Defendant admits that if filed no claim under the bills of lading for delays in delivery as a result of the railroad's failure to unload cars in the order of their arrival, but takes the position that Section 2(b) acts as a bar only when the shipper or consignee asserts a claim: not, as here, where the defendant raises the point in resisting a claim and seeks no recovery.
One sued by an interstate carrier for tariff charges is entitled to set off any loss occurring in connection with the transaction, Chicago & North Western Railway Co. v. Lindell, 1930, 281 U.S. 14, 50 S. Ct. 200, 74 L. Ed. 670, despite Section 6(7) of the Interstate Commerce Act, 49 U.S.C.A. § 6(7), but under the provisions of Section 2(b) the filing of a written claim within nine months
is a condition precedent to recovery. Written notice is required even when the carrier has actual knowledge. Chesapeake & Ohio Railway Co. v. Martin, 1931, 283 U.S. 209, 51 S. Ct. 453, 75 L. Ed. 983.
Since defendant failed to give written notice within the nine-month period, it is barred from asserting this defense. Northern Pacific Railway Co. v. Associated General Contractors, D.C.N.D.1957, 152 F.Supp. 126.
Defendant points out that the shipments took place from August through December, 1955, and contends that the requirement of notice was waived since suit was filed by the railroad on February 29, 1956, well before the expiration of the nine-month period with respect to any of these shipments. The filing of a suit by the railroad, however, cannot be considered the filing of a claim against the railroad within the meaning of Section 2(b), since the act is that of the railroad and not of the customer.
While the filing of an answer asserting the delays in unloading as a defense might be considered the equivalent of the filing of a written claim under Section 2(b) this question need not be decided. The first paper filed in this action setting forth the defense of failure to unload cars in the order of their arrival was defendant's Opposition to Plaintiff's Motion for Summary Judgment, filed May 20, 1958, far more than nine months after the last car was unloaded.
Since there is no unresolved issue of fact, plaintiff's motion for summary judgment will be granted.