The opinion of the court was delivered by: Perry, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT ORDER
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.
1. This Court has jurisdiction over this case pursuant to
28 U.S.C. § 1337 and ...