author: FEIKENS, Chief Judge.

text:
    Christopher J. JAKSA, Plaintiff, v. The REGENTS OF the UNIVERSITY OF MICHIGAN, University of Michigan President Harold T. Shapiro, and Dean Eugene W. Nissen; all individually and in their official capacities, Defendants.
    Civ. A. No. 83-6284.
    United States District Court, E.D. Michigan, S.D.
    Nov. 21, 1984.

      Kurt Berggren, Ann Arbor, Mich., for plaintiff.
    Roderick K. Daane, University of Michigan, Peter A. Davis, Ann Arbor, Mich., for defendants.
   MEMORANDUM OPINION

FEIKENS, Chief Judge.

Plaintiff, Christopher Jaksa, was suspended for one term from the University of Michigan for cheating on a final exam. Plaintiff argues that he was denied procedural due process, and brings this action under 42 U.S.C. § 1988 (1982) against the Regents of the University of Michigan, Harold Shapiro (University President), and Eugene Nissen (Assistant Dean of Student Academic Affairs). This case is currently before me on cross-motions for summary judgment. Two evidentiary hearings have been held. For reasons stated herein, plaintiff's motion for summary judgment is denied, and defendants’ motion for summary judgment is granted.

I. BACKGROUND

Plaintiff is currently enrolled at the University of Michigan. By letter dated April 30, 1982, plaintiff’s statistics professor, Prof. Rothman, filed charges with the Academic Judiciary accusing plaintiff of cheating on his statistics final exam. Rothman brought these charges after receiving an anonymous telephone call from a student who said he saw plaintiff switch exam cover sheets, and submit his cover sheet-with a classmate’s exam. Rothman’s' inspection of the exams revealed that plaintiff’s cover sheet was attached to another student’s exam, though plaintiff denied having any knowledge of how this happened.

Before the University took any action on Prof. Rothman’s charges, the following procedures were followed: Plaintiff was provided with a copy of Prof. Rothman’s charges, and met several times to discuss these charges with Dean Nissen, Assistant Dean of Student Academic Affairs. Dean Nissen gave plaintiff the Manual of Procedure for the Academic Judiciary (Manual), and a hearing was held on June 16, 1982. After the hearing, a four-member panel consisting of two students and two professors unanimously found plaintiff guilty of cheating, and recommended a two-semester suspension. After seeking the advice of counsel, Jaksa wrote a letter to the Academic Judiciary Appeal Board seeking leniency. Jaksa confessed that his cheating was “a spur of the minute act [and] a glaring error in judgment.” Plaintiff also found “it difficult to express in words [his] sincere regret and shame at having involved [himself] in this cheating incident.” Apparently moved by this confession, the Appeal Board reduced Jaksa’s penalty to a one-semester suspension.

Plaintiff argues that the proceedings against him were fundamentally unfair and that he was denied procedural due process in violation of the fourteenth amendment. Defendant argues that the procedural protections afforded plaintiff satisfied the requirements of the due process clause. I find that plaintiff was treated fairly, and that the University’s procedures satisfied the fourteenth amendment.

II. DISCUSSION

The fourteenth amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S.Const. amend. XIV, § 1. While it is not always clear when a constitutional claim has been raised, plaintiff’s suspension from the University involves a sufficient “liberty” interest to entitle him to the guarantees of the fourteenth amendment. Goss v. Lopez, 419 U.S. 565, 575, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975) (“Liberty” interests implicated where high school student was suspended for 10 days since suspensions “could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.”); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (“Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.”). See also Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Plaintiff may also have a “property” interest in continuing his education at the University of Michigan. Goss, 419 U.S. at 574, 95 S.Ct. at 736. Whether plaintiffs interest is a “liberty” interest, “property” interest, or both, it is clear that he is entitled to the protection of the due process clause.

“Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). While due process is a flexible concept and will vary with the facts of each case, the Supreme Court has articulated criteria for determining What process is due in a particular setting:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally require consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). See also Frumkin v. Board of Trustees, 626 F.2d 19 (6th Cir.1980).

In the context of school suspensions, the starting point is Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1974), where the Supreme Court considered the constitutional requirements for suspending a high school student for 10 days. After finding that a suspension from high school implicated a protected interest, the Court held that a student facing suspension “must be given some kind of notice and afforded some kind of hearing.” Goss, 419 U.S. at 579, 95 S.Ct. at 738. To determine the sort of notice and hearing to which a student is entitled, the Court balanced the student’s interest in avoiding unfair or mistaken exclusion from the educational process against the school’s interest in maintaining discipline. In accommodating those competing interests, the Court held that in order to suspend a high school student for 10 days, he must be “given an opportunity to explain his version of the facts [after being] told what he is accused of. doing and what the basis of the accusation is.” Goss, 419 U.S. at 582, 95 S.Ct. at 740. The Court recognized that the due process clause affords high school students facing brief suspensions only “rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” Goss, 419 U.S. at 581, 95 S.Ct. at 739-40. The Court, however, made it clear that its holding was limited to short suspensions, and that “[l]onger suspensions or expulsions may require more formal procedures.” Goss, 419 U.S. at 584, 95 S.Ct. at 741.

Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), which the Supreme Court acknowledged as a “landmark decision,” bears a greater resemblance to this case. There, students were expelled from Alabama State College for disciplinary reasons. After holding that due process requires a state university to give its students notice and the opportunity to be heard, the United States- Court of Appeals for the Fifth Circuit articulated standards for the nature of the requisite notice and hearing:

The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending upon the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college.. By its nature, a charge of misconduct, as opposed to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses', is required. Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college’s educational atmosphere and impractical to carry out. Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college.

Dixon, 294 F.2d at 158-59. See also Slaughter v. Brigham Young University, 514 F.2d 622, 625 (10th Cir.), cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 131 (1975) (Due process satisfied where there “was an adequate hearing on the charge with a meaningful opportunity given to plaintiff to participate, to present his position, and to hear the witnesses presenting the facts they had knowledge of.”); Jones v. Snead, 431 F.2d 1115, 1117 (8th Cir.1970) (“[Pjrocedural due process must be afforded a student on .the college campus ‘by way of adequate notice, definite charge, and a hearing with opportunity to present one’s own side of the case and with all necessary protective measures.’ ”) (Quoting Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (8th Cir.1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970)).

Although plaintiff was given notice of the charges against him and a meaningful opportunity to present his version of the facts to an impartial hearing panel, he argues that the University’s procedures were constitutionally defective on several grounds. After reviewing the procedures which the University followed in this case, and the case law applying the due process clause to school disciplinary proceedings, I conclude that plaintiff received more procedural protection than the' due process clause requires. Plaintiff’s argument seems to rest largely on an unstated view that a university may not discipline its students without providing a full-scale adversarial proceeding such as those afforded criminal defendants. Since this view of the University’s constitutional obligations neither comports with the decisional law, nor is a reasonable accommodation of plaintiff’s and the University’s interest, I reject this expansive reading of the due process clause.

In analyzing plaintiffs due process argument that he is entitled to a variety of formal procedural safeguards in a suspension hearing, it is important to keep in mind that the primary purpose of a university is to educate its students. “A school is an academic institution, not a courtroom or administrative hearing room.” Board of Curators v. Horowitz, 435 U.S. 78, 88, 98 S.Ct. 948, 954, 55 L.Ed.2d 124 (1978). Similarly, a school disciplinary proceeding is not a criminal trial, nor is a student accused of cheating entitled to all the procedural safeguards afforded criminal defendants. Jenkins v. Louisiana State Board of Education, 506 F.2d 992, 1000 (5th Cir.1975); Betts v. Board of Education, 466 F.2d 629, 633 (7th Cir.1972); Esteban, 415 F.2d at 1089-90. Formalizing hearing requirements would divert both resources and attention from the educational process. See Jackson v. Dorrier, 424 F.2d 213, 217 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970). (Maintaining a relationship between schools, parents and students “in an adversary atmosphere and according [to] the procedural rules to which we are accustomed on a court of law would hardly best serve the interests of any of those involved.” (quoting District Judge Gray)). While a university cannot ignore its duty to treat its students fairly, neither is it required to transform its classrooms into courtrooms.

Considering first the adequacy of the safeguards which the University provided plaintiff, there is no question that plaintiff had sufficient notice of the charges against him and a meaningful opportunity to prepare for the hearing. Plaintiff received a copy of Prof. Roth-man’s letter to the Academic Judiciary accusing him of cheating. That letter specified that plaintiff was suspected of attaching his cover sheet to another student’s exam. Dean Nissen met twice with plaintiff to discuss these charges and the pending hearing. At the first of these meetings, Dean Nissen gave plaintiff the Manual of Procedures for the Academic Judiciary and explained to him the procedures which the University follows at disciplinary hearings. Transcript of Evidentiary Hearing, June 1, 1984 (Transcript) at 79-80 (testimony of Dean Nissen). The hearing was held approximately six weeks after plaintiff was advised of the charges against him, and therefore, he had sufficient time to prepare his defense. Accordingly, plaintiff’s notice of the charges was constitutionally sufficient.

