209 F. 283 | W.D.N.Y. | 1913
An inspection of the indictment, however, makes clear that the consignee contracted for the transportation of coal from Carbondale, Pa., and other points, to the East Buffalo freight yards of the defendant 'company for reconsignment, and was seasonably apprised of the arrival of the shipments at that place. It is then charged that the cars were detained beyond the full period allowed by the tariff, but that demurrage was not assessed or collected- by defendant within 30 days thereafter. The tariff and schedule, establishing demurrage charges of $1 per day a car from the receipt of notice by the consignee until the cars are released, do not particularize the manner of delivery or the place of unloading, and, as the shipment of coal was for reconsignment, it was obviously unnecessary in this case to use more specific language as to such matters. Though it is a common practice for railroad companies to deliver freight at particular places on their lines, at piers, wharves, private sidings, or points connecting with lines of other carriers, yet, as the commodity in question was concededly to be reconsigned, the rule of personal delivery, emphasized by various citations in defendant’s brief, has no application. Hutchinson on Carriers, §§ 341-370. I think it is the law that a consignee is bound by the destination given at the beginning of the journey, and that he may be subject to demurrage charges after receipt of notice of arrival at that point. Rorer on Railroads, vol. 2, p. 1232. It has several times been held by the Interstate Commerce Commission, whose ruling this court is bound to follow unless such ruling is inconsistent with law (New Haven R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515), that demurrage is ordinarily assessable against a car load shipment only at a point of origin or destination or at the place of reconsignment. Munroe & Sons v. M. C. R. R., 17 Interst. Com. Com’n R. 27; Germain v. N. O. & N. R. Co., 17 Interst. Com. Com’n R. 22; United States v. Denver, etc., R. Co., 18 Interst. Com. Com’n R. 7. Delivery therefore at the defendant’s freight yards at East Buffalo where the coal was to be reconsigned, in the absence of any other or different arrangement with the shipper or consignee, was a fulfillment of the carrying contract, and the defendant was not bound to wait for directions as to any other disposition of the commodity before its right to demurrage accrued. The case of Hite et al. v. Central R. R. of New Jersey, 171 Fed. 370, 96 C. C. A. 326, is a precedent for this ruling.
That railroad companies and common carriers generally, including defendant company, have a system of dealing with shippers and consignees by which carrying charges and charges for delays in acceptance or unloading are itemized and monthly statements forwarded and collected, has become so well recognized that judicial notice may be taken of such practice. There is nothing in the indictment relating to the custom or usage that raises a presumption of any intention or understanding to give an extension of credit to the consignee for the period specified in the indictment, or for any other period beyond 30 days after accrual of the demurrage. As I read the indictment, the words “charge for demurrage” do not imply extension of credit, but have reference to book entries in relation to the transportation. Omission to make any such entries in connection with the transportation in question is of the essence of the charge, and when considered in connection with the assessment of demurrage against other consignees, and its collection within 30 days thereafter, as was customary, strengthens the inference that the defendant in his relations with Williams & Peters intended to violate the statute.
Defendant’s right to extend credit to the consignee for a period of two years without a definite arrangement in regard thereto, and its right to refuse credit to others, is perhaps a debatable question in view of the apparent conflict of judicial decisions. United States v. Hocking Valley R. Co. (D. C.) 194 Fed. 234, and contra, Gamble-Robinson Commission Co. v. Chicago & N. W. Ry. Co., 168 Fed. 161, 94 C. C. A. 217, 21 L. R. A. (N. S.) 982, 16 Ann. Cas. 613. But any such question need not be discussed or passed upon at this time and may be reserved for the trial, especially in view of the fact that any assumption that -the defendant extended credit to Williams & Peters is palpably negatived by the statements of fact contained in the indictment.
“It (the Interstate Commerce Act) has, it is true, a criminal provision against violations of its requirements, but some of its requirements may well depend upon the exercise of the administrative power of the Commission. This view avoids the consequences depicted by the government. It keeps separate the civil and criminal remedies of the act, each to be exercised in its proper circumstances. It makes the Interstate Commerce Act what it was intended to be and defined to be in the cases cited by the District Court.”
But as the offense of unlawful discrimination is expressly disclaimed by the district attorney, I will sustain the demurrer as to the fifty-first count on the ground that the so-called privileges and advantages extended to the consignee by the defendant were extended after the termination of the journey, or after the arrival of the freight at its destination for reconsignment, and therefore had no relation to the actual transportation of the property or to the rates and charges specified in the tariff published and filed.
' My conclusion is that counts 1 to 50, inclusive, are valid in law, and as to them the demurrer is overruled; while as to count 51 the demurrer is sustained.