287 F. 168 | E.D. Pa. | 1923
These cases were argued together, and, as the defenses raised in No. .8914 are included within those raised ‘ in No. 8922, they will be considered together. The plaintiff’s claim’ in each case is for the recovery of demurrage charges upon cars con-’ taining bituminous coal for transshipment by vessel at Norfolk and. Lambert’s Point, Va. The demurrage is alleged to be chargeable un-‘ der Tariff C. & C. No. 4056, I. C. C. No. 2826-B, a copy of which is attached to each statement of claim. Both defendants were, at the time of the accrual of the demurrage, members of the Rambert’s Point Coal Exchange. A copy of the articles of organization and rules of the exchange is attached to the statement of claim. The purpose of the exchange rule 2 is to reduce coal classifications and necessary switching thereof, to facilitate dumping, thereby - expediting the dispatch of vessels and augmenting car supply at the mines; to act as agent for the pooling of coal, and to execute orders to the railway company for delivery of tonnage to vessels; to permit the use by a shipper of coal of the same pool to which the member has made shipments, and to the extent of such contributions without being required to apply on the delivery order of a member the identical coal consigned to him. Each member is required under rule 16 to furnish a blanket order authorizing the railway to accept from the manager of the exchange, who is appointed and paid by the railway company, his orders for delivery of coal consigned to the member in care of the exchange. It is provided by rule 17 that members shall be responsible to the railway company for demurrage charges accruing to their account and shall file an agreement with the railway company providing, inter alia, that—
“The undersigned further agrees to pay any demurrage accruals under the tariff of the railway company, car day’s detention to be computed by subtracting the date of arrival of cars shipped for account of the undersigned from the date of release of equivalent cars.”
' It is also provided in rule 31:
“Oar demurrage will be assessed by the railway company on the average basis for the account of individual shipper responsible. Detention will be computed by subtracting date of arrival of cars shipped from date of release of equivalent cars. Credit car days of a member shipping in care of the-Lambert’s Point Coal Exchange shall not offset debits of another member.”
Under the tariff the cars subject to rules are cars containing coal for transshipment direct to vessels or to be stored for shipment by vessels when held for or by consignors or consignees for unloading, forwarding directions or for any other purpose, with exceptions immaterial to this case. The tariff allows a free time of five days per car; tíme to be computed from the first 7 a. m. after the day on which no
By rule 3 (b):
“A car shall be considered as released:
“1. At the time vessel registers for the cargo or fuel supply of which the coal, coál briquets, or coke dumped into such vessel is a part, except that when ears are unloaded before the vessel'registers, such cars shp.ll be released when unloaded.
“2. To avoid delay that would be entailed in switching out and delivering on shipper’s order, in actual sequence of arrival, cars containing the same grade of coal, as indicated by the identifying consigning names or numbers on the waybills, the dates on which cars should have been so released (as indicated by the record) will be substituted for the dates on which equivalent tonnage was actually delivered and the detention will be computed on the basis of such substituted dates.
“3. The dates shipments are transferred by written order and acceptance to another party shall be considered the date, of release of the car for the account of the original consignee and subsequent detention shall be charged in the account of the new consignee without any free time allowance.
“4. Any fraction of day will be computed as one day.”
By rule 4:
“Settlement shall be made on the basis of detention to all cars released during the month. The date of arrival notice shall be subtracted from the date of release. From the total days’ detention to all cars thus obtained, deduct all Sundays and legal holidays following the date of arrival and five (5) days free time allowance for each car, except on cars containing coke for export deduct ten (10) days’ free time allowance for each car; the remainder, if any, will be the number of days to be charged at the rate of $2.00 per car. per day. Excess credit days of any one month cannot be deducted from the excess debit days of another month.”
. The statement of claim in each case, after reciting the applicable provisions of the tariff, avers that, at various times during certain months in 1920 and 1921, the coal company defendant received at Lambert’s Point, Va., and disposed of by transshipment in vessels, the equivalent in tonnage and in grade (as indicated by identifying consigning numbers) of carload shipments of coal, which coal had been-transported in cars in interstate commerce by the railway company consigned to the coal company, care of Lambert’s Point Coal Exchange, at Lambert’s Point, Va.
It is then .averred that the coal company failed to dispose of the coal so consigned to the coal company or its equivalent within the free time provided by the tariff, whereby demurrage accrued thereunder as indicated in statements annexed to and made part of the statement of claim. The statements show, as to each grade and consigning pool number,, and as to each car consigned to the coal companies and charged with demurrage, the following information:
. “(a) Car initial and number; (b) the identifying consigning number indicating grade of coal; (c) date on which notice of arrival was given the coal company; (d) date of release, which under the tariff was date of registry of vessel into which the coal contained in the car, or its equivalent, was dumped; (e) total days’ detention; (f) free time, including Sundays, legal holidays, and five days’ tariff allowance; (g) number of - days for which demurrage is payable or credit allowable.”
The Emmons Company and its surety set up in the affidavit of defense that the court has no jurisdiction to entertain the suit, because the reasonableness of the tariff is in controversy in a complaint pending before the Interstate Commerce Commission, in which the Emmons Company is a party complainant and the Norfolk & Western Railway Company is the defendant. This defense is not urged and will not be considered.
By the terms of the articles of organization and rules of. the exchange, the latter is to act as an agency for the purposes recited and by the agreement under which the railway company appoints a manager to administer the affairs of the exchange and' pays his salary and certain expenses, the member agrees to pay accrued demurrage. There is nothing in the articles and the rules divesting the members of property in their coal until, under a member’s order, coal consigned to his account is diverted to a vessel to fill the contract of another member having a credit for coal in the same pool. The member, therefore, has the rights of a consignee until his blanket order has been executed. This is apparent because the blanket order is expressly revocable upon notice. His title is not divested, therefore, until his coal is used as equivalent for that to b,e delivered on the contract of another member.
In short, while the articles and rules are set out in the statement of claim, they merely show what the defendants, as members of the exchange, through the exchange as their agent, did to bring them within the terms of the tariff. The tariff, in my opinion, is complete in itself, and no claim is made for any other service which affects the rates and ■ charges for demurrage, and which should necessarily and properly be made a part of the tariff filed under section 6 of the Interstate Commerce Act (Comp. St. § 8569.) The charges were not assessed on the authority of the rules, but on the authority of the tariff. That certain things were done in the way of substituting coal or shipping equivalent coal does not vary the tariff, but merely shows the applicability of the ■ tariff, to the defendants’ shipments.
The defenses of law are held insufficient, and are overruled, with leave to the defendants to file affidavits of defense to the merits.