Western Oil & Fuel Co. v. Great Lakes Pipe Line Co.

• Decision Date: 19 March 1954
• Docket Number: No. 14917.,14917.
• Citation: 210 F.2d 490
• Parties: WESTERN OIL & FUEL CO. v. GREAT LAKES PIPE LINE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

210 F.2d 490 (1954)

WESTERN OIL & FUEL CO. v. GREAT LAKES PIPE LINE CO.

No. 14917.

United States Court of Appeals, Eighth Circuit.

February 19, 1954.

Rehearing Denied March 19, 1954.

Perry R. Moore, Minneapolis, Minn. (James L. Hetland, Jr., Minneapolis, Minn., on the brief, Mackall, Crounse, Moore, Helmey & Palmer, Minneapolis, Minn., of counsel), for appellant.

Robert M. Weh, Cleveland, Ohio (John C. Benson, Minneapolis, Minn., R. L. Wagner, Chicago, Ill., and T. H. Burgess, Cleveland, Ohio, on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

COLLET, Circuit Judge.

This action is brought by a common carrier pipe line company to recover demurrage charges from a shipper of gasoline and fuel oil distillate under a tariff duly filed with the Interstate Commerce Commission. The carrier operates an extensive pipe line system through which it pumps petroleum products delivered to it at various points of origin. At each point of origin it maintains extensive storage facilities. Deliveries are made to the carrier by delivery of the oil into large storage tanks. From these tanks it passes into the pipe line, through which it is propelled, and at various points of destination it is placed in large storage tanks belonging to the carrier. The method of delivery at destination consists of the oil being pumped by the carrier out of the storage tanks, through a pipe to the carrier's so-called loading racks, where by means of either railroad tank cars or motor tank trucks, furnished by the consignee, the oil is taken away by the consignee. It is impossible to deliver oil to the carrier at points of origin or to take delivery by the consignees at points of destination without the oil first going into the carrier's storage facilities at both places.

There are three tariffs involved in the present action. The first, chronologically, is Tariff No. 162, which was in effect from 1947 until October 1, 1951. It provided that ninety days' use of the carrier's storage facilities was available to the shipper without charge. The next tariff, in point of time, No. 170, effective October 1, 1951, and its Supplement, effective October 31, 1951, reduced the ninety-day period to sixty days. The third, No. 172, became effective January 1, 1952, and further reduced the foregoing period of time to thirty days. In all other material respects each of the tariffs was the same. Some of the shipments involved were delivered to the carrier during the time Tariff No. 162 was in effect; the remainder were delivered at the time Tariff No. 170 and its Supplement were in effect. All shipments were delivered to the carrier prior to the effective date of Tariff 172, January 1, 1952. All demurrage charges which are claimed by the plaintiff accrued after January 1, 1952. None of the shipments was held in the carrier's storage tanks longer than Tariffs 162 or 170 permitted without the accrual of demurrage charges.

The cause was submitted to the trial court on motion for summary judgment and affidavits filed by each of the parties. The facts are not in dispute. It it agreed that if Tariff 162 applies to the shipments which originated while it was in effect, and if Tariff 170 applies to the shipments which originated while it was in effect, there is no demurrage due plaintiff. Tariff No. 172 went into effect after all of the shipments involved had been delivered to the carrier but before final delivery and removal of the oil by the consignees. It is conceded that if Tariff 172 applies to these shipments, the demurrage claimed is correct. The trial court held that Tariff 172 applied and gave plaintiff judgment for the amount claimed. The defendant appeals from that judgment.

The vital provisions of each of the three tariffs are, as stated, identical except as to the ninety-, sixty-, and thirty-day periods fixed in each. Those provisions appear under the heading "Demurrage Charges" and are as follows:

"Demurrage Charges

"Section A — Except as provided in Item No. 55, the carrier will transport and deliver at the terminal point, with reasonable diligence, the quantity of Gasoline or Petroleum Fuel Oil Distillate accepted for transportation, less deductions, or plus additions account temperature corrections, and will furnish such reasonable facilities, including tankage in transit and at terminal point, as are required for such transportation or will facilitate the efficient operation of its lines.

"Section B — Except as provided in Sections C and D, the consignee shall receive and remove from carrier's tankage without undue delay the Gasoline or Petroleum Fuel Oil Distillate which has been made available for delivery at terminal point for its account. Unless such Gasoline or Petroleum Fuel Oil Distillate is removed from carrier's tankage facilities at the close of a thirty (30) day period, counting from the day the Gasoline or Petroleum Fuel Oil Distillate was made available for delivery at the terminal point, reduced by the number of days which such Gasoline or Petroleum Fuel Oil Distillate accepted under Section B of Item 15 has been held at point of origin for the purpose of accumulation as therein provided, it shall be subject thereafter to a demurrage charge of one cent a barrel a day until removed."

The defendant contends that the thirty-day period is time allowed for loading and unloading; that by the fixing of this definite period the tariff is merely making definite and certain the words "without undue delay." Plaintiff contends that the thirty-day period is free storage time. It must be conceded that if this "free time" period is a necessary incident to the transportation service for which the transportation rate was paid, it could not be withdrawn, changed, or modified after the contract of carriage was made by delivery of the shipments to the carrier. It must likewise be conceded that if the free time period is a storage privilege, such a service or privilege is not a necessary incident to the actual transportation service for which the transportation rate was paid and may be changed or withdrawn by Tariff 172 after the shipments began.

The courts may not construe technical or abstruse terms appearing in a tariff, the meaning of which requires evidence and the special knowledge of those learned in the vernacular sometimes peculiar to rate experts. That is the province of the Interstate Commerce Commission. But if a term has been construed by the Commission, the courts may apply that construction without the necessity of repeatedly relegating that duty to the Commission. When ordinary words are used in their ordinary sense, the construction of the tariff is one of law for the courts. The only term, the meaning of which is important here, which appears in these tariffs and which has a technical meaning is the term "transportation."

The extent of the service which "transportation" embraces is important in determining whether the thirty-day period was an incident thereto and is a part of the service for which the transportation rate was paid. Transportation service for which that rate is paid has been defined by the Commission to include the time reasonably necessary for loading and unloading. In Lake Coal Demurrage, 232 I.C. C. 735, 740, the Commission said:

"The charge for transportation from origin to destination includes tender of delivery and the placement of the car in position for loading and unloading or on a designated track or tracks. An obligation rests upon the carrier to allow a reasonable time for loading...