court is in agreement with the First Circuit and Second Circuits that "the ICC regulations apply to contested as well as voluntarily paid claims." 922 F.2d at 908.
The plaintiff points out that the Ninth Circuit in Taisho Marine & Fire Ins. Co. v. Vessel Gladiolus, 762 F.2d 1364, 1368 (9th Cir. 1985) relied upon Wisconsin Packing, in holding that "The form of the written notice is less important than its adequacy in apprising the carrier of the basis for the claim and of the fact that reimbursement will be sought." This court notes that the Ninth Circuit's citation to Wisconsin Packing was mere dicta, and as such is not binding upon the court. The plaintiff ignores the outcome of Taisho, in which the court held that the plaintiff could not maintain its claim because of late filing. The Taisho decision turned on the fact that the notice in that case was insufficient because it was not timely, a matter about which their is no division among the circuits. The Taisho court did not specifically address the question now before this court, that is, whether the notice of claim must state a specific dollar sum. In addition, the Ninth Circuit in Taisho did not even address the Second Circuit's, or any other court's criticism of the Seventh Circuit's Wisconsin Packing decision. Under the circumstances, it is clear to this court that the Ninth Circuit, in the cited dicta from Taisho, did not directly address the question now before the court, and did not intend to direct the lower courts to follow the Seventh Circuit's Wisconsin Packing rule. This case clearly illustrates the problem of dicta and the reasons that it does not create binding precedent.
The plaintiff also cites Culver v. Boat Transit, Inc., 782 F.2d 1467 (9th Cir. 1986). However, Culver actually weighs in favor of the defendant. The Culver court cited the Ninth. Circuit's decision in Northern Pac. Ry. v. Mackie, 195 F.2d 641 (9th Cir. 1952), which required strict compliance with the written claim notice requirements, and noted the apparent conflict between Taisho and Mackie. However, Culver resolved the conflict by substantially limiting Taisho's application. ("Taisho simply relaxed the need for a formal claim in limited situations.") Culver, 782 F.2d at 1469. In remanding the case and reversing the trial court's grant of summary judgment against the plaintiff, the Culver court expressly noted that "there was notation on the bill of lading noting the damage caused by the accident." 782 F.2d at 1469 n.2. Therefore, the parties in Culver had exactly the information concerning the amount of damages which the parties in the instant action lacked. The Culver court reaffirmed the strict notice requirements of Mackie, even in the face of Taisho, thereby undermining the plaintiff's case.
This court finds the reasoning of the First and Second Circuits to properly state the law. We therefore find that the ICC regulations establish the proper standards for evaluating the sufficiency of all claims. In this case, it is clear in light of Bobst, Pathway Bellows, Nedlloyd, and Brown Transport that the December 2, 1988 claim letter was not sufficiently specific within the terms of the ICC regulations. Therefore, it is clear that the plaintiffs are barred from proceeding with this action. Pathway Bellows, supra; Nedlloyd Lines, supra.
The parties do not dispute the facts which are material to this motion for summary judgment. Plaintiff's opposition to defendants motion to dismiss at 2. Summary judgement is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgement as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Fed. R. Civ. P. 56(c). Since it is clear that on the undisputed facts the defendant is entitled to judgment as a matter of law, summary judgment should be GRANTED.
For the foregoing reasons and in accordance with the above, after careful consideration of the submissions and written and oral arguments of the parties, and good cause appearing therefor, IT IS HEREBY ORDERED that:
1. Summary judgment is GRANTED in favor of the defendants.
IT IS SO ORDERED.
Chief Judge Thelton E. Henderson
United States District Court