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applied for in due time, but the unloading by the consignee is afterwards interrupted.16

But the right of a shipowner to demurrage may be affected by his laches in bringing suit.17

Sec. 858. Liability of consignee for detention of cars where duty to unload the goods devolves on railroad company.— While, under the maritime law, the carrier is entitled to demand compensation for the detention of his vessel which is caused by the delay of the consignee in receiving his goods, it remains to be seen whether a railroad company may impose a similar charge for the detention of its cars. If the goods consist of small or package freight belonging to several owners, and are such that they may be shipped in a single car, or if, though in bulk, they are of such a character as to be subject. to damage or deterioration on account of the elements, it is ordinarily the duty of the railroad company to unload them from the car and deposit them in a safe and suitable place before its liability as carrier will cease and that of warehouseman begin; and where the railroad company is under this duty, the question as to a detention of the car by the consignee does not usually arise. But the consignee himself may undertake to unload the goods, and by reason of his failure to do so within a reasonable time the railroad company may seek to hold him liable for demurrage charges. Thus in the case of Chicago & Northwestern Railway Co. v. Jenkins,18 which was later distinguished by the same court from the case of Schumacher v. The Railway,19 the plaintiff brought an action of trover to recover damages for the conversion of a quantity of paper which the defendant had refused to permit him to unload from its car because, as it claimed, demurrage charges which the plaintiff refused to pay had accrued under its pub-. lished rules. In deciding that the defendant had no right, in

16. Hick v. Rodocanachi (1891) 2 Q. B. 626, 61 L. J. Q. B. 42; affirmed, (1893) A. C. 22.

253, 1 C. C. A. 237, 1 U. S. App. 7. 18. 103 Ill. 588.

19. Schumacher v. The Railway,

17. McKeen v. Morse, 49 Fed. 207 Ill. 199, 69 N. E. Rep. 825, affirming s. c. 108 Ill. App. 520.

the absence of an express contract on the subject, to withhold possession of the paper from the plaintiff, the court said: "The right to demurrage, if it exists as a legal right, is confined to the maritime law, and only exists as to carriers by sea-going vessels. But it is believed to exist alone by force of contract. All such contracts of affreightment contain an agreement for demurrage in case of delay beyond the period allowed by the agreement, or the custom of the port allowed the consignee to receive and remove the goods. But the mode of doing business by the two kinds of carriers is essentially different. Railroad companies have warehouses in which to store freights. Owners of vessels have none. Railroads discharge cargoes carried by them. Carriers by ship do not, but it is done by the consignee. The masters of vessels provide in the contract for demurrage, while railroads do not, and it is seen these essential differences are, under the rules of the maritime law, wholly inapplicable to railroad carriers."

Sec. 859. Same subject-How where duty to unload cars devolves on consignee.-Where, however, the goods consist of bulky freight which is shipped in car load lots, and the consignee, either by contract or by a well established custom, is under the duty of unloading the goods himself, the railroad company is only required to notify him of their arrival and place the cars in a reasonably accessible position for being unloaded. It them becomes the duty of the consignee to unload the goods within a reasonable time, and if he fails to do so, the railroad company will be entitled as a matter of right, or in accordance with its published rules and regulations, to demand a reasonable compensation for the use of the cars, whether they belong to it or to another company.20 And there

20. Kentucky Wagon Mfg. Co. v. The Railway, 98 Ky. 152, 32 S. W. Rep. 595, 56 Am. St. Rep. 326, 36 L. R. A. 850; Miller v. The Railroad, 88 Ga. 563, 15 S. E. Rep. 316, 30 Am. St. Rep. 170, 18 L. R. A. 323: Dixon v. The Railway, 110

Ga. 173, 35 S. E. Rep. 369; Schumacher v. The Railway, 207 Ill. 199, 69 N. E. Rep. 825; Railroad Co. v. Adams, 90 Va. 393, 18 S. E. Rep. 673, 44 Am. St. Rep. 916, 22 L. R. A. 530; Miller v. Mansfield, 112 Mass. 260; Railroad Co. .

is no injustice in conceding to a railroad company the right to impose such a charge. Where the character of the goods is such that the duty of unloading them would ordinarily devolve upon the railroad company, it may remove them from the car

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Midvale Steel Co., 201 Penn. St. 624, 51 Atl. Rep. 313, 88 Am. St. Rep. 836; Swan v. The Railroad, 106 Tenn. 229, 61 S. W. Rep. 57; Railway Co. v. Lockwood, Ala. 37 So. Rep. 667, 68 L. R. A. 227; Railroad Co. v. George & Co., 82 Miss. 710, 35 So. Rep. 193; Railroad Co. v. Searles, 83 Miss. 721, 37 So. Rep. 939, 68 L. R. A. 715; McGee v. The Railway, 71 Mo. App. 310; Darlington v. The Railway, 99 Mo. App. 1, 72 S. W. Rep. 122; Owen v. The Railway, 83 Mo. 464; Railway Co. v. Propst Lumber Co., 114 Ill. App. 659; Galveston, etc., Ry. Co. v. Hunt (Tex. Civ. App.), 32 S. W. Rep. 549. But see Railway Co. v. Holden, 73 Ill. App. 582, and Railway Co. v. Lamm, 73 Ill. App. 592, where a contrary rule as to shipments in car-load lots is laid down.

The term "demurrage," as used in its technical sense, applies to the maritime law and has been held by some authorities to be confined to carriers by water. But the word as used by railroad companies is not used in its technical sense, but is adopted as a convenient term to represent the storage of goods in cars as distinguished from their storage in warehouse. Dixon v. The Railway, 110 Ga. 173, 35 S. E. Rep. 369.

