171 F.2d 389 | 2d Cir. | 1948
This is an appeal from a judgment for the plaintiff in an action to recover charges paid to the railroad for the “constructive placement” upon its tracks of loaded freight cars at the plaintiff’s request. The facts are stated fully and accurately in the memorandum of the district court:
“Plaintiff’s paper mill at Stroudsburg, Pennsylvania, had its own private side track, with a capacity of 5 or 6 cars. Cars consigned to plaintiff were to be delivered at the side track, according to the side track agreement. Freight Tariffs No. 4-X and No. 4-Y govern this case. Under Section C of Rule No. 4 actual delivery of cars ‘upon other than public delivery tracks,’ or written notice ‘of readiness to so deliver’' constituted notification to the consignee. Under Rule 5, Section A, Paragraph 1, it is provided that where, as in this case, delivery of a car is to be made ‘to other than a public delivery track’ (such as a private side track) and the delivery cannot be made
“For the period covered by this suit and between December 9, 1944, and September 30, 1946, demurrage charges accrued on a great number of cars which could not be delivered to the plaintiff because of the congested condition of the plaintiff’s side track, and through no fault of the defendant. Pursuant to an oral arrangement between the plaintiff and defendant, no written notice was sent to the plaintiff of the constructive placement of cars consigned to plaintiff during that period. Instead, defendant’s car clerk at Stroudsburg, Pennsylvania, would telephone every morning to the defendant’s employee in charge of coordinating the receipt of materials and the shipment of products at plaintiff’s mill, and notification of the number of cars that had arrived at Stroudsburg consigned to plaintiff would be given over the telephone, together with the initial and car numbers and the contents thereof. Later in the day plaintiff’s employee would telephone defendant’s car clerk and tell him which cars plaintiff wished to have placed that day on plaintiff’s side track and the order in which plaintiff wanted them. These instructions were followed and the cars were delivered as plaintiff wished to receive them. Plaintiff’s employee had a set of demurrage sheets and copies of the tariffs. He kept his own records of time of arrival based on the telephoned notice from the defendant’s car clerk. Bills for demurrage were regularly presented and paid. Later plaintiff demanded a refund of the demurrage thus paid.
“If plaintiff is entitled to a refund it is agreed that the amount thereof would be $9,620.73. Defendant contends that plaintiff orally waived any written notice of constructive placement and that written notices were not sent pursuant to that agreement between plaintiff and defendant. Plaintiff denies that the written notices of constructive placement had been sent prior to December 1, 1944, and denies making any request of defendant that the written notices be discontinued. Plaintiff’s counsel contends that any waiver of a written notice of constructive placement, would have to be in writing in order to be valid. I have concluded that plaintiff did orally waive written notice of the constructive placement of cars consigned to plaintiff, and that the practice followed by plaintiff and defendant of a telephoned notice of arrival and of telephoned instructions as to the time and order of delivery to plaintiff’s siding was for plaintiff's accommodation, and was much more .expeditious and satisfactory to plaintiff than the slower method of written notice of constructive placement.”
Had the transactions been between the plaintiff and a party other than a common carrier, and had they not been subject to regulation under the Interstate Commerce Act
The Commission construed Davis v. Henderson, supra,
Nor does it seem to us that the Commission gave ground in Bartlesville Zinc Co. v. Director General,
There is also a significant confirmation of this interpretation. Rule 4 § A requires a carrier to give the consignee notice of arrival of cars. Rule 5 § A requires it to give notice of placement to the consignee: that is, that a car cannot be delivered upon an “other-than-a-public-delivery track.” The second is the rule here in question. In both the years 1916 and 1919 both notices had to be given in writing; but in both years the carrier might avoid written notice of arrival, if it and the consignee had “otherwise agreed.” Not so as to notice of placement ; in neither year was there any provision for waiver of that notice. Thus a carrier who argues that a privilege of waiver may be inferred as to Rule S § A, notwithstanding the express leave given in Rule 4 § A, and the absence of such leave in Rule 5 § A, has to overcome ab initio this difference in the language chosen. In itself this appears to us not an inconsiderable handicap. Be that as it may, if we assume that the carrier could overcome the handicap in 1916, how can it do so after 1919? In that year Rule 4 § A was tightened by requiring the “waiver” to be in writing; and no oral evidence would put any burden on the consignee of responding to an oral notice. It is to the last degree unlikely that Rules of 1919 intended that the “waiver” of notice of “placem'en-t” — at best only implied — might be by oral agreement after they had required the express “waiver” of notice of arrival to be written. The most that a carrier can demand is that the “waiver” of notice of “placement” shall keep step with the “waiver” of notice of arrival; necessarily conceding that after it became necessary for the second to be -in writing, it became also necessary for the first to be so.
Judgment affirmed.
§§ 1-27, Title 49, U.S.C.A.
266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182.
Missouri Pacific Railroad Co. v. Henderson, 157 Ark. 43, 247 S.W. 1070, 1071.
Georgia, Florida & Alabama Ry. Co. v. Blisk Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948.
Missouri, Kansas & Texas Ry. Co. v. Ward, 244 U.S. 383, 37 S.Ct. 617, 61 L.Ed. 1213.
Davis v. Cornwell, 264 U.S. 560, 44 S.Ct. 410, 68 L.Ed. 848.
279 U.S. 320, 331, 49 S.Ct. 329, 73 L.Ed. 711
9 Cir., 13 F.2d 752.
266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182.
Campbell Construction Co. v. La Crosse & Southeastern Ry. Co., 95 I.C.C.Rep. 603.
136 I.C.C.Rep. 57.
74 LC.C.Rep. 26.
95 I.C.C.Rep. 603.
266 U.S. 92, 45 S.Ct. 24, 69 L.EL 182.
95 LC.C.Rep. 603.
95 I.C.C.Rep. 603.
266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182.
Central West Coal & Lumber Co. v. Chicago, Burlington & Quincy Railroad, 104 I.C.C.Rep. 452; Western Bridge & Construction Co. v. St. Louis-San Francisco Co., 118 I.C.C.Rep. 607; Consolidated Lumber Co. v. Lehigh Valley Railroad, 139 I.C.C.Rep. 278; Natural Products Refining Co. v. Central Railroad of New Jersey, 216 I.C.C.Rep. 105.