225 U. S. 282, 32 Sup. Ct. 761, 56 L.
ed. 1091. Hooker Knapp, 225 U. S. 302,
32 Sup. A. 769, 56 L. ed. 1099.
(b) Empty privately owned cars,
while -remaining on privately owned
tracks, and not "placed for loading" by
the carrier, are not subject to demurrage
charges under tariffs of defendants. Rep-
aration awarded for demurrage charges
collected under such circumstances.
Central Commercial Co. v. G. & S. I. R.
R. Co., 23 I. C. C. 532.
(c) The rule of defendants providing
for the assessment of demurrage on pri-
vate cars while standing on private
tracks, and that if private cars are re-
turned under load -railroad service is
not at an end until the lading is removed,
held to be reasonable, as the law does
not impose upon defendants the obli-
gation of hauling complainant's private
cars, and if used it must be under an ar
rangement subscribed to by both and
stated definitely in defendant's tariffs;
and defendants are within their lawful
rights in imposing the foregoing condi-
tion. Proctor & Gamble v. C. H. & D.
Ry. Co., 19 I. C. C. 556; sustained, 188
Fed. 221, 228; reversed on other grounds,
225 U. S. 282, 32 Sup. Ct. 761, 56 L.
ed. 1091.
(d) Following the ruling of June 2,
1908. to the effect that the decision in
In The Matter of Demurrage Charges
on Privately Owned Tank Cars, 13 I. C.
C. 378, would not be given retroactive
effect with respect to reparation for de-
murrage charges, reparation is denied
for such charges paid under protest sub-
sequent to said decision for the delay of
cars owned by private lines on complain-
ants' private tracks occurring prior to
said decision. Cambria Steel Co. v. B. &
O. R. R. Co., 15 I. C. C. 484, 485.
(e) Private cars owned by shippers
and hired to carriers upon a mileage ba-
sis are subject to demurrage when such
cars stand upon the tracks of the car-
rier, either at the point of origin or des-
tination of shipment, but arc not so sub-
ject when upon either the private tracks
of the owner of the car or the private
tracks of the consignee. The carrier
must charge demurrage in all cases
202
DAMAGES, 11 (a) (k)
where such demurrage is imposed by
tariff provision upon its own equipment,
except when a privately owned car is
upon a privately owned siding or track,
and the carrier is paying, or is responsi-
ble for no rental or other charge upon
such car; and a privately owned car in
the sense in which that expression is
here used, is a car owned and used by an
individual, firm or corporation for the
transportation of the commodities which
they produce or in which they deal. In
Re Demurrage Charges on Privately
Owned Tank Cars, 13 I. C. C. 378, 381.
III. PUBLICATION AND TARIFF.
See Tariffs.
11. Obligation to File.
(a) Where demurrage charges have
been duly filed and published with the
Interstate Commerce Commission, the
carrier and the shipper can not by agree-
ment between themselves cancel such
charges on the ground that the carriers'
tracks were torn up and the shippers'
tracks were in bad condition, thereby
causing delays, or on the ground that
such charges were discriminatory be-
tween competing shippers, and where the
carrier and shipper knowing the publish-
ed demurrage charges cancel the same,
they are criminally liable under the In-
terstate Commerce Act as amended by
the Elkins Act of February 19, 1903, and
the Hepburn Act of June 29, 1906. Le-
high Valley R. R. Co. v. U. S., 188 Fed.
879, 887.
(b) Terminal charges being part of
transportation and demurrage charges
being included in the term "terminal
charges," the failure by a carrier to ob-
served demurrage tariffs filed and pub-
ished by it and the soliciting and receiv-
ing of concessions with respect to demur-
rage charges are misdemeanors for
which a prosecution will lie under the
Elkins Act of February 19, 1903, and the
Hepburn Act of June 29, 1906. Lehigh
Valley R. R. Co. v. U. S., 188 Fed. 879,
886.