A rule charging consignees $1.00 per day for each car detained after 72 hours from time of arrival, held, reasonable. Railroad Co. v.

Adams, 90 Va. 393, 18 S. E. Rep. 673, 44 Am. St. Rep. 916, 22 L. R. A. 530.

to

A rule providing that a party whom freight is consigned must receive the same within 48 hours after notice is reasonable, and the railroad company may legally charge storage or demurrage for the use of its cars if the goods are not removed from them within such time. Railway Co. v. Lockwood, Ala. 37 So. Rep. 667.

A rate is not necessarily unreasonable because it is the same for cars of different sizes and capacity, nor because a fraction of a day is charged for as a whole day, nor because the customary rate of storage in warehouse or elevator is much lower. Miller v. The Railroad, 88 Ga. 563, 15 S. E. Rep. 316, 30 Am. St. Rep. 170, 18 L. R. A. 323.

Whether a rule providing for a certain charge per day on cars not unloaded or loaded within a stated time after being placed is reasonable, is a question of fact for the jury. Kentucky Wagon Mfg. Co. v. Railway Co., 98 Ky. 152, 32 S. W. Rep. 595, 56 Am. St. Rep. 326, 36 L. R. A. 850.

The consignee must have a reasonable time, after having knowledge of the arrival of the freight, to remove it from the cars. But while many circumstances might arise which would have to be taken into consideration in determin

and place them in its depot or warehouse, and after its liability as a carrier has ceased, it will hold them as a warehouseman in which capacity it will be entitled to demand storage charges. On the same principle the railroad company should be entitled to demand a reasonable compensation in the nature of demurrage where the goods, instead of being held in its warehouse, are allowed to remain upon its cars. But aside from this reason, railroad companies own and control the highways upon which the commerce of the country is largely dependent. The law compels them to receive the goods of the public and to transport and deliver such goods within a reasonable time. To properly perform this function, it is of the utmost importance that their means of transportation should be under their control and that, after the transportation has been completed, their vehicles should not be converted into storehouses at the will of consignees.21 In view of this, the law recognizes the right of railroad companies to impose reasonable charges in the nature of demurrage upon consignees whose duty it is to unload their goods from the cars, but who neglect to do so within a reasonable time.

Sec. 860. Same subject-Effect of provision for demurrage charge in railroad company's receipt-Rules and regulations.

ing what a reasonable time would be, the distance which the freight has to be hauled after its removal from the cars is not a circumstance to be considered. Schumacher v. The Railway, 207 Ill. 199, 69 N. E. Rep. 825.

Where the time fixed for the consignee to unload the cars has expired, excuses, such as that he was prevented by the weather, will not avail him as against the carrier's right to demand demurrage charges. Darlington v. The Railway, 99 Mo. App. 1, 72 S. W. Rep. 122.

If no actual tender of delivery be made by a connecting carrier

to a succeeding carrier because such succeeding carrier states that it will not receive the car, the connecting carrier cannot claim demurrage during the time he is holding the car. Grand Rapids, etc., R. Co. v. Diether, 10 Ind. App. 206, 37 N. E. Rep. 39, 1069, 53 Am. St. Rep. 385.

21. In Norfolk, etc., R. Co. v. Adams, 90 Va. 393, 18 S. E. Rep. 673, 44 Am. St. Rep. 916, 22 L. R. A. 530, the court said: "Under the abuses that prevailed previous to the establishment of this rule. [providing for demurrage charges] serious losses and inconvenience were caused both to the shipping

-If the customer of a railroad company, on the delivery of goods for transportation, accepts a receipt in which it is provided that where the cars are not unloaded within a certain time demurrage will be charged, and the sum named and time

public and the railroad company the will of consignees, to remain by the unreasonable and protract- such indefinitely and without comed delay of consignees in unload- pensation. If no check could be ing the cars; the railroad com- placed upon such detention, it is pany being unable to furnish cars plain that the business of transwhen called upon by shippers of portation would be at the mercy freight, and their side tracks be- of private interest or caprice, and ing incumbered, and the move- that carriers, thus hampered and ment of freight impeded, causing unable to foresee the time or exheavy expense and a demand for tent to which their vehicles would more track room to accommodate be diverted from the work of caridle cars standing unloaded upon riage, could not provide properly the tracks, and the company be- for the demands of traffic, or pering unable, therefore, when called form with dispatch their legitiupon to furnish cars for the ship- mate functions. It would place ping public. The railroad com- upon the carrier the burden and pany, as a common carrier, is expense of supplying numerous bound to furnish cars for the vehicles not needed for the haultransportation of freight; and it ing of freight, thus requiring it must have control over its cars to provide extra facilities as well in order to perform its duty to as to render extra service without the public. After such reason- compensation beyond that reable time, the company by the rule ceived for transportation. It becomes simply a bailee for hire, would result in the accumulation and may make reasonable rules of cars on the carrier's tracks, and regulations, and charge for and the obstruction in a greater such service as bailee." or less degree of the movement and unloading of trains. Not only would loss ensue to the carrier, but consignees and shippers in general and the people at large must suffer seriously from this hinderance to the due and regular course of transportation. In this matter the public have rights paramount to those of any individual or class of individuals, and the business of the common car rier must be so conducted as to subserve the general interest and convenience. Especially is this

In Miller v. The Railroad, 88 Ga. 563, 15 S. E. Rep. 316, 30 Am. St. Rep. 170, 18 L. R. A. 323, Simmons, J., said: "The law compels the carrier to receive the goods of the public and to transport and deliver them within a reasonable time. . . . To do this it is necessary that the means of transportation shall be under the carrier's control, and that, after the duty of carriage has been performed, its vehicles shall not be converted into storehouses at

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