
    NO. 8821
    COURT OF APPEAL PARISH OF ORLEANS
    AMERICAN TRADING CO. versus UNITED FRUIT CO.
    
      
    
   Dinkelspiel;

Plaintiff institutes this suit against the defendant, alleging that he shipped through the Steamship Parismina, April lstj 1930, one oase of hardware, marked "A. T. Co, No. 4, Colon", and that defendant issued to plaintiff s, hill of lading covering _fhi^ shipment. Aiagg Alleging further that the case of hardware delivered to the defendant oompany was never delivered to plaintiff up to the time of the institution of this suit, and that the value thereof was $331,03. Thot plaintiff filed claim with defendant company for his loss and furnished an itemized statement, said olaim being acknowledge hy defendant and although amicable demand |iad been made defendant refused to pay the amount due, hence this suit.

Defendant in its answer admits that on April 30th, 1930, it accepted said goods belonging to plaintiff, which included one case of hardware for shipment from New Orleans to Colon, through the Steamship Parismina; further the defendant contends that said shipment was aooepted subject to the terms and conditions of the bill of lading issued by it covering said shipment, same being dated on April 30th, 1930, and being to the order of the shipper, consigned to plaintiff, and that the terms and conditions of said hill of lading were well known to and consented to hy the plaintiff Alleging further that the shipment was made subject to the terms and conditions contained in the bill of lading issued therefor, and without quoting from same it appears that the claim of plaintiff unless presented in writing within thirty days after delivery of the goods to the initial o&rriier therein, nor unless suit therefor is commenoed within six months after delivery of the goods to the initial carrier and the lapse of suoh period shall be deemed a complete bar to recovery in any suoh suit ax -and notwithstanding. the carrier would be a non resident at or a.foreign corporation, nothing shall he deemed a waiver of the conditions of this artiol'e, except an express written waiver slgnpd hy the carrier. And defendant avers th'-t no suit for loss of said shipment was brought within'six months after the delivery of the goods to defendants; hence plaintiff is barred from any recovery whatsoever. Defendant tendered to plaintiff the sum of Sixteen Dollars,.alleging that no further recovery can be hs.d for the rép-son that no valuation was cited in said bill of lading xxsx other than the sum of eight dollars per cubic foot, as .provided in the paragraph above quoted, and that said goods did not oooupy more than two cubic feet iffherefore prays that there be judgment in favor of defendant, disT missing plaintiff's suit at its oost.

The issues of fsot -presented in this oase are virtually admitted, but the question presents itself, first, s.a to whether or not defendants undertook direotly or indireotly to arrange settlement with plaintiff and lulled plaintiff to sleep or mislead plaintiff in promising settlement of his claim.

A oareful examination of this reoord oonvincee us that contention. there is nothing serious in this/

A claim of loss wa-s noi m'ade known to ’the defendant oom-pany for sometime after the loss was sustained and subsequent to prescription the / ■ period, which in this os.se was six months. Mr. Ellis, the Vice President of the Company, through his-letters 4n-desvored in a friendly way to intercede with the company's officers in Hew York to allow some damage’for the loss of the shipment. In this he failed, which fact was known to plaintiff. It was .in no spirit of waiver that Mr. Ellis undertook to get, after the claim prescribed h^d been/ something more fvom the company than they were willing to allow. Henoe we are of the- opinion tha.t the plaintiff** xarnc .claim took offeot as above stated; that Mr. Ellis or his oOm-pnny acknowledged an indebtedness has not been proven to our satisfaction/

The authorities are uniform and we quote them:

Civil Code. On the Privileges on Debts and Merchandise.

Art. 3237, Sec. 11. The .amount of damage due to freighters for the failure in delivering goods whioh they have shipped are for the reimbursement of damages sustained by the goods through the fault of the captain or orew.

An agreement fixing a limit of six months within whioh to oommence an action against the oarrier for damage done to a shipment is not unreasonable. It is in accord with the spirit' if not the letter of the Civil Code, v/hioh provides that the privilege granted upon debts for the damage done to cargoes shall be pre-scrdbed in six months.

Caraway vs. Insurance Co. 35 An. 298.

Edson vs. Insurance Co. 95 An. 353.

A olause in ?. contract between individuals neither being under any obligation to serve the oth^r, limiting the time withiA which suits may be commenced uoon a cause of action for the amount of said,oontrs.ot is not oontrsry to l«v/ or publio policy.

Bordelon vs. La. Ry. & Navigation Co. 12 Ct. of App. 405.

A pies of prescription is vslid and will be maintained when the facts justify its applies tion in. support of a- stipulation in the accident policy thst no suit shell be hxagghtxxga brought nor action commenced after two yesrs from the time when the right of action shall ocour.

Clars Martin vs. National Life and Accident Insurance Co. No. 8580 Ct. of App.

One who pie?.ds estoppel must show thefc he we.s mislead seeks to his prejudice by the act or conduct upon whioh he/ to found the estoppel.

Gallegher vs. Conner, 138 La. 649.

The next contention made by plaintiff in its brief was that the Federal Statutes 1930, that it shall be unlawful for any suoh common carrier to provide by rule, 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 two years, such period for institution -of suits to he computed from the day &g when notice in writing is g'iven by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.

The act referred to in our opinion does not apply to the case we are deciding, for the reason that the shipment in question was made wholly by water, and that the act in question S«ES±d«x refers to shipments by rail and possibly shipments by ral .and water combined. It is beyond question that in this ca.se the defendant is a. carrier wholly by water and whilst this question h88 not been squarely presented to any courts so far as we know in the United States, there have been issues which to some affect have oonstrued the act as we contend.

Armour Packing Co. vs. U. S. 209 U. S. 56, 78.

We further find that the Act of Congress does not avoid the public policy of this State; hence in our opinion no application to the issues in this -case.

For the reasons assigned, it is ordered, adjudged and decreed, ths.t the judgment of the Court «.quo be and the same is hereby annulled, avoided and reversed, and that there now be judgment for the defendant, plaintiff to pay oosts in both Courts.

Judgment reversed and annulled and judgment m fe.vor of defendant.  