A tariff governing demurrage at a coal-loading port provided
that a car should be considered released when a vessel registered
for the cargo or fuel supply of which the coal was part, or when
the car was unloaded prior to such registry, that, to avoid delay
of switching out and delivering on shipper order in actual sequence
of their arrival cars containing the same grade of coal,
"the dates on which cars should have been released will be
substituted for those on which equivalent tonnage was actually
delivered, and detention will be computed on the basis of such
substituted dates,"
and that the date when a shipment was transferred by written
order and acceptance to another party should be the date of release
of the car as to the original consignee, and subsequent detention
should be charged to new consignee without free time allowance.
Held, that a decision of the Interstate Commerce
Commission should be followed which construed these provisions as
applicable when, pursuant to a pooling and exchange arrangement
among several shippers, the loaded cars of one shipper were
delivered on the order of another, like cars of the former being
retained for the latter and detention chargeable to the latter
being computed from the notice of arrival of his own coal to time
of delivery on his order of the substituted tonnage. P.
272 U. S.
712.
3 F.2d 525 affirmed.
Error to a judgment of the circuit court of appeals which
affirmed a judgment of the district court (287 F. 168) in favor of
the railway in its action to recover demurrage charges from the
coal company and its surety, the Fidelity & Casualty Company of
New York.
Page 272 U. S. 710
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit by the Norfolk & Western Railway Company to
recover demurrage on cars at Lambert's Point, Virginia, from the
Emmons Coal Mining Company and its surety. An affidavit of defense
upon matters of law was filed, but was held insufficient by the
district court, and judgment subsequently was entered for the
plaintiff. The judgment was affirmed by the circuit court of
appeals. 3 F.2d 525.
To facilitate the delivery of coal at tidewater, some of the
owners of mines upon the lines of the railway made an arrangement
with the latter by which the cars were sorted at Lambert's Point
upon different tracks according to the quality of the coal, and
delivery was made to their respective customers from the cars most
convenient at the moment, irrespective of ownership, if the seller
had that amount of coal on hand in cars within the space limits
agreed. To work this out, the parties formed an association, called
the Lambert's Point Coal Exchange, with a manager who kept books in
which he credited to each owner coal destined to the Point as soon
as it passed Bluefield, West Virginia, noting its quality, and
ordered delivery within the amount so credited, as required, to the
owner's customers. If the delivery were required to be from the
consignor's own cars, as it would be in the absence of agreement,
of course, if the cars were detained beyond the allowed time
demurrage would be payable. When, under the arrangement, one
member's cars were emptied to fill the order of another member,
other cars with similar coal would have to be kept, in order to
satisfy the first member's right when it came to assert it, and it
should pay as in the first case, since the delay would be the same
to the railroad whichever of its cars were detained. The
responsibility of the owner for them is the
Page 272 U. S. 711
natural corollary of the benefit that each owner gets by having
its order filled from the nearest cars.
In the present case, the demurrage demanded is fixed by the
foregoing rule. The plaintiffs in error say that, by the tariff
that governs the matter, they can be charged only for the cars
actually used and detained by them, that to make the tariff cover a
substitution it must be modified by the rules of the Exchange,
which cannot be done, and that, if there is a claim against any
one, it is a claim against the Lambert's Point Coal Exchange.
The last point may be dispatched in a few words. The articles of
organization of the Exchange provide that the member shall be
responsible to the railway for demurrage, and that the shipping
instructions, etc., "shall show as the consignee the name of the
member for whose account shipped, followed by the words
care
Lambert's Point Coal Exchange Pool.'" The Coal Company's
consignments were in accordance with the agreement, and, by the
agreement or without it, made the Company the consignee. We come,
therefore, to the tariff the construction of which is the only
point much argued in the case.
The important clauses are in Rule 3, and Rule 4.
"(b) A car shall be considered as released:"
"1. At the time vessel registers for the cargo or fuel supply of
which the coal, coal briquets, or coke dumped into such vessel is a
part, except that, when cars are unloaded before the vessel
registers, such cars shall 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
Page 272 U. S. 712
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."
"
* * * *"
Rule 4. -- Demurrage Charges
"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."
These clauses were construed by the Interstate Commerce
Commission in an able opinion as authorizing the "substitution of
any car containing a similar grade of coal for the one ordered
dumped," when the parties have so agreed, and as warranting the
charges questioned here. They also were held reasonable as so
construed. Smokeless Fuel Co. v. Norfolk & Western Ry. Co., 85
I.C.C. 395. The matter is one upon which the opinion of the
Commission would carry great weight, even if we thought its
conclusion less obvious than we do.
See also Smokeless Fuel Co.
v. Chesapeake & Ohio Ry. Co., 142 Va. 355. The fairness
and reasonableness of it ought to prevail against meticulous
arguments drawn from the fact that
Page 272 U. S. 713
the rules are made with unassociated shippers most prominently
in mind, or from rarely realized possibilities of demurrage being
charged where coal is delivered on the credit of cars actually in
transit from Bluefield, although those cars are not delayed. In the
ordinary course of things, cars will be kept on hand to answer the
mine owner's credit, and it is for its as well as for the Railway's
advantage that they need not be the very cars that the mine owner
has used.
Judgment affirmed.