#### DENVER & RIO GRANDE RAILROAD COMPANY v. THE UNITED STATES.

[No. 31936.

Decided May 24, 1915.]

*On Demurrer.*

This is a suit to recover unpaid demurrage charges established by a formal tariff filed with the Interstate Commerce Commission.

I. Whatever jurisdiction the Court of Claims has in the matter of a claim for demurrage by a railroad company against the United States must rest in the provisions of section 145 of the *Judicial Code.*

II. The original act providing for the Interstate Commerce Commission and amendments thereof provide the course which parties may pursue who feel themselves aggrieved by the decision of the commission, but that course does not lead through the Court of Claims, and this court can not review the action of the Interstate Commerce Commission directly or indirectly.

*The Reporter’s*statement of the case:

The grounds for the demurrer are stated in the opinion of the court.

*Mr. Wm. 0. Prentiss*for the plaintiff. *Ciarle, Prentiss c& Ciarle*were on the brief.

Without any idea that a question of jurisdiction would or could be raised, but merely to show that the claim had been presented to the proper department and payment refused, there was inserted in the petition Paragraph VII, as follows:

“The petitioner duly presented to the said Eeclamation Servince its said claim for demurrage, but the officers of said Eeclamation Service refused to pay the same, and thereafter the Secretary of the Interior filed with the Interstate Commerce Commission a complaint against the petitioner alleging that the said charge by the petitioner of $440 for demurrage upon said cars was unreasonable and unjust, and asking the ruling of said Interstate Commerce Commission thereon, upon which complaint a hearing by said Interstate Commerce Commission was held and testimony taken and a ruling against the said charge for demurrage wrongfully made by said commission.”

*383It will be observed that it is not alleged that the demurrage charges in question were held by the Interstate Commerce Commission to be unreasonable or unjust or that any order was entered by the commission; but that “ a ruling against the said charge for demurrage (was) wrongfully made by said commission.”

The court may take judicial notice of the report made by the Interstate Commerce Commission, *18 Interstate Commerce Commission Reports,*p. 7 et seq., where it will appear that the commission did not undertake to pass upon any question of reasonableness or justness of the demurrage charges in question, but rested its decision on “ the proposition that demurrage can be assessed only in accordance with tariff provisions, and that the rules of the Utah Car Service Association, in effect when these cars were delivered, did not authorize the demurrage charges in question.”

The report concluded:

“It appears that the amount of the demurrage has not been paid by complainant. The usual method to pursue in such cases is to pay the charges under protest and then file complaint with the Commission, when, if the complaint is sustained, an order is entered directing the carrier to make the proper refund. Under the circumstances in this case no order is necessary.”

It will be seen that the question considered by the commission was purely one of law and that, as it made *no order,*its determination of that question (which in any event would not be binding on the courts), was purely academic. *American Sugar Refining Co.*v. *Delaware, L. dk W. R. Co.,*207 Fed., 733, 740, et seq.

As no order was made, the railroad company could not appeal to the Commerce Court, *Proctor & Gamble Co.*v. *U. S.,*225 U. S., 282, 291, et seq., and its only recourse was to sue the United States in a court having jurisdiction of such claims. In this respect the status of the parties was the same as in *American Sugar Refming Company*v. Delaware, Z. *c& W. R. Co., supra.*

We come, then, to the main question, whether upon the facts alleged in the petition the claimant is entitled to recover.

*384We could safely rest upon the provisions, sections 1 and 2 of rule 5, of the car service rules considered by the commission, 18 *I. G. G.,*page 8, as to which, as applied to the facts, see the convincing dissenting opinion of Judge Prouty; but the commission overlooked the provision of rule 4 that de-murrage would be collected for “ detention to all cars held for loading or unloading *or subject to order of*consignors, consignees, or their, agents.”

Sections 1 and 2 of rule 5 are as follows, petition, page 3:

“ SeotioN 1. Cars containing freight to be delivered on carload delivery tracks or private sidings shall be placed on the tracks designated immediately upon arrival, or as soon thereafter as the ordinary routine of yard work will permit. Delivery will not be made on specially designated yard or tracks, except when it is practicable to do so. When such delivery can not be made, on account of such tracks being fully occupied, or for any other reasons beyond the control of the carrier, delivery shall be made at the nearest available point.