(c) Demurrage is a terminal charge
for transportation within the meaning of
section 6 of the Act of 1887, as amended
by the Act of 1889, and of the Act of 1906,
which requires the filing with the Inter-
state Commerce Commission and print-
ing and keeping open for public inspec-
tion of schedules showing all the rates,
fares, and charges for transportation.
Lehigh Valley R. R. Co. v. U. S., 188
Fed. 879, 885.
(d) It has been uniformly held by
the Commission that a shipper or con-
signee may not be required to pay a de-
murrage charge, unless the carrier's tar-
iffs provide for the same in clear and
specific form and manner. Crescent
Coal & Mining Co. v. B. & O. R. R. Co.,
20 I. C. C. 559, 569.
(e) A carrier which has no tariff
provision authorizing a demurrage
charge under the circumstances of the
particular case should refund demurrage
which has been collected. Beekman
Lumber Co. v. Louisiana Ry. & N. Co.,
19 I. C. C. 343, 347.
(fg) Where the tariffs of a carrier do
not contain any provisions authorizing
the collection of demurrage, on a car-
load shipment held in transit because
consigned to a prepay station on a con-
necting line on which freight charges are
not prepaid by the shipper, the exaction
of demurrage is unlawful. Tioga Coal
Co. v. G. R. I. & P. Ry. Co., 18 I. C. C.
414, 415.
(h) The fact that a shipper is not
given personal notice of the promulga-
tion of a carrier's demurrage regulations
neither vitiates the latter's right nor
lessens its duty to impose demurrage
charge incurred under the rules contain-
ed in its lawful tariff. Peale, Peacock &
Kerr v. Central R. R. Co. of New Jersey,
18 I. C. C. 25, 33.
(i) The requirements of the Act with
respect to the publication, posting, and
filing of " all terminal charges, storage
charges, icing charges, and all other
charges which the Commission may re-
quire," remove from the carrier and
from the shipper the right which existed
under the common law to contract in re-
ference to demurrage charges, on any ba-
sis other than that specifically set forth
in the carrier's published tariffs, Peale,
Peacock & Kerr v. Central R. R. Co. of
New Jersey, 18 I. C. C. 25, 33.
(j) Where demurrage charges are im-
posed for detention of cars at a point
other than that specified in the bill of
lading, there must be definite tariff
authority therefor. U. S. v. D. & R. G.
R. R. Co., 18 I. C. C. 7, 9.
(k) On cars of cement billed from
Independence, Kan., to complainant at
"Mile Post 679," a switch built at ex-
DAMAGES, 11 (1) 14 (d)
203
pense of complainant and defendant,
the sole property of defendant, near This-
tle Junction, Utah, and retained at This-
tle Junction, there accrued demurrage
of $440. Defendant's tariff provided for
demurrage on such cars as were not de-
livered for reasons beyond control of the
carrier. At no time was the switch filled
with cars consigned to complainant, but
at the request of complainant the defend-
ent delivered only a limited number of
cars per day. HELD, that the act of de-
fendant in retaining cars at Thistle Junc-
tion at request of complainant was not
Induced by a reason beyond its control,
and as demurrage charges were not as-
sessed in accordance with any provision
in defendant's tariff they did not consti-
tute a valid claim against complainant.
(Prouty, Comm'r, dissenting.) U. S. v. D.
& R. G. R. R. Co., 18 I. C. C. 7, 9.
(1) Demurrage assessed without tar-
iff authority on car detained at interme-
diate point through no fault of shipper,
wrongfully imposed. Germain Co. v. N.
0. & N. E. R. R. Co., 17 I. C. C. 22; Mon-
roe & Sons v. Mich. Cent. R. R. Co., 17 I.
