245 F. 917 | 4th Cir. | 1917
Lead Opinion
The facts are stated in a signed stipulation from which it appears that on July 12, 1909, the above-named railway company, plaintiff below, issued and filed with the Interstate Commerce Commission a “local tariff,” effective August 15, 1909, I. C. C. No. 1668, described in the record as Exhibit A, naming “car demurrage rules and charges applying on coal or coke transferred from cars to vessels and reshipped via Lake.” On April 4, 1911, the plaintiff issued and filed another local tariff, effective May 15, 1911, I. C. C. No. 1856, described as Exhibit B, bearing the same title, and also the notation, “I. C. C..No. 1856 cancels I. C. C. No. 1668.” The “rules and charges” in both tariffs are substantially the same. The stipulation further recites:
“That during the period from May 15th to June 30th, inclusive, 1911, demurrage accrued upon cars of lake cargo coal consigned to defendant and held for it on plaintiff’s yards at Toledo, Ohio, after deducting from the debit demurrage days the credit demurrage days to which defendant was entitled under the tariff, to an amount of $10,562.00, unless, as defendant claims, the deductions hereinafter set out should be made therefrom.
“Defendant claims deductions because certain of the cars in controversy-in the period last aforesaid were shipped from mines on the Kanawha & Michigan Railway in West Virginia, while plaintiff’s tariff Exhibit A was in force, before plaintiff’s tariff, Exhibit B above mentioned, was issued and filed as aforesaid, and before defendant had actual notice of the issuing and filing of said last-mentioned tariff, and because certain other cars in controversy in said period were shipped from the mines in West Virginia after said last-mentioned tariff was issued and filed, and after defendant had notice thereof, but before said tariff became effective. Plaintiff denies that the defendant is entitled to any credit or set-off for such reason, or that .such defense can be made in this action.”
We are of opinion that this question must be answered in the affirmative. The opposing view, to say nothing else, overlooks the essential difference between the service of transportation, which must be furnished and paid for, and the accommodation of storage, which may or may not be provided. Broadly speaking, the former is a right which the carrier cannot deny or abridge, the latter a privilege which the carrier is at liberty to accord or refuse. One is obligatory, the other optional. This distinction is recognized in the regulating statute which, for example, requires the carrier’s schedules to state separately all storage charges, and in the general practice of publishing such charges in a separate tariff. The freight rate in force at a given time is a unit by itself which measures., while it remains in force, the liability of the shipper for the service of transportation. In re Through Routes & Through Rates, 12 Interst. Com. R. 163. But that service is wholly disconnected, in fact and in law, with the optional allowance of yard storage, whether free or otherwise, after a shipment has reached its destination. And in respect of such storage, under either of the tariffs in question, each day is plainly a separate unit, because the shipper is free to avail himself of the privilege for whatever number of days he chooses, within the limits and upon the terms named in the tariff, or to release the cars at any time and thus avoid further payment or obligation. From this it follows that, whilst the freight rate in effect when a shipment is delivered to the carrier cannot be changed as against that shipment, the charge for optional storage at destination, when the transportation has been completed, may be lawfully increased, or the free time curtailed, upon and after the statutory notice. And it also follows that tire tariff of 1911, under which the demurrage in question accrued, was “the tariff filed and in effect at the time,” that is, from and after the 15th of May, and plaintiff was therefore bound under heavy penalty to strictly observe that tariff and assess demurrage accordingly. On that date the old tariff ceased to exist, for it was canceled in terms by the new issue, and the latter thereupon became the established standard of charges which plaintiff could in no wise disregard without the risk of criminal prosecution. Horton v. T. & G. R. Co. (D. C.) 225 Fed. 406.
