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2 F.(20) 695 GRANGER et al. v. DAVIS.

by reason of delay which could have been

avoided by placing cars of different consignees (Circuit Court of Appeals, Sixth Circuit. De- in strict order of arrival, in view of rule pubcember 8, 1924.)

lished in demurrage tariff, providing for re

covery of demurrage on basis of amount that No. 4040.

would have accrued but for railroad's errors. 1. Carriers em 100(1)-Yard held private yard 9. Carriers Em 100(1)-Constructive placement

of Hay and Grain Exchange, and not general permissible only after physical tender of car railroad facility, within rules relating to de- or circumstances excusing it. murrage.

Constructive placement held permissible onYard in which congestion causing delay oc- ly after physical tender of car or circumstances curred held private yard of Hay and Grain Ex- which excuse it, as inability to accept for change, of which consignees were members, causes attributed to consignee. and not general railroad facility, within rules nublished in demurrage tariff, relating to de

10. Carriers Cm 100(1)-Rule as to recovery murrage where car has been consigned to

of demurrage where goods were reshipped to "other than a public delivery track.”

consignee's purchaser in same car after re2. Carriers Em 100(1)-Yard leased by Hay

moval of portion for inspection, stated. and Grain Exchange for benefit of members

Where cars were not loaded or unloaded. was "other than public delivery track" with but enough contents were removed to reveal in demurrage tariff.

character, and carload was then sold on sam

ple, its contents replaced, and car reshipped to . Railroad yard leased by Hay and Grain Ex: purchaser, the free time for which consignee change for benefit of its members, even though

was not liable for demurrage held governed by not strictly private, was "other than a public rule published in demurrage tariff providing delivery track," within demurrage tariff.

for free time where cars "are held" for con3. Carriers Om 100(I)-Cars which yard of signment or reshipment in same car; the words

Hay and Grain Exchange could not hold held “are held" meaning held either by consignors subject to demurrage, though not intended to or consignees. . be unloaded in plugging yard.

Cars consigned to members of Hay and In Error to the District Court of the Grain Exchange, whose yards could not hold United States for the Western Division of them, necessitating storage by railroad elsewhere, though not intended to be unloaded in the Southern District of Ohio; John W. plugging yard of consignee, held subject to de: Peck, Judge. murrage, under demurrage tariff, as “cars held for or by consignors or consignees for loading, Action by James C. Davis, Director Genunloading, forwarding directions, or for any eral of Railroads, as Agent operating the other purposes." 4 .Carriers Om 100(1)-Demurrage rule held

Pittsburgh, Cincinnati, Chicago & St. Louis inapplicable to cars held out of plugging yard Railroad Company, against Dan B. Grangbecause of congestion.

er and another. "Judgment for plaintiff, and Rule published in demurrage tariff held ap- defendants bring error. Affirmed. plicable merely to cars actually placed in plugging yard and bulletined there, not those held John C. Hermann, of Cincinnati, Ohio out because of congestion at plugging yard.

(Herbert Ritchie, of Cincinnati, Ohio, on 5. Carriers om 100(1)-Director General's ac

the brief), for plaintiffs in error. tion for demurrage accrued on cars moved in intrastate commerce held within jurisdiction

Gregor B. Moorman, of Cincinnati, Ohio of district court.

(Maxwell & Ramsey, of Cincinnati, Ohio, Where demurrage accrued during federal

on the brief), for defendant in error. control under tariff established by Director General, the District Court had jurisdiction, Before DENISON, MACK, and DONAunder Judicial Code, & 24 (Comp. St. $ 991), in HUE, Circuit Judges. Director General's action to recover demurrage, though on cars moved in intrastate traffic. 6. Carriers w 100(1)-Yards held "private

MACK, Circuit Judge. This action was yard" of Hay and Grain Exchange, and not brought by James C. Davis, Director Gengeneral “railroad facility.”

eral, as Agent operating the Pittsburgh, Railroad yards leased by Hay and Grain Exchange for exclusive benefit of its members Cincinnati, Chicago & St. Louis Railroad held “private yard" of such exchange and not Company, hereinafter designated as plaingeneral “railroad facility,” though switching tiff, for certain demurrage charges accrurailroad collected inspection charge for privi. lege of partially unloading and examining, at ing in January, February, April, and May, such yard, cars consigned to them, and though 1919, on cars of hay consigned to plaintiffs members had agreed to accept notice of arrivals by bulletin.

in error, hereinafter designated as defend7. Carriers

ants, under the uniform demurrage tariff, I. 193-Delivering carrier may collect all charges from consignee, including C. C. P. 1172. This tariff, duly filed, was those of its connections.

applicable to both interstate and intrastate Delivering carrier may collect all charges traffic. Judge PECK, to whom the case was from consignees, including those of its connections.

submitted with waiver of jury, sustained the 8. Carriers om 100(1)-Railroad could not re- demurrage charges and rendered judgment cover demurrage for delay which could have therefor in the amount of $441.87, which been avoided if cars had been placed in strict 'the parties had stipulated was the amount order of arrival.

