Interstate Commerce Commission Reports

Such being the terms of the tariff then in force, what were the circumstances under which the complainant delivered the grain to the defendant and the defendant received it from the complainant! Was it received for immediate shipment or as a storage shipment! On that point there is a sharp conflict of testimony. The complainant insists that the grain was delivered to the defendant and received by it for immediate shipment. He contends, therefore, that it was held in storage by the defendant only for its own convenience and because of its inability to supply cars to move it; and therefore that the defendant had no right to make any charges against the complainant either for storage or for insurance. The defendant, on the other hand, asserts that it reached a definite understanding with the complainant that the grain was to be received as a storage shipment and not for immediate shipment; and that consequently the complainant was liable for the storage and insurance charges.

If good faith be attributed to all the witnesses who testified, and the record does not warrant us in not doing so, it is apparent that the minds of the parties never met with respect to this transaction. There can be no doubt that the agents of the complainant and of the defendant, in their conference on October 26, 1906, both understood that the grain could not immediately go forward. But a careful review of the whole record leads us to the conclusion that the complainant, desiring the rye as soon as he could get it, understood that the defendant would receive it for immediate shipment-that is to say, for shipment as promptly as it could conveniently supply the necessary cars to move it forward—and that the defendant, on the other hand, understood that the complainant would deliver the grain to it as a storage shipment. Counsel for the defendant admits that on the occasion of that conference nothing was said on either side about storage charges; and the defendant's division freight agent, referring to the same. interview, says: "I am frank to say that the question of storage did not occur to me."

In a letter of the same date confirming the oral understanding arrived at between the parties the complainant states:

It is also understood that you do not agree to furnish cars for this grain in any stated time, but that movements will be made as rapidly as conditions will permit.

This statement is a fair definition of the phrase "as for immediate shipment," as understood in the local grain trade and as used in the tariff schedule of the defendant then in force. In explaining the distinction between an immediate shipment and a storage shipment counsel for the defendant on argument stated, what in substance appears in its published tariff, that an immediate shipment was where the grain was intended to go straight through to destination; in such case no delay is involved except for the convenience of the railroad

a prompt movement of the rye to Baltimore. It promised, however, to furnish cars as fast as it could conveniently do so. As the result of the conference the complainant made the purchase and the rye was carried through the lakes from Manitowoc to West Fairport, and there taken into the defendant's elevator on November 17, 1906. On the following Monday, November 19, the complainant requested the defendant to expedite the shipments as rapidly as possible. The first shipment moved out on November 27, and other shipments followed on various dates, as cars could be obtained by the defendant, until January 19, when the last carload went forward. The complainant's claim is for storage and insurance until the last-named date.

Upon the hearing counsel for both parties were under the impression that the defendant, at the time the grain was received by it, had no tariff schedule in effect covering storage and insurance at the West Fairport elevator. An effort was therefore made to supply the supposed deficiency by proof tending to show a custom or understanding in the grain trade with respect to storage and insurance at that point. This testimony was received by the Commission with reluctance and only on the theory that upon a consideration of the whole record it might in some way throw light on the controversy. It now develops, however, that the defendant's tariffs were not silent, as was supposed, with respect to the storage and insurance of grain at West Fairport at that time. The records of the Commission show that on August 29, 1903, the defendant filed a tariff schedule (I. C. C., No. 4381), which became effective on September 1 of that year and was still in effect at the time here involved, covering "insurance and storage on ex-lake grain at Fairport," now known as West Fairport. In substance the tariff contemplated that before making their purchases of grain at lake ports, shippers would make previous arrangements with the defendant as to the time of shipment and the quantity of grain to be shipped, so that the defendant might make its preparations for the necessary car equipment. The tariff refers to such arrangements as "contracts." It provided that the responsibility of the defendant for the grain would not begin until it was actually delivered into the elevator; that when a contract was made before the grain was taken out of the lake vessel into the elevator the grain would be considered "as for immediate shipment" unless otherwise ordered; in such case the defendant undertook to insure the grain at its own expense and to hold it without storage charges until it could conveniently supply cars for the movement; on the other hand, when the shipper ordered the grain to be held in West Fairport he could have free storage for ten days, but insurance for that period was to be charged against him as well as insurance and storage after the ten days; and when the grain was ordered out the rates then in effect were to apply.

13 I. C. C. Rep.

Such being the terms of the tariff then in force, what were the circumstances under which the complainant delivered the grain to the defendant and the defendant received it from the complainant? Was it received for immediate shipment or as a storage shipment? On that point there is a sharp conflict of testimony. The complainant insists that the grain was delivered to the defendant and received by it for immediate shipment. He contends, therefore, that it was held in storage by the defendant only for its own convenience and because of its inability to supply cars to move it; and therefore that the defendant had no right to make any charges against the complainant either for storage or for insurance. The defendant, on the other hand, asserts that it reached a definite understanding with the complainant that the grain was to be received as a storage shipment and not for immediate shipment; and that consequently the complainant was liable for the storage and insurance charges.

