281 F. 779 | 6th Cir. | 1922
In April, 1918, the appellant’s tug Buffalo undertook to shift the appellee’s steamer Cadillac from one dock to another in the harbor at Erie. The Cadillac was without steam and could not actively participate. In the final stage of the transfer the steamer was being pushed stemwards and angling toward the dock,
The appellant is one of the subsidiaries of the Great Lakes Towing Company. That company annually publishes a schedule of tariff rates and charges for all customary services offered by it in any of the ports which it serves. Publication and posting of such tariffs, and strict adherence thereto, without any discrimination as between boats or owners served, were ordered by the United States District Court for the Northern District of Ohio in 1913 upon the hearing of the suit brought by the United States to enjoin the further maintenance and operation of the company in violation of the Anti-Trust Act (Comp. St. § 8820 et seq.). United States v. Great Lakes Towing Co. (D. C.) 208 Fed. 733, and 217 Fed. 656, 661. Such publication and conduct were prescribed as conditions on which the company might continue to do business. The practice has ever since been followed in all the ports of the United States on the Great Lakes, including Fríe, and there has never been any complaint, as the decree provided there might be, if its provisions were not strictly observed. During this period the appellee has operated a large number of boats, constantly calling for the towing services of the Great Lakes Towing Company, at many, if not all, of these ports. While the Great Lakes Towing Company is not a common carrier subject to the Interstate Commerce Act (Comp. St. § 8563 et seq.), it was by this decree, and as to the ports where it might from time to time
It is forcefully said that the decree must be deemed to have been of general notoriety; that the public should be held to the same basis in its dealings with the Towing Company, so far as this feature is concerned, as in its dealings with the railroads; and that it must be presumed that all persons asking towing services knew that the rates and conditions were regulated by public and invariable tariffs. Further, it is conceded that the appellees knew this general practice, and in one or more former years had received at its general office in Montreal the published pamphlet containing the rates (though not the particular condition now involved). For the appellant to have made any towing contract with appellee, except upon the same terms offered to all by the regular tariff conditions, would have been a contempt of court.
Giving due effect to the decree—which to this extent has the force of law—requiring common tariffs and to the unquestionably general notoriety of their existence and controlling effect, and to the confessed knowledge of appellee on the general subject, we greatly doubt whether appellant was bound to establish that the copies of this year’s tariff were actually received by appellee at Montreal; but we do not rest the decision upon this impression, because we think the evidence of such actual receipt is fairly satisfactory.
Some of the leading cases discussing this question are cited in our opinion in Bloch v. Eastern Machine Screw Corporation, 281 Fed. 777, filed May 2, 1922. To them may be added the note in 49 L. R. A. (N. S.) 458. The Bloch Case well illustrates the varying rules of inference. The sole man to whom the letter would have come denied its receipt. He could hardly have forgotten it, and his immediate conduct was indicative of its nonreceipt. The bare inference of delivery arising from mailing was not strengthened by any corroborating circumstances. It was thought that the delivery was not established. In the present case the responsibility for knowing of the receipt and acting upo'n it was scattered to the point of vagueness. There is no proof of nondelivery from those subordinates most likely to have received it. There was strong corroboration. Appellee’s immediate conduct in approving towing bills was consistent with its receipt. The burden is sufficiently met.
“The rates for towing named herein are made upon the express condition that no claim for delay of any vessel served (whether due to repairs of damage or other causes) for which the Towing Company may be legally liable,*784 shall in any case exceed one hundred dollars ($100) per calendar day of such delay.
“Upon written notice from the owner, agent or master of any vessel, given before the towage service begins to the general office of the company at Cleveland, the above-mentioned limit of liability upon demurrage claims may be increased, in which event the regular tariff rates will be increased 5 per cent, of such rates for every one hundred dollars of increase in the limit of the Towing Company’s liability for demurrage specified in such notice, but in no event shall such liability exceed the actual legal liability of the Towing Company for such demurrage. Nothing herein contained shall be construed to deprive the Towing Company of any legal defense it may have, whether by limitation of its liability under the federal statutes or otherwise.”
This provision is substantially analogous to that customarily "found in railroad tariffs, by which the rate is based upon the valuation, and which specifies, in effect, that, if the carriage is given at the regular rates, the carrier’s liability will be limited to a specified amount, but
that, if the shipper does not wish to be so limited, he may pay a higher rate, and secure a correspondingly higher liability. In one case the value of the goods carried, and in the other case the value of the use of the boat, both fixes the rate and measures the liability. Such provisions in the railroad tariffs are more open to objection on grounds of public policy than this one is in this towing contract, because common carriers by rail come much nearer to the position of insurers than does a tug giving towing services (see Ten Eyck v. Director General [C. C. A. 2] 267 Fed. 974); yet the validity of these rail tariff provisions is well established (Moore v. Duncan [C. C. A. 6] 237 Fed. 780, and cases cited on page 781, 150 C. C. A. 534).
Hence we conclude that the demurrage liability should be limited to $100 per day. The decree entered below will therefore be vacated, and the case remanded, for the entry of a decree modified in accordance with this- opinion. The appellant will recover the costs of this court.