Switching railroad serving Hay and Grain due under Judge PECK'S rulings as to the Exchange yard held not entitled to demurrage law.

The 40 cars upon which the demurrage ac- The demurrage was computed, according crued were all consigned to defendants at to the testimony, from the first 7 a. m. after the Hay and Grain Exchange tracks, known bulletining as to those placed in the plugas their "plugging yard,” at Front and Wa- ging yard. As to the cars held out, and ter streets, Cincinnati. These tracks, which these alone are involved in this case, dehad been used for general switching, were, murrage was computed from the first 7 a. by leases of 1917 and 1918, leased by the m. after giving the constructive placement exchange from the Louisville & Nashville order, pursuant to rule 5, section A, rule 3, Railroad, which owned them. Members of section D, and rule 2, section B-2, but not the Exchange were alone permitted to use rule 2, section B-4, or rule 2, section A, as the tracks. Shortly after the execution of published in the Demurrage Tariff, 1. C. C. the first lease, defendants sent a notice to P. 1172, all of which rules are quoted in the Agent of the Pittsburgh, Cincinnati, Chi- the footnote.1 cago & St. Louis Railroad, requesting that We concur entirely in the reasoning and arrangements be made for bulletining at this conclusions of Judge PECK as formulated plugging yard the arrival of "all cars of in his original and supplementary opinions hay consigned to us and placed in this appended hereto, and add thereto only a yard.” The notice was pursuant to a rule few additional reasons in support thereof. which made consignee's agreement to ac- [1] 1. There is evidence of some prelimcept such bulletining a condition thereto. inary arrangement between plaintiff and the The large number of cars consigned to

1 "Rule 5, Section A. When delivery of a the members of the Cincinnati Hay and

car consigned or ordered to an industrial interGrain Exchange resulted in an accumulation change track, or to other than a public delivat one time of 532 cars, which the Hay and inability of the consignee to receive it, or beGrain Exchange refused to accept, except cause of any other condition attributable to the on the plugging tracks, although the capac- consignee, such car will be held at destination, ity of these tracks was but 66 cars and the or if it cannot be reasonably accommodated

there, at the nearest available hold point, and railroad offered to permit inspection on oth- written notice that the car is held and that this er tracks. When cars arrived, plaintiff is- railroad is unable to deliver, will be sent or sued constructive placement notices on such imen to the consignee. This will be considered of them as the Hay and Grain Exchange "Under this rule any railroad delay in makmembers, including defendants, could not re

ing delivery shall not be computed against the

consignee." ceive at their plugging yards and refused to accept elsewhere. On the cars for which

Instructions and Explanations. there was room on the plugging tracks and consignees located on switching line are unable

"Section A. This will applv to such cars as which were delivered there, bulletins were to receive and which, for that reason, the posted in compliance with the request of the switching line is unable to receive from carrier defendants and the other Hay Exchange line of point of shipment, car initals and num

line. The carrier line will advise the switching members.

ber, contents and consignee, and if transferred Of the entire number of cars that could in transit the initials and number of the origi

nal car; the switching line will notify consignee not be placed on the Exchange plugging and put such cars under constructive placetracks, some had been brought to Cincin ment." nati over the Baltimore & Ohio as the car

"Rule 3, Section D. On cars to be delivered

on any other than public delivery tracks, time rier line, others over the Big Four, as the will be computed from the first 7:00 a. m. after

such carrier line, and still others by the plaintiff actual constructive placement on

tracks. itself.

"Rule 2, Section B. Twenty-four hours' (one As to the cars brought to Cincinnati by day) free time will be allowed. the Baltimore & Ohio and Big Four, plain- reshipment in same car received.".