If good faith be attributed to all the witnesses who testified, and the record does not warrant us in not doing so, it is apparent that the minds of the parties never met with respect to this transaction. There can be no doubt that the agents of the complainant and of the defendant, in their conference on October 26, 1906, both understood that the grain could not immediately go forward. But a careful review of the whole record leads us to the conclusion that the complainant, desiring the rye as soon as he could get it, understood that the defendant would receive it for immediate shipment-that is to say, for shipment as promptly as it could conveniently supply the necessary cars to move it forward-and that the defendant, on the other hand, understood that the complainant would deliver the grain to it as a storage shipment. Counsel for the defendant admits that on the occasion of that conference nothing was said on either side about storage charges; and the defendant's division freight agent, referring to the same. interview, says: "I am frank to say that the question of storage did not occur to me."

In a letter of the same date confirming the oral understanding arrived at between the parties the complainant states:

It is also understood that you do not agree to furnish cars for this grain in any stated time, but that movements will be made as rapidly as conditions will permit.

in providing cars; and any delay therefore is at its expense with respect to storage and insurance charges. In the case of a storage shipment the grain is ordered by the shipper to be held in storage until he gets ready to have it go forward and so orders. There is nothing in the record indicating that the complainant desired the grain to be held in storage at West Fairport, or that he ever so ordered; on the contrary, the whole record indicates his desire to have the rye reach its eastern destination as soon as possible.

In his reply to the letter last mentioned the freight traffic manager of the defendant, under date of October 27, says:

This confirms our agreement to receive the 50,000 bushels of rye at Fairport and movement of the same to Baltimore, as rapidly as conditions permit. * It will give us pleasure to do the best possible to get this grain forward, but can promise nothing as to movement.

This expresses with fair precision the obligation of the defendant under its published tariff with respect to a cargo of grain received by it "as for immediate shipment." Without further order from the shipper, which is an essential characteristic of grain received as a storage shipment, the defendant in this letter undertook to move the rye to Baltimore as rapidly as it could supply sufficient cars for doing so. On November 10 the defendant advised the complainant that it would be impossible to move any grain out of West Fairport until January 1, and possibly later, and that "if you can make other arrangements * * * it would suit us very much better to have you so provide." To this the complainant replied on November 13 that he had arranged to ship the rye by vessel from Manitowoc on the 15th, and that a change of plans would therefore be impracticable. The lettergoes on to say:

We beg again to state that it is not necessary that this rye be shipped all at one time and that reasonably prompt movement of a few cars at a time is all that is desired.

Then follow other telegrams and letters, all of which, assuming as we do that there was a misunderstanding between the parties at the original personal interview, are entirely consistent with the complainant's theory that the defendant received the grain for immediate shipment that is to say, as soon as it could furnish the cars. Apparently it was not until November. 19, two days after the grain had been taken into the defendant's elevator, that the existence of a misunderstanding on the question of storage charges first clearly developed. In a letter under date of November 24, intended to confirm that interview, the complainant states his understanding that the rye was to be handled without expense to him for storage. To this the defendant replied on November 27, saying:

We can not put any other construction on movement of this rye than that it is a storage and not an immediate shipment lot, consequently subject to conditions governing storage grain.

Without undertaking to analyze in detail all the correspondence between the parties or to examine further the testimony supplementing it, we are satisfied that although the shortage in the defendant's car equipment and the probability that the movement of the rye to destination would be delayed for some time were perfectly understood by the complainant, there was nevertheless no definite and clear understanding between the parties as to whether the grain was to be received by the defendant for immediate shipment or as a storage shipment, as those terms are used in the defendant's published tariff.

As the minds of the parties did not meet with respect to the nature of the transaction, on what theory may we arrive at a solution of the controversy? Rule 2 of the tariff referred to provides that "grain will be considered as for immediate shipment (as promptly as car supply will permit), unless otherwise ordered." In the absence of a definite understanding between the parties as to whether it was to be an immediate shipment or a storage shipment, we think that this rule must be applied. Certainly it can not be said that the complainant desired or affirmatively ordered the grain to be held at West Fairport. And the mere fact that he understood that there would be a delay in getting cars to move the rye out of West Fairport does not of itself justify us in holding that he agreed that the defendant would receive it as a storage shipment and not for immediate shipment. A storage shipment under the rule referred to not only implies an affirmative order by the shipper to hold the grain in storage at West Fairport, but it requires an affirmative order for loading it out of the elevator and moving it forward to destination. Certainly the complainant did not order the grain held in storage, and the record shows that the defendant understood that it was at liberty at any time after receiving the grain to move it out at its own convenience, and without further orders from the complainant.

After carefully considering the whole record we have come to the conclusion that under rule 2 of the tariff and in the absence of a definite understanding between the parties, the defendant must be held to have received the complainant's rye as for immediate shipment; for it is not affirmatively shown to have been "otherwise ordered" by the complainant as provided in that rule. Having received the grain for immediate shipment the defendant was under the obligation, according to the terms of its tariff schedule, to supply cars for the forward movement as rapidly as its convenience would permit, and in the meantime to insure and store the grain at its own expense. This view requires us also to hold that the $488.61 paid by the complainant to defendant in order to secure the delivery of the grain to him

« Anterior Continuar »

Libros

Interstate Commerce Commission Reports: Reports and Decisions of the ...