C. C. 27.
(m) Where a 'carrier provides in its
tariff for reconsigment without any re-
quirement for prepayment of freight or
guaranty of the same, it may not lawful-
ly charge demurrage for time during
which it holds the shipment while parley-
ing with its connections as to advance-
ment of its freight charges. Beekman
Lumber Co. v. St. L. S. W. Ry. Co., 14
1. C. C. 532, 534.
IV. DEMURRAGE RULES.
12. Construction in General.
(a) In the framing of demurrage reg-
ulations the object sought is the prompt
release of cars. It is not intended that
they should be so liberal as to defeat the
end sought to be attained, but their pur-
pose is to stimulate a shipper to aid the
carrier in serving all shippers. Peale,
Peacock & Kerr v. C. R. R. Co. of N J.,
18 I. C. C. 25, 36.
(b) The primary object of demurrage
regulations is to release cars after a cer-
tain period, not to reward a shipper for
releasing them in less than that period.
Peale, Peacock & Kerr v. C. R. R. Co. of
N. J., 18 I. C. C. 25, 32.
13. Average Demurrage Plan.
(a) Complainant engaged in milling
grain in Louisville, Ky., complained of
demurrage charges collected by defend-
ant in the sum of $145, and claimed they
should have been assessed upon the aver-
age demurrage plan in the sum of $73.
Defendant allowed shippers the average
demurrage plan upon the receipt of a
bond of a specified form signed by the
shipper and a surety, which bond waived
notice by surety of default. Complain-
ant's surety at first refused to sign such
a bond. Meantime, charges were made
that are attacked. HELD, that the rule
prescribed by the defendant was not un-
reasonable. Complaint dismissed. Wash-
burn-Crosby Milling Co. v. Sou. Ry. Co.,
22 I. C. C. 465.
14. Bunching.
(a) The fact that two carloads are
shipped on one day and one the next
from the same point of shipment to the
same destination, and one car arrives on
one day and two on a subsequent day.
does not constitute bunching within the
meaning of the demurrage rules. North-
ern Wisconsin Produce Co. v. M. St. P. &
St. Ste. M. Ry. Co., 21 I. C. C. 197, 198.
(b) Complainant, shipper of creosoted
lumber at New Orleans, ordered 200 cars
of defendant to be delivered at the rate
of four a day. Defendant sometimes sup-
plied more and sometimes less than this
number. On certain days it furnished as
many as 21 cars. Complainant made no
protest when said large numbers were
supplied, and one time informed defendant
it was ready to load 50 cars if it could
get them. Demurrage charges accumu-
lated on the cars irrespective of the num-
ber per day furnished, said charges often
being the fewest when the largest num-
ber of cars was being furnished. Com-
plainant also loaded the cars without at-
tention to the order in which they were
received. HELD, complainant was not
entitled to escape demurrage charges on
account of the manner in which the cars
were supplied to it. American Creosot-
ing Works v. I. C. R. R. Co., 15 I. C. C.
160, 163.
(c) If it were shown that complainant
protested against the setting in of too
many cars at one time, and its voice and
protest had been ignored, there might be
room to find that the demurrage charges
resulting were unreasonable. American
Creosoting Works v. I. C. R. R. Co., 15 I.
C. C. 160.
(d) There is nothing unreasonable or
unlawful about a tariff rule which pro-
204
DAMAGES, 14 (e) 16 (f)
vides that in the event of the carrier's
bunching a shipper's cars and delivering
them in excess of the shipper's facilities
and ability to load or unload, demurrage
will not accrue. American Creosoting
Works v. I. C. R. R. Co., 15 I. C. C. 160,
164.
(e) Unreasonable delays in transpor-
tation should not cause demurrage to ac-
crue. Lynah & Read v. B. & O. R. R. Co.,
18 I. C. C. 38, 46.
(f) Large number of cars held outside
private sidetrack awaiting delivery, due
to complainant having more business
than facilities to handle it, does not con-
stitute a "bunching in transit" by the
delivering line. Brooklyn Cooperage Co.
v. I. C. R. R. Co., 22 I. C. C. 358.