"2. When cars are held for reconsignment or tiff was the switching line over whose tracks "4. When cars are held in transit and placed the cars had to be transferred for delivery for inspection or grading at stations where

grain and hay must be inspected or graded, the to this plugging yard.

consignee agreeing with the carrier in writing After the cars arrived on the Big Four for file at the station to accept the bulletining and the Baltimore & Ohio, they notified the

of the cars as due and adequate notice of arriv

al, the bulletins must be posted by 9:00 a. m. plaintiff, as the switching line, of such ar- of each day, showing the previous twenty-four rival. Since the plaintiff could not receive (24) hours' receipts and the free time (24 the cars from the Baltimore & Ohio and hours) is to be calculated from the first 7:00

a. m. thereafter. Where there is no agreement Big Four, because of the inability of de- for bulletining of cars the free time must be fendants to accept the cars at their plug; day on which notice of arrival is sent or given

calculated from the first 7:00 a. m. after the ging yard, plaintiff, as the switching line, to the consignee." was compelled to pay $1 per day per car days) free time will be allowed for loading or

"Rule 2, Section A. Forty-eight hours' (two to the carrier line holding the car.

unloading on all commodities."

or

were

2 F.(20) 695 Exchange before the leases were made. No of the railroad or a private facility of the claim is made that this arrangement con- Grain and Hay Exchange? (3) Is plaintiff templated a lease of the yard to the plain- entitled to demurrage on cars constructively tiff for station purposes, for in that event placed by it while they were still in the the Exchange could not legally have retain- yards of its connections and before they got ed exclusive rights therein. Furthermore, upon its rails? (4) Is the claim subject to an agreement that as to members of the the defense that cars consigned to other Exchange only, but not as to the public members of the Exchange

“run generally, the Exchange's own yards would around” the cars in question while upon conbe deemed a public station, would have in- structive placement? volved an unlawful discrimination. But the [5] 1. The demurrage accrued during evidence in respect thereto is contradictory; federal control, under tariffs established by the trial judge was therefore in any event the Director General. Therefore, the case justified in disregarding defendants' version arises under a law of the United States reof the arrangement.

lating to interstate commerce within paraFinally, in our judgment, the leases to the graph 8, § 24, of the Judicial Code (Comp. Exchange and the absence of any lease from St. § 991), and the court has jurisdiction. the Exchange to plaintiff conclusively es- Northern Pacific Railway Co. v. North Datablish that the yard was not a part of kota, 250 U. S. 135, 39 S. Ct. 502, 63 L. Ed. plaintiff's property for any purpose, but 897; L. & N. R. R. Co. v. Rice, 247 U. S. the private yard of the Exchange for the 201, 38 S. Ct. 429, 62 L. Ed. 1071; Adams use of its members.

Express Co. v. Croninger, 226 U. S. 491, [2] 2. Even if the yard was not strictly 33 S. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. private, it is clearly "other than a public S.) 257; St. Louis, etc., Ry. v. Starbird, Addelivery track” within the meaning of rule ministrator, 243 U. S. 592, 37 S. Ct. 462, 5, section A, because by virtue of the leases 61 L. Ed. 917; N. Y. C. R. R. Co. v. Muonly members of the Exchange had the legal tual Orange Distributors, 251 F. 230, 163 right to use it, and they alone in fact did C. C. A. 386; Wells Fargo & Co. v. Cuneo use it. Whether or not all Cincinnati hay (D. C.) 241 F. 726; Id. (D. C.) 241 F. 727. and grain dealers were or were not eligible [6] 2. The plaintiff does not own this to membership in the Exchange is immate- yard. It is leased, at annual rental of $5,rial; membership therein was not a legal 000, by the Grain and Hay Exchange from condition to engaging in the business in Cin- the Louisville & Nashville Railroad. The cinnati.

latter owns the land and also owns tracks, [3] 3. Clearly, too, these cars, though not but does not operate them because of its intended to be unloaded in the plugging failure to obtain right of way leading thereyard, were cars subject to demurrage under to. The plaintiff serves the yard with its rule 1 as "cars held for or by consignors or switch engine, hauling cars to and from its consignees for loading, unloading, forward- own yards and points of connection with ing directions or for any other purpose." the other railroads in and about Cincinnati.

[4] 4. Not only are the provisions of rule Therefore, for present purposes the Grain 2, section B-4, inapplicable to cars not and Hay Exchange may be considered as placed for inspection, but the testimony of the owner of the yard with its trackage. the arrangement between the parties prior The plaintiff is entitled to use the yard only to the lease, if it could be considered, justi- for the service of the members of the Exfied the conclusion that the parties intended change. Their business is the receiving of what the rule itself fairly interpreted means these carloads of hay, the partial unload-that only cars actually placed in the plug- ing, inspection, and grading of the same, the ging yard and bulletined there, and not sale thereof, and the reconsignment of the those held out because of congestion at the cars to the purchasers. The yard is isuplugging yard, were to be governed by rule ally the destination of the original haul. It 2, section B-4, as to demurrage.

is clearly a private yard, and not a general Judgment affirmed.