“ Sec. 2. Delivery of cars shall be considered to have been effected at the time when such cars have been placed on the proper private or public deliver}' tracks, or if such track or tracks already contain such number of cars belonging to the same consignee as prevent prompt, delivery, then such cars will be considered as having been placed when the road offering the cars would have delivered them had the condition of such tracks permitted.”

The facts to which these rules are to be applied are set forth in paragraphs 3 and 4 of the petition, as follows:

3. In or about the year 1907 the United States, through the bureau thereof known as the Reclamation Service, undertook certain work known as the Strawberry Valley project,in the vicinity of said Thistle Junction, and for the more convenient handling of freight intended for use in said work induced the petitioner to construct, maintain, and operate a certain switch or siding known and designated as Diamond switch, at milepost 679 on the petition’s said railway, about 1.5 miles west of said Thistle Junction, at which said switch the United States, through said Reclamation Service, provided an unloading plant and warehouse for the handling of cement consigned to said Reclamation Service in carload lots.

4. During the months of July and August, 1907, the petitioner received and transported a large number of cars *385loaded with cement shipped from Independence, Kans., and consigned to the Eeclamation Service at “Milepost 679 near Thistle Junction,” at which point the said Diamond switch was located, and was ready and willing to deliver said cars on said Diamond switch when and so soon from time to time as there was room therefor thereon, but the United States, through said Eeclamation Service, with knowledge of the rules and regulations aforesaid, directed the delivery of such cars on said switch at times and in numbers to suit its convenience in unloading said cement, in consequence of which direction by the United States as to the delivery of cars on said switch and in order to comply therewith the petitioner was compelled to hold said cars at said Thistle Junction. Station, the nearest available point, and thereafter from day to day to set them on said Diamond switch in number as directed by the said Eeclamation Service.

The cars in question were held at Thistle Junction “ subject to the order of the consignee,” rule 4, and not placed on the Diamond switch “immediately upon arrival or as soon thereafter as the ordinary routine of yard work or conditions on the switch would permit,” rule 5, because of express direction by the consignee to deliver the cars on the switch from day to day in number designated by it to suit its convenience in unloading, thus assuming control of delivery, “ a reason beyond the control of the carrier,” within the clear intent of rule 5.

See *Burwind-White Goal Mining Go.*v. *Chicago <& Erie R.*Go., United States Supreme Court, December 14, 1914, where, in disposing of a similar situation, the Chief Justice said:

“ Conceding that a tariff concerning demurrage was 'filed, ■it is insisted it only authorized demurrage at destination, and the cars never reached their destination, but were held at a place outside of Chicago. The facts are these: The storage tracks of the railroad for cars billed to Chicago for reconsignment were at Hammond, Ind., a considerable distance from the terminals of the company nearer the center of the city, but were convenient to the belt line by which cars could be transferred to any desired new destination, and the holding on such track of cars consigned as were those in question was in accordance with a practice which had existed for more than twenty years. Under these circumstances the contention is so wholly wanting in foundation as in fact to be frivolous.”

*386If it be suggested that the interstate-commerce acts do not apply to Federal Government traffic and that the reasonableness of the demurrage charges may be questioned by the United States, it suffices to say in reply that $1 per day is the established rate applicable all over the country.

For an exposition of the justification of demurrage charges as an element in railroad transportation, see *Procter <& Gamble Go.*v. *Cincinnati, Hamilton c& Dayton R. Co.,*19 I. C. C., 556, where the commission sustained demurrage on private cars standing on private tracks.

*Mr. Marvin Farrington,*with whom was *Mr.. Assistant Attorney General Huston Thompson,*for the defendants.

As we view the allegations of this petition this court does not have jurisdiction to entertain this action. But one question is involved, to wit, a question of fact, Was the charge provided for by claimant’s rules and regulations just and reasonable ?

Congress has given the Interstate Commerce Commission plenary power to deal with unjust, preferential, and discriminatory regulations and practices of carriers under Section XV of the act to regulate commerce, as amended June 29,1906, April 13,1908, and June 18,1910.

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The petition m effect alleges that the demurrage charge was determined by the Interstate Commerce Commission' as unjust and unreasonable. In so far as this demurrer is con*387cerned, there are no other allegations in the petition under which this court would be authorized to take jurisdiction of the action under the decisions above cited.

Waiving the question of this court’s jurisdiction of the subject matter of claimant’s petition only for the purpose of this argument, we come to a discussion of the question of whether the petition states a cause of action.

It is conceived upon an implied promise to pay demurrage upon cars held at Thistle Junction, Utah, under the rules of the Car Service Association, of which claimant is a member.

