in response to Robinson's letter, stating that Trism was denying the claim based on its "ongoing investigation" in the matter, which had revealed that the shipper (Prestige) was responsible for ensuring that the cargo was prepared for road transportation. (Exhibit E to the affidavit of Randy Arnold); (Def's Rule 3(g) Statement P 10). A series of correspondence between the two companies followed. On December 23, 1993, Robinson sent a fax to Arnold confirming their earlier telephone conversation, during which Arnold had informed Robinson that the statute of limitations period on Trism's bills of lading was nine months for the filing of a claim and two years and a day for the institution of a lawsuit. (Exhibit A to the second affidavit of Randy Arnold); (Def's Rule 3(g) Statement P 12).
On April 21, 1994, Robinson sent Arnold a final statement of claim on behalf of DiPaolo for the amount of $ 291,332.58. (Exhibit B to the affidavit of Cary Stewart Sklaren); (Pl's Rule 3(g) Statement P 5). In response to the April letter, Arnold wrote to Robinson on July 5, 1994 in order to request that Robinson reschedule a meeting with Shawn Malik, an investigator for Trism. He concluded by reiterating that Trism "continue[s] to deny this claim as outlined in the letter dated September 23, 1993." (Exhibit C to the affidavit of Cary Stewart Sklaren).
On September 23, 1994, Malik wrote to Robinson, seeking clarification on the "specific total cost of repairs per bill of lading." (Exhibit A to the affidavit of Cary Stewart Sklaren); (Pl's Rule 3(g) Statement P 4). Robinson responded on January 5, 1995, requesting further correspondence regarding reimbursement of Trism's "subrogated claim" at Malik's earliest convenience. (Exhibit D to the affidavit of Cary Stewart Sklaren). There was no further correspondence between the parties regarding the claim.
DiPaolo has instituted two prior lawsuits against Defendant and other parties involving the same grounds for suit as in the instant action. (Def's Rule 3(g) Statement P 13). One was filed in Harris County, Texas on July 24, 1995. (See Petition; Exhibit A to the affidavit of Kip D. Richards). Plaintiff subsequently filed a Notice of Non-Suit Without Prejudice in Harris County. (Exhibit B to the affidavit of Kip D. Richards). Another lawsuit was filed on July 21, 1995 in the Ontario Court of Justice. (See Statement of Claim; Exhibit C to the affidavit of Kip D. Richards). Defendant and its co-defendants moved to have the action dismissed on the grounds of forum non conveniens, and the Ontario Court of ...