Plaintiff’s hearing also complied with the requirements of due process. Prof. Rothman presented his evidence to the panel, and plaintiff read a response. Plaintiff had the opportunity to present evidence to support his version of the facts, and to cross-examine Prof. Rothman. Following both sides’ presentations, there was a round-table discussion in which plaintiff participated. Although plaintiff claims that he was continually interrupted at the hearing and was unable to present his case effectively, I find that the record does not support this contention. Dr. Lincoln Faller, who was a member of the Academic Judiciary panel assigned to this case, testified that plaintiff was not interrupted when he read his prepared statement to the panel, nor was he cut off during the round-table discussion. Transcript at 50, 70-71. While Prof. Easter, the other faculty member of the panel, terminated the hearing after plaintiff was asked if he had anything further to add, the testimony indicates that plaintiff’s comments at that point were repetitive. Id. The panel had an obligation to listen to plaintiff’s version of the facts, but this obligation does not extend to listening to plaintiff repeat the same explanation several times. Accordingly, I find that plaintiff had a meaningful opportunity to present his side of the story to the panel.

The hearing panel consisted of two professors and two students. The panel unanimously found plaintiff guilty of cheating. There is nothing in the record to indicate that the panel’s decision was anything less than impartial or fair.

Despite these protections, plaintiff argues that the University’s procedures violated the due process clause. First, plaintiff argues that both the composition of the panel and the timing of the hearing violated his due process rights since both violated procedures specified in the Manual. Specifically, the Manual provides that a hearing panel must hear a case within six weeks of the date the charges are filed or the Administrative Board shall assume jurisdiction and schedule a hearing within six weeks. Here, the hearing was held six and a half weeks from the date of Prof. Roth-man’s letter charging plaintiff with cheating. The Manual also provides that the student government shall appoint the student members of the Academic Judiciary. In this case, because plaintiff’s hearing was held during the summer when most students leave Ann Arbor, Dean Nissen appointed two students to the Academic Judiciary.

I cannot agree with plaintiff that these procedural irregularities rise to the level of constitutional violations. A state agency’s disregard of its own regulation is a constitutional deprivation only where there is an independent due process right to the procedure contained in the agency’s rule:

It is not every disregard of its regulations by a public agency that gives rise to a cause of action for violation of constitutional rights. Rather, it is only when the agency’s disregard of its rules results in a procedure which itself impinges upon due process rights that a federal court should intervene in the decisional processes of state institutions.

Bates v. Sponberg, 547 F.2d 325, 329-30 (6th Cir.1976). See also Bills v. Henderson, 631 F.2d 1287, 1298 (6th Cir.1980) (“[Pjrocedural rules created by state administrative bodies cannot, of themselves, serve as a basis for a separate protected liberty interest.”). In this case, plaintiff has no independent due process right to a hearing within six weeks of the date charges were brought against him. Nor does he have an independent due process right to have the student government select the two student members of his hearing panel. These procedures, moreover, even though violative of the Manual, in no way deprived plaintiff of a fair hearing. Accordingly, I find that in this case, noncompliance with the Manual of Procedure does not rise to the level of a constitutional deprivation.

Second, plaintiff argues that he was denied due process because he was not permitted to bring a representative to the hearing. Plaintiff does not contend that he has a constitutional right to an attorney; rather, he argues that it is fundamentally unfair to deprive him of the assistance of any representative, such as a student-attorney, to aid in the presentation of his case. Plaintiff relies primarily on Henson v. The Honor Committee, 719 F.2d 69, 73 (4th Cir.1983). There, the Court noted that the right to have a student lawyer represent an accused student at all critical stages of the proceedings was among the “impressive array of procedural protections” which the University afforded its students. Although the courts are split on the issue of the right to representation in student disciplinary proceedings, I am not persuaded that plaintiff had a constitutional right to be represented at his suspension hearing.

The proceedings against plaintiff in this case were not unduly complex, nor was plaintiff unguided through the Academic Judiciary proceedings. The Manual of Procedures for the Academic Judiciary is written in plain English, and is comprehensible to the average college student. Plaintiff spoke with Dean Nissen twice concerning his case, and had the benefit of Dean Nissen’s responses to his questions. Significantly, the University did not proceed against plaintiff through an attorney or other representative. Had an attorney presented the University’s case, or had the hearing been subject to complex rules of evidence or procedure, plaintiff may have had a constitutional right to representation. But here, Prof. Rothman presented the case against plaintiff, and there was nothing mysterious about the Academic Judiciary. proceedings. Plaintiff was able to present his case effectively to the Academic Judiciary, and suffered no disadvantage due to the lack of representation at the hearing.

Third, plaintiff argues that his due process rights were violated because the University failed to make a transcript or recording of the hearing. The only record of the hearing is handwritten notes taken by one of the student members of the Academic Judiciary. Contrary to plaintiff’s argument, I am not persuaded that the due process clause requires the University to provide a verbatim transcript of the hearing. While this case illustrates the wisdom of recording such hearings, it is clear that the Constitution does not impose such a requirement. Whitfield v. Simpson, 312 F.Supp. 889, 894 (E.D.Ill.1970); Due v. Florida Agricultural and Mechanical University, 233 F.Supp. 396, 403 (N.D.Fla.1963).

Plaintiff next argues that he was deprived his due process right to cross-examine his accuser. Plaintiff argues that his real accuser was not Prof. Rothman, but the anonymous student who called Rothman and claimed to have seen plaintiff attach his cover sheet to another student’s exam. I disagree with plaintiff that his real accuser was the anonymous student. It was in Prof. Rothman’s class that plaintiff cheated, and it was Rothman who determined that plaintiff’s cover sheet was attached to another student’s exam. The fact that Rothman undertook his investigation based on an anonymous phone call does not alter his status as plaintiff’s accuser. Plaintiff, moreover, again misconstrues the nature of a school disciplinary proceeding. The Constitution does not confer on plaintiff the right to cross-examine his accuser in a school disciplinary proceeding. Boykins v. Fairfield Board of Education, 492 F.2d 697, 701-02 (5th Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975) (“It well may be that all Morrissey [v. Brewer ] contemplates [is] ... a right to confront and cross-examine such adverse witnesses as appear ... ”); Winnick v. Manning, 460 F.2d 545, 549 (2d Cir.1972) (“The right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings.”); Dixon v. Alabama State Board of Education, 294 F.2d at 159 (Due process does not require “a full-dress judicial hearing, with the right to cross-examine witnesses____”). Dillon v. Pulaski County Special School District, 468 F.Supp. 54 (E.D.Ark.1978), affd. 594 F.2d 699 (8th Cir.1979), which plaintiff relies on, stands only for the limited proposition that a student facing suspension may have the “right to confront the school official or teacher having primary knowledge of the facts relevant to the disciplinary proceeding.” Dillon, 468 F.Supp. at 58 (emphasis added). In fact, that Court recognized that “the need for anonymity of student accusers, who might otherwise be the victim of reprisals from fellow students, could prevail over the right to confrontation.” Dillon, 468 F.Supp. at 58. Therefore, I hold that plaintiff had no due process right to confront the anonymous student who reported plaintiffs cheating. I further find that the University did not deprive plaintiff of his right, if any, to cross-examine Prof. Rothman.

Plaintiff further argues that he was deprived of his due process rights because the Academic Judiciary failed to provide a detailed statement of reasons explaining its decision. Five days after the panel reached its decision, plaintiff learned that he had been found guilty of cheating when he telephoned Dean Nissen. Shortly thereafter, plaintiff received a letter from the Academic Judiciary stating that he had been found “guilty of cheating in Statistics 402 as a result of the case presented by Professor Rothman.”

In analyzing the need for a detailed statement of reasons in light of the criteria outlined in Morrissey v. Brewer, I am not persuaded that plaintiff has a constitutional right to such a statement. I agree with the reasoning of Bleicker v. Board of Trustees, 485 F.Supp. 1381, 1387-88 (S.D.Ohio 1980):

Plaintiffs private interest in continuing her education without interruption is assumed, for the purpose of this analysis, to be an important one. The fiscal and administrative burdens on the government ... to provide the omitted protections [including a detailed reasons statement] would be minimal____
The critical inquiry, then, is to be found in the second prong of Mathews: the risk that the procedures used would erroneously deprive plaintiff of her interest, and the probable protective value of the additional safeguards. Defendants would be well advised to adopt the additional procedures as a matter of routine, for under certain circumstances these relatively inexpensive safeguards might contribute significantly to protecting an important private interest. The Court believes, however, that the proposed procedures would have contributed little towards reducing the risk of error in plaintiff’s case. [Footnotes omitted].