(g) Complainant, manufacturer of bar-
rels at New Orleans, La., alleged that cer-
tain demurrage charges collected by de-
fendants were unreasonable. It has a
plant reached by a siding able to accom-
modate eight cars. The I. C. R. R. re-
fused to accept cars to deliver to this sid-
ing from the connecting carriers, at
times, because of inability to get on the
siding, for which delays the carriers ex-
acted demurrage charges. Complainant
claimed the I. C. R. R. was negligent in
placing cars on the switch. HELD, that
delay was due to lack of switch capacity.
Reparation denied. Brooklyn Cooperage
Co. v. I. C. R. R. Co., 22 I. C. C. 358.
(h) Unreasonable delays incident to
the railroad transportation of coal to tide-
water are within the power of the car-
rier to prevent, and they should not be
permitted to be the cause of demurrage
against consignees. Lynah & Read v. B.
& O. R. R. Co., 18 I. C. C. 38, 46.
(i) The tariff may provide for a
waiver of demurrage charges when cars
are bunched in transit. American Creo-
soting Works v. I. C. R. R. Co., 15 I. C.
C. 160, 164.
15. Free Time.
(a) The public is entitled to a reason-
able time in which to load or unload,
which should not be shortened because of
adverse weather conditions. Murphy
Bros. v. N. Y. C. & H. R. R. Co., 21 I. C.
C. 176, 177.
(b) The application of the uniform
demurrage code in such manner as not to
exclude Saturday afternoon in the com-
putation of free time allowance does not
operate in an unreasonable or unlawful
manner in Philadelphia territory, and
ought not to be modified, so as to allow
it to apply in that territory in any dif-
ferent manner from that in which it ap-
plies elsewhere. Commercial Exchange
of Philadelphia v. P. R. R. Co., 21 I. C.
C. 1, 4.
(c) No objections exist to providing
in a tariff that when a consignee has neg-
lected to unload a carload shipment
within the free time provided in the car-
rier's demurrage rule, the carrier may
unload it, and that when this is done a
charge will be assessed therefor. If,
however, the demurrage charge per day
should be more than the charge for un-
loading a car, it would be necessary to
provide that such shipments must be un-
loaded by the carrier, as otherwise
favoritism might be practiced. Schultz-
Hansen Co. v. S. P. Co., 18 I. C. C. 234,
237.
(d) Consignee's delay in furnishing
vessel should not be included in free time
allowed. Lynah & Read v. B. & O. R. R.
Co., 18 I. C. C. 38.
(e) Free time allowance does not fol-
low car on sold or reconsigned shipments
if original consignee is operating under
average plan; not so when under straight
demurrage. Lynah & Read v. B. & O. R.
R. Co., 18 I. C. C. 38, 45.
(f) Complainant attacked the demur-
rage -regulations of defendant, B. & O. R.
R. Co. and its subsidiary, in allowing at
Locust Point and at Curtis Bay, Md., five
days' free time on tide-water coal for
transshipment, computing on the average
monthly and 12 days' straight time, and
alleged the same to be unreasonable per se
and discriminatory, as compared with the
seven days' average time and the 15 days'
straight time allowed by defendant at
Jackson street, Philadelphia, and at St.
George. The tariffs of other carriers pro-
vided at Wilmington, Del., Philadelphia,
Pa., and Port Reading, N. J., seven days'
average and 15 days' straight free time;
at South Amboy, N. J., Harsimus Cove
(Jersey City), N. J., and Baltimore, Md.,
five and 12 days; at Norfolk and Lambert
Point, Va., seven days' average, no
straight time, and at Newport News,
even days' average, no straight time. The
average net detention for a period of two
years was in the vast majority of cases
at Locust Point, Curtis Bay, Jackson St.
