Chicago, RI & P. Ry. Co. v. Petroleum Refining Co., 3812.

• Citation: 39 F.2d 629
• Decision Date: 31 March 1930
• Docket Number: No. 3812.,3812.
• Parties: CHICAGO, R. I. & P. RY. CO. v. PETROLEUM REFINING CO.
• Court: U.S. District Court — Eastern District of Kentucky

39 F.2d 629 (1930)

CHICAGO, R. I. & P. RY. CO. v. PETROLEUM REFINING CO.

No. 3812.

District Court, E. D. Kentucky, Covington Division.

March 31, 1930.

Rouse & Price, of Covington, Ky., for plaintiff.

Goebel, Dock & Goebel, of Cincinnati, Ohio, for defendant.

ANDREW M. J. COCHRAN, District Judge.

This cause is before me for trial and judgment upon a written stipulation waiving a jury. It was commenced June 30, 1927. By it plaintiff seeks to recover $523.35 for moving empty oil tank cars owned by it. The movements took place between November 16, 1923, and January 5, 1924, both inclusive. During the same period of time the plaintiff moved for defendant oil tank cars loaded with oil. The compensation sought to be recovered is for the excess in mileage of the movement of the empty cars over that of the loaded cars. It is commonly referred to as a claim for excess empty mileage. The liability for excess empty mileage may be paid for by loaded mileage. Such accounts are kept for a year ending June 30th, and within six months thereafter may be paid in loaded mileage. The rule on this subject is in these words: "Such excess must be paid for by the owner either by an equivalent loaded mileage during the succeeding six months or at the tariff rates without minimum plus the mileage allowance that has been paid by the railroad to the owners of such excess empty mileage."

This period is known in railroad parlance as the equalization period. By virtue thereof the plaintiff here could not have demanded payment in cash of this account until January 1, 1925, and hence could not have brought this suit to recover same until then.

The sole defense made is the statute of limitations. By section 16(3) (a) of the Interstate Commerce Act (49 USCA § 16 (3) (a), it is provided: "All actions at law by carriers subject to this chapter for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after."

By subdivision (3) (e) it is further provided: "The cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after."

The question before me for determination then is whether the movement by a railroad company of an empty oil tank car owned by another is a shipment of property within the meaning of this provision. Such car is undoubtedly property, but is such a movement of it a "shipment" within such meaning? The question must be approached from a consideration of fundamental notions or concepts. A movable article may be moved in two ways. The movement in one way is expressed by the words "carry," "convey," or "transport." These three words are synonymous and express the same idea.

"Carry" is thus defined in the Standard Dictionary: "To bear or cause to be borne as from one place to another."

"Convey" is so defined: "To transport from one place to another; carry; as to convey coal by barges."

"Transport" is thus so defined: "To carry or convey from one place to another."

Transport comes from the latin word "transporto," made up of "trans," over, and "porto," to carry. In the case of United States v. Sheldon, 2 Wheat. 119, 120, 4 L. Ed. 199, it was said: "There is no doubt but that the word transport, correctly interpreted * * * means to carry, to convey." Ogdensburg, etc., R. R. Co. v. Pratt, 22 Wall. 123, 133, 22 L. Ed. 827, said: "Transported or carried are equivalent terms."

The movement in the other way is expressed by the words "pull," or "draw," or "push," or "shove."

These two ways of movement are distinct and not to be confused with each other. Move is the generic word and carry, convey, or transport, on the one hand, and pull or draw or push or shove, on the other, are specific. Just wherein, then, does the distinction between these two species of movement lie? In the one case the movement is effected by the article being on or in something else, which is moved. It is moved simply by going along with that something else. No force is applied to it to make it move. In the other case the movement is effected by force being applied to the article. The distinction may be illustrated thus. A mother may move her child by taking it up in her arms or placing it on her back, and she moves it by moving herself. The child is not moved by any force being applied to it. Force is applied to it in taking it up in her arms or placing it on her back, but then the application of force to it ceases. In such case the child is carried, conveyed, or transported. It is not pulled or drawn. Or she may move it by taking it by the hand or arm and pulling or drawing it along. The movement here is brought about by force applied to the child and ceases upon its being withdrawn. In such a case the child is not carried, conveyed, or transported. Or, again, one may own a mule and a cart. He may hitch the one to the other and mount the mule and then start the mule moving. In such case the mule is carrying, conveying, or transporting the owner. It is not pulling or drawing him, but it is pulling or drawing the cart. It cannot be said that the mule is either carrying, conveying, or transporting the cart.

The root idea of the...