See also Herman v. University of South Carolina, 341 F.Supp. 226, 232 (D.S.C.1971), affd. 457 F.2d 902 (4th Cir.1972) (University’s procedures adequately protected student’s interests. “There is no requirement in law or reason that suggests or demands the Board to issue written findings of fact or conclusions of law similar to those required by Rule 52 of the Federal Rules of Civil Procedure.”). But see Morale v. Grigel, 422 F.Supp. 988, 1004 (D.N.H.1976) (Where student suspended for possession of marijuana, “written reasons [for the suspension] are constitutionally mandated.”).

Here, plaintiff had written notice of the specific charges against him and, due to the nature of the accusation, the reasons for the panel’s decision were obvious. Based on the undisputed fact that plaintiff’s cover sheet was attached to another student’s exam, the testimony of Prof. Rothman, and the hearing testimony indicating that plaintiff found himself in a precarious position at the end of that semester, the panel apparently disbelieved plaintiff’s version of the facts and concluded that he attached his cover sheet to another student’s exam. Articulating the obvious to plaintiff would not reduce a risk of erroneous deprivation of plaintiff’s rights.

In viewing the totality of the circumstances surrounding this case, I am persuaded that plaintiff was afforded his due process rights. There is no question that plaintiff’s interest in uninterrupted education and remaining free from stigma are weighty. I am convinced, however, that the’ procedures followed by the University sufficiently minimized the risk of an erroneous deprivation of plaintiff’s liberty and property interests. Plaintiff received adequate notice of the charges against him. He was given a copy of the Manual of Procedure for the Academic Judiciary in order to enable him to prepare for his hearing. Plaintiff also had the opportunity to discuss his case and hearing with the Assistant Dean of Student Academic Affairs. At the hearing itself, plaintiff read a prepared statement to the panel, and participated in an informal discussion of his case. Thus, he was given a meaningful opportunity to present his version of the facts. The additional procedures to which plaintiff claims he was entitled are either too cumbersome and intrusive into the educational process, or would not reduce significantly the risk of an erroneous deprivation of rights.

III. CONCLUSION

Since plaintiff was threatened with the loss of a protected interest, he was entitled to the protection of the due process clause. The due process clause requires that plaintiff be given adequate notice of the charges against him, and a meaningful opportunity to be heard. The specific procedures required in any given circumstances depend on the nature of the interests affected, the risk of an erroneous deprivation of that interest through the procedures used, and the burdens on the state of additional or substitute procedures. Balancing these factors in this case, I conclude that plaintiff has been afforded his due process rights.

An appropriate order may be submitted.

      . The Supreme Court has repeatedly emphasized that these requirements, notice and the opportunity to be heard, are the fundamental requirements of the due process clause. E.g. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

      . Goss involved a suspension for disciplinary reasons. Academic suspensions or dismissals, by contrast, require only the barest procedural protections. See Board of Curators v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) (dismissal for academic reasons does not require a hearing). In this case, plaintiff was accused of cheating, an offense which cannot neatly be characterized as either "academic” or "disciplinary”. The Supreme Court’s reasoning in Horowitz, however, persuades me that cheating should be treated as a disciplinary matter. In declining to impose a hearing requirement on a medical school in an academic dismissal case, the Court noted that academic dismissals involve "a judgment [that] is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision.” Horowitz, 435 U.S. at 90, 98 S.Ct. at 955. In this case, the proceedings against plaintiff primarily involved resolution of factual disputes, and there was little need for subjective judgment or evaluation. Further, dismissal for cheating requires greater procedural protection than academic dismissals since the former are more stigmatizing than the latter, and may have a greater impact on a student’s future. But see Corso v. Creighton University, 731 F.2d 529, 532 (8th Cir.1984) (cheating on an exam is "clearly an academic matter”). Accordingly, I hold that plaintiff is entitled to the higher level of procedural protection guaranteed in school disciplinary proceedings.

      . Goss, 419 U.S. at 576 n. 8, 95 S.Ct. at 737 n. 8.

      . The College expelled plaintiffs, who were black, because they requested service at a white lunch counter in violation of Alabama law, and they participated in several mass demonstrations.

      . The hearing was adjourned until the following day for the sole purpose of verifying the signature of a student who signed a statement on plaintiff's behalf. Although plaintiff was not present at this session, he knew that the hearing was reconvened for the sole purpose of verifying the signature.

      . Prof. Rothman’s letter to Dean Nissen accusing plaintiff of cheating is dated April 30, 1982, and the hearing was held on June 16, 1982, six weeks and five days later. The University claims that Prof. Rothman's letter to Dean Nissen was hand-delivered on May 6, 1982, (Defendant’s answer to interrogatory No. 12), and that the hearing was timely since it was held within six weeks of the time the letter was delivered to the Dean. Plaintiff argues that the University should be held to the date of Roth-man's letter. I need not resolve this dispute since I hold that even if the hearing was held six weeks and five days after the plaintiff was charged with cheating, this tardiness did not constitute a denial of due process.

      . Plaintiff’s complaint also states a cause of action for breach of contract: "The defendants, by articulating to plaintiff that he would be tried and receive a hearing pursuant to the Manual of Procedures, then in failing to do so, breached the contract, express and implied, with the plaintiff.” Complaint at ¶ 40. At the final hearing on the cross-motions for summary judgment, plaintiff’s counsel noted that due process lies at the heart of this case. Nonetheless, I rule that this contract claim is without merit. Without exploring whether such a contract exists, and if so, what the nature of the rights and obligations are under such a contract, I find that the alleged breaches are not material.

      . Compare Givens v. Poe, 346 F.Supp. 202 (W.D.N.C.1972) (Due process clause requires representation by counsel at suspension hearings.) and Esteban v. Central Missouri State College, 277 F.Supp. 649 (W.D.Mo.1967), affd. 415 F.2d 1077 (8th Cir.1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970) (Due process clause requires representation by counsel at a suspension hearing.) with Madera v. Board of Education, 386 F.2d 778 (2d Cir.1967), cert. denied, 390 U.S. 1028, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968) (No right to counsel at a conference relating to the suspension of a student) and Everett v. Marcase, 426 F.Supp. 397 (E.D.Pa.1977) (Due process does not require the presence of an attorney at a formal hearing on disciplinary transfers).

      . Plaintiff also argues that this failure by the University breached its contract with plaintiff insofar as the Manual of Procedures provides that "the Hearing Board shall provide each party with a written statement containing the decision rendered, and the relevant reasons." As discussed at note 7, supra, I find that there is no merit to this contract claim. Even if the Academic Judiciary’s letter to plaintiff informing him of the Panel’s decision is not as detailed as the Manual contemplates, I find that this breach is not material.

      . Morale relies on two Supreme Court cases to support its holding that written reasons for a suspension are constitutionally mandated. In
        Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court held that an inmate subject to disciplinary actions must be provided a written statement explaining the reasons for such actions. In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972), the Court held that a parole board must provide a “written statement by the fact-finders as to the evidence relied on and reasons for revoking parole.” These cases are distinguishable because they involve the rights of prisoners and parolees, whose liberty interests in their freedom and conditions of confinement are greater than a student's interest in uninterrupted education and remaining free from the stigma of being convicted of cheating on an exam. As noted above, the due process clause does not require that all the procedural safeguards mandated in the criminal/prisoner context must apply in school suspension cases.


source: Caselaw Access Project

author: JOSEPH H. YOUNG, District Judge.

license: Public Domain

text:
    Frank A. BARTH, Jr., et al. v. ATLANTIC CONTAINER LINE, et al.
    Civ. No. Y-83-3805.
    United States District Court, D. Maryland.
    Nov. 26, 1984.

      James W. Bartlett, III, Baltimore, Md., and J. Marks Moore, III, Baltimore, Md., for plaintiffs.
    Richard R. Jackson, Jr., and Peter J. McNamara, Baltimore, Md., for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Plaintiffs in this action are eight individuals who each, at different times, arranged to ship their privately-owned vehicles to the United States. Each plaintiff has alleged sustaining damage and loss to his vehicle as a result of the negligence of the defendant, the unseaworthiness of the defendant’s vessels, and/or a breach of the contracts of carriage as set forth in the bills of lading. Defendants, Atlantic Container Line, et al., have moved for partial summary judgment with respect to five of the plaintiffs, claiming that any potential recovery should be limited to $500 per vehicle.