and St. George, less than the free time
DAMAGES, 15 (g)
205
allowed. The average for the whole pe
riod at Locust Point and Curtis Bay was
3.1 and 3.30 days, respectively. The aver
age time used month by month at all of
these ports was, gene-rally speaking, con-
siderably less than the free time ac-
corded. Some of the largest shippers
however, furnished their own boats and
this served to make the average delivery
at the low figures given. The rate on
which the coal moved to tide-water in-
cluded the service by defendant of dump-
ing into the vessels. The line or local
shipper furnished his own storage facili-
ties and was accorded only 48 hours' free
time, whereas complainant and others
transhipping coal used defendant's cars
for storage facilities. Although defend
ant was at Philadelphia and New York
subjected to the competition of other car-
riers, the competition was not sufficiently
open to require defendant's competitor
to grant Philadelphia, Baltimore or Jer-
sey City more than five days' average and
12 days' straight free time. Defendant's
contention that it was compelled to allow
longer free time at Philadelphia in order
to prevent the diversion of coal from its
line at Martinsburg or Cherry Run, Va.,
with a consequent loss of -revenue to an-
other carrier, which would dump same
over its piers, was not sustained, since
defendant must necessarily be a volun-
tary party to any arrangement leading to
such diversion. Coal moving over the
piers at Locust Point and Curtis Bay was
actively in competition with tide-water
coal transported by defendant and mov-
ing over the piers at Jackson street,
Philadelphia. The regulations attacked
provided that free time should begin to
run at the date of arrival of the car at the
yards. Complainant further demanded
that free time should follow a car when
the consignee or destination of the same
was changed. HELD, that the regula-
tions as to free time attacked were not
shown to be unreasonable per se; that
on account of competitive conditions at
St. George the circumstances were not
so similar as to make it unjustly dis-
criminatory to grant longer free time at
St. George than at Locust Point and
Curtis Bay; that the conditions at Jack-
Jon street, Philadelphia, were, however,
so similar to those at Locust Point and
Curtis Bay that complainant was sub-
jected to undue prejudice in not being
accorded the same free time at Locust
Point and Curtis Bay as at Jackson
street, and reparation should be awarded;
that following Peale, Peacock & Kerr v.
C. R. R. of N. J., 18 I. C. C. 25, complain-
ant's demand that demurrage should be
computed on the average plan yearly,
instead of monthly, should be denied, but
that free time should begin to run at 7
a. m. of the day following the day of ar-
rival at the yards and the sending of
notice by defendant; that complainant's
demand to have the average computed on
the average delay at all of defendant'?
tide-water points should be denied, since
so to do would result in congestion of
terminal facilities at particular ports;
and that where a car was transferred be-
fore the expiration of free time, the
transferee should have the benefit of the
un expired straight free time, but should
not be accorded this privilege where the
original consignee was operating under
the average monthly plan. Lynah &
Read v. B. & O. R. R. Co., 18 I. C. C. 38,
44-47.
(g) Complainants attacked the demur-
rage regulations of defendant on coal and
coke for transshipment at the tide-water
ports of Elizabeth, Port Johnson, Port
Liberty, Communipaw Pier and Communi-
paw Dump, as unreasonable per se and
discriminatory in favor of large shippers,
of lake ports, where no demurrage regu-
lations were in effect, of southern ports
and New York harbor points where the
free time was greater and rules more
iberal, and in favor of competitors in
Dituminous coal markets shipping over
railroads operating under embargo and
under unenforced demurrage regulations.
The rule attacked provided that after five
days, upon the average computed for the
calendar month, demurrage at the rate of
per car per day should be charged;
and that monthly statements should in-
clude only cars released during the
month. Complainants demanded that
average demurrage time be computed by
he year instead of monthly. Under the
rates attacked defendant furnished the
service of unloading the cars into vessels
at the piers. These piers were amply
able to deliver the traffic offered and the
delays resulting in demurrage charges
arose from the chartering of vessels and
ringing them to the piers for loading.
