ALLEN, Circuit Judge. This case arises out of a controversy over alleged liability for damage to six; cars of frozen fruit, consisting of strawberries, dewberries, bláckberries, and peaches, shipped from Paducah, Kentucky, by appellant during July, 1945, over appellee’s railroad and connecting carriers. Five of the cars were consigned to Jersey City and one to New Orleans. When the cars were inspected at destination cartons of berries were mashed and broken, cans which contained peaches were dented and the peaches were discolored. Some of the contents were condemned by the United States Food and Drug Administration and. only a small amount of salvage was realized. Appellant brought suit for $33,192.18, the claimed value, of the fruit, and $1,732.-30 as expense of preparing the salvaged' fruit for the market, for sales service and storage. The case arises under the' Carmack Amendment to the Interstate Commerce' Act, 49 U.S.C., § 20, par. 11, 49 U.S.C.A.. § 20(11), which provides that a common-, carrier or railroad receiving property for interstate transportation “shall issue a receipt or bill of lading therefor, and shall be-liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier,, railroad, ' or transportation company to which such property may be delivered or over whose line or lines such property may-pass within the United States * * * and' no contract, receipt, -rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier,. *345 railroad or transportation company from the liability hereby imposed * * Appellee contends that as to four of the cars in question, MDT 21740, IC 54400, IC 50187, and IC 50265, appellant was barred from instituting the suit because it had not filed claims in writing within nine months after delivery of the property, in accordance with the bills of lading. Appellee also contends that as to the two remaining cars the fruit was not properly frozen, processed, nor loaded, and hence appellee was not liable. Jury trial was waived. The District Court sustained the contention as to notice and also found that the appellant had not borne the burden of proving that the fruit was in good condition when shipped. As to the question of notice, each of the bills of lading provides in paragraph 2 (b) : “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. * * * ” Appellant neither gave nor attempted to give notice to the receiving or delivering carrier as to the four cars listed. It appears, however, that certain of appellant’s customers who had contracted to purchase portions of the shipment gave notice to the Erie Railroad, the delivering carrier in Jersey City, with reference to the damaged condition of the goods. Certain of these customers later …
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