drover for cattle being transported on the same train. It was not sought to impose this contractual limitation upon him by reference to some provision included in a filed tariff.
Several cases have been cited by the defendant in support of its position that summary judgment should be granted because of the tariff provision as to limitation on notice and commencement of suit, particularly in view of the reference thereto on the ticket and booklet container. The case of Wihelmy v. Northwest Airlines, D.C., 86 F.Supp. 565, and two cases not reported, but decided by this Court, Losh v. American Airlines,1a in which summary judgment was granted October 19, 1951, and Smith v. Eastern Airlines,1a in which summary judgment was granted June 21, 1951, do hold that such tariff provisions referred to on the ticket preclude the maintenance of an action without the required notice or beyond the period provided for the commencement of an action. Others of the cases cited by the defendant involve tariff provisions relating specifically to the cancellation of flights and rerouting of passengers on account of weather conditions. Mack v. Eastern Air Lines, Inc., D.C., 87 F.Supp. 113. It appears that the case of Indemnity Ins. Co. of North America v. Pan American Airways, Inc., D.C., 58 F.Supp. 338, 341, also supports the defendant's contention, but it is to be noted that there the flight was subject to the provisions of the Warsaw Convention, 49 Stat. 3000, which, under the treaty-making power, clearly became the controlling law. It should be noted also in that case that the provisions of the transportation contract between the airways company and the passenger, which required written notice of claim within thirty days after disaster, death or injury, does not appear to have been simply by reference to a filed tariff provision, and furthermore, upon the refusal of the court, at the asking of the plaintiff, to strike the defense setting up such provision of the transportation contract, the court stated:
'Consequently, I decide that the fourth defense cannot be stricken as a matter of law. I do not pass on the question whether any circumstances here excuse noncompliance or otherwise render the provision inapplicable.'
With respect to the authorities cited in support of the defendant's motion for summary judgment, and which are not distinguishable, as some of the cited cases as just noted are, apparently the questions raised in the instant case were not there raised. They were not discussed, and presumably not considered. Certainly that is true of the two cases decided by this Court, above referred to, in which neither the points and authorities or the argument of counsel, as disclosed by the transcripts thereof, revealed any consideration of such questions. In any event, no controlling authority requires a conclusion that as a matter of law these plaintiffs are precluded from maintaining this action.
As to whether or not the obligation of the carrier was modified by contractual agreement, as to which the male plaintiff had either actual knowledge or such reasonable notice as to be equated to actual knowledge, is a question of fact to be determined under appropriate pleadings by the trier of the facts. The same is so with respect to any question of fact as to waiver or estoppel. While these doctrines are ordinarily not applicable to a common carrier with respect to a departure from published tariffs, they are not inapplicable where such common carrier seeks to exonerate itself of liability by reason of a tariff provision which it is neither authorized nor required to file by the applicable Act of Congress, or regulations promulgated thereunder.
For the reasons stated, the motion for summary judgment will be denied. Counsel will prepare an appropriate order to carry this decision into effect.