Emmons Coal Mining Co. v. Norfolk & W. Ry. Co.

• Decision Date: 10 January 1925
• Docket Number: No. 3181.,3181.
• Citation: 3 F.2d 525
• Parties: EMMONS COAL MINING CO. et al. v. NORFOLK & W. RY. CO.
• Court: U.S. Court of Appeals — Third Circuit

3 F.2d 525 (1925)

EMMONS COAL MINING CO. et al. v. NORFOLK & W. RY. CO.

No. 3181.

Circuit Court of Appeals, Third Circuit.

January 10, 1925.

Conlen, Acker, Manning & Brown, of Philadelphia, Pa. (J. T. Manning, Jr., of Philadelphia, Pa., on the brief), for plaintiff in error Emmons Coal Mining Co.

William G. Wright, of Philadelphia, Pa. (J. T. Manning, Jr., of Philadelphia, Pa., on the brief), for plaintiff in error Fidelity & Casualty Co.

J. Hamilton Cheston, F. M. Rivinus, and Theodore W. Reath, all of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, Circuit Judge, and BODINE and GIBSON, District Judges.

GIBSON, District Judge.

In the court below the Norfolk & Western Railway Company brought its action against the Emmons Coal Mining Company and the Fidelity & Casualty Company of New York to recover an amount alleged to be due as demurrage upon certain cars of coal shipped over the line of the plaintiff by the first-named defendant. The Fidelity & Casualty Company of New York was surety upon the bond of the Emmons Coal Mining Company, conditioned that the principal should pay all freight charges, demurrage, etc., due from it to the railway company.

The defendants each filed an affidavit of defense, raising questions of law, in effect a demurrer to plaintiff's statement. These defenses were overruled by the court below, with leave given to defendants to answer as to the facts. Thereupon defendants obtained a rule upon the plaintiff to show cause why the latter should not furnish certain information relative to the cars upon which demurrage was claimed. This rule was made absolute as to part of the information demanded, and discharged as to the other matters of which discovery was sought. Then defendants each filed an affidavit of defense, in effect the same, and plaintiff moved for judgment by reason of the alleged insufficiency of such affidavits. This motion was granted and judgment entered for the plaintiff.

The assignments of error in the instant case set forth the overruling of the defendants' affidavits of defense raising questions of law, the discharge, in part, of the rule to show cause, and the entry of judgment for want of sufficient affidavits of defense. The facts material to our present inquiry, as they appear from the pleadings, are substantially as follows:

The Emmons Coal Mining Company, in December, 1920, and January, February, and March, 1921, shipped a number of cars of coal over the lines of the Norfolk & Western Railway to Lambert's Point, Va., for transshipment in vessels. At the time these shipments were made a tariff of changes of demurrage on cars containing coal for transshipment at Norfolk and Lambert's Point, Va., duly filed and published, was in effect on the Norfolk & Western Railway. The parts of the tariff applicable to our present inquiry are the following:

"Rule 2. — Free Time Allowed.

"An average of five (5) days per car free time will be allowed, except on coke for export, on which an average of ten (10) days per car free time will be allowed.

"Rule 3. — Computing Time.

"(a) A notice of arrival must be sent or given to the consignee in writing or as otherwise agreed to by carrier and consignee upon arrival of cars and billing at Norfolk Terminals, Va.

"Time will be computed from the first 7 a. m. after the day on which notice of arrival is sent or given to the consignee.

* * * * * *

"(b) A car shall be considered as released:

"1. At the time vessel registers for the cargo or fuel supply of which the coal, coal briquets or coke dumped into such vessel is a part, except that when cars are unloaded before the vessel registers such cars shall be released when unloaded.

"2. To avoid delay that would be entailed in switching out and delivering on shipper's order, in actual sequence of arrival, cars containing the same grade of coal, as indicated by the identifying consigning names or numbers on the waybills, the dates on which cars should have been so released (as indicated by the record) will be substituted for the dates on which equivalent tonnage was actually delivered and the detention will be computed on the basis of such substituted dates.

"3. The dates shipments are transferred by written order and acceptance to another party shall be considered the date of release of the car for the account of the original consignee and subsequent detention shall be charged in the account of the new consignee without any free time allowance.

* * * * * *

"Rule 4. — Demurrage Charges.

"Settlement shall be made on the basis of detention to all cars released during the month. The date of arrival notice shall be subtracted from the date of release. From the total days detention to all cars thus obtained, deduct all Sundays and legal holidays following the date of arrival and five (5) days free time allowance for each car, except on cars containing coke for export deduct ten (10) days free time allowance for each car; the remainder, if any, will be the number of days to be charged at the rate of $2.00 per car per day. Excess credit days of any one month cannot be deducted from the excess debit days of another month."

At the time the aforementioned shipments of coal were made, the Emmons Coal Mining Company was a member of the Lambert's Point Coal Exchange, the object of which appears in the second of its articles of organization and rules, which follows:

"2. Object. The organization of the Lambert's Point Coal Exchange is for the purpose of reducing coal classifications and necessary switching thereof, and to facilitate dumping, thereby expediting the despatch of vessels and augmenting car supply at the mines; and is to (a) act as an agency for the pooling of coal, and to execute to the Norfolk & Western Railway Company orders of the members for delivery of tonnage to vessels, permitting the use by a shipper of coal of the same pool to which the member has made shipments, and to the extent of such contributions, without being required to apply on the delivery order of a member the identical coal consigned to him; and (b) to maintain a complete record of all shipments of coal consigned by the members in the various classifications and of orders received from members and executed to the railway company covering delivery of coal to vessels."

The Lambert's Point Coal Exchange, with its rules, was recognized by the Norfolk & Western Railway Company, which appointed and paid its manager. Under the rules of the organization, each member shipped his coal to himself, care of the Lambert's Point Coal Exchange Pool. After the coal had passed Bluefield, W. Va., it was credited to the shipper, and thereafter coal to an equal amount could be delivered at any time to a vessel, provided his order was placed with the manager of the exchange. By the agreement of the members of the exchange, the manager was not required, in obeying the order of a member for the transshipment of his coal, to take such coal from cars shipped by that member and standing in the yards of the Norfolk & Western Railway at the point of transshipment, but was permitted to dump cars shipped by another member which contained coal of a quality equal to that ordered out. It will be remembered that rule 3 (b) 2 of the demurrage tariff, quoted supra, allowed a substitution of a car of a shipper of later arrival for one of earlier arrival at the point of transshipment, and by the agreement of the members of the exchange a further substitution of the car of one member for that of another was permitted.

Around this power of substitution centers the main controversy...