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

• Decision Date: 10 March 1923
• Docket Number: 8922,8914.
• Citation: 287 F. 168
• Parties: NORFOLK & W. RY. CO. v. EMMONS COAL MINING CO. et al. SAME v. WESTON DODSON & CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

287 F. 168

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

SAME v. WESTON DODSON & CO. et al.

Nos. 8922, 8914.

United States District Court, E.D. Pennsylvania.

March 10, 1923

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

William G. Wright and Conlen, Acker, Manning & Brown, all of Philadelphia, Pa., for defendants.

THOMPSON District Judge.

These cases were argued together, and, as the defenses raised in No. 8914 are included within those raised in No. 8922, they will be considered together. The plaintiff's claim in each case is for the recovery of demurrage charges upon cars containing bituminous coal for transshipment by vessel at Norfolk and Lambert's Point, Va. The demurrage is alleged to be chargeable under Tariff C. & C. No. 4056, I.C.C. No 2826-B, a copy of which is attached to each statement of claim. Both defendants were, at the time of the accrual of the demurrage, members of the Lambert's Point Coal Exchange. A copy of the articles of organization and rules of the exchange is attached to the statement of claim. The purpose of the exchange rule 2 is to reduce coal classifications and necessary switching thereof, to facilitate dumping, thereby expediting the dispatch of vessels and augmenting car supply at the mines; to act as agent for the pooling of coal, and to execute orders to the railway company for delivery of tonnage to vessels; to permit 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. Each member is required under rule 16 to furnish a blanket order authorizing the railway to accept from the manager of the exchange, who is appointed and paid by the railway company his orders for delivery of coal consigned to the member in care of the exchange. It is provided by rule 17 that members shall be responsible to the railway company for demurrage charges accruing to their account and shall file an agreement with the railway company providing, inter alia, that--

'The undersigned further agrees to pay any demurrage accruals under the tariff of the railway company, car day's detention to be computed by subtracting the date of arrival of cars shipped for account of the undersigned from the date of release of equivalent cars.'

It is also provided in rule 31:

'Car demurrage will be assessed by the railway company on the average basis for the account of individual shipper responsible. Detention will be computed by subtracting date of arrival of cars shipped from date of release of equivalent cars. Credit car days of a member shipping in care of the Lambert's Point Coal Exchange shall not offset debits of another member.'

Under the tariff the cars subject to rules are cars containing coal for transshipment direct to vessels or to be stored for shipment by vessels when held for or by consignors or consignees for unloading, forwarding directions or for any other purpose, with exceptions immaterial to this case. The tariff allows a free time of five days per car; time to be computed from the first 7 a.m. after the day on which notice of arrival is sent or given to the consignee. Sundays and legal holidays are excluded.

By rule 3 (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.

'4. Any fraction of day will be computed as one day.'

By rule 4:

'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.'

The statement of claim in each case, after reciting the applicable provisions of the tariff, avers that, at various times during certain months in 1920 and 1921, the coal company defendant received at Lambert's Point, Va., and disposed of by transshipment in vessels, the equivalent in tonnage and in grade (as indicated by identifying consigning numbers) of carload shipments of coal, which coal had been transported in cars in interstate commerce by the railway company consigned to the coal company, care of Lambert's Point Coal Exchange, at Lambert's Point, Va.

It is then averred that the coal company failed to dispose of the coal so...