Gault Lumber Co. v. Atchison, T. & S. F. Ry. Co.
Decision Date | 11 February 1913 |
Docket Number | Case Number: 2446 |
Citation | 130 P. 291,37 Okla. 24,1913 OK 98 |
Parties | GAULT LUMBER CO. v. ATCHISON, T. & S. F. RY. CO. |
Court | Oklahoma Supreme Court |
¶0 1. CARRIERS--Interstate Shipments--Last Connecting Carrier--Demurrage. The last connecting carrier of an interstate shipment has authority to apply the proper interstate tariffs, and collect demurrage due, on foreign cars in its possession, which have been used in transporting interstate shipments.
2. SAME--Lien for Demurrage. A carrier, engaged in transporting interstate commerce, has a lien for demurrage charges on the shipment left in a car after the expiration of the free time allowed by the interstate tariffs under which the shipment was made.
3. SAME--Demurrage Charges--Lien--Waiver. A carrier does not waive its lien for demurrage charges on shipments left in cars after the "free time" for unloading same has expired, notwithstanding the carrier has "spotted" the car and has permitted the consignee to remove a portion of the shipment. Such a delivery on the part of the carrier is not an unconditional delivery, but is a qualified delivery for the purpose of permitting the consignee to remove the shipment within the "free time" allowed; if more time is used than allowed by the tariffs in force, the carrier may, to enforce its lien for demurrage, take possession of the car, notwithstanding a part of the cargo has been unloaded by the consignee.
Error from Oklahoma County Court; Sam Hooker, Judge.
Action by the Gault Lumber Company against the Atchison, Topeka & Santa Fe Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Warren K. Snyder, for plaintiff in error.
Cottingham & Bledsoe and Charles H. Woods, for defendant in error.
¶1 This is an action in replevin to recover possession of certain lumber contained in car No. 13112, initials S.W., of the value of $ 320.50, and certain other lumber contained in car No. 70397, initials M. K. & T., of the value of $ 92.91. The cause was tried to the court, without a jury, on an agreed statement of facts (and other evidence.)
¶2 The agreed statement reads as follows:
¶3 The evidence further shows that immediately after the expiration of the 48 hours "free time," allowed by the railway company for unloading these cars, had expired, demand was made by the railway company for payment of demurrage charges, on each car, at the rate of $ 1 per day for each day after the so-called "free time" had expired; that the plaintiff refused to pay the same; and that thereupon the railway company took possession of said cars and locked the doors, whereupon plaintiff brought replevin. Judgment was entered in favor of the railway company, and the plaintiff, feeling aggrieved, brings error.
¶4 Three separate propositions are raised and urged by plaintiff in error in the presentation of this case, viz.: First, that the defendant was not the proper party to collect this demurrage charge, because it did not own the cars in which the freight was loaded; second, that the law did not give the defendant a lien for demurrage charges; and, third, if the law did give a lien, that lien was waived by delivery of the shipments.
¶5 The proposition first above set out is thoroughly and completely disposed of by defendant in error in its brief, wherein it is shown:
¶6 The second proposition, that the law does not give a carrier a lien for demurrage charges, on first thought, under the early decisions of the courts, might seem to be tenable, yet an examination of the Hepburn Act (Act June 29, 1906, c. 3591, 34 St. at L. 584 [U. S. Comp. St. Supp. 1911, p. 1288]), convinces us that demurrage is one of the "other charges" authorized by section 2 of said act, and that the company is given a lien on shipments, for demurrage, as well as for freight, or other terminal charges. Michie v. New York, N. H. & H. R. Co. (C. C.) 151 F. 694.
¶7 This being an interstate shipment, the state law, of course, gives way to the federal statute, and by the Hepburn Act, supra, it is provided that the carrier shall provide and file, with the Interstate Commerce Commission, and print and keep open to public inspection, schedules, showing all rates, fares, and charges of transportation between different points on its own route and points on the route of any other carrier, and provides "that the schedule printed as aforesaid by any such carrier, shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges, which the commission may require, etc." (Italics ours.)
¶8 The railway company, at the trial, offered, and the same was admitted by the court as evidence, the interstate tariff kept on file at its office in Oklahoma City, and also showed that it had been filed with the Interstate Commerce Commission as required by section 2 of the Hepburn Act. supra. The existence of the tariff, the filing of the same with the Interstate Commerce Commission, and the keeping of two copies at the depot in Oklahoma City as required in the Hepburn Act, are not in any manner denied by plaintiff. The reasonableness of these interstate charges, as shown by these tariffs, cannot be here inquired into. If the rates therein embodied are excessive, unfair, or unreasonable, complaint must be made to the Interstate Commerce Commission, which has exclusive jurisdiction, in the first instance, to inquire relative thereto. By the terms of said tariff, which is practically the same as the old car service rules, it is provided that, "after the expiration of the free time allowed, a charge of one ($ 1.00) dollar per car for each twenty-four (24) hours or fraction thereof shall be made and collected for the detention of all cars held for loading or unloading or subject to orders of consignors, consignees, or their agents." It is admitted that the cars were in use for a period of time longer...
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