22 F.2d 898 (1927) CUDAHY PACKING CO. v. MUNSON S. S. LINE. No. 64. Circuit Court of Appeals, Second Circuit. December 12, 1927. *899 Gilbert H. Montague, of New York City (Joseph W. Goodwin, of New York City, and Thomas Creigh, of Chicago, Ill., of counsel), for plaintiff in error. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Cletus Keating and Staunton Williams, both of New York City, of counsel), for defendant in error. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above). The first objection made to a reliance upon the clause requiring written notice of claim as a condition *900 of liability for loss is that the failure to comply with it was not pleaded in the answer. It is true that the answer alleged that each through bill of lading was subject to all conditions in the ocean bill of lading, that these two bills of lading constituted the contract of carriage, and that the answer incorporated the provisions of both. But the failure to give a written notice of loss was nowhere alleged, and the defense was apparently based on the congestion at Havana, which was an exception in the ocean bill of lading. It is argued that the provision requiring notice of claim resembled an exception, and that the failure to give it, if that be relied upon, should have been pleaded as a defense. Much may be said for this contention, on the ground that a shipper ought to be warned of such a matter in advance of trial, so that he may suffer no surprise and be prepared to meet it. In the General G. W. Goethals (D. C.) 298 F. 933, Judge Ward held that compliance with the notice clause was a condition precedent to recovery, and had to be proved by a libelant when seeking damages for breach of a contract of carriage. That decision was affirmed by this court at 298 F. 935. To the same effect are the opinions of Judge Baker in Metropolitan Trust Co. v. Toledo, etc., Ry. Co. (C. C.) 107 F. 628, of Judge Neterer in The Sagadahoc (D. C.) 291 F. 920, and of Judge Carpenter in Brennan Packing Co. v. Cosmopolitan Shipping Co. (D. C.) 14 F.(2d) 971. And the Circuit Court of Appeals for the Third Circuit in The Westminster, 127 F. 680, held that such a notice of claim was a condition precedent, and must be affirmatively established by the party seeking to recover, irrespective of which side pleaded it. But in the case of Central Vermont R. Co. v. Soper, 59 F. 879, the Circuit Court of Appeals of the First Circuit, while it was not obliged to decide the question and avoided passing upon it, seemed to regard a notice of claim required by a bill of lading as a condition subsequent, which should be pleaded as a defense, and so Judge De Haven held …
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