“A railroad company, in view of the duties required by law to provide proper service to shippers, is entitled to demand a reasonable fee for car service or storage charges bn carload freight after allowing the consignee a reasonable time to unload it. The primary duty of a railroad company in carrying goods includes delivery of the goods to the consignee at destination, and the carrier is not entitled to an additional charge for car service until such duty is performed.” *Moore on*Carriers, vol. 2, p. 689; citing *Schu-macher*v. *C. <& N. W. Ry.*Co., 207 Ill., 199; *Carrizzo*v. *N. Y. R. R. Co.,*123 N. Y. Supp., 173.

“ Demurrage is one of the other charges ’ authorized by section 2, Hepburn Act. Demurrage rules promulgated by a carrier must be construed most favorably to the shipper.” 2 *Moore on Carriers,*page 697.

The cars were consigned to defendant at milepost 679, where Diamond switch is located.

Under the act to regulate commerce demurrage charges must be assessed strictly in accordance with tariffs on file with the Interstate Commerce Commission. If, then, the charges in question were not provided for by the tariffs on file at that time, the foundation upon which the promise-to pay rests is removed, and the action must fail.

Eules 2, 4, and 5 of the association are quoted in the petition and relied upon by claimant as authorizing demurrage. Eule 2 states the length of *free time*for loading or unloading. Free time begins to run when delivery has been made or tendered.

Eule 4 provides that *after the expiration of free time*a charge of $1 per car per day shall be collected for detention *388of cars for loading or unloading, or subject to order of consignors, consignees, or their agents.

Section 1 of rule 5 deals with delivery on carload delivery tracks or - private sidings, and among other things provides that:

“ When such delivery can not be made, on account of such tracks being fully occupied, *or for any other reason beyond the control of the*carrier, delivery shail be made at the nearest available point.”

The portion italicized, coupled with the allegation that the defendant directed the delivery of cars at times and in numbers to suit its convenience, is particularly relied on as authorizing the charges in question.

A carrier does not complete its contract of transportation until it actually delivers or gives notice of arrival at destination. Here the destination was milepost 679, where Diamond switch was located. It is not alleged, nor was it a fact, that Diamond switch was filled with cars, thus preventing delivery, but inferentially at least that claimant, with a desire to accommodate (but no intimation that it- expected compensation for such a favor), complied with a request to deliver a limited number of cars daily. Hule 4 provides for an entirely different state of facts than those pleaded and would be applicable where a definite place of delivery had not been designated. A request to deliver limited numbers is most assuredly not the equivalent of a refusal to receive all that the track would hold at destination. We consider our contention as to this rule fortified by *Wooley*v. *G. <& JV. W. Ry. Go.,*150 Wis., 183, where a very similar set of de-murrage rules was construed by the court (but not after the Interstate Commerce Commission had made a ruling thereon) , and it was held:

“A rule that cars for unloading shall be considered placed when such cars are held awaiting orders from consignors or consignees ’ does not apply to the case of cars which by contract are to be unloaded on a designated carload delivery track and which for some reason can not be delivered there, but applies to cases where the carrier is ready to make delivery and the consignor or consignee neglects or refuses to designate the place where delivery is désired.”

*389Claimant’s contention, based on rule 5, is equally without merit as applied to the facts. It admits failure to deliver at destination, but seeks an excuse by pleading a voluntary accommodation upon a prior request as a *reason beyond its control.*

Considering an almost identical rule, the court, in *Wooley*v. *G. db N. W. By. Go., supra,*said, page 186:

“ These two rules would seem to cover different situations. Section 1 appears to be applicable here. The cars were to be delivered on a carload delivery track, and such track was designated by plaintiffs. If delivery could not be made on this track for any reason, then the railroad company had the right to make delivery at the nearest available point. When it became apparent that cars could not be- taken care of on the designated track we think it was the duty of the defendant to make delivery at the nearest available point, where the cars could be unloaded, and perhaps to advise the plaintiffs when the cars were so placed. There was no need of any further direction from the plaintiffs. The rule specified what should be done in case delivery could not be made promptly at the place selected.” See also *G. & N. W. By.*v. *Menasha Paper Go.,*149 N. W. (Wis.), 751, 753.

If claimant was obligated to comply with defendant’s request, then, as claimed, it was a “ reason beyond its control.” Under circumstances such as are pleaded it would seem that merely stating the proposition negatives all ideas of a loss of volition on claimant’s part.

