United States District Court, Northern District of Illinois, E.D
December 28, 1970
CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, A CORPORATION, PLAINTIFF,
EDWARD HINES LUMBER COMPANY, A CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Perry, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT ORDER
FINDINGS OF FACT
1. This cause is submitted upon a Stipulation of facts and
cross motions for summary judgment.
2. Plaintiff is a common carrier by railroad subject to the
provisions of the Interstate Commerce Act, and is an Illinois
corporation with principal offices in Chicago, Illinois.
3. Defendant is a Delaware corporation operating a lumberyard
in Chicago, Illinois, which is served by plaintiff's track and
4. Demurrage rules and charges governing railcars placed by
plaintiff for unloading at defendant's lumberyard are contained
in Section 1 of Tariff 4-H. The tariff imposes the duty to unload
and return a car within two days. When the two day "free time"
expires demurrage is imposed at the rate of $7.50 per day for a
prescribed number of days and thereafter at a rate of $15.00 per
day until the car is returned to the railroad. A provision in the
tariff allows for averaging demurrage charges against demurrage
credits, and defendant was under this average agreement.
5. On January 26, 1967, defendant had a total of thirteen
railcars on its delivery tracks at its Chicago lumberyard ready
6. On January 26, 1967, a snowstorm of sudden and unprecedented
severity hit Chicago. Official United States Weather Bureau
reports show that the 23.0 inch snowfall of January 26, 1967,
established a new record, eclipsing the old record of 19.2 inches
for a single storm. Also 19.8 inches fell within the 24 hour
period compared with the old record of 14.0 inches. High winds
resulted in 4 to 6 foot drifts.
7. By January 30, 1967, defendant had cleared the snow from its
yard and the delivery tracks within its yard and was ready and
willing to accept loaded railcars and return empty railcars to
8. On February 10, 1967, plaintiff finally cleared its tracks
leading to defendant's yard and was capable of delivering loaded
cars to defendant.
9. During the period from January 26, 1967 until February 10,
1967, when plaintiff was able to resume switching, a total of 34
loaded railcars had accumulated on the plaintiff's railroad at
Chicago for delivery to defendant. Subsequent to February 10,
1967, additional cars continued to arrive and defendant handled
these cars for unloading as they arrived and concurrently handled
the 34 cars which had accumulated. On May 17, 1967, the final car
of the 34 was handled and returned empty to the plaintiff.
10. The plaintiff notified defendant that the accumulated cars
were constructively placed under the tariff. Since defendant was
unable to unload each car
within the two day "free time", a total of $23,370.00 in
demurrage charges was assessed. Defendant paid $7,095.50 which it
calculates would have been the demurrage which would have accrued
except for the blizzard. Plaintiff sues to collect the balance of
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this case pursuant to
28 U.S.C. § 1337 and 49 U.S.C. § 1-26.
2. A demurrage tariff confers rights and imposes duties as a
matter of law. There is no freedom of contract between the
carrier and the shipper to vary or modify the tariff as the
parties might desire. The shipper is not free to stipulate the
circumstances which would relieve him from liability and those
which he would assume.
3. The duty to pay demurrage being imposed as a matter of law,
an intervening act of God excuses the duty. Since the shipper
cannot vary the terms of the tariff by agreement, there is no
reason to impose the unqualified liability that would accrue if a
contract were involved and liability for an act of God were
4. The "great Chicago blizzard" of January 26, 1967, was an act
of God which excuses defendant, who acted reasonably in the
circumstances, from liability for the demurrage which accrued as
a consequence of the blizzard.
The cross motions of the plaintiff and the defendant for
summary judgment having been presented, the facts having been
agreed upon and stipulated to by the parties, and the Court being
The Court finds that there is no genuine issue as to any
material fact and that defendant is entitled to a summary
judgment as a matter of law.
It is therefore ordered, adjudged and decreed that the
plaintiff's motion for summary judgment be, and the same is
hereby denied, and the defendant's motion for summary judgment
be, and the same is hereby granted; and judgment is entered in
favor of defendant.
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