railroad facility. The public has no right

to any service whatever in it. That it faOpinion of Judge Peck in the District Court cilitates the handling of freight, relieves the Filed February 6, 1923.

general yards, and is advantageous to the This case involves the following ques- railroad, is beside the mark. The same is. tions: (1) Has this court jurisdiction of true in a greater or less degree of every so much of the claim as is for demurrage private industrial switch. on cars moved in intrastate commerce? (2) With no small degree of force defendant Is the "plugging yard" an instrumentality points to the fact that the plaintiff collects from members an inspection charge for the such cars under constructive placement." privilege of partially unloading and exam- Inasmuch as the switching line takes conining at this yard cars consigned to them. Structive possession of the cars from the If the tracks be private and the cars deliv- carrier line under the per diem agreement, ered thereon be subject to demurrage when it is thought that the demurrage is to be held beyond free time, it is difficult to per- assessed in accordance with the tariff of ceive any basis for charging the consignees the former. But should this not be so, nevfor the privilege of there inspecting the ertheless it is undoubted that the delivercontents by their own employés. It is also ing carrier may collect all charges from the true that the defendants are accorded the consignee, including those of its connections. privilege of receiving notice of arrivals by Wabash R. R. Co. v. Pearce, 192 U. S. 179, bulletins at the yard, under Rule 2-4-B. 24 S. Ct. 231, 48 L. Ed. 397; P. C. C. & This apparently only applies to "stations, St. L. v. Fink, 250 U. S. 577, 40 S. Ct. 27, which, it is claimed, must be understood to 63 L. Ed. 1151; N. Y. C. & H. R. Ry. Co. mean portions of the railroad itself as dis- v. York & Whitney, 256 U. S. 406, 41 S. tinguished from private tracks. And it is Ct. 509, 65 L. Ed. 1016. In the present case argued that the plaintiff has thus designat- it is admitted that the demurrage tariffs of ed this yard as a station—therefore, a pub- the carrier lines were the same as that of lic facility. The circumstances of the sit- plaintiff; therefore, the demurrage accrued uation suggest a schedule-making problem; under the one or the other, and the plainbut that would be for the Interstate Com- tiff is entitled to sue for and collect it unmerce Commission.

der either. The plaintiff may be in error in assessing [8] 4. The second and third defenses the inspection charge. That, of course, is made by the answer are, by consent of denot now decided, because it is not directly fendant's counsel, to be treated as one. They involved in this case. In any event, this aver that cars consigned to other members circumstance is not controlling, nor is the of the Grain and Hay Exchange arriving fact that the parties have agreed to accept at the various railroad yards in Cincinnati notice of arrivals by bulletin. Those matters were, in some instances, delivered to the are only indicative of the views of the plugging yard earlier than prior arrivals parties concerning the status of this yard consigned to the defendant. And it is claimand cannot override the fact that the yard ed that the plaintiff is not entitled to ask is, by its very ownership, holding, and ten- demurrage when it might have placed deure, a private one.

fendant's cars earlier if the strict order of 3. The third question relates to 25 out of arrival had been followed. It is not shown the 40 cars in question. They came to Cin- in how many instances this happened, or to cinnati over other carrier lines by which what extent. they were held for the Pennsylvania Rail- [9] Demurrage rule 8, section E, is as road, to be delivered to the plugging yard. follows: This the Pennsylvania Railroad could not

“Section E. Railroad Errors Which Predo on account of the congested condition of vent Proper Tender or Delivery. Under the yard. The other carrier lines charged this rule demurrage will be charged on the the Pennsylvania $1 per day for each car, basis of the amount that would have accrued in accordance with the per diem agreement but for such errors. This also applies in among railroads; and they were in turn ac

the case of constructively placed cars being countable to the lines owning the respective 'runaround' by actually placing recent arcars for a like rental. Therefore the Penn- rivals ahead of previous arrivals." · sylvania constructively received the cars and

Plaintiff admits that it had no right to held them, as it were, on storage in the charge demurrage for delay caused by runyards of the carrier lines, waiting until de- ning one car around another which was on fendant's situation was such as to permit it placement and consigned to the same per

It asserts, however, that there was no to complete its duty as the final carrier. Plaintiff meanwhile placed them construc- impropriety in running cars consigned to

one member around cars tively by giving notice to consignee. It is placement consigned to another member of

on constructive the defendant's contention that the fifth de- the Exchange, and that for delays so caused murrage rule of plaintiff's tariff applies to the car on placement it may collect deonly when it is the carrier, and not when

murrage.

This contention cannot be susit is the switching line.

tained. Constructive placement is permis[7] But the rule declares that “the sible only after physical tender of the car switching line will notify consignee and put or circumstances which excuse it, as inabil

son.