The basis for this claim is Section 4(5) of the Carriage of Goods by Sea Act (COG-SA), 46 U.S.C. § 1304(5), and the provisions of the applicable bill of lading. Those sections limit the liability of the carrier and/or its agent to $500 per package or per customary freight unit, unless a higher value was declared by the shipper and inserted onto the bill of lading, or unless the shipper was not given a fair opportunity to declare the higher value.

The questions to be determined on .this motion for summary judgment involve whether a car is a “customary freight unit,” and whether plaintiffs were given a fair opportunity to declare a higher value for their vehicles and pay an accompanying higher charge to ship the vehicles.

It is clear that a car is a “customary freight unit” for the purpose of determining whether the $500 limitation applies. Individual shipping units, such as the vehicles involved in this case, each may constitute a customary freight unit when a flat amount is charged per shipping unit. General Motors Corporation v. Moore-McCormack Lines, Inc., 451 F.2d 24 (2d Cir.1971). The applicable tariff on file with the Federal Maritime Commission for Wallenius Lines covering the shipments of the five plaintiffs demonstrate that the charge per shipment is calculated on a per vehicle rate. Exhibit G to Affidavit of William J. Leonard. The tariff indicates that vehicles are classified according to length; each class of vehicles is then assigned a flat rate charge. When vehicles are shipped, the length of each vehicle is used to determine which of the previously established flat rates will be assigned as the freight charge.

Plaintiffs have argued that because the length of the vehicles is used to calculate the freight charge, the unit of length measurement constitutes the customary freight unit, not the vehicle itself. While the length of each vehicle does permit assigning that vehicle to a certain category, length does not appear to be the only basis for computing the freight charge. A particular unit of length has no value assigned to it. This fact is demonstrated by the fact while increments in freight charge vary widely, increments in length remain constant.

In a case strikingly on point, the District Court for the Southern District of New York found that individual automobiles each constituted a customary freight unit for limitation of liability purposes. Freedman & Slater, Inc. v. M/V TOFEVO, 222 F.Supp. 964 (S.D.N.Y.1963). In that case, the vehicles had been classified according to type, each type of vehicle a different size. The applicable tariff set forth a lump sum freight charge per vehicle. Despite allegations that the freight charge was actually calculated based upon a per cubic meter rate, the court found that the vehicle itself was the customary freight unit.

In a similar case not involving automobiles, General Motors Corporation v. Moore-McCormack Lines, Inc., 451 F.2d 24 (2d Cir.1971), the Second Circuit determined that a carrier was only responsible for $500 in damages to a power plant shipped to Brazil. The carrier’s tariff quoted a rate for power plants at a flat $24,750 apiece, excluding surcharges. There was evidence, however, that a 40 foot cubic ton weight unit was used in computing the charge and that a surcharge was added for power plants above a certain weight. Nevertheless, the court found that the power plant itself was the customary freight unit. The court observed that “[a]lthough, as GM claims, the 40 foot cubic ton is one factor utilized in computing the charge, it does not therefore become the freight unit for the transaction.” 451 F.2d at 25-26. Because the pre-calculated freight was assigned based upon a description of the power plants per unit, the limitation was properly applied per power plant.

In this case, a pre-calculated freight rate is assigned based upon a description of the vehicle. Although length may be one factor used in computing a freight charge per vehicle, the charge is applied on a per vehicle basis. The cars themselves are the customary freight unit, and the limitation therefore applies per car unless a higher value was declared or a fair opportunity was not given to declare a higher value.

It is undisputed that none of the plaintiffs declared a higher value for their vehicles at the time of shipment. Plaintiffs did, however, have a fair opportunity to declare a higher value. The applicable bill of lading clearly outlined the limitation of liability and explained the shipper’s opportunity to avoid the limitation and declare a higher value. Plaintiff Hudson, who shipped his car pursuant to this long form bill of lading, was clearly afforded an opportunity to' avoid the $500 limitation. Although four of the plaintiffs used a short form bill of lading, that short form expressly incorporated the terms, conditions and limitations set out in the long form bill of lading. The long form was available upon request to all plaintiffs. “Where the bill of lading incorporates COGSA, and also contains language providing for limitation of liability, this is prima facie evidence of an opportunity to avoid the limitation. The burden is then shifted to the shipper to prove that an opportunity to declare a higher rate did not exist.” Bumble Bee Sea Foods v. SS KIKU MARU, 1978 AMC 1586, 1589 (D.Md.1978) (Young, J.).

This result is not different simply because four of the plaintiffs used a short form bill of lading. All plaintiffs were put on notice that there were terms and conditions contained in the long form which would apply to their shipments. All plaintiffs were given the opportunity to obtain the long form bill of lading and examine those conditions and limitations. The long form clearly contained space for declaring a higher value. Plaintiffs cannot complain now because they failed to take advantage of their opportunity to avoid the limitation at the time of shipment.

In a recent similar case, Judge Northrop of this District found that a carrier had made a prima facie showing of a fair opportunity to declare a higher value in a situation where a short form bill of lading had been used. The court found that a variety of factors combined to establish that prima facie showing, including the fact that the short form bill of lading expressly incorporated the terms of the long form, the long form was available upon request, and the form specifically explained the $500 limitation of liability unless a higher value was declared. See Cincinnati Milacron, Ltd. v. M/V American Legend, Civ. No. N-83-1958 (D.Md. June 11, 1984), slip op. at 4. In this case, defendants have made a prima facie showing of a fair opportunity by establishing those facts. The burden then shifts to the plaintiff to rebut that showing, or at least to allege facts in dispute which would, if true, rebut the prima facie showing.

Plaintiffs have failed to sustain their burden of proving they did not have a fair opportunity to declare a higher value. At best, they have argued that they were unaware of the applicable limitation, either because they were inexperienced, because they failed to review the long form bill of lading, or because they were not told by the shipping agent of the limitation of liability. Plaintiffs assert that “the question is not whether defendants’ agent had such forms [the long form bills of lading] available but whether [plaintiff] was made aware of the provisions in the form allowing him to declare a higher value.” On the contrary, the question is whether the plaintiffs had the opportunity to make themselves aware of those provisions. The fact that none of the plaintiffs took advantage of that opportunity does not change the legal conclusion that they were afforded a fair opportunity to do so. As Judge Northrop noted in Cincinnati Milacron, slip op. at 5, “[i]t is not required that the shipper had actual notice of the limitation of liability. Rather, the standard is that a shipper be afforded a fair opportunity to declare a higher value.”

In Tessler Bros. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974), plaintiffs argued that summary judgment should not be granted because there was no evidence that the plaintiff, shipper had actually been told of the opportunity to avoid the limitation. The court held instead that the statement in the bill of lading that such limitation existed, plus the incorporation of the provisions of COGSA, was prima facie evidence of a fair opportunity. Summary judgment was therefore properly granted because plaintiffs failed to rebut that showing.

Plaintiffs in this case have similarly failed to rebut the showing of a fair opportunity to declare a higher value. They have not argued or alleged any facts which would show that the opportunity established by defendants was not actually available to them. The plaintiffs have alleged various reasons why they failed to avail themselves of that opportunity, but because the statute requires only that a fair opportunity be given, those allegations are immaterial. It is clear that, as a matter of law, plaintiffs had a fair opportunity to declare a higher value for their vehicles and avoid the limitation of liability at the time of shipment.

Accordingly, the defendants’ motion for partial summary judgment will be granted, and any potential recovery by the plaintiffs will be limited to the amount of $500.

Defendants have also moved for summary judgment as to plaintiff Kenyon, because Kenyon’s claim was filed more than one year after his cause of action accrued. However, Kenyon has alleged that the one-year period of limitations was reopened by the defendants’ offer of settlement after the one-year period had elapsed. Whether the limitations period was indeed reopened may depend on whether the offer of payment was unequivocally made and whether it expressed a definite intention to pay. See United States v. Glens Falls Ins. Co., 546 F.Supp. 643 (N.D.N.Y.1982). The motion for summary judgment as to plaintiff Kenyon is therefore denied.

       For example, automobiles up to 3.50 meters in length are charged a flat rate of 259.50. Automobiles from 3.50 meters to 3.75 meters, an increment of .25 meters, are charged 281.50, an increase of 26. The next length increment, again .25 meters, increased the charge by 45. Although the increments in length remain uniform, the increments in cost vary from 26 to 64, demonstrating that a unit of length has no particular value assigned to it.


author: DOUMAR, District Judge.

text:
    GENERAL ELECTRIC CO., Plaintiff, v. BROWN TRANSPORT CORP., Defendant.
    Civ. A. No. 83-861-N.
    United States District Court, E.D. Virginia, Norfolk Division.
    Nov. 26, 1984.

