Armour & Co. v. Louisiana Southern Ry. Co.

• Decision Date: 04 August 1951
• Docket Number: No. 13418.,13418.
• Parties: ARMOUR & CO. v. LOUISIANA SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

190 F.2d 925 (1951)

ARMOUR & CO. v. LOUISIANA SOUTHERN RY. CO.

No. 13418.

United States Court of Appeals Fifth Circuit.

August 4, 1951.

Harry McCall, Jr., New Orleans, La., Paul E. Blanchard, Chicago, Ill., Chaffe, McCall, Toler & Phillips, New Orleans, La., for appellant.

Henry B. Curtis, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

This is an appeal by the defendant from a summary judgment entered in favor of the plaintiff. The action was brought by the appellee railway company to collect from the appellant, Armour and Company, demurrage charges at the rate stated and prescribed by the Interstate Commerce Commission in its Service Order No. 775. The demurrage charges prescribed by the Commission were greater than those set up and published in the tariff of the railway company. The appellant defended upon the ground, which is likewise urged here, that the demurrage rates as set forth in the railway company's published tariff schedule, on file with the Interstate Commerce Commission, conclusively evidenced the extent and amount of permissible recovery since the carrier had failed to publish the changed rates as a supplement to its tariff. The railway company contends that it is entitled to, and must, recover demurrage at the rates prescribed by Service Order No. 775, which had been issued prior to the time during which the demurrage charges accrued.

By Service Order No. 775, the Interstate Commerce Commission, purporting to act under the provisions of the Interstate Commerce Act 49 U.S.C.A. § 1 (10)-(17), and particularly sub-section 15¹ thereof, found that railroad freight cars were being delayed so unduly in loading and unloading, et cetera, as to cause a shortage of equipment and to impede the use, movement, et cetera, of such cars and thereby create an emergency requiring immediate action in all sections of the country. The Commission prescribed a shorter period of free time and higher charges, increasing at a daily step rate for "demurrage on railroad freight cars." The provision was ordered to become effective on October 15, 1947, but to expire on May 1st, 1948, unless otherwise modified or changed by the Commission. Sub-section (f) of the order provided: "Tariff provisions suspended * * the operation of all rules, regulations or charges, insofar as they conflict with the provisions of this section, is hereby suspended." Sub-section (g) directed "Announcement of Suspension" as follows: "Each railroad, or its agent, shall publish, file and post a supplement to each of its tariffs affected thereby, in substantial accordance with the provisions of Rule 9 (k) of the Commission's Tariff Circular No. 20 * * * announcing the suspension of the operation of any of the conflicting provisions therein, and establishing the substituted provisions set forth herein." Provision was also made for service of the order upon the agent of the railroad and for notice to the general public by filing with the Director, Division of the Federal Register. The railway company did not, prior to the period during which the demurrage charges accrued, comply with the provisions of the order requiring publication and posting of a supplement to its tariff schedule.

The trial Court awarded judgment in favor of the plaintiff in the sum of $5,801.40, — the demurrage charges computed in accordance with Service Order No. 775. Appellant here insists that the plaintiff carrier may not lawfully assess and collect demurrage charges greater than those specified in its duly filed and published tariff. In specification of errors it insists that the trial Court erred in failing to hold as a matter of law: (1) that demurrage charges are transportation charges within the definition of that term as used in the Interstate Commerce Act² for which appellee could charge only the amounts specified in its duly filed published and effective tariff; (2) that appellee's tariff could not be amended by the mere issuance of an order of the Commission directing the carriers to amend it; (3) that the said order of the Commission, on its face, did not amend, and made no attempt to amend, appellee's effective tariff.

The appellee, on the other hand, contends that the service order issued by the Commission in the exercise of its emergency powers as set forth in Section 1 (15) of the Act is a valid order having the force and effect of law, and that the demurrage charge prescribed therein must be observed.

While the appellant's argument in support of its position is based upon various grounds, they all reach the one ultimate point that since demurrage charges are charges for transportation or service and are required by law to be filed and published, and since no deviation from such a tariff is legally permissible, the rates fixed by such a tariff are controlling as published and are unaffected by any attempt of the Interstate Commerce Commission by the promulgation of a car service order to prescribe other and different rates of demurrage charges. It is argued that a tariff rate, once published and in effect can be cancelled and made ineffective only by the publication and filing of another schedule, and that while in effect the requirement of the statute to collect the rate as published is superior to every other requirement even though in violation of orders of the Commission. Thus is presented what we deem to be the real question in the case. That is whether the Interstate Commerce Act, as amended, and particularly the provisions of Section 1 (15) thereof, authorizes the Commission, in the discharge of its powers in case of emergency of railroad freight car shortage, to prescribe and fix demurrage rates, and suspend those theretofore in effect, so that such provisions and rates thereby become effective even if a carrier disobeys the Commission's order to publish the announcement of its suspension of rates theretofore in effect.

It is true that demurrage charges are considered and dealt with, by statute and decision as constituting a charge for transportation so as to generally come within the terms of Section 6 of the Interstate Commerce Act, supra, and thus properly includible in the tariff schedule. But the fixing of such charges for the detention of freight cars is also clearly one effective means of relieving a shortage of railroad freight cars by inducing speed in the loading and unloading of them, and the provisions of Section 6 are therefore not repugnant to, or inconsistent with, the grant to the Commission of emergency powers as provided in Section 1 (15), supra. Furthermore, section 6 contemplates a legal schedule and thus makes definite the measure of charges which may be lawfully demanded or received. However, it is clear from other provisions of the Act that in final analysis the Interstate Commerce Commission has the controlling word in the fixing of rates. When the Commission has thus spoken, the carrier is forbidden to thereafter "publish, demand, or collect any rate, fare, or charge for such transportation other than the rate, fare, or charge so prescribed³ * * *." (Emphasis supplied). 49 U.S.C.A. § 15 (1); State of New York v. United States, 331 U.S. 284, 340, 343, 345, 67 S.Ct. 1207, 91 L.Ed. 1492. In this matter of rates, when the Commission acts, it is the creator and the tariff schedule the creature. It is in this sense that Section 6 (3) (7) of the Interstate Commerce Act make fully binding the provisions of the tariff schedule, but these provisions nevertheless contemplate compliance with the valid orders of the Commission. Cf. Lowden v. Simonds, etc., Grain Co., 306 U.S. 516, 521, 59 S.Ct. 612, 83 L.Ed. 953; Davis v. Portland Seed Co., 264...