2 F.(20) 699

ity to accept for causes attributed to the consignees in the "plugging yard” for re-

consignee. Union Bag & Paper Corp. v. Di- shipment (the word “reconsignment” was

rector General, 61 Interst. Com. Com'n R. used in the former opinion inadvertently

424. The inability of the consignee to ac- and without regard to its technical mean-

cept the first arrived car can only be con- ing), and therefore the rule last referred to

sidered to continue until opportunity to applies. Defendants were entitled to only

place it in the yard occurs. If the plaintiff 24 hours' free time; consequently, the judg-

prefers to fill the space first vacated by a ment must be for the sum of $441.87.

subsequently arrived car, the failure to de-
liver the first car is no longer caused by the
inability of its consignee to receive it, but
by the election of the railroad to use the in re DUKER AVE. MEAT MARKET.
available space for the delivery of the sub-

JOHNSON V. STIMPSON COMPUTING
sequent arrivals. Under the rule quoted,

SCALE CO.

the "running around” of cars so placed by (Circuit Court of Appeals, Sixth Circuit. De-

subsequent arrivals was a railroad error pre-

cember 8, 1924.)

venting proper delivery of the former and

No. 4096.

requiring demurrage thereon to be charged

on the basis that would have accrued but I. Bankruptcy On 185—As against chattel

for such error.

mortgagee, trustee has rights of any creditor

under state law before bankruptcy.

The evidence shows, and there is no de-

Under Bankruptcy Act, $ 47a, as amended

nial of it, that such errors did occur in the in 1910 (Comp. St. $ 9631), bankruptcy trus-

present case. To what extent, and with ref. tee's rights as against chattel mortgagee are

not dependent on actual lien obtained, but he

erence to what cars, it is not shown. A has whatever rights any creditor could, under

correct disposition of the controversy re-

state law, have obtained by legal or equitable

proceedings before bankruptcy.

quires proof upon this subject. The parties

will be given two weeks to agree. If they 2. Bankruptcy Om 184(2)-Lien of unrecorded

Kentucky chattel mortgage inferior to lien

cannot do so, it will be audited.

of trustee for prior and subsequent debts.

In absence of decision by Kentucky Court

Supplemental Opinion of Judge Peck Filed of Appeals construing Ky. st. § 496, as added
March 27, 1923.

to in 1916, statute should be liberally construed

against evil of secret liens; hence lien of un-
Since the filing of the opinion on the recorded chattel mortgage is inferior to lien

of bankruptcy trustee for debts created prior
merits, the parties have agreed upon the ex- to execution of mortgage and all subsequent
tent of the "runarounds" but are now in debts created without notice of_mortgage lien,
disagreement as to whether the consignees in 1910 (Comp. St. 9631).

in view of Bankruptcy Act, § 47a, as amended

were entitled to 48 hours' or to 24 hours'

free time under the demurrage rules. If

3. Bankruptcy Om 245–Trustee not creditor,

but merely represents creditors.

defendants had 48 hours, it is agreed that

Bankruptcy trustee is not creditor, but
plaintiff would, under the holdings hereto- merely represents creditors, and is vested with
fore announced in this case, be entitled to whatever right any or all of them might have

had as against the mortgagee at the date of fil-
recover $296.64; on the other hand, if they ing the petition in bankruptcy.
were entitled to but 24 hours, then the
amount of their recovery should be $441.87. Petition to Revise the Order of the Dis.

[10] By rule 2-A, 48 hours' free time trict Court of the United States for the
is allowed for loading or unloading. These Western District of Kentucky; Charles H.
cars were not loaded or unloaded, but were Moorman, Judge.
"plugged,” that is to say, enough of the

In the matter of Duker Avenue Meat
contents was removed to reveal to the in- Market, bankrupt. On petition of C. W:
spectors the character of the remainder. The Johnson, trustee, to revise the order of the
carload was then sold on sample. So much District Court (295 F. 913) made on peti-
of the contents as had been removed were

tion of the Stimpson Computing Scale Com-
replaced and the car was reshipped, ordi-

pany. Petition granted and cause remand-

narily on new billing, to the purchaser. By

ed.

rule 2-B-2, when cars are held for recon-
signment or reshipment of the freight in D. A. Sachs, Jr., of Louisville, Ky., for
the same car in which it was received, the petitioner.
free time is but 24 hours. The words "are

Burnett, Batson & Cary, of Louisville,
held” are shown by rule 1 to mean held Ky., for respondent.
either by 'consignors or by consignees. The Before DENISON, MACK, and DONA-
evidence shows that these cars were held by HUE, Circuit Judges.

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