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BAKER v. CHAMBERLAIN MANUFACTURING CORPORATION

January 19, 1973

GEORGE P. BAKER ET AL., PLAINTIFFS,
v.
CHAMBERLAIN MANUFACTURING CORPORATION, A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

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."
    "(e) The cause of action in respect of a shipment
  of property shall, for the purposes of this section,
  be deemed to accrue upon delivery or tender

  of delivery thereof by the carrier, 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 basis.

Rule 9 provides:

  "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
  another month."

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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