
    Stephen H. Davenport, Howard C. Lente and Joseph E. Reid, Respondents, v. The Chesapeake and Ohio Railway Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    November, 1914.)
    Carriers — interstate commerce — action to recover damages — stipulation in bill of lading.
    The law as interpreted by the federal courts must be accepted as applicable to cases of interstate shipment.
    In an action to recover for -damages to an interstate shipment of melons caused by the alleged negligent delay of defendant, it is a defense that the claim was not presented within the four months limited by the bill of lading. A stipulation in the bill of lading exempting the carrier from liability unless the claim was presented within four months is not an exemption from liability for negligence and is valid.
    Whether the carrier had power to waive the provisions of the bill of lading, it having been in form approved by the interstate commerce commission, queere.
    
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, after a trial by a judge without a jury.
    Rearick, Dorr & Travis (G. H. Dorr, S. T. B. Morrison, of counsel), for appellant.
    Shelp & Broomell (John P. Broomell, of counsel), for respondents.
   Bijur, J.

To an action brought by plaintiff for damage to an interstate shipment of melons caused by the alleged negligent delay of defendant, the defendant-appellant has interposed, among others, the defense that the claim was not presented within the four months limited by the bill of lading. Respondent concedes that it was not so presented, but claims: (1) That the defense arising out of this delay was waived by defendant’s rejection of the claim on its merits, and (2) that the provision is virtually one to limit or discharge the carrier’s liability for his negligence and, therefore, void under the decisions in this state.

I. do not think that it can now be successfully disputed that as the case involves an interstate shipment, the law as interpreted by the federal courts must be accepted as applicable. United Lead Co. v. Lehigh V. R. R. Co., 156 App. Div. 525, 527, 528; Loomis v. Lehigh V. R. R. Co., 208 N. Y. 312, 332.

As to respondent’s second contention, i. e., that the stipulation is one to exempt the carrier from liability for his negligence, it has been held by the Supreme Court of the United States that the limitation is valid. Express Co. v. Caldwell, 21 Wall. 264, expressly approved on this point in Queen of the Pacific, 180 U. S. 49. See, also, Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 672, 673.

-As to the waiver: Although in our own state a delay of three months for deliberation upon a claim presented after the time limit, and its rejection on the merits without reference to the limitation, has been held to" constitute a waiver (see Isham v. Erie R. R. Co., 112 App. Div. 612), the insistence on.other defenses has been held in the federal courts not to constitute a waiver. Lehigh Valley R. R. Co. v. Providence Washington Ins. Co., 172 Fed. Repr. (C. C. A.) 364.

Moreover, it is exceedingly doubtful in my mind whether, under the provisions of the Interstate Commerce Act, and in view of the fact that the form of "the bill of lading under which- this shipment was made was approved by the interstate commerce commission, the carrier has power to waive its provisions. Interstate Commerce Opinion No. 4844, Feb. 9,1914.

Judgment reversed, with costs, and complaint dismissed on the merits.

Seabury and Cohalan, JJ., concur.

Judgment reversed, with costs.  