Empire-Detroit Steel Division of Cyclops Corp. v. I. C. C., EMPIRE-DETROIT
| Decision Date | 15 September 1981 |
| Docket Number | EMPIRE-DETROIT,No. 80-2790,80-2790 |
| Citation | 659 F.2d 396 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | STEEL DIVISION OF CYCLOPS CORPORATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, The Baltimore and Ohio Railroad Company (B&O) and Norfolk and Western Railway Company (N&W), Intervenors. . Submitted Under Third Circuit Rule 12(6) |
Jeffrey A. Vogelman, Russell R. Sage, Major, Sage & King, Alexandria, Va., for petitioner, Empire-Detroit Steel Division of Cyclops Corp.
Richard A. Allan, Gen. Counsel, Henri F. Rush, Associate Gen. Counsel, Laurence H. Schecker, Atty., I.C.C., Washington, D.C., for respondent, I.C.C.
William F. Baxter, Asst. Atty. Gen., John J. Powers, III, Kenneth P. Kolson, Attys. Dept. of Justice, Washington, D.C., for respondent U.S. of America.
John J. Paylor, Cleveland, Ohio, Richard W. Kienle, Roanoke, Va., John M. Phelan, Morgan, Lewis & Bockius, Philadelphia, Pa., for intervenors, The Baltimore and Ohio R.Co. and Norfolk Western R.Co.
Before GIBBONS and HUNTER, Circuit Judges, and GERRY *, District Judge.
This case is a petition for judicial review of the decision of the Interstate Commerce Commission in Docket No. 37347F, Empire-Detroit Steel Division of Cyclops Corp. v. Baltimore & Ohio Railroad Co. (Review Board Number 4), which dismissed the complaint of Empire-Detroit for relief from penalty demurrage charges on 353 carloads of coal, iron ore pellets, and limestone which could not be unloaded promptly because the ladings were frozen. The parties agree that because the decision involves a challenge to the legal bases of the Commission's action we have jurisdiction under 28 U.S.C. §§ 2321(a) and 2342. See Island Creek Coal Sales Co. v. ICC, 561 F.2d 1219 (6th Cir. 1977); Monongahela Power Co v. ICC, 640 F.2d 504 (4th Cir. 1981). But see Genstar Chemical Ltd. v. ICC, 491 F.Supp. 391 (D.D.C.1980), appeal pending, No. 80-1170 (D.C. Cir. Feb. 11, 1980) (). We agree with those courts of appeals which have held that review of orders denying reparations on legal or policy grounds is available by petition for review in the courts of appeals.
Railroads assess demurrage charges when shippers hold railroad cars for loading or unloading longer than a specified period of free time. Demurrage charges for this case are specified in Freight Tariff 4-K, ICC H-74, General Car Demurrage Rules and Charges, G.S. Trzaska, Agent, effective July 1, 1977. This nationwide tariff offers two alternative methods of computing demurrage straight demurrage and the average agreement. Under straight demurrage cars detained beyond free time incur debits at an increasing daily rate. The straight demurrage tariff provides for specified additional free time for delays caused by frozen lading, bad weather, or bunching of car deliveries, but affords no credit for cars released early. Under the average agreement there is a provision for offsetting debits incurred on cars held beyond free time with credits earned on cars released before the expiration of free time. The average agreement affords two extra days of free time for frozen lading provided the shipper certifies within ten days its efforts to unload the cars.
Demurrage charges include a compensation portion related to the railroads' losses from detention and a penalty portion designed to encourage prompt release of cars. Under straight demurrage the Commission has usually relieved the shipper from the penalty portion of the demurrage charge if it shows that detention beyond free time was caused by conditions beyond control such as bunched deliveries or severe weather conditions and that it took all reasonable...
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