      John D. Padgett, Henry P. Bouffard, Jett, Agelasto, Berkley, Furr & Price, Norfolk, Va., for plaintiff.
    Forest A. Nester, Seawell, Dalton, Hughes & Timms, Norfolk, Va., for defendant.
   ORDER

DOUMAR, District Judge.

This is an action pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707, to recover for cargo that was damaged while being shipped from Cleveland, Ohio to Norfolk, Virginia. The primary issues before the Court are:

(1) Whether or not the shipper-plaintiff was required to send a written claim to the carrier-defendant; and

(2) If a- written claim was required, whether or not the purported written notice which failed to claim a specified or determinable amount of damages was sufficient to constitute a valid claim under the facts of the case.

After a trial without a jury, the Court rules that:

(1) the shipper was required to send a written claim to the carrier; and

(2) a valid written claim should contain a request for the payment of a specified or determinable amount of money, unless such information was not then available. When information pertaining to the amount of damages is not immediately available it must be communicated to the carrier within a reasonable time after the shipper reasonably obtains the information. In the instant case, the shipper did not have information pertaining to the amount of damages when it sent its “Intent to Claim” letter, the purported written notice. The shipper, however, failed to communicate the amount of damages within a reasonable time after it obtained such information. The Court, therefore, enters judgment in favor of the defendant.

1. Facts

The facts may be summarized as follows. The plaintiff, General Electric Co., (G.E.) the owner of four electrical control panels, entered into a shipping contract with the defendant, Brown Transport Corp. (Brown). Acting as carrier, Brown was to deliver the goods of the shipper, G.E., to Norfolk, Virginia. The control panels were picked up by an agent of Brown on or about February 5, 1982 at the plant of the Automatic Sprinkler Corporation of America located in Cleveland, Ohio. The documents of transport did not note any exceptions as to the condition of the control panels when Brown took the panels into its care and custody. The panels were delivered by an agent of Brown on February 12, 1982 to Dixie Box and Crating located in Norfolk, Virginia. The delivery receipt, executed in Norfolk, noted exceptions to the condition of the electrical control panels. Thus, the control panels, in satisfactory condition when placed in the care and custody of Brown, were damaged by the time the shipment reached Norfolk. Therefore, it appears that the control panels were damaged while under Brown’s care and custody. The electrical control panels were then returned to the Automatic Sprinkler Corp. for repairs. Prior to shipping the panels back to Cleveland, an inspector representing Brown examined the panels and signed an inspection report dated March 17, 1982 (Ex. 2).

G.E. claims to have sent a letter to Brown, dated March 9, 1982, expressing an intent to submit a claim (Ex. 7). Brown claims never to have received the letter in question. The purported letter sets forth the waybill number, the date of shipment, the route of the shipment and the contents of the cargo. Although the letter does not claim a specific or ascertainable amount of damages, it states that such information will be provided at a later date (Ex. 7). The last paragraph of the letter asks Brown to acknowledge “receipt of this Intent to Claim.” Id. The control panels were then repaired and G.E. received a bill for the repairs in the amount of $10,200 on or about August 30, 1982 (Ex. 10).

There was no communication between G.E. and Brown from the time the purported letter of March 9th was sent until the middle of November 1982. Brown never acknowledged receipt of the March 9th letter, as G.E. had requested, nor did G.E. attempt to communicate with Brown. Nine months ahd. three days after the control panels were noted as damaged and approximately two months and fifteen days after G.E. was aware of the amount of damages, a letter dated November 15, 1982, was sent to Brown setting forth damages in the amount of $10,681.80. This letter was received by Brown on November 18, 1982 (Ex. 8). On November 30, 1982 Brown sent a letter to G.E. denying the claim because it was not filed within the nine month limit specified in Section 2(b) of the bill of lading (Ex. 15).

G.E. argues that the claim letter dated March 9 is sufficient to satisfy a written notice requirement. In the alternative, the plaintiff argues that the carrier’s actual knowledge of the damage is sufficient to satisfy a written notice requirement. Brown’s position, on the other hand, is that section 2(b) of the uniform straight bill of lading, incorporated in the contract between parties, requires a claim to be in writing. Furthermore, this writing requirement cannot be satisfied by actual notice. Assuming arguendo that the March 9 letter was sent to it, the defendant is of the opinion that it was insufficient to establish a valid claim by virtue of 49 C.F.R. § 1005.(b) which provides, inter alia, that a written claim must set forth a specified or determinable amount of damages. Furthermore, the letter of November 15, setting forth the actual amount of damages, was sent after the 9 month time limit of Section 2(b) of the bill of lading.

The Court notes the importance of the issues presented inasmuch as they have not been previously addressed by this Court or the Court of Appeals for the Fourth Circuit. In addition, there appears to be a conflict between at least two United States Courts of Appeals.

2. Letter of March 9, 1982 Was Sent by G.E.

As a preliminary factual matter, the Court must decide whether the March 9 letter was sent by G.E. to Brown. Robert J. Condon, the author of the letter, testified that he placed the letter in his outgoing mailbox located on his desk. He further testified that G.E. maintained a standard business practice of collecting letters from outboxes and depositing them into the U.S. mail system. A copy of this letter was also sent to the plaintiff’s insurance agent. As evidence that the letter was mailed, the copy of the letter admitted in court contains a stamp denoting that it was received on March 12, 1982 by the plaintiff's insuranee agent Marsh & McLennan (Ex. 7). Against the evidence presented by G.E., a witness for Brown testified that Brown never received the March 9 letter.

The Court acknowledges that, generally, proof that a letter was properly mailed raises the presumption that it was received by the addressee. See Hartford Fire Ins. Co. v. Mutual Sav. & Loan, 193 Va. 269, 68 S.E.2d 541 (1952); Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d 497, 498 (1st Cir.1962). It is also noted that the effect of the presumption, never irrebuttable, may be different depending upon the rule in effect in the jurisdiction. See 9 Wigmore, Evidence § 2519 (Chadbourn rev. 1981). The proper effect to be afforded this presumption is not an issue in a bench trial where a court, instead of a jury, is the finder of fact. A problem that arises is that the testimony reveals that the letter was merely placed in an outbox to be picked up later by an employee, who, in the ordinary course of business, would then mail it. It is commonly recognized that evidence of a common business practice is sufficient to establish that a letter was mailed. See Citizens’ Bank & Trust Co. v. Allen, 43 F.2d 549, 552 (4th Cir.1930); Myers v. Moore-Kile Co., 279 Fed. 233, 235-36 (5th Cir.1922); 1A Wigmore, Evidence § 95 (Tillers rev. 1983). Based upon the above, the Court finds, as a matter of fact, that the March 9 letter was mailed by G.E. and therefore received by Brown. Brown’s denial of receipt is, therefore, without effect. Having decided that the March 9 letter was received by Brown the Court will not consider whether it was necessary and sufficient in order to establish a valid claim.

3. Written Claim Was Required

The statute controlling the liability of common carriers under a bill of lading is codified at 49 U.S.C. § 11707. Commonly referred to as the Carmack Amendment to the Interstate Commerce Act and previously codified at 49 U.S.C. § 20(11), the statute was enacted to hold carriers accountable for damages to shipments and to curtail discriminatory practices of common carriers. The statute operates to hold common carriers strictly accountable for any actual loss resulting from the transportation of property. It requires common carriers to issue a receipt or a bill of lading for property it receives for transportation, § 11707(a), and prohibits carriers from providing less than 9 months for filing claims against it, § 11707(e). The statute, however, is silent as to what constitutes a valid claim and whether or not such a claim is required to be in writing. To fill this apparent void, Section 2(b), requiring that notice of a claim be in writing, was incorporated into the bill of lading. Section 2(b) has become a primary safeguard against discriminatory practices and an integral part of the uniform published tariffs and regulations. See Loveless v. Universal Carloading & Distributing Co., 225 F.2d 637, 639 (10th Cir.1955).

On February 5, 1982, the date of shipment, a shipping order numbered C12054 was executed (Ex. 14). The shipping order states that it is a bill of lading subject to the classifications and tariffs in effect on the date of the shipment. Id. Evidence submitted by Brown established the bill of lading terms then in effect by virtue of the National Motor Freight classification 100-H (See Ex. 17-19 and 27). Section 2(b) of the bill of lading provides:

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, or carrier in possession of the property when the loss, damage, injury or delay occurred, within nine months after delivery of the property (or, in the case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted-thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.

(Ex. 18) (emphasis added).

Thus, the bill of lading, as incorporated in the shipping order, requires that a claim be filed in writing. The Court will now consider whether actual notice may substitute for the written notice requirement of the bill of lading.

