Virginian Ry. Co. v. LAKE & EXPORT COAL CORPORATION

• Decision Date: 14 April 1925
• Docket Number: No. 2316.,2316.
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: VIRGINIAN RY. CO. v. LAKE & EXPORT COAL CORPORATION.

5 F.2d 496 (1925)

VIRGINIAN RY. CO. v. LAKE & EXPORT COAL CORPORATION.

No. 2316.

Circuit Court of Appeals, Fourth Circuit.

April 14, 1925.

W. H. T. Loyall, of Norfolk, Va. (W. C. Plunkett, of Norfolk, Va., on the brief), for plaintiff in error.

Tazewell Taylor, of Norfolk, Va., and Karl Knox Gartner, of Washington, D. C., for defendant in error.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

ROSE, Circuit Judge.

The parties occupied the same position below as they do here; that is, the Virginian Railway Company, plaintiff in error, was the plaintiff, and the Lake & Export Coal Corporation, defendant in error, was the defendant. For brevity we will refer to them respectively as the railway and the shipper.

The shipper was a member of Sewell's Point Coal Exchange and in the winter and spring of 1921 shipped many carloads of coal over the railway to the exchange for export. By agreement of all concerned in the primary calculation of the amount of demurrage, if any, which might be due the railway, the exchange was treated as if it was the sole consignee of all the coal of its members, although each member signed an agreement with the railway becoming personally liable for all demurrage charges which upon apportionment by the exchange, might be assigned to him by its commissioner. At the time of the shipments, the railway tariffs filed with the Interstate Commerce Commission provided an average of five days' free car time, and required notice of arrival to be sent or given to the consignee upon the arrival of a car and billing at Sewall's Point. It was further provided that a car should be considered as released at the time the vessel registered for cargo or for fuel supply, of which the coal dumped into it was a part, except that when cars were unloaded before the vessel registered, they were to be regarded as released when unloaded. It was further provided that to reduce switching and to prevent delays, cars might be delivered otherwise than in the order of their arrival. In that event the dates upon which the substituted cars were delivered were to be used in computing the detention of the cars for which they were substituted, so that as far as credit and debit days were concerned, the record should be the same as though the cars were delivered in the order of their arrival. It followed that the ordinary method of making up the account was to charge each car as having arrived on the day notice of arrival was given, and to enter it as having...