Taking the facts and assumptions here considered in the aspect most favorable to defendant, we perceive no ground upon which its contention can be upheld. The service of transportation, as already pointed out, is entirely distinct from the privilege of storage at destination, and it seems clear to us that such storage should be governed by the demurrage tariff in force when the shipper avails himself of the privilege, if the required notice has been given, irrespective of the time when his cars were transported. Such a tariff is in no sense retroactive, for it applies only from a date of which the shipper has had such notice as the law presumes to be sufficient for his protection; and if he has reason to complain of a change which shortens the free time, or increases the per diem, the Commission has plenary power to afford him redress. A ruling to the contrary would not only be unfair to the carrier, but serve to give opportunity for the unjust discriminations which the commerce act especially seeks to prevent.
We agree with the court below that the defense set up is without legal merit, and the judgment in favor of plaintiff must therefore be affirmed.
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Dissenting Opinion
(dissenting). What appears to me the magnitude of the consequences that might follow from the erroneous conclusion of the court in this cause if generally applied to mercantile transactions of the character involved in the present case compels me to dissent. The evidence and admitted facts in the case were to the effect that the railroads, in order to obtain use for their cars at a dull season of the year, offered the shippers of coal by the tariff marked “Exhibit A” that if they would ship coal during certain months, they could have the privilege, so to say, of free storage, until navigation was opened up on the lakes and all opportunity given for the water transportation. By this tariff proposition no- demurrage was to be charged on such coal shipments between 1st January and 15th August in each year. This was a perfectly clear and understandable proposition. The railroads said to the shippers of coal that during the period when water navigation was closed, transportation and the use of railroad cars to ports on the laké necessarily ceased, and their cars would be useless. To remedy this and to offer an inducement to coal shippers to give employment to cars, the railroad company notified all coal shippers who would ship coal after the 1st of January that they should not be charged with demurrage until the 15th of August in each year, i. e., should have free storage. After that date, viz. 15th August, on all coal arriving, or remaining on hand, with the railroads for which water transportation had not been provided, shippers would be charged demurrage. This tariff or contract offer by its terms remained in force until due notice was given of its cancellation. Acting upon this tariff the plaintiff in error, defendant below, shipped coal after the 1st of January, 1911, which coal was in course of transportation and out of the defendant’s possession and on its way to the water port when the plaintiff below on 4th April, 1911, undertook to issue another tariff, Exhibit B, whereby this privilege of freedom from demurrage or free storage was canceled from and after the 15th day of May, 1911. The result of this change was that shippers who had already shipped their coal prior to notice of this change, which coal had passed from their possession into the hands of transporting carriers, and who had shipped it upon the hypothesis that they would be given storage without demurrage charges until the 15th of August under the tariff then in force, were notified, notwithstanding the arrangement made, that this agreement would be arbitrarily canceled and the coal which they had shipped already under and by virtue of the agreement, and (depending upon it, would be charged storage. This was a plain violation of the contract, and one which destroyed the power of the shipper desiring to make contracts to deliver, to make those contracts based upon any definite mathematical calculation of what the expenses would be as affecting the prices at which deliveries should be made. As, for instance, if a coal dealer on the 1st Eebruary desired to fill an order for coal to be delivered in, say October, in making his estimate of the price at which he could deliver, he would be justified under the existing tariff in estimating that if he could get his coal to the port and provide water freight room before the 15th August, he would not be called upon to pay demurrage. To allow the transportation company delivering the coal at the port to arbitrarily
The learned judge who heard the cause in the court below was of the opinion that the tariffs were “seasonal,” i. e., of force only for the navigation season of lake transportation defined therein; which under the tariff set out as Exhibit A is defined as extending from August 15th to December 21st. That it expired on December 31, 1909, and must be presumed to have been again issued on July 12, 1910. There appears no sufficient ground for this hypothesis. This tariff was not again issued, but all parties seemed to have acted under it in 1910 as if it still continued in force. By its very terms the rules and charges therein are declared effective each year from August 15th to December 31st inclusive. It would seem that for all cars shipped prior to notice of the change in the tariff or storage charged, and which cars therefore had been placed out of the possession of the shipper in. reliance on the contract, the other party was not in a position to refuse the consideration, and as to all these cars the judgment of the court below was erroneous, and should be reversed.