Terminal Transport Co. v. Burger Chef Systems, Inc.
Terminal Transport Co. v. Burger Chef Systems, Inc.
Opinion of the Court
On November 4, 1968, appellee sold 49 ice cream machines to the Freezie Corporation. On January 31, 1969, the machines were shipped from Indianapolis, Indiana to Atlanta, Georgia via appellant under ten uniform order bills of lading and accompanying sight drafts and consigned to appellee. Freezie was to receive the equipment from appellant only if Freezie first honored the drafts at an Atlanta bank and obtained the original bills of lading containing appellee’s endorsements. The crates arrived on February 4 and 5,1969. As Freezie was not prepared to submit the originals of the ten uniform bills of lading, the property was placed in storage on the latter date. Appellee notified appellant of that fact by form letters entitled: "On Hand Notices,” dated February 10 and 20, 1969, which also contained the advice that the property would be sold if not claimed. However, appellant’s practice was to hold such shipments for varying lengths of time, up to two years in one case. To accomplish storage, appellant issued "Free Astray Billings” to Arrow Bonded Warehouse, but failed to indicate that the shipments were subject to appellee’s security interest by stamping "Order Notify” on the freight bills. Appellant kept the fifth copy of the freight bills, which copy was surrendered when Freezie produced an endorsed original bill of lading. Appellee was not furnished a copy of the freight bills. On April 1,1969, four crates were released by Arrow to Freezie upon surrender of proper documentation, id.; five more were released similarly on April 28, 1969. On May 16, 1969, upon receipt of notice from appellant that freight charges to Atlanta from Indianapolis must be paid or the remaining equipment "sold as junk,” appellee paid them. Accrued
The jury, on October 10, 1973, rendered a verdict against appellant; judgment being filed October 11,1973. Amotion for judgment n.o.v. was filed November 9,1973, and overruled on April 8, 1974. Appeal followed. Held:
The parties are in substantial agreement that the sole basic question, upon which appeal is predicated, is whether the jury verdict is in harmony with Section 2(b) of the uniform order bills of lading, which provides in pertinent part:
"As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred within nine months after delivery of the property ... or, in the case of failure to make delivery then within nine months after a reasonable time for delivery has elapsed . . .” (Emphasis supplied.)
Examination of this stipulation discloses that the initial portion is intended to apply to claims generated by the loss, damage, injury or delay during shipment and
Subsection (a) of Section 4, supra, provides in general that, when property is not claimed after notice of arrival, the carrier may place the property in storage and fixes his responsibility as that of a warehouseman, subject to notification of the parties shown on the bill of lading, and reflecting the warehouse in which the property has been placed. Subparagraph (b) then provides generally that, after failure to claim the property within 15 days after notice of arrival, the carrier may sell the property at public auction upon publication of a notice of sale in a local newspaper of general circulation for two consecutive weeks, providing further that 30 days shall have elapsed between the mailing of the notice to the consignor and the publication of notice of sale. Thus, under Section 4 the carrier has the option of protecting its interest through a sale of unclaimed property, if desired, and provided it complies with required notice provisions; applying the proceeds of any such sale to the payment of freight, storage and other lawful charges, including necessary expenses related to the sale, with the balance to be paid to the owner as authorized by Section 7 of the bill of lading.
In the instant case, the appellant elected to follow the
We turn then to the requirement of a claim. The requirement for a written claim is addressed to a "practical exigency and is to be construed in a practical way.” Ga., Fla. & Ala.R. Co. v. Blish Milling, supra. In the case sub judice, we view the facts in accordance with the ordinary course of business, in the light of the circumstances and conditions surrounding the transaction. Here, appellant and appellee both knew that Freezie would not claim the shipment, as is evidenced by the fact that the goods were placed in storage the day of arrival of the entire shipment, and thereafter picked up "piece-meal” by Freezie. This practice had been employed by appellant on other occasions, and for various periods up to two years. Also worthy of consideration was the fact that on May 16, 1969, appellant only requested payment of freight charges and threatened sale of the remainder of the machinery if such was not done. No mention of sale for any other purpose was reflected and, indeed, partial pick-up of the machinery by Freezie subsequently was accomplished by Freezie on July 10, 1969 and on December 5, 1969. Thus, to appellee’s ostensible belief, the remaining 20 machines were still in storage and subject to their security interest. At this time, it may be reasonably inferred that appellant’s original negligence
We also might observe that taking the date of appellant’s receipt of knowledge of misdelivery in mid-April, 1970, as the date to activate the running of the nine months within which to file a claim, appellant’s claim was timely on January 13, 1971.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.