Brooklyn Eastern Dist Terminal v. United States

• Decision Date: 09 January 1917
• Docket Number: 97.
• Parties: BROOKLYN EASTERN DIST. TERMINAL v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

239 F. 287

BROOKLYN EASTERN DIST. TERMINAL v. UNITED STATES.

No. 97.

United States Court of Appeals, Second Circuit.

January 9, 1917

In Error to the District Court of the United States for the Eastern District of New York.

Action by the United States against the Brooklyn Eastern District Terminal for penalties incurred by violation of the Hours of Service Act. Judgment for the plaintiff on an agreed statement of facts, and defendant brings error. Reversed.

Henry B. Closson, of New York City, for plaintiff in error.

Melville J. France, U.S. Atty., of Brooklyn, N.Y. (Vine H. Smith Asst. U.S. atty., of New York City, and Philip J. Doherty Sp. Asst. U.S. Atty., of Washington, D.C., of counsel), for the United States.

Before COXE, ROGERS, and HOUGH, Circuit Judges.

HOUGH Circuit Judge.

The Terminal is a corporation organized under the Transportation Corporations Law of New York (Consol. Laws, c. 63) for the purpose (as declared in its certificate of incorporation) of owning and employing vessels and other property in the business of transporting and storing merchandize in New York Harbor and the territory bordering thereon. It maintains a fleet of tugs and car floats, which convey cars to and from its station on the Brooklyn shore of the harbor, procuring and delivering such cars at the depots (mostly on the New Jersey shore) of sundry railroads; e.g., the Erie. Its own Brooklyn station contains float bridges, platforms, freight sheds, etc., all connected by railroad tracks, and does not apparently differ from many other water front freight yards in construction and arrangements. In order to haul the cars so handled from and to the bridges and places of loading and delivery, it hires several switching engines, which take 'drags' of cars-- i.e., one or more cars fastened to the engine-- wherever they are wanted within the terminal limits. It owns no cars, and transports no passengers. To manage these 'drags,' so-called 'switching crews' are employed by the Terminal, each consisting of a conductor, engineer, and a number of brakemen deemed sufficient.

It thus appears that the only business of the Terminal is to provide for some ten or more interstate railways, and certain steamship lines, which have no Long Island termini, a place for the receipt and delivery of freight, doing the same kind of work which the railroads themselves do at (e.g.) their New Jersey stations. This work is done in pursuance of identical written contracts with the Terminal's several patrons, under which the Terminal is paid so much per hundredweight for freight transported, receives and delivers goods in the name of (e.g.) the Erie Railroad, issues the bill of lading of the proper company, and collects freight moneys as agent, turning over all receipts in full to the patrons to which they severally belong.

The question presented by this writ is whether the Terminal is subject to the provisions and penalties of the statute invoked by the United States. The Hours of Service Act is declared by its own preamble to apply to 'any common carrier or carriers, their officers, agents and employes' engaged in interstate or foreign commerce, and 'employes' is defined as meaning 'persons actually engaged in or connected with the movement of any train. ' It is admitted that the Terminal is by the carriage of goods from New Jersey to Long Island engaged in interstate transportation; indeed, that is the staple of its business.

Whether a member of a switching crew is a 'person actually engaged in or connected with the movement of any train' depends upon whether the drags of cars handled by these crews are 'trains.' This word has received construction in cases arising under the Safety Appliance Act, with the result that switching operations have been held not to be 'train movement.' United States v. Erie Railroad, 237 U.S. 402, 35 Sup.Ct. 621, 59 L.Ed. 1019; United States v. Chicago, etc., 237 U.S. 410, 35 Sup.Ct. 634, 59 L.Ed. 1023. See, also, La Mere v. Railway, etc., Co., 125 Minn. 159, 145 N.W. 1068, Ann. Cas. 1915C, 667; United States v. Grand, etc., Co. (D.C.) 203 F. 775; Atchison, etc., Co. v. United States, 198 F. 637, 117 C.C.A. 34; United States v. Boston, etc., Co. (D.C.) 168 F. 153; United States v. Chicago Great Western, etc., Co. (D.C.) 162 F. 775.

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