The opinion of the court was delivered by: FOLLMER
This declaratory judgment proceeding involving the construction of a provision in a division sheet for division of interline freight revenue between plaintiff, Susquehanna, and defendant, Reading, is, in the light of ruling by the Court of Appeals, now before the Court for determination.
As directed by the Court of Appeals, the Order of Referral to Interstate Commerce Commission has been vacated.
After considering the oral evidence, the exhibits, written briefs and oral arguments, the Court makes the following
1. Plaintiff is a corporation incorporated under the laws of New Jersey. Defendant is a corporation incorporated under the laws of Pennsylvania. The matter in controversy exceeds, exclusive of interest and costs, the sum of $ 3,000.
2. The division sheet, recognized and referred to by both parties as a contract, was originally executed July 2, 1943, effective with December 1942 Interline Accounts. This sheet included as a Susquehanna Station No. 2265, Edgewater, N.J. Subsequently there was issued Supplement No. 1 to this division sheet wherein on Page 3 there appears the following:
'Page 11 Add: Effective December 1, 1944.
2266 Edgewater Docks (New York
Harbor Lighterage Points)..N.J.'
'Page 2 Add: Effective December 1, 1944.
20 Deduct before prorating the following allowances (See Exception) for the New York, Susquehanna & Western R.R. and divide the balance on Group 25 percents:
4.4 cents per 100 pounds, Minimum $ 8.80 per car Exception On Grain, in bulk 3.3 cents per 100 pounds.
'Page 2 Add: Effective December 1, 1944.
21 Percents to or from Edgewater Docks, N.J. apply via Green Pond Jct., N.J. only.'
3. On September 15, 1947, a superseding percentage sheet (Reading Company Joint Percentages No. 563-A) was issued cancelling No. 563 which was issued on July 2, 1943. Listed therein, Page 2, are two stations, Station 2265, Edgewater, N.J., Percentage Group BB, and Station 2266, Edgewater Docks, (New York Harbor Lighterage Points) N.J., Percentage Group 18. Likewise on Page 6, under Susquehanna Stations, there are listed Stations 2245 to 2265, West End, N.J. to Edgewater, N.J., Percentage Group BB, and on separate line Station 2266, Edgewater Docks (New York Harbor Lighterage Points), N.J., Percentage Group 18. On Page 13 under 'Explanation of Circle References' there appears the following:
'18 -- Percents to or from Edgewater Docks apply via Green Pond Jct. only. Deduct before prorating 4.4 cents per 100 pounds, minimum $ 8.80 per car, except on Grain, in bulk 3.3 cents per 100 pounds for the N.Y.S. & W.R.R. and divide the balance on Group BB percents.'
4. Seatrain Lines, Inc., is a common carrier by water which transports shipments between the Borough of Edgewater and certain points in the southern or southwestern part of the United States where the shipments are received from or delivered to railroad companies there located.
5. At the time the division sheet in controversy was executed, Seatrain was not located in the Borough of Edgewater and the division sheet or contract provided that in dividing the revenue accruing from joint line hauls between the Susquehanna and Reading, the Reading and the Susquehanna should be entitled to certain percentages, those percentages varying depending upon the Reading station to or from which a shipment was made. These percentages were and are the same in every instance whether the shipment was to the 'Edgewater' or 'Edgewater Docks (New York Harbor Lighterage Points) N.J.' stations of Susquehanna. However, a footnote in the division sheet provides that from revenue accruing on traffic to or from 'Edgewater Docks (New York Harbor Lighterage Points) N.J.' there shall be deducted before prorating and paid to Susquehanna a specified sum, which at the time of the execution of the agreement was 4.4 cents per 100 pounds and has been increased at various times until the amount is now 9.2 cents per 100 pounds.
7. The only revenue under this contract, the division of which is in dispute, is that involving the Seatrain nonbreak-bulk traffic.
8. At the time the 1944 contract was executed, Seatrain was not located in the Borough of Edgewater. It did not begin its operations there until March 12, 1947.
9. From the time of Seatrain's original location in Edgewater on March 12, 1947, until December 17, 1951, a period of over 4 1/2 years, Susquehanna made no claim for the allowance of the ...