obviously intended to stimulate shippers such as defendant to provide ships more promptly by exerting on those shippers the economic pressure of an earlier starting date for charges for railroad cars that awaited unloading at ports. The purpose of Order 905 was reasonable and the Order was well calculated to accomplish its purpose.
The problem of delay in unloading railroad cars at ports may have been more acute in connection with grain than with other freight. Since the tariff had specifically mentioned that grain could be stored free at Port Richmond for twenty days, Order 905 might have made specific reference to grain, but the fact that the order was phrased only in general terms is no ground for saying that grain was not included in the order along with other freight.
Defendant contends that Order 905 could not move cars faster because it was the railroad's obligation to unload the cars, and that no amount of diligence on the part of the shipper-consignee in making ships available would move cars if the railroads failed to unload them. Defendant contends that to begin railroad revenues for the use of loaded cars only seven days after arrival would merely be in inducement to the railroads to dawdle with the unloading, and so be paid for their own delay. It is not for me to inquire into the wisdom of orders of the Interstate Commerce Commission and I cannot know what terms are included in all the contracts between railroads and consignee at ports, but the situation in the present case probably is typical. While it was the railroad's obligation in the present case to unload, its control over the unloading was not unlimited. Certainly it was part of defendant's express or implied contract with plaintiff railroad that the railroad would unload the cars at the port with all reasonable speed. If, because of a lock of diligence or a deliberate attempt to run up storage charges for grain standing in cars, the railroad should fail to unload within a reasonable time, there would be contractual sanctions which defendant could apply against the railroad. In view of this, therefore, the Order would certainly act as a lever to get these stalled cars moving.
Defendant contends that Order 905 applies only to demurrage charges. Demurrage is a penalty imposed for delay in unloading railroad cars after arrival, or compensation to railroads for the use of cars not unloaded promptly. Demurrage is charged by the car, while grain storage is charged by the bushel. Whatever the nature or purpose of the charge, since it is a cost to consignee, the effect is to stimulate consignees to keep railroad cars moving and to make the cars available for new uses after they have completed a haul. This is exactly the Commission's purpose in reducing the amount of free time in Order 905. Item 1195 of plaintiffs tariff provides that 'Demurrage rules and charges will not be applicable on shipments of bulk Grain * * * for the Port Richmond Elevator.' Whether by a change in demurrage rules or by a change in storage rules, the result of Order 905 was the same -- to make railroad cars available for other uses more quickly after the completion of hauls.
Defendant contends also that Order 905 should apply only to situations where the consignee has full control over the unloading. Had the Commission intended to restrict its order to such situations it could easily have inserted such a restriction, but no such restriction appears. It must be remembered, too, that because of their contract rights consignees have a considerable measure of control over unloading in any case.
Defendant cites Western Maryland Railway Co. v. Commodity Credit Corp., D.C.M.D.1957, 154 F.Supp. 508 to support its contention that Service Order 905 did not reduce the free time allowed by storage tariffs for grain-carrying railroad cars awaiting unloading at ports. The Western Maryland case concerned Order 871, dated 1950, and not Order 905, dated 1955. While the two orders are quite similar, Order 905 contains a paragraph, not included in Order 871, which makes its meaning clearer. After mentioning the critical shortage of railroad cars, the emergency existing at ports, and the reduction of free time to seven days, Order 905 provides (in Section 95.905(a)(2)) that, where railroads enter into agreements with the United States
Providing for waiver of storage charges where shipments are held for transfer to ships, railroads must unload and release the cars for transportation service within 24 hours after the end of the seven-day period. Reading it as a whole, Order 905 clearly means that the free time allowed for the storage of goods in railroad cars at ports is reduced to seven days. Railroads can enter into agreements with the United States as a shipper or consignee under which the railroads waive their right to charge storage after seven days, but if such an agreement is entered into, the railroads must unload and release the cars for transportation service within 24 hours after the expiration of the seven-day period.
This reference to agreements between the United States as a consignee and railroads waiving storage charges after seven days, indicates strongly that the purpose of the order was to reduce free time for storage to seven days. Because Order 871 did not contain the paragraph relating to waiver agreements, the Western Maryland case is distinguishable from the present case. Because, in addition, I disagree with some of the reasoning in the opinion,
the Western Maryland case will not be followed.
Defendant's motion for summary judgment is denied.