Defendant had no control over these ves-
jels. The evidence failed to show that
he large shippers escaped demurrage,
>ut rather showed the reverse. On local
ihipments to New York the rate was
ligher, with 48 hours' free time or 24
206
DAMAGES, 15 (h) (k)
hours on the average plan for unloading.
The local shipper provided storage facili-
ties at the ports, whereas complainants
furnished none. The coal market was
active, from October 1 to March 15, and
dull the remainder of the season. Dur-
ing the active market the cars could be
promptly unloaded and the purpose of
complainants' demand for demurrage
computed on a yearly average was to en-
able them to -retain the coal in defend-
ant's cars during the dull season without
Incurring demurrage charges. Under
the rules attacked complainants' cars in-
curred demurrage only in 11 months out
of a period of 27 months. While more
liberal demurrage rules obtained at other
tide-water points such as Norfolk, Lam-
bert Point, Newport News, Sewall's
Point, St. George and Port Reading, these
points were some distance from the cen-
ter of distribution in Manhattan, were
less desirable as piers, and the competi-
tion with them was negligible. HELD,
the rules attacked were not unreasonable
per se, since it was the duty of defendant
to expedite the release of its cars and
since the delays in unloading resulting in
demurrage arose from the uncertainties
of water craft over which defendant had
no control; that since the rules applied
to all of defendant's ports and were uni-
form, they were not unduly discrimina-
tory in favor of other ports served by
other carriers; that an extension to a
year of the computation period would be
an unjust nullification of defendant's de-
murrage regulations; and that in compu^-
ing free time the day of arrival should
be excluded and the first day counted
from 7 a. m. on the day succeeding the
day of arrival, although the day of re-
lease should be included in such compu-
tation. Peale, Peacock & Kerr v. C. R.
R. Co. of N. J., 18 I. C. C. 25, 36.
(h) A carrier should grant a reason-
able time for unloading. Peale, Peacock
& Kerr v. C. R. R. Co. of N. J., 18 I. C. C.
25, 35.
(i) Fact that free time might be easily
extended, no -reason that it must be.
Peale, Peacock & Kerr v. C. R. R. Co. of
N. J., 18 I. C. C. 25, 35.
(j) Unlimited free time at New Or-
leans on through export shipments of
forest products, no discrimination against
local shipments "for export" on which
free time is limited. New Orleans Board
of Trade v. I. C. R. R. Co., 17 I. C. C.
496, 502.
(k) Shippers of forest products to
New Orleans on local bills of lading for
export were assessed after the expiration
of 10 days' free time, demurrage charges
of $1 per day and storage charges of Ic
per 100 Ibs. for the first 10 days or frac-
tion thereof, after the free time, and for
each additional 10 days or fraction there-
of, %c per 100 Ibs., with the provision,
however, that the storage charge should
not exceed the demurrage charge for the
same time. Shippers on through export
bills of lading were assessed no demur-
rage or storage charges at New Orleans.
Complainant attacked said charges and
demanded that on local bills of lading
for export the shipper should have five
days at New Orleans within which to
name vessel and ship line and 15 days
thereafter free time. Shippers on local
bills for export enjoyed certain advan-
tages over shippers on through bills for
export. The former were able to control
the shipment at New Orleans and often
able to secure steamer space at reduced
rates, where the steamer took on their
products in order to make up a cargo.
On a through export bill forest products
might be inspected at New Orleans, but
not rejected. On a local bill for export
they might be both inspected and re-
jected. On a through export bill the mill
was informed of the destination and ulti-
mate purchaser in Europe and such pur-
chaser learned the name of the seller and
the point of origin. Traffic under through
bills was under the control of the car-
riers and was often delayed in transport
to New Orleans when the carriers knew
it would meet with congestion at that
point, whereas, under local bills for ex-
port, the carrier was obliged to move the
shipment promptly to New Orleans, be-
ing unaware of what steamship arrange-
ments the shipper might have made. As