Opinion
February 4, 1910.
Carl A. de Gersdorff, for the appellant.
Grant C. Fox, for the respondent.
Appeal from a determination of the Appellate Term reversing a judgment in favor of plaintiff rendered in the Municipal Court.
The controversy relates to the proper construction to be given to certain "demurrage rules" adopted by the plaintiff and duly filed as provided by law. It is conceded that the reasonableness of the rules cannot be called in question in this action, their construction and application alone being involved. The defendant is engaged in the coal business and receives, as consignee, considerable quantities of coal in carloads delivered at St. George, Staten Island. The plaintiff is a terminal railroad, so far as concerns its freight business, and handles and delivers freight originating on the lines of the Baltimore and Ohio Railroad Company for delivery in the harbor of New York. Such freight includes large shipments of coal. The Baltimore and Ohio railroad terminates at Philadelphia, where its freight is transferred to and passes over the tracks of the Central Railroad of New Jersey to Cranford in the State of New Jersey. At Cranford the freight cars are delivered to the Baltimore and New York railway and transported over its tracks to the Arthur Kill Bridge, whence they are carried over the tracks of plaintiff to St. George, Staten Island, the point of delivery. Plaintiff's line extends only from Arthur Kill Bridge to St. George, where it has delivery piers, including two coal piers, and a large storage yard with capacity for about one thousand cars, and another storage yard at Arlington, presumably on Staten Island, with capacity for about eight hundred cars. The demurrage for which this action is brought is for cars detained at Cranford, N.J., about twelve miles from St. George, the point of unloading. It appears that cars detained at Cranford can be delivered at St. George for unloading, under favorable circumstances, in about an hour and a half after notice to so deliver them has been received. The evidence does not make it at all clear why the plaintiff should, in any case, be entitled to charge demurrage upon cars detained at Cranford, which is not on its line at all, but is the junction point of two other roads. For the purposes of this appeal, however, we may assume that it holds some lease or other contract which justifies it in treating the storage yard at Cranford as one of its own storage yards. Assuming that this is so, we come to the consideration of the demurrage rules under which the present claim is made. Those rules, so far as relevant here, read as follows:
" Demurrage rules applying on Bituminous Coal and Coke consigned to St. George, S.I., N.Y. Coal Piers for trans-shipment. * * *
"On and after April 1, 1907, demurrage will be charged under the following rules at St. George, Staten Island, N.Y., Coal Piers for detention to cars containing bituminous coal and coke held for trans-shipment:
"Rule 1. A charge of $1.00 per car per day shall be made after the car has been detained twelve (12) days, detention to be computed as per Rule 2 * * *.
"Rule 2. The date of arrival of the car shall be subtracted from the date unloaded, the difference between these dates will constitute the total detention to the car."
The question is whether, under this rule, the date of arrival at Cranford, N.J., is the proper date of arrival to be taken in computing the total detention of the car. The language of the rule certainly affords no support for plaintiff's claim, and since the rule is one of the plaintiff's own making we are not justified in giving to it a broader construction than its language indicates, unless the reason of the thing and the surrounding circumstances require us to do so. The rule provides that demurrage will be charged at St. George, Staten Island, for detention. This may not be so narrowly construed as to mean that demurrage will begin to run only after arrival at the discharging piers, but will be satisfied by treating the arrival at the storage yards at St. George as the date from which the detention is to be computed. ( Hite v. Central R.R. of New Jersey, 171 Fed. Rep. 370.) Perhaps even the yard at Arlington may be so nearly contiguous to St. George as to fall within the terms of the rule, although there is no evidence in this case warranting such a finding. But by no reasonable and permissible construction of the rule can it be said that it covers cars detained at a yard twelve miles away, in another State, and upon the lines of another railway. The cars are held at Cranford, not by the order of the consignee, but solely for the convenience of the plaintiff, because its business has outgrown its facilities at its terminal point. We are not concerned now with the question whether or not plaintiff might have made or might make rules charging demurrage for detention at Cranford. The only question is whether it has done so. This question must, we think, be answered in the negative. It follows that the determination of the Appellate Term must be affirmed and judgment absolute ordered in favor of defendant against plaintiff upon the stipulation, with costs in all the courts.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Determination affirmed and judgment absolute ordered for defendant upon stipulation, with costs in all courts.