The question presented in this case is the right of a railroad to recover storage charges of the same kind and caused by the same longshoremen’s strike as those before the court in New York Central & Hudson River Railroad v. Frederick Leyland & Co. Ltd. 222 Mass. 444. In that case the right to recover depended upon the authority of an agent to enter into an agreement on the part of the steamship company to pay storage charges in case it was decided by the interstate commerce commission that those charges were covered by the tariff filed by the railroad under the interstate commerce act. It appeared in that case that the interstate commerce commission decided that that tariff was within the act and it was held that the agent had authority to make the contract. The right of the railroad to recover in the case at bar depends upon the question whether as matter of law the steamship company came under an implied contract to pay the storage charges here in question by accepting delivery of the goods under circumstances set forth in the agreed facts. We say that the question is whether as matter of law an implied contract came into existence because the finding of the judge who heard the case without a jury was for the defendant.
The circumstances were these: Before the matters herein complained of took place the railroad had filed a tariff under the interstate commerce act which provided for storage charges in case goods were not unloaded within the free time therein specified. On January 16, 1912, the steamship company wrote to the railroad company that it had been their intention to forward by the “Anglian intended to sail for London on the 19th ... all traffic which requires to be loaded at seaboard within 30 days after arrival at Boston” but that owing to the longshoremen’s strike they had found it impossible to do so and that “we are obliged to notify you therefore that we cannot accept any responsibility for such storages incurred.” To this the railroad answered: “We are obliged
1. The storage charges in question were within the interstate commerce act and the shipper was liable to pay them. The railroad company had no option in the matter; they were bound to collect them. New York Central & Hudson River Railroad v. Frederick Leyland & Co. Ltd. ubi supra. New York, New Haven, & Hartford Railroad v. York & Whitney Co. 215 Mass. 36. The demurrage charges in question in Central Railroad of New Jersey v. Anchor Line, Ltd. 219 Fed. Rep. 716 (relied upon by the defendant), were not storage charges within the interstate commerce act, were not charges for which the shipper was liable, and for them the railroad did not have a lien. The decision in that case was based on these facts. The other decision upon which the defendant has placed its main reliance, namely, The Corfe Castle, 221 Fed. Rep. 98, was not a case of charges within the interstate commerce act but was a case in which a lighterage company undertook to collect demurrage charges from the steamship company for which under the contract between the shipper and the steamship company the steamship company was not liable.
2. The plaintiff railroad company had a lien on the goods for these storage charges. Kawcabany v. Boston & Maine Railroad,
3. The case therefore comes down to this: In case a railroad company has transported to the seaboard goods to be delivered by it to a steamship company to be carried to a foreign port and those goods as against the shipper are subject to storage charges for which the railroad company has a lien, does an implied contract arise as matter of law under the circumstances of this case?
We are of opinion that as matter of law an implied contract does come into existence in such a case.
The defendant’s position is that the fact that the railroad company wrote the last letter is not decisive; that it is a case where both parties were acting on parallel lines which never met. Whatever may be the result in a case which depends solely upon the fact that the party seeking to charge the other had the last word, there is more than that in the case at bar. When the railroad company wrote that it had no option under the act and under the tariff filed by it under the act, the steamship company replied that they would like to see the tariff. It took no objection to the statement that the railroad company had no option under the act. If the charges were covered by the tariff filed by it, they impliedly accepted that statement by confining their answer to a request for a copy of the tariff. When the steamship company was furnished with a copy of the tariff, which in fact covered the charges demanded by the railroad, no further objection was made by it and delivery of the goods was accepted. We are of opinion that under these circumstances as matter of law the steamship company must be taken to have acquiesced in the plaintiff’s demand that if it took the goods it must assume responsibility for the charges.
Objection has been made by the steamship company that under the agreed facts an order for delivery (in the form there set forth) was not used in case of all the one hundred and thirty-one lots and also that some of the goods were not transported from the cars of the plaintiff on to the defendant’s ship but were unloaded upon the pier and that “as soon as the goods were deposited on the pier by the plaintiff, they were considered by the parties as in the custody and control of the defendant; ” in that connection the steamship company urges that the plaintiff lost its lien when it
The judge who tried the case based his finding upon this: “When it [the steamship company] took the goods it carried out its separate contract set forth in such bills of lading, and not by way of assent to the plaintiff’s terms.” But neither the shipper nor the steamship company had a right to the possession of the goods to enable the steamship company to carry out that company’s contract with the shipper until these storage charges had been paid.
The defendant’s next contention is that the plaintiff railroad company had no right to deliver the goods to the steamship company under the circumstances. This contention is based upon a clause in the agreement between the shipper and the railroad company providing that the railroad company “in case of physical necessity shall have the right to forward said goods by any railway or route between the point of shipment and the point of destination.” Its contention is that by force of this clause it was the duty of the railroad company to forward the goods by another steamship company when it found that the defendant steamship company (by which the goods were billed) could not take delivery on account of the longshoremen’s strike. The contention is wholly without foundation. This provision in the agreement between the shipper and the railroad company has to do with the transportation by the railroad to the railroad terminus; it has nothing to do with the forwarding of the goods after-they had reached “the point of destination” to be reached by the railroad.
The last contention of the defendant is that “the longshoremen’s strike is a complete defence to all claims which accrued during the period in question.” There is a clause in the agreement between the shipper and the railroad company which provides that the railroad company shall “not be liable for loss, damage or delay to any of the goods herein described caused by . . . riots, strikes, or stoppage of labor” and there is a similar agreement in the contract
We have found nothing in the other cases cited by the defendant which requires particular notice.
It follows that the exceptions must be sustained. And we are of opinion that under St. 1913, c. 716, § 2, judgment should be entered in favor of the plaintiff in accordance with the agreed facts. The amount of the judgment will be $538.08 with interest from July 1, 1912. And it is
So ordered.