CHESAPEAKE & OHIO COAL & COKE CO. v. TOLEDO & O. C. RY. CO., 245 F. 917

KNAPP, Circuit Judge. The facts are stated in a signed stipulation from which it appears that on July 12, 1909, the above-named railway company, plaintiff below, issued and filed with the Interstate Commerce Commission a “local tariff,” effective August 15, 1909, I. C. C. No. 1668, described in the record as Exhibit A, naming “car demurrage rules and charges applying on coal or coke transferred from cars to vessels and reshipped via Lake.” On April 4, 1911, the plaintiff issued and filed another local tariff, effective May 15, 1911, I. C. C.

No. 1856, described as Exhibit B, bearing the same title, and also the notation, “I. C. C..No. 1856 cancels I. C. C. No. 1668.” The “rules and charges” in both tariffs are substantially the same.

The stipulation further recites: “That during the period from May 15th to June 30th, inclusive, 1911, demurrage accrued upon cars of lake cargo coal consigned to defendant and held for it on plaintiff’s yards at Toledo, Ohio, after deducting from the debit demurrage days the credit demurrage days to which defendant was entitled under the tariff, to an amount of $10,562.00, unless, as defendant claims, the deductions hereinafter set out should be made therefrom. “Defendant claims deductions because certain of the cars in controversy-in the period last aforesaid were shipped from mines on the Kanawha & Michigan Railway in West Virginia, while plaintiff’s tariff Exhibit A was in force, before plaintiff’s tariff, Exhibit B above mentioned, was issued and filed as aforesaid, and before defendant had actual notice of the issuing and filing of said last-mentioned tariff, and because certain other cars in controversy in said period were shipped from the mines in West Virginia after said last-mentioned tariff was issued and filed, and after defendant had notice thereof, but before said tariff became effective.

Plaintiff denies that the defendant is entitled to any credit or set-off for such reason, or that .such defense can be made in this action.” This discloses the main contention.

Defendant asserts that the tariff of 1909, imposing demurrage from the 15th of August and not before, continued in full force until the 15th of May, 1911, when the tariff of that year became effective; that demurrage can be charged, or, free storage allowed, only in accordance with the tariff in force at the time shipments are delivered to the carrier at point of origin; that all shipments of defendant prior to the 15th of May, when the new tariff took effect, were entitled at Toledo to the free storage provided in the previous tariff, because that tariff remained in force until the date named; and that, consequently, on such shipments the plaintiff could not lawfully impose demurrage before the 15th of August following.

It is conceded that the demurrage in dispute was assessed in accordance with the tariff of 1911, and that it accrued at the times and in the amounts claimed by the plaintiff. That is to say, the “rules and charges” of the new tariff were correctly applied to all loaded cars which had arrived at Toledo prior to the 15th of May and were then held there on yard storage.

If, then, we assume, as defendant contends, that the old tariff was in effect until that date, it will at once be seen that the decisive question is whether plaintiff had the right, after accepting shipments at point of origin, and from a date of which the required 30 days’ notice was given, to shorten the time that such shipments would be held at destination without charge for storage. In other words, could the plaintiff lawfully apply the new tariff to cars transported before the old tariff was canceled ? We are of opinion that this question must be answered in the affirmative.

The opposing view, to say nothing else, overlooks the essential difference between the service of transportation, which must be furnished and paid for, and the accommodation of storage, which may or may not be provided. Broadly speaking, the former is a right which the carrier cannot deny or abridge, the latter a privilege which the carrier is at liberty to accord or refuse. One is obligatory, the other optional.

This distinction is recognized in the regulating statute which, for example, requires the carrier’s schedules to state separately all storage charges, and in the general practice of publishing such charges in a separate tariff. The freight rate in force at a given time is a unit by itself which measures., while it remains in force, the liability of the shipper for the service of transportation. In re Through Routes & Through Rates, 12 Interst. Com. R. 163.

But that service is wholly disconnected, in fact and in law, with the optional allowance of yard storage, whether free or otherwise, after a shipment has reached its destination. And in respect of such storage, under either of the tariffs in question, each day is plainly a separate unit, because the shipper is free to avail himself of the privilege for whatever number of days he chooses, within the limits and upon the terms named in the tariff, or to release the cars at any time and thus avoid further payment or obligation.

From this it follows that, whilst the freight rate in effect when a shipment is delivered to the carrier cannot be changed as against that shipment, the charge for optional storage at destination, when the transportation has been completed, may be lawfully increased, or the free time curtailed, upon and after the statutory notice.

And it also follows that tire tariff of 1911, under which the demurrage in question accrued, was “the tariff filed and in effect at the time,” that is, from and after the 15th of May, and plaintiff was therefore bound under heavy penalty to strictly observe that tariff and assess demurrage accordingly. On that date the old tariff ceased to exist, for it was canceled in terms by the new issue, and the latter thereupon became the established standard of charges which plaintiff could in no wise disregard without the risk of criminal prosecution. Horton v. T. & G. R. Co. (D. C.) 225 Fed. 406.

With the reasonableness or otherwise of this tariff we are not at all concerned, as that question is solely for the tribunal which administers the statute. It is only for us to determine whether the cars transported before April 4, 1911, when the new tariff was issued and filed, as well as those transported between then and the 15th of May, when the new tariff went into effect, were subject to the “rules and charges” named and provided in that tariff.

If defendant felt aggrieved by the announced intention to charge demurrage from the 15th of May instead of the 15th of August, there were ample remedies at its command. A protest could have been made, when notice of the new tariff was received, and the Commission asked to suspend it pending investigation.

If that course were not taken or failed of success, a complaint of unreasonableness could have been filed, with demand for reparation, and the Commission would have had full authority, if it sustained the complaint, to order the tariff amended, or canceled altogether, and to award compensation for any injury which the defendant was found to have sustained. Taking the facts and assumptions here considered in the aspect most favorable to defendant, we perceive no ground upon which its contention can be upheld.

The service of transportation, as already pointed out, is entirely distinct from the privilege of storage at destination, and it seems clear to us that such storage should be governed by the demurrage tariff in force when the shipper avails himself of the privilege, if the required notice has been given, irrespective of the time when his cars were transported.

Such a tariff is in no sense retroactive, for it applies only from a date of which the shipper has had such notice as the law presumes to be sufficient for his protection; and if he has reason to complain of a change which shortens the free time, or increases the per diem, the Commission has plenary power to afford him redress. A ruling to the contrary would not only be unfair to the carrier, but serve to give opportunity for the unjust discriminations which the commerce act especially seeks to prevent.

The foregoing in effect disposes also of the claim for deductions from the aggregate charge because in certain cases — comparatively few in number — notice of arrival was not mailed to defendant on the day the cars reached the Toledo terminal.

The sufficient answer to this claim is that nothing is found in the tariff in question, or in the statute under which it was issued, which required the plaintiff to give notice, by mail or otherwise; and the fact that notices were given, usually on the day of arrival, as a matter of courtesy or custom, does not imply any binding obligation on plaintiff’s part, or entitle defendant to any set-off for the occasional instances of delayed notice. The point is fully covered by Hite v. Central R. of New Jersey, 171 Fed. 370, 96 C. C. A. 326, and the unreported opinion of the Commission in Pittsburg & Buffalo Co. v.

Hocking Valley Ry., decided March 22, 1915. And here again it may be noted that if the 1911 tariff was faulty or defective, in failing to provide for notice of arrival, the Commission alone had authority to require its proper correction. We agree with the court below that the defense set up is without legal merit, and the judgment in favor of plaintiff must therefore be affirmed. ^=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes