Pennsylvania R. Co. v. Carolina Portland Cement Co.

• Decision Date: 11 January 1927
• Docket Number: No. 2556.,2556.
• Citation: 16 F.2d 760
• Parties: PENNSYLVANIA R. CO. v. CAROLINA PORTLAND CEMENT CO.
• Court: U.S. Court of Appeals — Fourth Circuit

16 F.2d 760 (1927)

PENNSYLVANIA R. CO. v. CAROLINA PORTLAND CEMENT CO.

No. 2556.

Circuit Court of Appeals, Fourth Circuit.

January 11, 1927.

Nathaniel B. Barnwell, of Charleston, S. C. (James E. Gowen, of Philadelphia, Pa., on the brief), for plaintiff in error.

Simeon Hyde, Jr., of Charleston, S. C. (Moffett & Hyde, of Charleston, S. C., on the brief), for defendant in error.

Before WADDILL and PARKER, Circuit Judges, and McCLINTIC, District Judge.

PARKER, Circuit Judge.

This is a writ of error to review a judgment for defendant upon an order sustaining a demurrer to the complaint, and the only question presented is whether the complaint states a cause of action. The facts alleged are as follows: Plaintiff is a common carrier engaged in interstate commerce. On June 16, 1922, defendant delivered to it at Tuscaloosa, Ala., a car of lumber for transportation to Harrisburg, Pa. The car arrived in Harrisburg on June 30, 1922, and plaintiff tendered delivery on that date to the company to which defendant had ordered that delivery be made. This company refused to accept the shipment or to pay the charges thereon, and defendant was duly notified and promised to send a representative to handle same. This was never done, however, and on September 8th the lumber was unloaded and held by plaintiff in storage until January 5, 1923, when it was sold for the charges which had accumulated. These charges were freight, $219.95; demurrage, $208; unloading, $39.25; storage, $480. The lumber brought $514.40 at the sale by plaintiff, and recovery is asked for the balance of the charges amounting to $492.80. The action was instituted December 9, 1925, more than three years after delivery was tendered, but less than three years after the sale on January 5, 1923.

The District Judge sustained the demurrer on the ground that the action was not instituted within three years after tender of delivery. The plaintiff urges that this was erroneous for the following reasons: (1) That the three-year limitation prescribed by the transportation act applies only to actions to recover freight charges for shipment, and not to charges for storage, demurrage, and unloading; (2) that at least a part of the charge for storage accrued within the three-year period; and (3) that the three-year period prescribed by the act is a mere statute of limitations affecting the remedy, which cannot be raised by demurrer.

We have carefully considered the arguments advanced by the learned counsel for plaintiff, but we do not think that any of the points relied on can be sustained. The case arises under the Transportation Act of 1920, and the questions which we are to defermine are not affected by the amendment of 1924. Subdivision 3 of section 16 of the Interstate Commerce Act, renumbered and amended by the Transportation Act provides:

"(3) All actions at law by carriers subject to this act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, unless the carrier, after the expiration of such two years or within ninety days before such expiration, begins an action for recovery of charges in respect of the same service, in which case such period of two years shall be extended to and including ninety days from the time such action by the carrier is begun. In either case the cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after. A petition for the enforcement of an order for the payment of money shall be filed in the district court or state court within one year from the date of the order, and not after." 41 Stat. 492 (Comp. St. § 8584).

We think that the clear meaning of this statute is that actions by carriers to recover charges made with respect to a shipment of goods must be commenced within three years after delivery is made or tendered, even though a part of the charges sought to be recovered be for services rendered after tender of delivery. The language of the statute is clear, and does not require that we resort to any rules of construction or interpretation to ascertain its meaning. Its manifest purpose was to fix one date on which all causes of action, both those in favor of shipper and those in favor of carrier, with respect to any particular shipment, should be deemed to have accrued, so that, in the application of the section limiting time for suit, a situation would not arise wherein claims in favor of one party arising out of a particular shipment would be barred and those in favor of the other party not be barred. This purpose clearly appears from the sentence which extends the two-year period of limitation for recovery of damages by the shipper in cases where the carrier begins action for recovery of charges after the two-year period.

It is argued, however, that the expression "in respect of a shipment of property" limits the effect of the section under consideration to such causes of action as arise out of the actual moving of the property as distinguished from charges for storage or demurrage. But we do not think that the language used can be given such meaning. "Shipment" is a broader, not a narrower, word than "transportation," and can be used to include the property which is the subject of transportation as well as the transportation itself. That it has such meaning here is shown by the use of the words "upon delivery or tender of delivery thereof" in the same sentence; the word "thereof" clearly referring to "shipment of...