4. Actual Notice Does Not Substitute for the Requirement of Written Notice.

Relying upon the case of Hopper Paper Co. v. Baltimore & O.R., 178 F.2d 179 (7th Cir.1949), cert. denied, 339 U.S. 943, 70 S.Ct. 797, 94 L.Ed. 1359 (1950), G.E. argues in the alternative that actual notice of the claim may substitute for the written notice requirement. G.E. argues that Brown had actual notice of the claim by virtue of an Inspection Report dated February 17, 1982 (Ex. 2) which contains the signature of an agent of Brown. After careful analysis, this Court declines to adopt the Hopper approach.

Hopper involved an action to recover for a shipment of paper that was damaged as a result of a collision between two trains owned by the defendant. 178 F.2d 180-81. The paper was shipped under a bill of lading containing Section 2(b) which required claims to.be filed in writing. Id. at 180. The shipper, however, failed to file a written claim. Finding that the carrier and its agents had knowledge of the facts concerning the damages and reasoning that allowing actual notice to substitute for the written notice requirement was in no way discriminatory, the court ruled in favor of the shipper.

The court in Hopper relied on the Supreme Court case of Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948 (1916). In Blish the Court had an opportunity to consider what constitutes a valid written claim. Although the Supreme Court stated that the written notice provision of a bill of lading “does not require documents in a particular form” and that this requirement “is addressed to a practical exigency and ... is to be construed in a practical way,” 241 U.S. at 198, 36 S.Ct. at 545, the Blish Court ruled that the writing in question, a telegram, was a sufficient writing to constitute a valid claim. Thus, the Supreme Court did not in any way substitute actual notice for the writing requirement of the bill of lading. Indeed, the Court stated that a timely written notice requirement “is a precaution of obvious wisdom, and in no respect repugnant to public policy, that the carrier by its contracts should require reasonable notice of all claims against it even with respect to its own operations.” Id. at 196, 36 S.Ct. at 544. The Supreme Court, in Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 222, 51 S.Ct. 453, 458, 75 L.Ed. 983 (1931) stated that the Blish decision stands for the principle that to permit noncompliance with the notice requirement “would be to alter the terms of a contract, made in pursuance of the Interstate Commerce Act and having, in effect, the quality of a statute of limitation, and thus to open the door for evasions of the spirit and purpose of the act to prevent preferences and discrimination in respect of rates and service.” Furthermore, the Supreme Court, in St. Louis Iron Mountain & S. Ry. Co. v. Starbird, 243 U.S. 592, 606, 37 S.Ct. 462, 61 L.Ed. 917 (1917), held that actual knowledge of the carrier in the form of verbal communications does not comply with a written notice requirement. A number of United States Courts of Appeals that have considered this issue have declined to adopt the Hopper reasoning. This Court declines to adopt the Hopper approach and alter the contract between the parties. This Court holds that Brown’s actual knowledge as evidenced by the Inspection Report does not meet, or substitute for, the written notice requirement. The Court will now consider the question of what constitutes a valid written claim.

5. The March 9 Letter Was Not Sufficient to Establish a Valid Claim.

The primary issue in this case amounts to whether or not the March 9 letter, which failed to claim a specific amount of damages, was sufficient to constitute a valid claim. As previously stated, the statutory framework did not set forth the requirements of a valid claim. Section 2(b) of the bill of lading providing that claims be submitted in writing partially filled this void. The courts, however, were left with the task of determining the contents of the required writing. The vast amount of cargo claims brought in court resulted in long delays in their adjudication. Inconsistent court results coupled with long delays provided carriers with economic incentive to litigate even legitimate claims. See Ex Parte No. 263, supra n. 3, 340 I.C.C. at 526. This situation created an excellent opportunity for carriers to engage in discriminatory practices. Carriers could admit liability and quickly pay the claims of favored shippers while dragging other shippers, with similar claims, through the long, inconsistent and expensive litigation process. Id. at 524, 544. This form of discrimination was one of the evils the Car-mack Amendment sought to eliminate.

The Interstate Commerce Commission (ICC) considered these problems in a rather extensive general rulemaking proceeding, the purpose of which was to conduct an “all-embracing inquiry into the national loss and damage claims situation.” Id. at 519. As a result of the rulemaking proceedings, the ICC promulgated regulations which “govern the processing of claims for loss, damage, injury, or delay to property transported or accepted for transportation, in interstate or foreign commerce,” by each carrier subject to the Interstate Commerce Act. 49 C.F.R. § 1005.1. The regulations require claims to be submitted in writing, and set forth minimum filing requirements which include identifying the shipment, asserting liability and claiming damages of a specified or determinable amount of money. The regulations also contain a list of documents which do not constitute a valid written claim.

Applying the regulations, it would appear that the March 9 letter fails to meet the minimum filing requirements in that it does not make a “claim for the payment of a specified or determinable amount of money.” The plaintiff attempts to cure this apparent defect by arguing that the ICC regulations are not applicable to disputed claims under the rule of the Seventh Circuit as developed in Wisconsin Packing Co. v. Indiana Refrigerator Lines, 618 F.2d 441 (7th Cir.) cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980).

In Wisconsin Packing the shipper sued the carrier because a defective shipment was rejected by a third party. The shipper and carrier exchanged only one written communication during the applicable 9 month period. 618 F.2d at 443. As the written notice in the case at bar, the letter, failed to state a specific dollar amount of damages. Id. n. 2. The court .determined that the purpose of the regulations was to encourage parties to voluntarily settle their disputes. The court, seizing upon certain language, held that.the regulations were applicable only to voluntary dispositions and not to situations where the shipper and carrier resort to the litigation process. 618 F.2d at 445. Finding the regulations inapplicable, the court applied the case law decided prior to the promulgation of the regulations. The court found that prior to the regulations, written claims that did not contain a stated damage amount were nonetheless valid. See e.g., Thompson v. James G. McCarrick Co., 205 F.2d 897, 900-01 (5th Cir.1953); and American Synthetic Rubber Corp. v. Louisville & N.R. Co., 422 F.2d 462, 468 (6th Cir.1970). The court held that a written claim is not rendered invalid by virtue of the fact that it lacks a request for a specific amount of damages. Id. at 446. The court, noting that the reason for a written notice requirement was to afford a carrier an opportunity to inspect the damaged goods, held that the combination of actual and written notice had sufficiently served this purpose.

The defendant, on the other hand, urges this Court to reject the rule of Wisconsin Packing and apply the ICC regulations. In support of its position, the defendant relies upon Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67 L.Ed.2d 340 (1981). The pertinent facts of Pathway reveal that the only written communication during the 9 month period failed to state a specified or determinable amount of damages. The Second Circuit declined to adopt the Seventh Circuit’s voluntary/in voluntary distinction and held that the ICC regulations were applicable and operated to displace previous inconsistent case law.

Considering this issue de novo, the Court is of the opinion that the Seventh Circuit’s voluntary/involuntary distinction was neither intended nor mandated by the ICC regulations. The Court further believes that application of the distinction enhances a carrier’s ability to discriminate between shippers and therefore flounts the purpose of the regulation and statutory framework. The Court, therefore, declines to adopt the Seventh Circuit’s voluntary/involuntary distinction.

49 C.F.R. § 1005.1 which sets forth the regulations’ applicability provides that it “shall govern the processing of claims for loss, damage ... to property transported ... in interstate ... commerce by each ... carrier subject to the Interstate Commerce Act.” Furthermore, the ICC stated that:

[w]e are persuaded by the record in this proceeding that our regulations should embrace the full range of matters relating to the filing of claims, including a prescription of minimum filing requirements and a consideration of documents that do not constitute claims, and claims for uncertain amounts____
Thus, the rules set forth in sections 1005.1 and 1005.2 ... first establish their overall applicability and then set out the manner and form in which loss and damage claims must be filed by claimants in order to accomplish the improvements shown to be required in the public interest in this area.

Ex Parte No. 263, supra, n. 3, 340 I.C.C. at 555-56 (emphasis added).

Based upon an examination of the administrative history and an analysis of the regulations, the Court believes that the ICC does not require or intend that there be a dual standard for assessing the sufficiency of a claim, depending upon whether the carrier voluntarily decides to settle a claim or to contest it. See Pathway Bellows, supra, 630 F.2d at 904.

