Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before BUFFINGTON, Circuit Judge, and THOMSON and AVIS, District Judges.
This is an action in assumpsit brought by the Central Railroad Company of New Jersey, appellee, against J. L. Schick and Gaetano Corrado, a partnership, doing business under the name of Moyer Coal Company, appellants, to recover certain transportation and demurrage charges on six carloads of coke shipped from points in Pennsylvania to certain points of delivery in New Jersey, received by the appellee from different connecting carrier railroad companies.
Four of said cars were consigned to Sidford & Green at pier 18, Jersey City, N.J., and the other two cars were consigned to Lewis (or Louis) Stultz, at Keyport, N.J.
It appears that both consignees were notified of delivery of cars at place of destination, and both refused to accept the shipment and unload the cars.
It is admitted by stipulation of counsel for both parties, dated September 7, 1929, that this was done, and also that the appellants were promptly notified of the refusal of consignees to accept or unload the coke and to pay freight charges accrued thereon; that the appellants refused to give the appellee any orders for the disposition of the coke, and refused to unload and accept the coke at its destination; that appellee afterward sold said cars of coke, after giving due notice of the time and place of sale to defendants, and publishing notice of and conducting the respective sales as required by the statute of the state of New Jersey, quoted in the fourteenth paragraph of the appellee's statement of claim, for the prices set forth in said statement of claim; and that the freight or transportation charges which lawfully accrued on said shipments are correctly set forth in the statement of claim.
There appears to be no dispute as to the amount owing by appellants to appellee (and it is apparently admitted that this amount is correctly calculated in the judgment entered), if the District Court properly interpreted the law as it applied to the facts admitted and proved, and did not err in the rejection of evidence offered.
The first question argued by appellants refers to the right of appellee to hold the cars for a period of six months, and impose upon the appellants the demurrage charge, in accordance with the rates established by "National Car Demurrage Rules and Charges" duly filed with the Interstate Commerce Commission of the United States by the interstate railroad carriers concerned in the transportation of the coke in question in this case; the appellants claiming that the appellee should have held the shipment for, what they term, a reasonable period of time; and that appellee's remedy was not governed or controlled by the statute of the state of New Jersey, under which appellee claims it acted.
"All demurrage charges have a double purpose. One is to secure compensation for the use of the car and of the track which it occupies. The other is to promote car efficiency by providing a deterrent against undue detention." Turner, Dennis & Lowry Lumber Co. v. Chicago, M. & St. P. Ry. Co., 271 U.S. 259, 46 S. Ct. 530, 531, 70 L. Ed. 934.
In interstate commerce shipments, the free time, and subsequent charges are regulated by the filed agreements with the Interstate Commerce Commission, as herein noted, which provide that there shall be two days free time, and for each of the first four days thereafter $2 per day, and for each succeeding day $5.
The state of New Jersey would have no power to regulate interstate rates for demurrage charges, as these are prescribed by the tariff filed with the Interstate Commerce Commission. Chicago, R.I. & Pacific Ry. Co. v. Hardwick Elevator Co., 226 U.S. 426, 33 S. Ct. 174, 57 L. Ed. 284, 46 L.R.A. (N.S.) 203.
The result is that the rates as applied by the filed agreements must be followed for the purpose of ascertaining the amount actually due, and the carrier at point of destination has the authority to collect these charges.
There appears to be no act of Congress, or regulation, governing the period of time for which demurrage charges may be made, nor providing the means or method of making sale by which the carrier may dispose of the ...