We note that pursuant to 46 U.S.C. § 1305, a carrier "shall be at liberty to surrender in whole or in part all or any of his rights and immunities" under COGSA. Relying either explicitly or implicitly on this section, courts have consistently recognized the legality of a waiver of the § 1303(6) limitations period. See e. g., United Fruit Co. v. J. A. Folger Co., 270 F.2d 666 (5th Cir. 1959), cert. denied, 362 U.S. 911, 80 S.Ct. 682, 4 L.Ed.2d 619 (1960); Monarch Industries Corp. v. American Motorists Ins. Co., 276 F. Supp. 972 (S.D.N.Y. 1967); The Argentino, 28 F. Supp. 440 (S.D.N.Y. 1939); cf. United States v. Gydnia American Shipping Lines, 57 F. Supp. 369 (S.D.N.Y. 1944). Although the above cited cases all involved post-contractual waivers, we reject defendant's contention that an effective waiver may not be similarly executed at the commencement of the parties' relationship.
J.A. Campbell Co. v. Holsum Baking Co., 1942, 15 Wn.2d 239, 130 P.2d 333; United States v. Curtiss Aeroplane Co., 2 Cir., 1945, 147 F.2d 639. Correspondingly, the end-date of a waiver for a fixed time should be recognized against a plaintiff attempting to escape the terms of his agreement. In The Argentino, D.C.S.D.N.Y. 1939, 28 F. Supp. 440, 441, 1939 A.M.C. 815, the claimant made a written request for an extension "up to and including April 24, 1938", and a similar verbal request March 23, 1938. The carrier made no written reply agreeing to a specific end-date.
It is a mode of proof, applicable alike to all railroads and in favor of all shippers. Baldwin v. Atlantic Coast Line R. Co., 170 N.C. 12, 86 S.E. 776; Schloss-Bear-Davis Co. v. Louisville N.R. Co., 171 N.C. 350, 88 S.E. 476; The Argentino, D.C., 28 F. Supp. 440. We cannot agree that where a carrier has full knowledge of a loss caused by its admitted negligence and a written record thereof in its files, the allowance of a recovery for the admitted value of the loss could be construed as discrimination in favor of the shipper or against the carrier.
On the other hand, if no invoices were sent until recently, no defense arises so long as the bill was sent and suit was filed within the period of the 6 year statute of limitations. The only precedent defendants have found is the decision in The Argentino, 28 F. Supp. 440 (SD-NY, 1939).
The possibility of employing the doctrine of estoppel to prevent inequitable reliance on the statute of limitations has long been recognized in the context of the COGSA. In The Argentino, 28 F. Supp. 440 (S.D.N.Y. 1939) the court found that "the policy of justice and equity which is supposed to find expression in every judicial decision" compelled it to reserve for trial the issue of whether the facts of the case constituted an estoppel in avoidance of the time limitation clause. Implicit in this holding is the premise that such an estoppel is recognized as a defense to the time bar of the COGSA.
This being the case, the action set forth in the counterclaim is prima facie time barred. In relation to this factual reality, Defendant argues and asserts that the Plaintiff has never denied said claims and that, on the contrary, has requested information and has, through its actions, made the Defendant believe that the claims were being considered for payment. He further cites The Argentino, 28 F. Supp. 440 (1939, SDNY) and 46 U.S.C.A. § 1303(6) as authority to the effect that the issue of whether there has been a waiver of the Statute of Limitations should be reserved for trial and not to be determined on a motion for summary judgment. Contrary to the Defendant's theory, Section 1303(6) of Title 46 of the United States Code does not provide that the issue of whether there has been a waiver of the Statute of Limitations should be reserved for trial and not be determined on motion for summary judgment.
Thompson v. Phenix Ins. Co., 1890, 136 U.S. 287, 10 S.Ct. 1019, 34 L.Ed. 408; Swift Co. Packers v. Compania Caribe (The Cali), 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206, 1950 A.M.C. 1089; Green Star S.S. Co. v. Nanyang Bros. Tobacco Co., 9 Cir., 3 F.2d 369, 1925 A.M.C. 221; Pacific Coast Co. v. Yukon Independent Transp. Co., 9 Cir., 1907, 155 F. 29; The Argentino, D.C.S.D.N.Y., 28 F. Supp. 440, 1939 A.M.C. 815; Alten v. McFall, C.C.N.D.N.Y. 1898, 89 F. 463; Austin v. Wacks, 1883, 30 Minn. 335, 15 N.W. 409. V.
Any proof in relation to these defenses can be submitted to the Judge who sits in the Admiralty Part and tries the case. The Argentino, D.C., 28 F. Supp. 440. I do not think that this action should be summarily disposed of by the exceptions to the libel on the incomplete papers now presented. On the argument of the motion there was some discussion as to the terms of the Bill of Lading, but the libelant's attorney stated that the libel as drawn would sustain a claim in tort, as well as one on the Bill of Lading. That only serves to emphasize the necessity of having the issues raised by respondents' exceptions, presented as a defense in respondents' answers, and the proof thereon submitted to the trial judge for his consideration in deciding the case on the merits.
(Emphasis supplied.) See the Argentino, D.C., 28 F. Supp. 440, 442 (Syl. 2); The Zarembo, D.C., 44 F. Supp. 915, 921 (Syl. 11, 12); The Cypria, D.C., 46 F. Supp. 816, 820 (Syl. 6, 7). Said Section 1303(6) does apply to this case. In this case plaintiff denies defendant's right under the bill of lading provisions to abandon the Weser's voyage at Puntarenas, but contends that, even if such abandonment were permissible, defendant was by the bill of lading obligated to transship the lift-van to its original destination, and that the lift-van should by such transshipment have been delivered at Portland within a reasonable time after the Weser's arrival at Puntarenas on September 7, 1939. Surely such reasonable time for such delivery after such transshipment would not have required more than 6 months after September 7, 1939, and the court finds that such final delivery of the lift-van at Portland could and should have been made within that time, assuming only for the purpose of such finding that, as plaintiff contends, the defendant was required in any ev
Mapu v. Agricultural Insurance Co., 244 App. Div. 268, 278 N.Y.S. 958. Plaintiff contends that even although the Sales Agreement provided that it could be modified only in writing, it could be modified orally, and cites: Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Morley Brothers, Inc., v. F.R. Patterson Construction Co., 266 Mich. 52, 252 N.W. 213, 91 A.L.R. 1418; Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378; The Argentino, D.C., 28 F. Supp. 440. Even if plaintiff's contention be in accord with the decisions of the Courts, the fact remains that by the Sales Agreement plaintiff was informed as to who were the only agents by whose acts in modifying the agreement the defendant would be bound and there is no showing of ratification by the defendant or any of its officers of any oral agreement modifying the Sales Agreement made by any person in the employ of the plaintiff