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BAKER v. CHAMBERLAIN MANUFACTURING CORPORATION
January 19, 1973
GEORGE P. BAKER ET AL., PLAINTIFFS,
CHAMBERLAIN MANUFACTURING CORPORATION, A CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Marovitz, District Judge.
Motion For Summary Judgment
This action was filed on May 31, 1972 on behalf of plaintiff
Penn Central for recovery of demurrage charges in the amount of
$18,925 allegedly accrued on interstate carload shipments
delivered by plaintiff to defendant at its plant in New Bedford,
Mass., during April and May of 1969. The precise dates of those
deliveries and the date this action was filed are critical as
will subsequently become evident.
Defendant has filed a Motion For Summary Judgment on the
grounds that the action was not brought within three years from
the delivery of the shipments for which demurrage is claimed as
is required by Section 16(3)(a) and (e) of the Interstate
Commerce Act, 49 U.S.C. § 16(3)(a) and (e).
The Interstate Commerce Act provides that:
"(a) All actions at law by carriers subject to this
part for recovery of their charges, or any part
thereof, shall be begun within three years from the
time the cause of action accrues, and not after."
We have no difficulty with the proposition that the word
"charges" in § 16(3)(a) includes the recovery of demurrage
charges for excess detention of cars. Thus if this were an
instance where the parties utilized a straight demurrage plan
whereby the shipper becomes liable for, and the carrier has a
right to collect demurrage charges immediately upon the delivery
of the car incurring demurrage we would have no difficulty in
finding for defendant. The parties have stipulated that the
shipments were delivered by plaintiff on various dates in April
and May of 1969 and that all cars in issue were unloaded by
defendant on various dates between May 1st, and May 27, 1969, the
last shipment in issue having been delivered on May 23, 1969 and
the last car released on May 27, 1969.
Hence the suit having been filed on May 31, 1972 would have
clearly been brought after the § 16(3)(a) three year limit.
Matters are, however, complicated in this case by the parties'
use of Rule 9 of Freight Tariff 4-I, Interstate Commerce
Commission No. H-36, known as the "Monthly Average Demurrage"
whereby demurrage payments are allowed to be made on a monthly
"When a written agreement as follows (See Section 1)
has been entered into the charge for the detention of
cars, on all cars subject to demurrage, except as
otherwise provided in Section E, held for loading,
shall be computed on the basis of the average time of
detention to all such cars released during each
calendar month . . .
"SECTION A. One credit will be allowed for each car
released before the expiration of the first
twenty-four (24) hours of free time. After the
expiration of forty-eight (48) hours free time (or
the adjusted free time provided in Rule 8, Section A,
Paragraph 2, page 65) one debit per car per day or
fraction of a day, will be charged for each of the
first four days.
"SECTION D. At end of the calendar month the total
number of applicable credits will be deducted from
the total number of debits and $5.00 per debit will
be charged for the remainder. If the credits equal or
exceed the debits no charge will be made for the
detention of the cars except as otherwise provided in
Section A for detention beyond the fourth debit day,
and no payment will be made by this railroad on
account of such excess of credits; nor shall the
credits in excess of the debits of any one month be
considered in computing the average detention for
Thus credits earned on cars released prior to the expiration of
the tariff free time during a calendar month may be used on the
last day of that month to offset debits incurred on cars released
after the ...
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