Acme-Evans Co. v. Baltimore & Ohio Railroad

⁶⁵⁹ Pattison, J., delivered the opinion of the Court. The appellant on the 29th day of August and the 12th day of September, 1917, delivered to the appellee, the Baltimore and Ohio Railroad Company, at Indianapolis, in the State of Indiana, 1,204 hags of wheat flour consigned to the order of the appellant, the AcmevEvans Company, Inc., care of Guthrie, Baltimore, Maryland. The flour was transported to Baltimore by the appellee, but-upon its, arrival there it was destroyed by fire on October 29th, 1917, while in the custody of the appellee at its Locust Point terminal. On the 21st of December, 1921, the appellant brought suit against the appellee to recover for the loss of the flour.

The declaration filed by it contained six of the common counts, and one special count, in which it, is alleged that the flour was delivered to the defendant at the time and place stated consigned to the plaintiff at Baltimore, Maryland, (-are of Guthrie ; that defendant issued to it bills of lading dated as of the days of delivery, in which it agreed, in consideration of the money paid to it, to transport the flour from the place of delivery to the point of destination and then to deliver it to the consignee; that it failed to deliver the flour but permitted the same to be destroyed. To this special count of the declaration the defendant pleaded: First. ‘'That the alleged cause of action did not accrue within three years, before the institution of this, suit” ; and second. “That the loss or damage complained of in the plaintiff’s declaration occurred prior to the dates on which the shipments in question should have been delivered by the defendant, and that this suit was not instituted within two years and one day after a reasonable time for delivery had ('lapsed, as is required by the terms, of the published classification an,d tariff's of the common carriers who transported said shipments, and under which classifications and tariffs said shipments moved and that said classifications and tariffs were legally published and filed with the Interstate Commerce ⁶⁶⁰ Commission, and were effective at the time the said shipments were made.” The plaintiff demurred to both of these pleas; the court sustained the demurrer to the first, but overruled the demurrer to the second plea. Thereupon the plaintiff filed its replication to the defendant’s second plea, saying: “The hills of lading issued for the shipments referred to in the declaration contained no provisions limiting the time for instituting, suit,” and with the replication were filed the hills of lading. The defendant demurred to plaintiff’s replication and the same was sustained.

The plaintiff thereafter declined to amend, and judgment was entered on the demurrer for defendant’s costs. It is from that judgment that the appeal in this ease was taken. The sole question presented by the appeal is whether plaintiff’s claim was barred by the limitations contained in the interstate' tariffs established by the plaintiff with the approval of the Interstate Commerce Commission, which were in effect at the time shipments were made. The limitations referred to are as follows: “Suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property and in case of failure to make delivery then within two years and one day after a reasonable time for delivery has elapsed.” It is contended, however, by the appellant, that the above provision of the tariffs cannot be successfully relied upon by the appellee because of section 206 (f) of the Transportation Act of 1920, which provides that, “the period of federal control shall not be computed as a part of the periods of limitation in actions against carriers * * * for causes of action arising prior to federal control.” The flour, as we have said, was shipped on August 29 th and September 12th, 1917, and was destroyed by fire on October 29th, 1917, and the suit was instituted on the 21st of December,,, 1921.

The period of federal control commenced December 28th, 1917, and.terminated March 1st, 1920. If ⁶⁶¹ the period of federal control is not to he computed as a pait of the period of limitations, then the action was brought within two years and one day after a reasonable time for the delivery of the flour had elapsed, but if such period of federal control is to be computed as a part of the period of limitations, then the action was not brought within the required rime. It is contended by the appellant, first, that the tariff period of limitations is not, as claimed by the appellee, contractual, but statutory in nature; and, secondly, if such limitations are held contractual in their nature, they are still extended by section 206 (I) of the Transportation Act. Both of these questionsi were presented to and decided by the Circuit Court of Appeals on January 18th, 1922, in New York Cent.

R. Co. v. Lazarus, 278 Fed. 900 . The facts in that case were as follows: On May 12th, 1917, at Singapore, China, there was delivered to the Seattle Vladivostock Steamship line 994 slabs of tin to be carried to Seattle, Washington, by the Steamship Louise Yeilson, and then ¡by rail to Yew York- The tin. was consigned to the defendant in error. Two hills of lading were issued by the ship;s agents at Singapore but, as in this ease, neither of them contained the provision as to limitations in the tariffs, although the defendant, before receiving the ship - merits, had published and filed a uniform bill of lading with the Interstate Commerce Commission containing' provisions as to such limitations. Upon delivery of the tin to the rail carrier at Seattle no-bill of lading’ was issued at that place.

Eventually the intermediate rail carriers delivered the tin to the defendant for transport to Yew York, and the defendant also gave no bill of lading. The two shipments reached Yew York on August 13th and 17th, 1937, and within a day or two- thereafter a shortage was discovered in each shipment, presumably due to-some theft in Yew York freight yards. After the discovery of the shortage the parties negotiated over a long period ol ⁶⁶² time as to liability, and the plaintiffs commenced no action until the 29th day of September, 1919, more than two years and one day after the loss had been discovered. The rate at which the tin was carried corresponded with the rate provided by the tariffs published and filed by the defendant with the Interstate Commerce Commission which were in effect- at that time.

The plaintiff in the lower court (Lazarus v. New York Cent. R. R. Co., 271 Fed. 93 ), recovered a judgment, but this was reversed on appeal (New York Cent. R. R. Co. v. Lazarus, 278 Fed. 900 ). The Circuit Court of Appeals in that case said: “There were two through bills of lading issued by the steamship company in China, but they weie not on file with the Interstate Commerce Commission.

