There is here for review a judgment of the Supreme Court of Appeals of Virginia which affirmed a judgment of the court of law and chancery against petitioner for $1,046.88. 138 Va. 377, 122 S. E. 113. June 24, 1918, at New Bern, N. C., respondent delivered to petitioner, then operating the Norfolk Southern Railroad, a carload of scrap iron for transportation over that line and connecting lines to Clarksburg, W. Va. Petitioner issued a bill of lading, consigning the shipment to the order of respondent, 'notify George Yampolsky at Clarksburg.' It contained a clause requiring surrender of the bill of lading properly indorsed before delivery of the property, and provided that:
'Claims for loss, damage or delay must be made in writing to the carrier * * * within six months after delivery of the property, or in case of failure to make delivery, then within six months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.'
The shipment arrived at Clarksburg, July 15, 1918, and on that day was delivered to Yampolsky without surrender of the bill of lading and without the knowledge of the respondent, who at all times has been its lawful holder. No claim was made by respondent until March 5, 1920.
The Act of Congress of March 4, 1915 (known as the first Cummins Amendment), c. 176, 38 Stat. 1196, 1197 (Comp. St. § 8604a), amending section 20 of the Act to Regulate Commerce, requires a common carrier, receiving property for transportation in interstate commerce, to issue a receipt or bill of lading therefor, and makes it liable to the holder for any loss, damage, or injury to such property, and contains these provisos:
'Provided further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.'
There is presented the question whether this case is one in which the right of recovery may be made to depend upon the making of claim as required by the bill of lading. The provisos in section 20 have been recently considered by this court in Barrett v. Van Pelt, 268 U.S. 85, 45 S.C.t. 437, 69 L. Ed. 857. It was there pointed out that the purpose of the second proviso is to take some cases out of the general rule declared by the first proviso. And, in view of the inapt language and defective structure of the second, it was held that the word 'damaged' should be read 'damage,' and that the comma after 'unloaded' should be eliminated. It was also held that 'carelessness or negligence' is an element in each case of loss, damage, or injury there named. The judgment now before us was given prior to that decision. The state court held that the damage resulting to respondent from misdelivery occurred while the shipment was 'in transit,' within the meaning of the proviso, and that therefore the provision of the bill of lading requiring claim to be made was invalid. It said that 'in transit' means at any time after the property has been received by the initial carrier and before delivery in accordance with the contract of carriage.