Union Barge Line Corp. v. Carter Construction Co.

56 F.R.D. 634, 16 Fed. R. Serv. 2d 1450, 1972 U.S. Dist. LEXIS 11795
CourtDistrict Court, E.D. Arkansas
DecidedSeptember 28, 1972
DocketNo. LR-72-C-166
StatusPublished
Cited by1 cases

This text of 56 F.R.D. 634 (Union Barge Line Corp. v. Carter Construction Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Union Barge Line Corp. v. Carter Construction Co., 56 F.R.D. 634, 16 Fed. R. Serv. 2d 1450, 1972 U.S. Dist. LEXIS 11795 (E.D. Ark. 1972).

Opinion

MEMORANDUM OPINION

HENLEY, Chief Judge.

This is a suit for transportation charges brought by plaintiff, Union Barge Line Corporation, against the defendant, Carter Construction Co., Inc. The defendant denies liability. By virtue of 28 U.S.C.A., section 1337 the Court has jurisdiction of the complaint without regard to the citizenship of the parties or the amount in controversy.

The cause is now before the Court on the motion of plaintiff for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U. S.C.A. The burden is on plaintiff to establish that the case does not present any genuine issue as to any material fact and that plaintiff is entitled to judgment as a matter of law.

Rule 56(d) provides that if on motion under that Rule the case is not fully disposed of, the Court shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted, and shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. It is provided that upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

The facts upon which the claim of plaintiff is based are set forth in the complaint and are substantially without dispute.

Plaintiff is a Pennsylvania corporation with its principal place of business in the City of Pittsburgh. It is a certificated common carrier by water and is covered by Part III of the Interstate Commerce Act, 49 U.S.C.A. § 901 et seq. Its transportation charges, including demurrage charges, are governed by tariffs on file with the Interstate Commerce Commission; it is required to collect its charges in accordance with the tariffs and is forbidden to engage in discriminatory practices or to grant rebates to shippers or consignees. 49 U.S.C.A. § 906.

Plaintiff operates tow boats and barges on the navigable waters of the United States, including the Arkansas River which is now navigable from its junction with the Mississippi River to Tulsa, Oklahoma. Plaintiff’s tariffs allow a consignee of freight to whom a barge is delivered a certain number of days free time within which to unload the barge and make it available to plaintiff for further use. After the free time has expired, demurrage time sets in. The demurrage rate is $45 per day for the first three days of demurrage time; $70 per day for the next three days, and $105 per day for additional days.

The defendant is an Arkansas corporation with its principal place of business in the City of Benton in this State. It is engaged in the construction business in the course of which it makes use of quantities of steel.

In 1969 and 1970 defendant purchased steel which was shipped to defendant in interstate commerce in four barges owned and operated by plaintiff. The barges were delivered for unloading at Pendleton Ferry on the Arkansas in the southeast part of this State. Additionally, plaintiff delivered an empty barge to defendant. The freight on the loaded barges was paid by the shipper.

All four barges incurred demurrage charges which, after adjustment with respect to one barge, totaled $5,370. The charge for delivering the empty barge was $250 so that the total claim of plaintiff, after adjustment, was $5,620. Prior to adjustment the claim had been [636]*636$5,725. Due demand was made by plaintiff for payment of its claim.

The defendant claimed offsets against the demand, which offsets will be described, and was willing to pay only $1,446.24. It sent or gave its check in that amount to plaintiff, and plaintiff accepted and cashed it under protest, and then brought this suit for the difference.

The first offset claimed by defendant was in the sum of $1,744.50 which was the alleged cost to defendant of removing hatch covers from three of the four loaded .barges. The second offset totaling $420 involved a dispute about four days of demurrage time at the rate of $105 per day. The third offset amounting to $2,114.26 arose out of the fact that in January 1972 plaintiff’s tow boat, Arkansas Traveler, was involved in a collision with a dredge belonging to the defendant and which was anchored or operating in the Arkansas River at River Mile 45; defendant took the position that the collision and damage to the barge were caused by negligence on the part of the plaintiff’s employees.

In its pleading filed in this case and in connection with the pending motion the defendant contends that it was entitled to the offsets, and that it owes the plaintiff nothing. Defendant does not claim that plaintiff is indebted to it.

Defendant’s pleading consists of an “Answer,” a “First Counterclaim,” and a “Second Counterclaim.” In its Answer the defendant alleges that there was a bona fide dispute between the parties about the offsets claimed by the defendant, and that the action of plaintiff in accepting, albeit under protest, defendant’s check for $1,446.24 amounted to an accord and satisfaction. The First Counterclaim involves the cost of removing the hatches from three of the barges, and the Second Counterclaim involves the 1972 damage to the dredge.

As the Court characterizes them, the two counterclaims are alternative to the plea of accord and satisfaction appearing in the Answer, and the counterclaims are actually pleaded by way of offsets against the demand of plaintiff. See Rule 13(c), F.R.Civ.P.

In support of its motion plaintiff contends that under the Interstate Commerce Act transportation charges of interstate carriers by water are not legally subject to offsets or compromises, and that the claim of accord and satisfaction cannot be sustained legally. Plaintiff also contends that under the Act a consignee sued for demurrage or other transportation charges is not permitted to plead offsets or counterclaims. Plaintiff would have the Court give it judgment for the amount of its charges and remit defendant to an independent action to recover for plaintiff’s alleged breach of contract of carriage and for plaintiff’s alleged negligence resulting in damage to the defendant’s dredge.

The Court readily agrees with plaintiff that the claim of accord and satisfaction must fail. The liability of a consignee of freight to pay demurrage charges due under established tariffs of an interstate carrier governed by the Interstate Commerce Act was considered by this Court a number of years ago in St. Louis, Southwestern Railway Co. v. Mays, E.D.Ark., 1959, 177 F.Supp. 182. In that case the Court said (p. 184 of 177 F.Supp.):

“In the application of the rule that carriers, shippers and consignees are bound by the provisions of the tariffs filed by the former, it is now well settled that where, as here, demurrage charges are prescribed by tariff, and where a liability for such charges accrues, the carrier is under a duty to collect and the shipper or consignee is under a duty to pay the same. They have no choice in the matter, and it is not a legitimate subject for compromise or settlement between them. Garrison Coal Co. v. Hines, 118 Okl. 251, 247 P. 62, 46 A.L.R. 1151; Southern R. Co. v. White, 6 Cir., 284 F. 560, 26 A.L.R. 1429; St.

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Cite This Page — Counsel Stack

Bluebook (online)
56 F.R.D. 634, 16 Fed. R. Serv. 2d 1450, 1972 U.S. Dist. LEXIS 11795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-barge-line-corp-v-carter-construction-co-ared-1972.