356 F.Supp. 1238 (1973) STEARNS-ROGER CORPORATION, Plaintiff, v. The NORFOLK & WESTERN RAILWAY COMPANY et al., Defendants. No. 72 C 277. United States District Court, N. D. Illinois, E. D. January 12, 1973. *1239 John C. Bartler, McKenna, Storer, Rowe, White & Haskell, Chicago, Ill., for plaintiff. Marvin F. Metge, Chicago, Ill., for all railways of Gorham, Adams, White & Deyoung. Schaffenegger & Watson, Chicago, Ill., for Zurn Industries. MEMORANDUM OPINION Motion For Summary Judgment of Railroads MAROVITZ, District Judge. Plaintiff was the consignee of certain bills of lading issued by The Norfolk & Western Railway Company on January 27, 29, 30, 31, and February 7, 1969 covering the shipment of five boilers from Erie, Pennsylvania to Orla, Texas. The boilers were damaged in transit according to Plaintiff's complaint and it seeks recovery of the $33,380.13 it expended to repair them. Zurn Industries, Inc., the consignor and seller of the boilers is joined in the Complaint as having breached its contract to deliver the boilers in good condition. Zurn Industries has cross-claimed against Defendant Norfolk & Western alleging that the damage occurred while the boilers were in the railroad's possession and that Zurn is therefore not liable pursuant to its contract with the railroad. Defendant railroads have filed a Motion For Summary Judgment on the grounds that Plaintiff has failed to conform with section 2(b) of the Bills of Lading which requires that a written claim be filed with the railroads no later than nine months after the complained of damage occurred. A formal claim was filed with Santa Fe on February 2, 1970 and with Alton & Southern on November 10, 1970 both which were rejected by said railroads on the grounds that they were filed after the nine month statutory limitation. There is no question that damage did indeed occur to the boilers and that a full and formal claim was not filed until after the nine month period. Plaintiff however claims that Defendant railroads were fully informed of the fact that the boilers were damaged prior to the nine month period and that the various communications in conjunction with their knowledge was sufficient conformity with § 2(b) of the Bills of Lading since the purpose of the Carmack Amendment, 49 U.S.C. § 20(11) which created the nine month limitation was to ensure that the railroads would be apprised of any claims within a reasonable amount of time after the complained of injury occurred. Indeed there are a number of communications between the parties that indicate that the railroads did have knowledge of the damage to all of the boilers and what we must determine is whether the knowledge and the series of communications is sufficient to conform with § 2(b) of the Bills of Lading. Defendant railroads cite numerous cases in various jurisdictions and circuits to the proposition that the railroads knowledge of the fact that damage has occurred and the extent of the damage is not a sufficient conformity with § 2(b) since a written claim …
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