For the purpose of testing the soundness of the contention that the failure to transport the cars to point of destination was due to a “ reason beyond its control ” is it not pertinent to inquire on whom the loss would have fallen if the contents of cars had been destroyed while held at Thistle Junction station by the carrier ?

The liability of a carrier of freight as an insurer continues after the arrival of the goods at destination and until the consignee has had a reasonable time, after notice of their arrival, in which to remove them. And where, as here, the freight had not reached destination it is difficult to see how the carrier could start the running of the free time allowed for unloading where„the goods required further carriage and an actual tender of delivery before the carrier’s contract of carriage could be completed.

*390Here we have a contract to carry property in carload lots to a designated point, where the consignee had siding facilities capable of caring for nine cars, which at all times was sufficient to care for the cars as they reached their destination, and all cars were unloaded promptly and within the allotted free time after being placed on Diamond switch.

Until there is a delivery, the carrier’s liability remains absolute. *ZJ. 8.*v. *T. & P. By.,*185 Fed., 820, 822, 823.

With respect to *Bemoind-White Coal Mining Company*v. *C. d> E. R. B. Co.,*cited by counsel, it suffices to say that there the cars were *ToiTled for reconsignment,*and on an established custom existing for 20 years held at Hammond, Ind., “ for orders,” a situation such as is contemplated by claimant’s rule 4, which it is alleged the Interstate Commerce Commission inadvertently overlooked. Circumstances alter cases, as well as the law applicable thereto. *United States*v. *Erie B. Co.,*209 Fed., 283, 285, deals with a somewhat similar question, and is mentioned primarily because of the court’s citation of the Interstate Commerce Commission’s decision in the case at bar, with these remarks:

“ Though it is a common practice for railroad companies to deliver freight at particular places on their lines, at piers, wharves, private sidings, or points connecting with lines of other carriers, yet, as the commodity in question was con-cededly to be reconsigned, the rule of personal delivery, emphasized by various citations in defendant’s brief, has no application. *Hutchinson on Carriers,*secs. 341-370. I think it is the law that a consignee is bound by the destination given at the beginning of the journey, and that he may be subject to demurrage charges after receipt of notice of arrival at that point. *Borer on Railroads,*vol. 2, p. 1232. It has several times been held by the Interstate Commerce Commission, whose ruling this court is bound to follow unless such ruling is inconsistent with law, *New Haven B. C.*v. *Interstate Commerce Commission,*200 U. S., 361; 26 Sup. Ct., 272; 50 L. Ed., 515, that demurrage is ordinarily assessable against a carload shipment only at a point of origin or destination or at the place of reconsignment. *Munroe da Sons*v. *M. G. B. R.,*17 Interst. Com. Com’n K., 27; *Germain**391v. *N. 0. <& N. R. Co.,*17 Interst. Com. Com’n R., 22; *United, States*v. *Denver, etc., R. Co.,*18 Interst. Com. Com’n R., 7.”

This action is fundamentally a collateral attack upon the decision of the Interstate Commerce Commission of the question in issue. With full power to act when once it had obtained jurisdiction, the commission fully considered the question and determined it.

Per Curiam:

Whatever jurisdiction the Court of Claims has in the matter of a claim for demurrage by a railroad company against the United States must rest in the provisions of section 14o of the *Judicial Code.*Conceding the jurisdiction, if suit had originally been brought in this court that concession would not, in our view, be sufficient to sustain the petition in this case.

It appears that the Interstate Commerce Commission passed upon the question of the Government’s liability, 18 I. C. C. R., 7, in said matter, and rested their decision on the proposition that demurrage can be assessed only in accordance with tariff provisions, and that the rules of the Utah Car Service Association in effect when these cars were delivered did not authorize the demurrage charges in question. The plaintiff here contends that the commission overlooked Rule IV of said rules, but the language of the said decision is not consistent with plaintiff’s contention. The original act providing for the Interstate Commerce Commission and amendments thereof provide the course which parties may pursue who feel themselves aggrieved by the decision of the commission, but that course does not lead through the Court of Claims. We can not review the said action of the commission, directly or indirectly; and if the company regarded that they had failed to consider in the decision one of the rules of the Car Service Association it would seem to have been the duty of the railroad company, which appeared and contested the Government’s petition therein, to have applied for a rehearing. *L. & N. R. R. Co.,*218 Fed., 89.

In our view the demurrer should be sustained, and it is so ordered.