The opinion of the court was delivered by: GRIM
In May of 1955 the Commodity Credit Corporation shipped by rail several carloads of frozen beef which were to be loaded aboard ship in Philadelphia for export. Three carloads of beef, sent in refrigerator cars to defendant Reading Company's Port Richmond Terminal in Philadelphia, were spoiled because the cars were not iced while they lay at the terminal for a period of more than a week. The cars remained at the terminal on instructions of American Export Lines, acting as agent for the government, to await the arrival of the ship on which the beef was to be loaded. When the ship docked, the cars were re-iced and moved to the pier. The spoilage was discovered when the cars were opened.
The government has brought this action to recover the value of the meat. The facts are stipulated. Each party has moved for summary judgment.
Two of the cars were shipped from Boston, Massachusetts, and the other from Austin, Minnesota. They moved under straight bills of lading, two of which bore this notation:
'Precool 24 hours before loading with coarse ice and 30% Salt. Replenish to capacity and 30% Salt at all regular icing stations and oftener if delayed.'
The third bill of lading contained the same notation, in which was incorporated before the words 'all regular icing stations' the notation:
'Before forwarding reice to capacity and 30% Salt.'
The notice of arrival of the cars which the railroad gave to American Export Lines contained the notation 'Reice to cap and 30% Salt.'
The issue in this case is whether there was a duty on the railroad to reice the refrigerator cars while they lay at Port Richmond. The government contends that there was such a duty on the railroad, and the railroad contends that there was not. Both parties base their positions on Perishable Protective Tariff No. 16, effective November 16, 1953.
The railroad contends that it was relieved of liability for re-icing at Port Richmond by a portion of Rule 406 of the tariff. Rule 406 provides:
'(A) When shipment * * * is held * * * after arrival in the terminal train yard serving the destination and up to the time it is in process of unloading on team tracks or until placed on private track * * * carrier will examine bunkers or tanks daily and unless written instructions * * * from shipper, owner or consignee are received to the contrary when car requires additional ice or ice and salt during such period it will be reiced.
'(E) The provisions of this rule will not apply:
There is no real dispute between the parties over the proposition that if Rule 406 applies, the railroad was not under a duty to re-ice.
The government contends that Rule 406 is not applicable, but that the matter is governed by Section 2 of the tariff, which requires re-icing. This contention is based on a statement on the title ...