United States District Court, E.D. Pennsylvania
railroad's assessment of demurrage charges affects the
relationships among the railroad, the shipper, the receiver,
and the consignee. The shipper decides what mode of
transportation to use, what carrier to use, and what quantity
to ship. The railroad determines when demurrage starts to
accrue. In other words, it sets the time limit the receiver
has to unload cars. The receiver, who is hired by the
shipper, has no control of those decisions. Yet, it is the
receiver who is responsible for any delay in unloading the
goods within the railroad's deadline.
arrangement demands cooperation between the shipper, the
carrier, and the receiver. Of the three participants in the
delivery system, the receiver has little, if any, leverage.
Consequently, the receiver often operates under terms fixed
against this backdrop that Norfolk Southern Railway
Company's claim against G.W.S.I., Inc for demurrage
arises. The pertinent facts are set forth in the Findings of
Fact. This memorandum opinion explicates the conclusions of
law in support of the judgment.
rail carriers “shall compute demurrage charges, and
establish rules related to those charges.” 49 U.S.C.
§ 10746. Any person receiving “rail cars from a
rail carrier for . . . unloading who details the cars beyond
the period of free time set forth in the governing demurrage
tariff may be held liable for demurrage, ” as long as
the carrier has provided the receiver with actual notice of
its tariff before placing the railcars. 49 C.F.R. §
carrier and a receiver may enter into a private contract
governing demurrage. Id. § 1333.2. In the
absence of an agreement, demurrage is governed by the rail
carrier's tariff. Id.
parties agree that Norfolk Southern's Tariff NS 6004-D
governs their relationship. Norfolk Southern provided notice
of the tariff on June 15, 2014, prior to the period during
which the demurrage charges at issue accrued. There was no
written demurrage agreement.
contends that it is not liable for the charges despite the
absence of an agreement varying the tariff. It asserts
defenses of waiver and estoppel. It argues that Norfolk
Southern impliedly waived its right to recover demurrage as a
result of its conduct and representations. It also contends
that Norfolk Southern is estopped from collecting demurrage
because it continued to accept railcars in reliance upon
Norfolk Southern's conduct and statements which led it to
believe that demurrage would not be charged.
and estoppel are often used interchangeably, sometimes
incorrectly. Brown v. City of Pittsburgh, 186 A.2d
399, 401 n.3 (Pa. 1962). Waiver turns on the conduct and the
intent of the party against whom waiver is asserted. The
waiving party's intent is controlling. Id.
Estoppel focuses on the conduct of both parties. Id.
case, the distinction makes a difference. Norfolk Southern
never intended to waive demurrage, but it acted like it did.
Hence, the inquiry is on what Norfolk Southern and GWSI did.
is the intentional relinquishment or abandonment of a known
right, claim, or privilege. Id. at 401. Central to
waiver is the waiving party's intent and conduct. Waiver
requires that the other party knowingly gave up the right and
acted clearly, unequivocally, and decisively to relinquish
it. Commonwealth ex rel. Corbett v. Griffin, 946
A.2d 668, 679 (Pa. 2008) (quoting Brown, 186 A.2d at
401); see also Kamco Indus. Sales, Inc. v. Lovejoy,
Inc., 779 F.Supp.2d 416, 424 (E.D. Pa. 2011) (quoting
Griffin, 946 A.2d at 678).
may be express or implied. Brown, 186 A.2d at 401.
An implied waiver arises when undisputed acts or language
mislead the other party into reasonably believing that the
waiving party will not seek to enforce compliance with the
contract provision. Samuel J. Marranca Gen. Contracting
Co. v. Amerimar Cherry Hill Assocs., L.P., 610 A.2d 499,