The interstate tariffs established by the plaintiff in error and applicable to this shipment were conditioned on the terms and conditions of the form of the uniform, bill of lading. Therefore the liability, if any imposed, must be determined by the conditions of the uniform bill of lading'. As a defense, the following provision of the uniform bill of lading was pleaded: “ ‘Suits for loss-, damage, or delay shall be instituted only within two years and one day after delivery of the property or in case of failure to malee delivery then within two years and one day after a reasonable time for delivery has elapsed.’ “This action was not commenced within two years and one day after delivery of the property referred to in the complaint, or within two years and one day after a reasonable time for delivery of the property had elapsed. The rate charged by the plaintiff in error for the transportation of the tin was the rate contained in the tariffs and classifications for the transportation of property shipped subject to the terms and conditions of the uniform bill of lading.

The tariffs and classifications were fixed at a higher rate for the transportation of property when not subject to all the terms and conditions of the uniform bill of lading. The consignments of tin were received by rail carrier at Seattle, Wash., on June 17, ⁶⁶³ 1917, and delivered in New York City, witli tlie exception of the 183 missing slabs, on the 21st of August, 19,17. The rate paid for the transportation was 50.02 cents per 1,00 pounds, which is the rate contained in the transcontinental east-bound import tariff, duly published and filed with the, Interstate Commerce Commission, and in effect at the time the rules and regulations tiled with the Interstate Commerce Commission provided that the above mentioned rate applies to properties shipped subject to all tlie terms and conditions of the uniform bill of lading which are contained in said classification. The rate charged when the consignor notifies, the carrier that he elects to have his property transported subject to carrier’s common-law and statutory liability, and not subject to all the uniform bill of lading conditions, is, 10 per cent, higher than the rate chargpcl for transportation of property subject to all those terms and conditions. * * * Claims, were presented for the loss of the property in question on August 21, 1,917, and investigations and other negotiations, were pending up to the time of the commencement of this action. “ (1) 11 is contended that the condition of the bill of lading as, to the time within which this action must be commenced was suspended by virtue of the provisions of the Transportation Act of February 28, 1920- (section 206f [ 41 Stat. 462 ]).

It provides: ‘The period of federal control shall not be computed as a part of the periods of limitation in actions against carriers or in claims, for reparation to the commission for causes of action arising prior to federal control.’ “Section 206 (a) relates to causes of action arising out of federal control, and provides: ‘Such actions, suits, or proceedings may, within the periods of limitation now prescribed by state or federal statutes, but not later than two years from the date of the passage1 of this act, bo brought in any court which but for federal control would have had jurisdiction of the cause of action had it arisen against such carrier.’ “It is contended that section 206 (f) of this act invalidates the period of limitation set forth in the conditions of the uni ⁶⁶⁴ form bill of lading, and that therefore this action was commenced in time. The argument is that section 206 (f) applies to all periods of limitations, whether applied by contract, regulation or statute. As the phrase ‘periods of limitation’ is used in these sections of the Transportation Act, we think the words apply to limitations ‘now prescribed by the state or federal statutes.’ We think Congress did not intend a different meaning in the use of the words ‘periods of limitations,’ as used in paragraph (f), than their meaning as defined in paragraph (a). A phrase repeated in several sections of the statute will bear the same meaning throughout the statute, unless' a different intention clearly appears.

It will be presumed to he used in the same sense, and where its meaning is clear in the one instance, the same understanding will he attached to it elsewhere, unless the legislative body makes clear its intention that it be used in a different sense. Wells Fargo & Co. v. Taylor, 254 U. S. 175 , 41 Sup. Ct. 93, 65 L. Ed. 205 . “Of the same act section 438 was an amendment and provided that: ‘It shall he unlawful for any such .common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days, for the filing! of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed 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 or parts thereof specified in the notice.’ “The changes made in this section indicate clearly that Congress did not intend section 206 (f) to apply to provisions in tariff schedules which the common carrier is required to file with the Interstate Commerce Commission. The provisions upon which the plaintiff in error relies as a defense was contained in the contract of transportation, and not in a state or federal statute.

And it appears that, if Congress intended to provide in section 206 (f) of the Transportation ⁶⁶⁵ Act that the period of federal control should not be included, in computing the time specified in the uniform bill of lading conditions, it would have so stated in section 4-38 of the act,, which relates to the provisions of tariff schedules. Louisville Cement Co. v. Interstate Commerce Comm., 246 U. S. 644 , 38 Sup. Ct. 408, 62 L. Ed. 914 . “-X- * * Section 20 of the Interstate Commerce Act (Comp. St. secs. 8604a, 8604aa) merely prohibits a carrier from incorporating in a bill of lading conditions which it is required to file with the Interstate Commerce Commission.

By a provision requiring suits be instituted within less than two years from the time the cause of action accrues, prior to March 4, 1915, the date of the amendment to the Interstate Commerce Act, it was lawful for a, carrier to provide in the bill of lading or file tariff schedules that claims should be presented and suits brought within a, much shorter period than that fixed by the statute. So. Pacific R. R. Co. v. Stewart, 248 U. S. 446 , 39 Sup. Ct. 139, 63 L. Ed. 350 ; Missouri, Kansas & Texas Ry.

Co. v. Harriman, 227 U. S. 657 , 33 Sup. Ct. 397, 57 L. Ed. 690 . From the last quoted eases it is apparent that the right of the carrier to provide £a rule, contract, or regulation,’ that suits must be brought within a reasonable time is not derived from the statute, but existed before the statute was. enacted. The? sí atufe prohibits the