William A. Cordingley v. Allied Van Lines, Inc.

Allied Van Lines (Allied), a common carrier, appeals from a district court judgment awarding damages for household goods destroyed in shipment.

The court below held that appellee’s claim for damages was not time-barred under the terms of the bill of lading. 1 The holding was based on the court’s conclusion that, “in light of the totality of its conduct,” Allied could not be said to have given the plaintiff notice of disallowance of his claim. Without such notice, the bill of lading’s limitations period could not begin to run and the suit on the claim could not be barred.

The focus of this appeal is the test employed by the district court in its determination that Allied had not given notice of disallowance. For the reasons given below, we affirm the decision of the district court.

FACTS

Cordingley delivered a quantity of household goods to Allied in Des Moines, Iowa, for shipment to Great Falls, Montana. The first shipment was delivered to Great Falls without incident. The second, shipped in July, 1972, contained a large mirror and a small one, both of which were damaged by fire en route. The district court found the value of the mirrors to be $5,000 and $400,…

concurring in the result:

Although I believe that the result reached here is the proper one, I offer a comment on the route used to reach it.

The May 16, 1973 letter from Allied, which stated that Allied “cannot accept any liability” for the mirrors in question, appeared to give notice to Cordingley that his claim was being disallowed. See, e. g., North American Philips v. Emery Air Freight, 432 F.Supp. 519, 521 (S.D.N.Y. 1977). My Brethren, however, adopt the “totality of conduct” test articulated by the district court below and re-interpret this letter in the light of the later correspondence between the parties.

Under the “totality of conduct” test, Allied’s May 16 letter cannot be held to have amounted to a final disallowance of Cord-ingley’s claim, although this approach skirts dangerously close to the “no waiver — no estoppel” rule which has grown up in this area. Perhaps justice would be better served if we were to find that equitable considerations are indeed appropriate to reach a just result and thereby avoid the harshness which has characterized several earlier decisions on similar fact situations.

I concur.

563 F.2d 960 William A. CORDINGLEY, Plaintiff-Appellee, v. ALLIED VAN LINES, INC., Defendant-Appellant. No. 76-3466. United States Court of Appeals, Ninth Circuit. Oct. 25, 1977. James R. Walsh, argued, Smith, Emmons, Baillie & Walsh, Great Falls, Mont., for defendant-appellant. Ray F. Koby, argued, Swanberg, Koby, Swanberg & Matteucci, Great Falls, Mont., for plaintiff-appellee. Appeal from the United States District Court for the District of Montana. Before WRIGHT and KILKENNY, Circuit Judges, and HARRIS, Senior District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 Allied Van Lines (Allied), a common carrier, appeals from a district court judgment awarding damages for household goods destroyed in shipment. 2 The court below held that appellee's claim for damages was not time-barred under the terms of the bill of lading. 1 The holding was based on the court's conclusion that, "in light of the totality of its conduct," Allied could not be said to have given the plaintiff notice of disallowance of his claim. Without such notice, the bill of lading's limitations period could not begin to run and the suit on the claim could not be barred. 3 The focus of this appeal is the test…