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January 23, 1980


The opinion of the court was delivered by: RAMBO


This lawsuit was initiated on September 21, 1978 by the filing of a complaint in which Foster Wheeler Energy Corporation (Foster) claims for the value of a 45-ton hydraulic crane which it owned. The crane was delivered to Daily Express, Inc. by Foster at Catlettsburg, Kentucky, for transportation to Orange, Texas. On September 14, 1976, it was damaged in transit and had to be sold for salvage value. Responsibility for the damage remains a matter of dispute.

 Daily Express has filed a motion for summary judgment. The basis of the motion is Daily Express' belief that Foster may not recover any loss attributable to the crane accident because Foster failed to file a written claim with the carrier within nine months of the loss as required by the bill of lading.

 Foster recognizes the requirement of the writing, and admits that it filed no timely written claim, but argues that recovery is not absolutely precluded by the failure for these reasons:

1. Three letters, none of which were written by Foster, should be deemed a written claim, thereby satisfying the written claim requirement.
2. Defendant by its word and conduct is estopped from raising the requirement that a written claim be filed within nine months of the loss.
3. The parties made an oral contract to settle plaintiff's claim.

 When considering a motion for summary judgment, the court must accept as true the statements of the party opposing the motion. It then extracts from these statements all inferences favorable to that party. If the court, reviewing the evidence in this manner, is convinced that no genuine dispute exists as to a material fact, and that the moving party is entitled to judgment as a matter of law, then it should grant the motion. Scott v. Plante, 532 F.2d 939 (3rd Cir. 1976). In applying this standard the court will consider the affidavits and depositions of the parties.

 It is undisputed that Foster did not file a written claim for the damage to its crane during the requisite time period. The parties agree that the bill of lading is the contract covering the shipment of the crane, and that it contains the following language:

§ 2(b) As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier . . . within nine months after delivery of the property . . . or in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suit shall be instituted against any carrier only within two years and one day from the day when notice in writing was given by the carrier to the claimant that the carrier has disallowed the claim for any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.

 It is clear that the parties had prompt notice of the loss, that both sides investigated the damage and its cause, and that they were able to agree upon the salvage value of the crane. At deposition George Kertis, manager of Foster's construction services department, stated that his company was involved with the shipment of equipment through many common carriers. Foster's standard company procedure was to have claims for damaged equipment handled by the traffic and insurance departments. Kertis testified that he sent a memo to Foster's insurance department, a few days after the crane incident, informing the department of the damage and enclosing a copy of the bill of lading. He also stated that he did not know when Foster usually filed a formal written claim because he does not get involved in that area. Speaking of his contact with Kenneth Cummings of Daily Express' insurance department, Kertis said, "I normally always told him it's (the matter of a claim for the crane) in the hands of our insurance department. We (Kertis' department) were solely concerned about how the machine was damaged, what was wrong, can we salvage it, can we do anything to it. That was always my input." Further along in the deposition the testimony developed as follows:

Q. (By counsel for defendant) He (Cummings) asked you when something, the bill or the claim or what have you, was going to be submitted to the company?
A. (Kertis) Right. I said our insurance department you know, the paperwork is probably going through and you will hear from our insurance department.

 The conversation related above was the last between Cummings and Kertis. There was general concurrence that it took place in February 1977, well within the nine month period in which a written claim had to be filed by Foster. Later Kertis stated (Kertis deposition, page 28) that ...

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