In holding that the regulations are inapplicable to disputed claims, the Seventh Circuit noted that the ICC “submitted various legislative proposals to increase its role in claims determinations” and “expressed its doubts about its authority to erect substantive barriers to legal claims recovery.” Wisconsin Packing, supra, 618 F.2d at 445. The ICC recognized that it lacks “the jurisdiction to determine the merits or the measure of damages” of a particular claim. Ex Parte No. 263, supra n.3, 340 I.C.C. at 539. However, as the Second Circuit stated in Pathway Bellows, “there is a vast difference between prescribing the form a properly constituted claim must take and that of determing the substantive merits of that claim.” 630 F.2d at 904. It appears to this Court that it is within the ICC’s “jurisdiction and authority to establish proper and reasonable procedures for the timely, proper, and efficient processing and disposition of loss, damage, and other similar claims.” Ex Parte No. 263, supra n.3, 340 I.C.C. at 540. This view appears to be consistent with Wisconsin Packing as the Seventh Circuit merely held that the scope of the regulations was limited to undisputed claims.

In arriving at the conclusion that the regulations were not meant to apply to. disputed claims, the Wisconsin Packing court found that “the purpose of the regulation was to make claim settlement more expeditious by providing procedures for the voluntary disposition of claims by carriers.” 618 F.2d 445. It is this Court’s opinion that the primary purpose behind the ICC regulations, as well as the Car-mack Amendment and other legislative enactments in this area, was to prevent discrimination in the resolution of cargo claims and to insure against unlawful rebates. See Ex Parte No. 263, supra n. 3, at 529. The ICC believed that an efficient way to accomplish this goal was to encourage the voluntary settlement of claims. The ICC noted that:

The establishment of reasonable and uniform regulations and practices for the processing of loss and damage claims and the handling of salvage would reduce considerably the opportunity and, in some instances, the propensity of carriers to engage in such prohibited and discriminatory practices.

Ex Parte, No. 263, supra n. 3 at 544. It is the opinion of this Court that the Seventh Circuit’s approach, rather than providing a remedy for discriminatory practices, operates to encourage such practices. Furthermore, the Seventh Circuit’s rule operates to provide a disincentive for carriers to voluntarily settle cargo claims.

Under the Seventh Circuit’s approach, a carrier is given the power to decide whether a claim will be voluntarily resolved pursuant to the ICC regulations or litigated in court according to the developing case law. Under the regulations, the receipt of a claim triggers numerous obligations on the part of a carrier. The carrier must: create an individual file and assign a file number to the claim 49 C.F.R. § 1005.3(b); acknowledge receipt of the claim within thirty days § 1005.3(a) and; dispose of the claim, in writing, within 120 days after its receipt § 1005.5. The Seventh Circuit’s approach enables a carrier to decide, on a case by case basis, whether it will comply with the obligations imposed by the regulations. A carrier may comply with the regulations and settle the claims of its preferred customers while it drags other customers through the litigation process which impose none of the regulatory obligations upon it. Reduced to its essential, the regulations, as construed by the Seventh Circuit, provide a vehicle for a carrier to discriminate between shippers,' the very evil the regulations were promulgated to remedy. Enabling a carrier to choose between voluntary settlement and litigation provides a carrier with economic incentive to forego the costs involved in the administrative procedure in much the same way that a carrier preferred to litigate prior to the regulations’ promulgation. Thus, why should a carrier resolve a claim within 120 days of its receipt if a carrier can choose to resort to the long drawn out court process? See Ex Parte No. 263, supra n.3 at 526. Although the Seventh Circuit intended to afford the shipper additional protection against the carrier, the result would seem to be the opposite. The Court believes that the regulations, as written, must be applied to both disputed as well as undisputed claims. To construe the regulations otherwise is to sap it of its purpose. It appears to this Court that the regulations super-cede the previously developed case law defining the components of a valid written claim under Section 2(b) of the bill of lading and is controlling in litigated disputes between shippers and carriers.

It is of some concern to the Court that the regulations add the requirement that a claim must state a specified or determinable amount of damages as this information was not previously required. See e.g., Thompson v. James G. McCarrick Co., 205 F.2d 897, 900-01 (5th Cir.1953); and American Synthetic Rubber Corp. v. Louisville & N.R. Co., 422 F.2d 462, 468 (6th Cir.1970). This requirement appears to be quite rigid for an area that traditionally has been liberally construed. A close analysis of the regulations’ history demonstrates that the requirement is not meant to be rigidly applied. The ICC stated:

We believe that the rule of reason requires the situation of the claimant and the opportunity afforded a carrier to investigate a claim must both be considered reconciled here. Unquestionably, if the contract of carriage dictates (as is required by section 2 of the uniform domestic straight bill of lading) that a claim be filed within 9 months, then it certainly behooves a claimant to file within that time because otherwise his claim may be barred. On the other hand, there are times when it is impossible for a claimant to determine accurately the amount that should be claimed. The purpose of a reasonable limitation period is to enable a carrier to investigate the factual situation giving rise to a claim while recollections are still possible and records continue to be available. The actual amount of the claim is not essential immediately to enable a carrier to institute its investigation and, while it should ordinarily be included in the claim, inclusion of the amount claimed is directory rather than absolute. Such amount should, of course, be made known to the carrier as soon as it becomes available in those instances where a claim has earlier been filed.

Ex Parte No. 263, supra n. 3, 340 I.C.C. 554-55 (emphasis added).

It appears to this Court that after balancing the interests of the carrier with that of the shipper, the ICC decided to require a written claim to state a specific amount of damages unless such information is not immediately known. In such an event, the amount must be communicated to the carrier as soon as it becomes available. The commission attempted to balance the legitimate concerns of shippers who complained of carrier improprieties regarding the processing and disposition of cargo claims with charges of carriers that shippers often present spurious and frivolous claims. Id. at 524.

The Court will defer to the expertise of the ICC in this matter and will not upset the balance it struck. The ICC could reasonably believe that a specific dollar requirement would enhance the processing of claims. Indeed, the scope of the carrier’s investigation may be affected by the amount of the claim. We agree with the Second Circuit’s opinion that the ICC, by requiring the claimant to state a specific dollar amount, was in no way intending to afford carriers an unfair opportunity to escape liability.

The minimum filing requirements appear to call for no more information than one ordinarily would expect a claim for damages to contain and. compliance with these requirements is neither onerous nor unreasonable. To the extent that carriers may escape liability, such “windfalls” may be properly traced, not to the existence of the regulations, but to shippers’ unexcused failure to comply with a reasonable condition contained in bills of lading.

630 F.2d at 903 n. 5. Furthermore, as previously noted, the receipt of the claim triggers numerous obligations on the part of a carrier. One of the last of these obligations requires the carrier to dispose of the claim, in writing, within 120 days of its receipt. 49 C.F.R. § 1005.5. It is, therefore, essential for the carrier to know the dollar amount of the claim in order to meet its obligation under the regulations. Therefore, it is not unfair to require a shipper to claim a specific amount of damages.

The rule the Court is adopting may be stated as follows: Under the applicable ICC regulations, a shipper is required to file a written notice containing a claim for a specified or determinable amount of money. If information concerning the amount of damages is not immediately available it must be communicated in writing within a reasonable time after the shipper reasonably gains such knowledge.

Applying the rule as developed to the facts at bar, it appears that G.E. is barred from pursuing its claim. G.E. had knowledge of the actual amount of damages on or about August 30, 1982. They failed, however, to communicate this information to Brown for more than two months. G.E. did not attempt to contact Brown even though Brown never acknowledged, as G.E. had requested, the receipt of its March 9 letter. Testimony at trial revealed that G.E. had received insurance proceeds well before the letter of November 15 was sent. This may very well account for G.E.’s carelessness in failing to inform Brown of the damage amount. It is thus not unfair to hold in favor of the carrier. Further, it should be noted that Brown’s conduct in no way misled G.E. to believe that there was no need to file a written claim. If such were the case, Brown would be estopped from insisting upon G.E.’s compliance with the timely written claim requirement contained in the bill of lading.

The Court, therefore, enters judgment in favor of the defendant Brown.

IT IS SO ORDERED.

      . The . amount is comprised of the following:
      Cost of repairs $10,200.00
      Reboxing 187.92
      Reshipping to Cleveland for repairs 123.06
      Shipping back to Norfolk 170.82
      $10,681.80

      . Compare Wisconsin Packing Co. v. Indiana Refrigerator Lines, 618 F.2d 441 (7th Cir.), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980) (49 C.F.R. § 1005 not applicable to disputed claims) with Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67 L.Ed.2d 340 (1981) (49 C.F.R. § 1005 applicable to disputed claims).

      . For a history of the statutory development in this area, see Ex Parte No. 263: Rules, Regulations, and Practices of Regulated Carriers with Respect to the Processing of Loss and Damage Claims, 340 I.C.C. 515, 521 (1972).

      . See Perini-North River Assoc. v. Chesapeake & O. Ry. Co., 562 F.2d 269, 273 (3d Cir.1977) (“We do not question the accepted rule that actual knowledge on the part of the carrier cannot substitute for the written notice required by a bill of lading.”); Atchison, Topeka & Santa Fe Ry. Co. v. Littleton Leasing Co., 582 F.2d 1237, 1240 (10th Cir.1978) ("[A]ctual knowledge on the part of the carrier’s employees would not dispense the requirement of notice of claim in writing.”)

