A-38363, AUGUST 31, 1931, 11 COMP. GEN. 95

A-38363: Aug 31, 1931

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DEMURRAGE CHARGES ARE NOT APPLICABLE AND THAT THE LEASE OF A CAR IS EQUIVALENT TO OWNERSHIP. DEMURRAGE CHARGES WILL NOT BE ALLOWED FOR THE DETENTION OF A PRIVATE CAR BY THE GOVERNMENT ON GOVERNMENT OWNED TRACKS. NOTWITHSTANDING THE CAR MAY NOT HAVE BEEN STENCILED OR BOARDED TO SHOW THE GOVERNMENT AS LESSEE. THE CAR OWNER WAS PAID BY THE GOVERNMENT RENTAL AT A STIPULATED CHARGE AND IT IS ADMITTED THAT NO FINANCIAL LOSS WAS OCCASIONED THE CARRIER ON ACCOUNT OF SUCH DETENTION. WHEREIN $43 WAS DISALLOWED FOR DETENTION OF CAR ARL-15630 AT CAMP GRAYLING. ARMOUR REFRIGERATOR LINES CAR 15630 WAS USED BY THE SUPPLY OFFICER FOR THE STORAGE OF MEAT FOR A PERIOD OF 15 DAYS FOR WHICH THE ARMOUR REFRIGERATOR LINES HAVE BEEN PAID A RENTAL OF $2 PER DAY.

A-38363, AUGUST 31, 1931, 11 COMP. GEN. 95

TRANSPORTATION - DEMURRAGE CHARGES WHERE A TARIFF PROVIDES THAT FOR DETENTION OF A PRIVATE CAR ON PRIVATE TRACKS, THE OWNERSHIP OF THE CAR AND THE TRACKS BEING THE SAME, DEMURRAGE CHARGES ARE NOT APPLICABLE AND THAT THE LEASE OF A CAR IS EQUIVALENT TO OWNERSHIP, BUT THAT THE CAR MUST BE STENCILED OR BOARDED TO SHOW THE NAME OF THE LESSEE, DEMURRAGE CHARGES WILL NOT BE ALLOWED FOR THE DETENTION OF A PRIVATE CAR BY THE GOVERNMENT ON GOVERNMENT OWNED TRACKS, NOTWITHSTANDING THE CAR MAY NOT HAVE BEEN STENCILED OR BOARDED TO SHOW THE GOVERNMENT AS LESSEE, WHEN THE RECORD SHOWS THAT FOR THE PERIOD OF DETENTION, THE CAR OWNER WAS PAID BY THE GOVERNMENT RENTAL AT A STIPULATED CHARGE AND IT IS ADMITTED THAT NO FINANCIAL LOSS WAS OCCASIONED THE CARRIER ON ACCOUNT OF SUCH DETENTION.

DECISION BY ASSISTANT COMPTROLLER GENERAL ELLIOTT, AUGUST 31, 1931:

THE MICHIGAN CENTRAL RAILROAD HAS REQUESTED REVIEW OF SETTLEMENT T 53703 1/2, NOVEMBER 24, 1930, OF BILL SL-33886, WHEREIN $43 WAS DISALLOWED FOR DETENTION OF CAR ARL-15630 AT CAMP GRAYLING, MICH., DURING JULY, 1928.

IT APPEARS THAT THE SUPPLY OFFICER, TWO HUNDRED AND SECOND COAST ARTILLERY, ILLINOIS NATIONAL GUARD, PURCHASED MEET FROM ARMOUR AND CO., AND THAT OWING TO LACK OF STORAGE FACILITIES AT THE CAMP, ARMOUR REFRIGERATOR LINES CAR 15630 WAS USED BY THE SUPPLY OFFICER FOR THE STORAGE OF MEAT FOR A PERIOD OF 15 DAYS FOR WHICH THE ARMOUR REFRIGERATOR LINES HAVE BEEN PAID A RENTAL OF $2 PER DAY, TOTAL $30. THE CLAIM OF THE MICHIGAN CENTRAL RAILROAD IS FOR DEMURRAGE CHARGES BY REASON OF THE DETENTION OF THE CAR AT THE CAMP ON A PRIVATE SIDING OWNED BY THE GOVERNMENT. THE TARIFF PROVISION RELIED UPON TO SUPPORT THE CLAIM APPEARS TO BE JONES-, AGENT, I.C.C. 1855, RULE 4 (A).

