CLEVELAND, C., C. & ST. L. RY. CO. v. NEW YORK, C. & ST. L. RY. CO., 11 F.2d 850

ALSCHULER, Circuit Judge (after stating the facts as above). The one question involved is the right of the Big Pour to charge the Lake Erie demurrage for detention of cars held for unloading beyond the tariff free time, upon ears loaded with Lake Erie ties sent to the tie storage yard for unloading and stacking there. If the relations of the parties were such that responsibility for the unloading or procuring the unloading of the ears devolved on the Big Pour and not on the Lake Erie, the latter is not chargeable with demurrage, since plainly the Big Pour could not recover for the consequences of its own default.

It seems clear from the contract between these parties that it was not intended to place upon the Lake Erie any duty or obligation with respect to these cars beyond sending them in and paying the stipulated bills for handling and treating the ties. The contracted service of the Big Pour surely included the unloading of the cars, for the ties could not be handled and stacked in the Big Pour’s tie storage yard without being unloaded. Besides there is no provision whatever in the contract for the Lake Erie to do any part of the work of handling the ties.

The contract of 1912 between the Big Pour and the Creosoting Company provided that the Big Pour and the Creosoting Company should unload the ties, unless it elected to place that duty upon the Company, in which case the Company would be paid one-half cent per tie for this service. If the Big Pour itself had continued to unload the ties, as it was doing during the first year of its agreement with the Lake Erie, doubtless no question of demurrage would have arisen, as the contracted duty of the Big Pour to unload was clear.

Indeed it does not appear that any question of demurrage arose during the years that these joint relations existed. It was testified that the unloading cost the Big Pour one cent per tie, and that in 1914 it elected to have the Company do it at the agreed price of one-half cent, and thereafter the Company did it. We are of the opinion that in doing this the -Company did it as an agency or instrumentality of the Big Pour, and that this did not change the relation between the Lake Erie and the Big Pour with respect to unloading the ties, save only perhaps in the manner of paying for that service. .

Instead of paying its proportion of that expense as theretofore, it thereafter paid the Company one-half cent per tie. But it is not necessary to go thus far, for it appears that notwithstanding the Company did thereafter unload the ties, the Big Pour nevertheless maintained entire supervision and control over the unloading and handling as it theretofore had done, and of all the operations in that yard, the Company supplying only the men who under such supervision did the actual work of unloading.

Not only did the 1912 contract provide that in case the Company undertook the unloading the manner of stacking the ties should remain under control of the Big Pour, but the uniform practice after the Company began to unload the ties was for the Big Pour to supervise the unloading. Its superintendent of the storage yard testified that he would indicate to the Company how many men were necessary from time to time to handle this work for the speedy disposition of it and the Company would supply the men.

He said the Lake Erie might have had a gang of its men to unload its ties, but “I should judge they would have had to make an arrangement with the Big Pour to do that. * * * They would have had to know all about the arrangements of the stacks, where they were, and all that sort of thing. But that was never done. We didn’t expect anything like that. That is what I [we] were there for.” He stated that there was no discrimination against the Lake-Erie ears, and that he exercised the same control, and supervision of Lake Erie as Big Pour cars.

It was immaterial to the Lake Erie whether the physical work of unloading was done by the Big Four itself or, under its supervision, by the Company. It had no part or duty in the unloading, and the Big .Four had or assumed direction of it all. On this proposition it is not material whether the payment of one-half cent per tie for unloading was made by the Lake Erie to the Big Four, or directly to the Company, as was done for most of the time. This sum was definite, and it was evidently more convenient to pay it to the Company.

Neither do we find anything in the contention made for the Big Four that the track on which mainly were set the Lake Erie cars became a Lake Erie track, and that placing the ears thereon constituted delivery to the Lake Erie. Whether the Big Four ears would be placed on any one of several of the dozen tracks in the yard was a matter within control of the Big Four. It would set them where most convenient for its operation of its facilities. Indeed, it was testified that at times Lake Erie cars were on various tracks for unloading, all as best effected the speedy handling of all.

In this as in other matters pertaining to the speed and orderly disposition of the business there, the Big Four had entire control, and the Lake Erie none whatever. . We need scarcely notice the contention that the Big Four employees at the yard, while handling Lake Erie cars, should be considered Lake Erie employees. The practice there, as well as the contracts themselves forbid such construction.

But it is urged that the published tariffs of the Big Four do not make provision for its unloading of cars, and that even if this were contracted for it would be in violation of the tariff, and that to unload for this shipper would be violative of the Interstate Commerce Act (Comp. St. § 8563 et seq.). Generally speaking this would be true. But as said in Santa Fé, etc., Ry. Co. v. Grant Bros. Co., 228 U. S. 177, 33 S. Ct. 474, 57 L. Ed. 787: “Manifestly, this rule has no application when a railroad company is acting outside the performance of its duty as a common carrier.

In such ease it is dealing with matters involving ordinary considerations of contractual relation.” Here there was a special and an unusual situation, quite outside the relation of the carrier toward the public. The Big Four controlled this facility for ereosoting ties and timbers, and the appurtenant storage yards and tracks. Manifestly the capacity of the plant and the investment of the Big Four were materially larger than proved necessary for its requirements, and it found itself obligated to supply for treatment a yearly minimum of ties greater than it needed.

It was evidently deemed advantageous to share these facilities with some other road, which might make use of them, and terms for such use were agreed upon whereunder the Lake Erie brought its ties and timber there for treatment, and its ties there treated would apply upon the Big Four’s required annual quota.

It is reasonable to assume that there could not well be a divided responsibility in the control of these facilities, and in the supervising, the setting and unloading of the cars, and it doubtless would not have been to the advantage of either railroad to have any of those functions under the direction of more than one of them. So for the benefit of all, this general direction and control was left where it had been, with the Big Four, and without any participation whatever by the Lake Erie.

The mutual advantage to the parties in so operating is evident from the fact that year after year the contract, and the indicated practice under it, continued, notwithstanding cancellation could have been effected upon 90 days’ notice. Nothing appears in the record to indicate in any degree that the contracts and the practice under them were for the purpose of avoiding demurrage payment, or for granting to the Lake Erie any special and unlawful privileges. It was testified that the Big Four paid per diem charge on foreign cars while in this yard.

While it does not appear whether this charge was included in the yard expense bills, it is not material on the question of demurrage whether per diem was in fact paid, or if paid, whether or not it was included or includable in the yard expense. If the delay was occasioned by insufficient yard or handling facilities, the responsibility therefor rested on the Big Four whose duty it was to provide them.

Under all the circumstances the plaintiff’s retention of supervision over the unloading was not a transgression of the schedules filed, nor of the duty to the public of these railroads or either of them as common carriers. Besides it cannot be said that the Lake Erie was having its ties unloaded free of charge.

When the Big Four was itself unloading them, the proportionate cost of it was charged to the Lake Erie, and when it ceased actually to unload them, not only did the Lake Erie pay the contracted price of one-half cent per tie for the unloading, but it paid also to the Big Four its proportionate share of the cost of the general supervision over the unloading and other handling of the ties and timbers when it paid its part of the total expense of maintaining and operating the yard. No good reason appears to us why the Lake Erie should be charged with demurrage, and the judgment of the District Court is affirmed.