Atlantic Coast Line R. Co. v. Clinchfield Fuel Co.

• Decision Date: 11 January 1951
• Docket Number: C. A. No. 1066.
• Parties: ATLANTIC COAST LINE R. CO. v. CLINCHFIELD FUEL CO.
• Court: U.S. District Court — District of South Carolina

94 F. Supp. 992

ATLANTIC COAST LINE R. CO. v. CLINCHFIELD FUEL CO.

C. A. No. 1066.

United States District Court W. D. South Carolina, Spartanburg Division.

January 11, 1951.

V. E. Phelps, Wilmington, N. C., Douglas McKay, Columbia, S. C., for plaintiff.

Daniel, Russell & Means, Spartanburg, S. C., for defendant.

WYCHE, Chief Judge.

This action was brought by the plaintiff to recover freight transportation charges on four separate shipments of coal originating at Virginia points and consigned by the defendant in May, 1949, to the Sumter Textile Mills at Sumter, South Carolina, via Clinchfield Railroad Company, two intermediate carriers and the plaintiff, the delivering carrier.

The material facts are substantially as follows: No bills of lading were issued by the origin carrier covering any of the shipments; it was the general custom of the defendant and the initial carrier in shipping coal via its line at the points of origin not to issue or take out the usual bills of lading prescribed by the Interstate Commerce Commission, but, to attach to each car when loaded at the mines a mine card; according to such custom, delivery to the initial carrier of shipments made by the defendant was made at the mine tipples with a mine card attached to the car when loaded, which mine cards were used for the convenience of both the shipper and initial carrier. Each of the mine cards attached to these four cars had the printed name of the origin carrier at the top, and space to show the date of shipment, or when the car was tagged for shipment, the kind of coal shipped, car number and initial, name of consignee and final destination and route, as well as the scale weights of the coal and order number, etc. The mine cards on two of the cars in question were printed and furnished by the Clinchfield Railroad Company and on the back of these two cards were printed "Instructions", one of which stated that "The use of this form of card is authorized only for movement from mine to scale yards, and conductors must not move any cars to which such cards have been attached"; these instructions were not on the two cards supplied by the defendant; at the bottom of the two cards furnished by the initial carrier was a printed statement "No recourse on shipper", followed by a blank space underneath which were the words "Shipper's signature, if desires this clause to apply", but this space was not signed by the shipper on these two mine cards; the following was stamped on all of the mine cards: "The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges. Clinchfield Fuel Co." It is admitted that the uniform straight bill of lading prescribed by the Interstate Commerce Commission for use by common carriers engaged in interstate commerce, was lawfully on file as an interstate tariff at the time of the movement of the cars in question and for some years prior thereto; Section 7 of the "Contract terms and conditions" of said bill of lading provides who shall be liable for transportation charges on shipments, including the owner or consignee, and further provides as follows: "The consignor shall be liable for the freight and all other lawful charges, except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading that the carrier shall not make delivery without requiring payment of such charges and the carrier, contrary to such stipulation, shall make delivery without requiring such payment, the consignor (except as hereinafter provided) shall not be liable for such charges." The stipulation on the face of the uniform bill of lading above mentioned, which Section 7, above quoted, requires to be signed by the consignor in order to relieve it of responsibility for freight charges, reads as follows: "Subject to Section 7 of conditions, if this shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement: The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges." A space for "Signature of consignor" is provided thereafter. In the case of the four shipments involved in this suit, it appears that the delivering carrier, plaintiff herein, did not collect the freight charges due from the consignee on delivery of the four cars and brought this suit against consignor to recover the lawful transportation charges; at the time of the shipment and delivery of the cars the consignee was insolvent, but it is not shown nor admitted that demand was made on the consignee for payment at the time of delivery, and defendant denies that the cars were delivered inadvertently without collecting freight charges, and alleges that delivery was made to consignee on its credit "deliberately and voluntarily and unlawfully".

Plaintiff contends that defendant consignor remains liable for the transportation charges on the shipments for the reason that no bill of lading was issued and the consignor did not execute Section 7 on the face of any uniform bill of lading as specifically required by Section 7 of the "Contract terms and conditions" on the back of the uniform bill of lading prescribed by the Interstate Commerce Commission and filed as an interstate tariff, and defendant contends that under the long-established course of shipping on mine cards between defendant and the initial carrier, the attachment of the mine cards to the cars with the words stamped thereon that "The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges" was the "legal equivalent" of the "formal execution" of the nonrecourse clause prescribed by Section 7, and was a "substantial compliance" with Section 7.

The Interstate Commerce Act, § 6(7), 49 U.S.C.A. § 6(7), prohibits carriers from charging or collecting a greater, less or different compensation for transportation of property than the charges specified in the tariff lawfully on file; it prohibits the refund by any device of any part of the charges so specified, and prohibits the carrier from extending to any shipper any privileges or facilities except such as are specified in the tariffs. It is well settled by the authorities that no act or omission of the carrier, except the running of limitations, can estop or preclude it from enforcing payment of the full amount of the tariff charges by a person liable therefor; Louisville & N. R. Co. v. Central Iron & Coal Co., 265 U.S. 59, 65, 44 S.Ct. 441, 68 L.Ed. 900; that neither ignorance nor misquotation of rates or any equitable considerations, will excuse or relieve the carrier of the duty of collecting the full lawful rate; Louisville & N. R. Co. v. Central Iron Co., 265 U.S. 59, 65, 44 S.Ct. 441, 68 L.Ed. 900; Maxwell, 1915, 237 U.S. 94, 97, 35 S.Ct. 494, 59 L.Ed. 853; Baldwin v. Scott County Milling Co., 1939, 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409; and generally evidence of custom is not admissible to vary the terms of lawful interstate tariffs; Standard Hotel Supply Co. v. Pennsylvania R. Co., D.C., 65 F.Supp. 439, 443. The alleged long-established custom between defendant and the initial carrier, for the convenience of the parties, in making shipments without the issuance of a uniform bill of lading, in my opinion, cannot estop the...