J.C. Francesconi & Co. v. Baltimore & O.R. Co.

• Decision Date: 01 June 1921
• Docket Number: L19-337.
• Citation: 274 F. 687
• Parties: J. C. FRANCESCONI & CO. v. BALTIMORE & O.R. CO.
• Court: U.S. District Court — Southern District of New York

274 F. 687

J. C. FRANCESCONI & CO. v. BALTIMORE & O.R. CO.

No. L19-337.

United States District Court, S.D. New York.

June 1, 1921

[Copyrighted Material Omitted]

Macklin Brown, Purdy & Van Wyck, of New York City (Walter A. Swett and James M. Gorman, both of New York City, on the brief) for plaintiff.

Cravath & Henderson, of New York City (Lyle H. Hall, of New York City, on the brief), for defendant.

Douglas Campbell, of New York City, appearing by permission of the court for the Union Tank Car Co.

LEARNED HAND, District Judge.

In the absence of regulation under the Interstate Commerce Act (24 Stat. 379), there is no dispute that the defendant would be liable. The plaintiff's tender of the cars and its acceptance by the defendant gave the latter no rights beyond the fair import of the transaction, and, taken merely as a custom, the practice of retaining cars at the convenience of the carriers is not sufficiently proved to form a part of the bargain. If so, the proper interpretation of the bailment is that, when the contents of the car have been delivered to the consignee, the car is at the shipper's order.

The defendant's reliance is upon the fact that rule 29 of the Interstate Commerce Commission provides a rate to cover the empty mileage of tank cars, and that by implication this gives to the carrier a right to hold it as long as it suits its necessities in the general handling of its traffic. At first blush the position appears hardy, since it altogether deprives the shipper of his car, and appropriates it as a part of the general equipment of the carrier, at a rate which is concededly but a fraction of its actual use value. Nevertheless, it is quite true that, if the Commission have ruled in the subject-matter, recourse must be had to it before the courts can interfere, since the question would be one of administration. Pennsylvania R.R. Co. v. Puritan Coal Mining Co., 237 U.S. 121, 35 Sup.Ct. 484, 59 L.Ed. 867.

Nor do I mean to suggest that the Commission might not, if it chose, provide that the tender of a loaded car should give the carrier the right to make it a part of its general equipment, for a time to be determined by its own convenience, at rates which were adequate in the Commission's judgment. That the carrier must, at the cost of paying the full value, at once return the car under the shipper's direction, is not an inevitable necessity. The exigencies of car distribution, the necessities for a reliable and steady supply of equipment, the loss involved in the absolute requirement at once to return empties when and where the shipper might demand, might well give the Commission the power to impose upon the shipper's tender conditions very different from those attending the usual bailment. Similar considerations dictated the decision in Proctor & Gamble v. U.S. (C.C.) 188 F. 221, which was reversed on another ground in 225 U.S. 282, 32 Sup.Ct. 761, 56 L.Ed. 1091. See, also, Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 37 Sup.Ct. 287, 61 L.Ed. 722.

The first question here is whether rule 29 authorizes the indefinite detention of cars at the carrier's pleasure. It is apparent that the rule, in fixing a rate, did not necessarily touch upon this question. At best, if it be an administrative question, which courts should not meddle with, it can be such only because of some established practice of the carriers, whose prima facie validity courts must recognize. I think that rule 29 does not even leave the matter open.

The defendant's position is that the rate applies to movements made at the carrier's pleasure, as well as the original movement dictated by the shipper. But section 2 charges the shipper with all excess empty movements. If so, it will follow that the allowance of three-fourths of a cent for all movements, loaded or empty, is subject to a deduction for all excess empty movements which the carrier may find it expedient to make. Now, section 2 was certainly not devised upon any such theory, but to impose upon the shipper some motive to reduce his empty haulage. It would clearly frustrate the scheme of the rule if the shipper's compensation, inadequate in itself, were exposed to deductions dependent, not upon his own control, but upon the convenience of the carrier in the use of his property. Nor is it possible to say that section 2 applies only to empty movements directed by the shipper, while section 1 applies both to those and to putative movements directed by the carrier. The rule is clearly one and section 2 is intended to cover the same ground as section 1.

It follows that the rule does not authorize the carriers to detain or divert such cars at their will. The defendant nevertheless, argues that under a regulation of the American Railway Association, passed May 17, 1911, it is forbidden to make any payment of the kind here sued upon. That rule, which may be taken as a 'regulation' under section 1 of the Interstate Commerce Act (Comp. St. Sec. 8563), provides that the carriers will pay nothing for delay or diversion, except as authorized in filed tariffs. ...