(dissenting)-
I think it clear that defendant’s counter claim, for damages for negligence in handling the shipment on which the freight sued for was due, was not available to it. It was not available because, (1) by the last sentence of Sec. 2(b) of the bill of lading,1 “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 shall not be paid,” the claim was extinguished, and (2) if it was not extinguished, it was, under the settled rule in Texas, available only as a counter claim and not *163by way of recoupment and was therefore, barred by limitation when asserted.
The view of the majority, that the above quoted provision of the bill of lading is a mere limitation upon the time within which suits must be brought, and not an extinguishment of the right to assert the claim by way of recoupment, will not, in my opinion, do. Provisions of this kind are inserted in bills of lading, not merely by way of limitations on the right to sue but to extinguish the liability. Their rigid enforcement prevents the use of damage claims to obtain unlawful rebates on freight charges. Since the enactment of the Interstate Commerce Act, “carriers may not accept * * * a release of claim for damages in payment for transportation.” Chicago & Northwestern R. Co. v. Lindell, 281 U.S. 14, 50 S.Ct. 200, 201, 74 L.Ed. 670. If Section 2 of the bill of lading had been intended to operate only as a limitation on the time for bringing suits, it would not have contained the last sentence of the section quoted above. The vigorously established rule that the parties to a bill of lading cannot waive its terms nor can the carrier by its conduct give the shipper a right to ignore them, applies as well to provisions of this kind as to provisions fixing the rate. Texas & Pacific R. Co. v. Leatherwood, 250 U.S. 478, 39 S.Ct. 517, 63 L.Ed. 1096; Georgia, Fla. & Ala. Ry. v. Blish Milling Company, 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948; Chesapeake & O. Ry. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983. In A. J. Phillips Co. v. Grand Trunk Ry., 236 U.S. 662, 35 S.Ct. 444, 446, 59 L.Ed. 774, the court said, of a suit brought after the time limited in the Interstate Commerce Act for bringing suits, under a statute providing that all complaints for damages should be filed within two years and not after, “the lapse of time not only bars the remedy, but destroys the liability.”
In United States v. Seaboard Air Line R. Co., 4 Cir., 22 F.2d 113, it was expressly held that the limitation of the bill of lading was contractual and available to bar the claim of the government, not as a statute of limitations or because of laches, but as an express contractual provision going to the right of claim.
But, if I am mistaken in this, and the provision does not extinguish the liability but merely fixes a period of limitation within which suits can be brought, the opinion of the majority is no better based. For in Texas, and Texas law governs, defendant’s claim for damages is not a defense to plaintiff’s suit to be set up by way of recoupment, but a counter claim to be affirmatively sued on, and as such, it is barred. In support of its view, that defendant’s claim for damages is available in recoupment rather than as a counter claim, the majority cites Federal cases and cases from other jurisdictions, and construed the Texas cases cited below as not in conflict therewith. With its general statement of the law as applicable elsewhere I have no quarrel, but the law in Texas is controlling, and as announced by the highest court of this state, in Morris-Buick Co. v. Davis, 127 Tex. 41, 91 S.W. 2d 313, 314, it is, I think, exactly to the contrary of the view the majority takes. There expressly rejecting the cited decisions of courts of other jurisdictions, the court declared: “The intent of our remedial statutes * * * regulating the subject of counterclaim and set-off, is such that the remedy of recoupment, to the extent that same has been expanded and applied in some jurisdictions, has no place in the jurisprudence of this state. It is the law of this state that where the subject-matter of a defense interposed by the defendant constitutes an independent cause of action which does not go to the foundation of the plaintiff’s demand, it cannot effect a reduction of the amount of the plaintiff’s recovery except by way of set-off, and the statutes of limitation are available to the plaintiff in respect to such defense. Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S.W. 434. On the other hand, if the subject-matter of the defense be of an intrinsically defensive nature, which, if given effect, will operate merely as a negation of the plaintiff’s asserted right to recover, or an abatement, either wholly or partially, of the amount claimed, the statute of limitation does not apply. Mason v. Peterson, (Tex.Com.App.) 250 S.W. 142.”
Neither the doctrine of this case nor the case itself has ever been questioned in Texas. The judgment allowing the counterclaim was wrong and should have been reversed. I respectfully dissent from its affirmance.
On Petition for Rehearing.
PER CURIAM.As neither of the judges who concurred in the judgment of the court in the above *164numbered and entitled cause is of the opinion that the petition for rehearing should be granted, it is ordered that said petition be and the same hereby is denied.