JONES-, AGENT, I.C.C. 2003, FREIGHT TARIFF NO. 4-H (REISSUE OF I.C.C. 1855) WAS IN EFFECT AND APPLICABLE ON THE DATE OF SHIPMENT. RULE 1, SECTION A, PROVIDED THAT CARS OF PRIVATE OWNERSHIP HELD BY CONSIGNEES FOR UNLOADING OR ANY OTHER PURPOSE WERE SUBJECT TO DEMURRAGE RULES; PROVIDED, HOWEVER, (SECTION B, 4 (A) ( THAT PRIVATE CARS ON PRIVATE TRACKS, WHEN THE OWNERSHIP OF THE CAR AND THE TRACK WERE THE SAME, WERE NOT SUBJECT TO THE RULES. IT WAS PROVIDED IN NOTE 1 THAT, FOR THE PURPOSE OF THIS EXEMPTION FROM DEMURRAGE, A PRIVATE CAR WAS A CAR OF OTHER THAN RAILROAD OWNERSHIP; A LEASE OF A CAR WAS EQUIVALENT TO OWNERSHIP; PRIVATE CARS MUST HAVE THE FULL NAME OF THE OWNER OR LESSEE PAINTED OR STENCILED THEREON, OR MUST BE BOARDED WITH WOODEN, METAL, OR CARDBOARDS SHOWING THE FULL NAME OF THE OWNER OR LESSEE, AND IF CARDBOARDED, THE CARDBOARD MUST ALSO SHOW INITIALS AND NUMBER OF CAR AND DATE OF SHIPMENT. IF THE NAME OF THE LESSEE WERE PAINTED, STENCILED, OR BOARDED ON THE CAR, THEN THE CAR WAS EXEMPT FROM DEMURRAGE FOR THE LESSEE ONLY; IF THE NAME OF THE LESSEE WERE NOT PAINTED, STENCILED, OR BOARDED ON THE CAR, THEN THE CAR WAS EXEMPT FROM DEMURRAGE FOR THE OWNER ONLY.

THE CAR HERE CONCERNED WAS A PRIVATE CAR BELONGING TO THE ARMOUR CAR LINES; THE TRACKS UPON WHICH IT STOOD DURING THE PERIOD FOR WHICH DEMURRAGE WAS CLAIMED WERE PRIVATE SIDING BELONGING TO THE UNITED STATES; AND, FOR THE PERIOD FOR WHICH IT WAS SO HELD AND USED, RENTAL HAS BEEN PAID BY THE GOVERNMENT TO THE ARMOUR CAR LINES, AS OWNER. CONCERNING THE QUESTION WHETHER THE CAR WAS SO PLACARDED AS TO INDICATE THE EXISTENCE OF THE LEASE, THE ARMOUR CAR LINES, BY LETTER DATED FEBRUARY 9, 1931, STATED:

OUR FILES, AT THIS LATE DATE, DO NOT DISCLOSE WHETHER THERE WERE LESSEE BOARDS PLACED ON ARL 15630, OR NOT, BUT WE WOULD ASSUME THAT THE RECEIVER TOOK ANY ACTION CONSIDERED NECESSARY AND WE CARRIED OUT OUR PART OF THE UNDERSTANDING WHEN WE ALLOWED CAR TO BE HELD FOR STORAGE PURPOSES AS LONG AS REQUIRED AT STIPULATED CHARGE.

THE STATEMENTS OF THE SUPPLY OFFICER AND OF THE CARRIER'S AGENT, MADE IN 1931, OR NEARLY THREE YEARS AFTER THE TRANSACTION, ARE TO THE EFFECT THAT THEY HAVE NO RECOLLECTION OF SUCH PLACARDS BEING PLACED UPON THE CAR. DOES NOT APPEAR THEREFORE TO BE CONCLUSIVELY ESTABLISHED THAT THE CAR MAY NOT IN FACT HAVE BEEN PLACARDED SO AS TO COMPLY WITH THE PROVISIONS OF THE TARIFF, BUT EVEN IF IT BE CONCEDED FOR THE SAKE OF ARGUMENT THAT LESSEE BOARDS WERE NOT USED, THE FACT REMAINS THAT THE CLAIM PRESENTED IS LACKING IN MERIT. IT WOULD SEEM TO BE FAIRLY OBVIOUS THAT THE PURPOSE OF DEMURRAGE CHARGES IS TO COMPENSATE THE CARRIER FOR LOSS OR INCONVENIENCE SUSTAINED BY REASON OF THE DETENTION OF A CAR FOR A PERIOD LONGER THAN THAT ALLOWED FOR UNLOADING. ADMITTEDLY, THE DETENTION OF THE CAR IN QUESTION CAUSED NO FINANCIAL LOSS OR ANY INCONVENIENCE TO THE CARRIER, FOR THE REASON THAT THE CAR WAS ONE OF PRIVATE OWNERSHIP AND THERE IS NO PROVISION, BY TARIFF OR OTHERWISE, UNDER WHICH THE CARRIER COULD BE REQUIRED TO PAY A PRIVATE CAR OWNER ANY SUM BECAUSE OF SUCH DETENTION. THE CLAIM IS FOUNDED, THEREFORE, ON NO MORE SUBSTANTIAL BASIS THAN THAT THERE MAY NOT HAVE BEEN A TECHNICAL COMPLIANCE WITH TARIFF PROVISIONS CONCERNING THE MANNER OF SHOWING THAT THE CAR WAS LEASED FROM ITS OWNER BY THE OWNER OF THE TRACKS UPON WHICH IT STOOD, WHEN THE FACT OF THE EXISTENCE OF A LEASE IS EVIDENCE BY THE PAYMENT OF RENTAL FOR THE PERIOD OF DETENTION, WHICH THE CAR OWNER ADMITS HAVING RECEIVED "AT STIPULATED CHARGE.'