immediately follows the designation of the Edgewater Docks Station and is required to be read in connection with the note against that station which provides for the New York Harbor Lighterage deduction. Susquehanna has not only failed to carry its burden of explaining away the foregoing but has resisted any explanation by the parties of the meaning of 'lighterage'.
Furthermore, on Page 2 of said tariff sheet in giving the alphabetical and geographical list of stations of Susquehanna, there appears the following:
2266 Edgewater Docks
(New York Harbor Lighterage Points)'.
And on Page 3 under caption 'Junction Points' setting forth the list of stations on Susquehanna at which track connections are located for the interchange of freight traffic with other common carriers, there is listed 'Edgewater' and under 'Connecting Carrier' 'Seatrain.' Likewise, on various embargo sheets Susquehanna has repeatedly indicated with reference to Edgewater Docks, N.J., New York Harbor Lighterage service an exception as follows:
'Consignees who have own lighterage pier facilities, * * *.',
which would clearly include Seatrain traffic as an exception to Edgewater Docks consignments.
The situation may be summarized as follows:
Plaintiff's position is that under the division contract there is no ambiguity and that under Note 18 with reference to Edgewater Docks Station there can be no doubt as to Susquehanna's right to a deduction before prorating the charges. I agree with plaintiff that there is no ambiguity in these contracts but do not agree that the contracts warrant the conclusions that it draws therefrom. On the contrary, as we have indicated throughout the discussion, the problem we are dealing with here is the construction of a contract which had its inception in a division sheet effective December 1942, which referred only to a Station 2265 -- Edgewater, which was followed by a supplement effective December 1, 1944, in which there was added Susquehanna Station 2266, Edgewater Docks (New York Harbor Lighterage Points) N.J., with a notation 20 as to the deduction for Susquehanna before prorating in connection with collections on shipments to the foregoing Edgewater Docks Station.
Seatrain began its operations in the Borough of Edgewater on March 12, 1947, and the division contract was renewed on September 15, 1947, wherein no actual change was made in the various listings or conditions except that Note 20 in the former supplement now appears as part of Note 18
It is significant that from the time Seatrain entered and began its operations in the Borough of Edgewater on March 12, 1947, until December 1951, Susquehanna made no claim for the deduction prior to prorating on this Seatrain traffic and there is no indication during this period that it considered the contract ambiguous. On the other hand, to the contrary, its interpretation was clearly that of the defendant that this contract did not provide, nor intend to provide, for any deduction before prorating as to Seatrain, -- in other words, that Seatrain traffic was not considered by the parties as consigned to Edgewater Docks. It is further shown that any question of ambiguity was eliminated from this contract by the continued recognition by Susquehanna of Edgewater Station as the interchange point for Seatrain traffic. As late as 1953 in its Tariff S.W. 26-B dated January 31, 1953, effective March 3, 1953, referred to as 'Official Table Of Distances', in which its shows that it recognizes no difference in distance between the two Edgewater stations and specifically refers to Edgewater Station as the Seatrain Junction and in an embargo issued originally December 14, 1951, effective December 17, 1951, covering the description of Edgewater Docks, N.J. (New York Harbor Lighterage), issued the embargo for the very purpose of indicating that an exception thereto was a consignee such as Seatrain who had its own lighterage pier facilities. And this same position is maintained in an amendment of this embargo issued as late as February 17, 1956, which did not change the original provisions but merely added another provision.
In the light of the above, it would seem to be perfectly clear that Susquehanna has not met its burden of showing that it is entitled to this deduction before prorating, especially in view of the findings of the Commission, confirmed by the Supreme Court in I.C.C. v. Hoboken Railroad Company, supra, wherein the Court specifically held that the carrier is entitled to just compensation only for what it actually does. Applying that principle to the nonbreak-bulk Seatrain traffic, which is the only issue before us in connection with the division contracts herein involved, it is clear that Susquehanna performs no such service for which it is entitled to compensation, and I can find nothing to indicate that when the parties executed the division contracts they had any such gratuitous compensation in mind.
Conclusions of Law.
1. This Court has jurisdiction over the instant controversy.
2. Susquehanna is not entitled under the Reading-Susquehanna division agreement to the harbor allowance on any traffic moving to or through Edgewater station.
3. Borough of Edgewater v. Arcade & Attica R. Corp., 273 I.C.C. 711, 280 I.C.C. 121, is not res judicata, nor does it constitute judgment by estoppel, of the station location for division purposes of the Susquehanna-Seatrain interchange point.
'4. Susquehanna is not precluded by 'Borough of Edgewater' from maintaining before, or establishing and maintaining after, the date of the order an interchange point with Seatrain at Edgewater station.
5. The division agreement between Reading and Susquehanna does not obligate Reading to pay Susquehanna the 4.4 cents (as variously increased) from revenue derived from Seatrain traffic, and Susquehanna shall account and pay to Reading the Reading's share of amounts which Susquehanna has withheld as the harbor allowance from Seatrain traffic revenue.
6. Defendant is entitled, pursuant to 28 U.S.C. § 2202, to judgment for whatever sums are found to be due the defendant in accordance with the provisions of Conclusion 5 above.
Let Order be submitted in accordance herewith.