      . The other written communication, a letter dated November 15, 1982 (Ex. 8), was sent after the 9 month limitation period and therefore cannot be considered.

      . The regulations provide as follows:
      (a) Compliance with regulations. A claim for loss or damage to baggage or for loss, damage, injury, or delay to cargo, shall not be voluntarily paid by a carrier unless filed, as provided in paragraph (b) of this section, with the receiving or delivering carrier, or carrier issuing the bill of lading, receipt, ticket, or baggage check, or carrier on whose line the alleged loss, damage, injury, or delay occurred, within the specified time limits applicable thereto and as otherwise may be required by law, the terms of the bill of lading or other contract of carriage, and all tariff provisions applicable thereto.
      (b) Minimum filing requirements. A written or electronic communication (when agreed to by the carrier and shipper or receiver involved) from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation and: (1) Containing facts sufficient to identify the baggage or shipment (or shipments) of property, (2) asserting liability for alleged loss, damage, injury, or delay, and (3) making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage; provided, however, that where claims are electronically handled, procedures are established to ensure reasonable carrier access to supporting documents.
      (c) Documents not constituting claims. Bad order reports, appraisal reports of damage, notations of shortage or damage, or both, on freight bills, delivery receipts, or other documents, or inspection reports issued by carriers or their inspection agencies, whether the extent of loss or damage is indicated in dollars and cents or otherwise, shall, standing alone, not be considered by carriers as sufficient to comply with the minimum claim filing requirements specified in paragraph (b) of this section.....
      Codified at 49 C.F.R. § 1005.2 (1982).

      . The applicable language reads: A claim for ... damage to ... cargo shall not be voluntarily paid____ 49 C.F.R. § 1005.2(a) (emphasis added).

      . In the alternative the court held that, even if the regulations applied, the shipper had complied with its requirements. 618 F.2d at 445.

      . Id. at 446-47. In Wisconsin Packing, the carrier kept the shipment with the intention of trying to resell the merchandise. The court was therefore of the opinion that the carrier was in as good of a position as the shipper to ascertain the actual dollar amount of damages. Id. at 443-44.

      . The shipper filed a second letter one day after the 9 month limitation period. 630 F.2d at 901.

      . See e.g., Perini-North River Assoc. v. Chesapeake & O. Ry., 562 F.2d 269, 272-73 (3d Cir. 1977).


author: KANE, District Judge.

text:
    Richard COVERT and Ruth Covert, Plaintiffs, v. The ALLEN GROUP, INC., a Delaware corporation, Defendant.
    Civ. A. No. 84-K-1599.
    United States District Court, D. Colorado.
    Nov. 26, 1984.

      Kenneth J. Shakeshaft, Colorado Springs, Colo., for plaintiffs.
    Michael W. Lillie, Hughes & Dorsey, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

The plaintiffs seek recovery because of the Allen Group’s refusal to honor a promise to employ Richard Covert. He alleges that in reliance upon the Allen group’s April IT, 1984, promise to employ him, he terminated his previous employment and sustained other financial and emotional injuries. Richard Covert seeks relief under the following separate counts: 1) bad faith breach of contract (which Covert now moves to rename as promissory estoppel); 2) negligence associated with the recision of the promise of employment; 3) willful and wanton negligence (sic); 4) outrageous conduct; 5) false representation; and 6) breach of a duty of good faith. These claims are not, however, based upon separate and alternative legal theories as plaintiffs suggest. Rather, the counts overlap and simply restate a single claim associated with a broken promise. In addition, in count seven Ruth Covert seeks recovery for loss of consortium.

Jurisdiction is based upon diversity of citizenship. The Coverts are citizens of Colorado and the Allen Group is a Delaware corporation with its principal place of business in New York.

The Allen Group moves to dismiss all but the fifth count of the complaint pursuant to Fed.R.Civ.P. 12(b)(6). The Coverts also move to amend the complaint to rename count one as a claim based upon promissory estoppel.

Defendant admits that plaintiffs’ pleadings adequately present a cause of action based upon promissory estoppel. See Vigoda v. Denver Urban Renewal Authority, 646 P.2d 900, 905 (Colo.1982). Thus, amending the complaint to rename the first count as a claim based upon promissory estoppel would not result in any undue delay or prejudice to defendant. Plaintiff’s motion to amend the complaint is granted. See Fed.R.Civ.P. 15(a); see also Sinclair v. Kleindienst, 645 F.2d 1080, 1085 (D.C.Cir.1981). Moreover, the fifth count, alleging false representation, does not present facts supporting an allegation of tortious conduct. The fifth count merely clarifies the claims based upon promissory estoppel. Thus, taken together counts one and five present a single theory of relief.

All of the plaintiff’s other counts, however, are dismissed for failure to state a claim upon which relief can be granted. See, generally, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Allen Group’s actions may have been negligent, but they were not tortious. Although every contract contains an implied duty of good faith and fair dealing, that duty does not give rise to independent causes of action sounding in tort. See, Hiatt v. Schreiber, 599 F.Supp. 1142, 1145 (D.Colo.1984). Plaintiffs do not allege any facts which support a claim that the Allen Group owed the Coverts any legal obligation or duty other than that created by the alleged promise. Quite simply, the complaint does not sufficiently allege commission of any wrong for which tort law provides redress. The second, third and sixth counts of the complaint are, therefore, dismissed. See also Bloomfield Financial Corp. v. National Home Assur. Co., 734 F.2d 1408, 1414-15 (10th Cir.1984).

Richard Covert’s fourth claim seeks recovery for intentional infliction of emotional distress. As the only factual basis for this claim, he alleges that he suffered emotional distress. Covert confuses damages with a cause of action. The cause of action focuses on the intentional and uncivil behavior of the defendant. See Rawson v. Sears, Roebuck & Co., 530 F.Supp. 776, 780-81 (D.Colo.1982). To prevail, defendant need show that the outrageousness of defendant’s behavior rises to á certain level determined by law. Id. Covert alleges no facts to support allegations of intentional and outrageous conduct. The fourth count of the complaint is, therefore, dismissed.

Ruth Covert seeks recovery for loss of consortium arising out of her husband’s emotional stress. Usually, such claims derive from the separate personal injury allegations of the claimant’s spouse. See, e.g., Hernandez v. U.S., 383 F.Supp. 168, 173-74 (D.Colo.1974); American Ins. Co. v. Naylor, 101 Colo. 41, 70 P.2d 353 (1937). A cause of action for loss of consortium cannot arise out of a cause of action for breach of contract or the ancillary theory of promissory estoppel. Since each of Richard Covert’s tort claims has been dismissed, Ruth Covert’s derivative claim for loss of consortium must also be dismissed. See Pioneer Constr. Co. v. Bergeron, 170 Colo. 474, 462 P.2d 589, 592 (1969).

Punitive damages are not recoverable in suits based upon breach of contract. See Hiatt, at 1147 n. 3; Bloomfield Financial Corp., 734 F.2d at 1414-15. Similarly, exemplary damages will not be awarded under the ancillary equitable theory of promissory estoppel. See Vigoda v. Denver Urban Renewal Authority, 646 P.2d at 905; Defeyter v. Riley, 671 P.2d 995, 998 (Colo.App.1983). Since all tort claims are dismissed, plaintiffs present no legal theory upon which punitive damages can be awarded. All claims for punitive damages are dismissed.

Finally, the Allen Group argues that, the Coverts’ tort claims were frivolous and that defendant is entitled to attorney fees, pursuant to Colo.Rev.Stat. §§ 13-17-101 to 106 (1984 Cum.Supp.), for expenses incurred in the motion to dismiss. The distinction between tort and contract claims is sometimes blurred. See Hiatt. Good faith attempts to establish new theories of law, particularly where the law is in flux, are not frivolous. The Colorado statutes were not intended to impede the development of new legal concepts. See Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984); see also Morton v. Allied Stores Corp., 90 F.R.D. 352, 357 (D.Colo.1981). Although not ultimately pursuasive, plaintiffs posited colorable claims in light of existing case law. The motion for attorney fees is denied.

IT IS, THEREFORE, ORDERED THAT:

1. The second, third, fourth, sixth and seventh counts of the complaint are dismissed;

2. All claims for punitive damages are dismissed;

3. The motion to amend the complaint to treat the first count of the complaint as a claim for relief based upon a theory of promissory estoppel is granted;

4. The motion for attorney fees is denied; and

5. Defendant shall file an answer to the complaint, as amended, within fifteen (15) days of the date of this order.