Page Traffic Bureau, Lynchburg Cham. of Com. v. Chesapeake & O. Ry. Co., Tri-State Packers' Assn., Inc., v. Pennsylvania R. Co., 209 I. C. C. 192__ Louisiana, 290 U. S. 70-- Merchants & Mfrs. Traffic Assn. of Sacramento, 242 U. S. 178____ Unloading Charges, Fruits and Vegetables, N. Y. and Phila., 272 I. C. C. 648_ Utah Shippers Traffic Assn. v. Atchison, T. & S. F. Ry. Co., 172 I. C. C. 306___. 407 59 77 495 204 416 704 178 702, 719 679 Virginia Livestock Growers & Shippers v. Norfolk & W. Ry. Co., 183 180 Virginia State Corp. Comm. v. Pennsylvania R. Co., 214 I. C. C. 753.. 59 374 Vulcan Mold & Iron Co. v. Baltimore & O. R. Co., 259 I. C. C. 138; 262 596 W & W Pickle & Canning Co. v. Cleveland, C., C. & St. L. Ry. Co., 178 104 Wallace v. Cutten, 298 U. S. 229. 694 Warner Chemical Co. v. Central R. Co. of New Jersey, 238 I. C. C. 581__ Waste Material Dealers Assn. v. Chicago, R. I. & P. Ry. Co., 164 I. C. C. 587; 226 I. C. C. 683.___ 766 672, 786 West Virginia Brick Co. v. Chesapeake & O. Ry. Co., 186 I. C. C. 485... 807 766 Western-Southern Class Rates, 226 I. C. C. 497. Western Trunk-Line Class Rates, 164 I. C. C. 1; 204 I. C. C. 595 124, 394 500, 505, 717 Western Trunk Line Fourth Section Commodity Rates, 241 I. C. C. 366- Williamson Candy Co. v. Lehigh Valley R. Co., 266 I. C. C. 803. INTERSTATE COMMERCE COMMISSION REPORTS No. 29688 F. D. CROCE & COMPANY, INC., v. NEW YORK CENTRAL RAILROAD COMPANY ET AL. Submitted September 12, 1947. Decided August 5, 1948 Demurrage charges collected for the detention of carloads of fruit and vegetable containers and pine box shooks, during a truck drivers' strike at New York, N. Y., and Newark, N. J., found applicable and not unreasonable as applied to one car but unreasonable as applied to three other cars. Defendants authorized to waive collecting of undercharges. Reparation awarded. Earle H. Bogardus for complainant. William F. Zearfaus, Harold H. McLean, and J. Edgar McDonald for defendants. Giles Morrow, John K. Cunningham, Fred N. Melius, Jr., and James L. Givan for interveners. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2: Exceptions to the examiners' proposed report were filed by complainant and defendants, and by Freight Forwarders Institute, Acme Fast Freight, Inc., National Carloading Corporation, and Universal Carloading and Distributing Co., Inc., interveners. Exceptions and requested findings not specifically discussed in this report have been given consideration and found not justified. Our conclusions differ from those recommended by the examiners. Defendants have filed a motion asking that complainant's exceptions be rejected on the ground that the exceptions were not served on defendants within the required time. The exceptions were due 272 I. C. C. 1 on September 2, 1947. They are dated August 26, 1947, and a copy was received by us on August 28, 1947. Defendants' counsel state that their copy was not mailed until September 3, 1947. Complainant's practitioner states that copies for defendants' counsel were mailed on August 26, the same date that others were mailed. In the circumstances we do not believe that defendants' interests were materially prejudiced by the tardy receipt of the exceptions. The motion is overruled. Complainant, a corporation, is engaged in the sale of farm supplies with offices in New York, N. Y. By complaint filed January 24, 1947, as amended, it alleges that the demurrage charges collected for the detention of four carloads of veneer fruit and vegetable containers and pine box shooks, at Newark, N. J., and New York, N. Y., during a truck drivers' strike, were in violation of sections 1, 2, and 3 of the Interstate Commerce Act. At the hearing it was also contended that the charges were inapplicable. We are asked to award reparation. No evidence was presented in support of the alleged violations of sections 2 and 3. These allegations therefore will not be given further consideration. The strike commenced on September 1, 1946, and continued until October 29, 1946. Car W&LE 26031 on which demurrage was collected at Newark originated at Perry, Ga. It arrived at destination October 17, 1946, and was not released until October 24, 1946. Demurrage charges in the sum of $9.90 for detention from October 22 to October 24, were collected. Car BAR 61012 originated at Bridal Veil, Oreg. It arrived at the Thirty-third Street Station, New York, on August 30, 1946, at 11 a. m. Arrival notice was mailed at 8 p. m. on the same date and the car was placed for unloading at 2 a. m. on August 31. No disposition orders were received and the car was moved on September 2, 1946, from the Thirty-third Street Station to the One Hundred and Thirtieth Street Station in order to facilitate the unloading of freight at the former. It was returned to Thirty-third Street on September 6, 1946. The car was released on September 13. No demurrage was charged for the period the car was at the One Hundred and Thirtieth Street Station. Charges were collected in the sum of $53.90 for detention from September 7 to September 13, Car NKP 17557 originated at Suffolk, Va., and arrived at the Thirty-seventh Street Station, New York, on September 5, 1946. It was not released until September 17. Demurrage charges in the sum of $37.40 were collected. Charges in the sum of $70.40 should have been collected for detention of the car. There is therefore an outstanding undercharge of $33. Car B&O 380985 originated at Perry, Ga., and arrived at the Thirty-seventh Street Station on October 5, 1946. It was not released until October 30, 1946. Demurrage charges in the sum of $218.90 were collected. During the period that the charges here considered accrued, and for a long time prior thereto, there was a car shortage, and as an aid in relieving the shortage, division 3 issued Service Order No. 369. This order was originally issued on November 9, 1945. It was amended from time to time. The order required the railroads to establish and collect increased demurrage charges on boxcars. Prior to the effectiveness of the increases the charges were $2.20 per car-day for the first 2 days of detention beyond the 2 days' free time authorized, and $5.50 for each additional day, not including Sundays or holidays. As modified by the service order the charges became (disregarding free time, Sundays and holidays) $2.20 for the first 2 days $5.50 for the third day, $11 for the fourth day, and $16.50 for each succeeding day. Complainant contends that the applicable charges were those provided by rule 8, section G of Agent Jones' tariff, I. C. C. No. 3963. That rule was in part as follows: When, because of a strike of its employees, it is impossible for the consignor or consignee to load or unload cars or to receive inbound cars from or to make outbound cars available to this railroad detention of cars due to that cause * will be charged for at the rate of $1.20 per car day or fraction of a day, including Sundays and legal holidays and without free time allowance * * Complainant's employees were not on strike. There is, therefore, no merit to the contention that the rule should be applied to the cars in question since it is plainly applicable only in instances where employees of the consignor or consignee are on strike. The purpose of the penalty element in demurrage charges is to impel prompt release of equipment by shippers. That purpose fails whenever the release of equipment by the shipper is made impossible by circumstances beyond its control. Consequently in such circumstances the principle has become established that the exaction of a penalty charge is unreasonable. In Chrysler Corp. v. New York Central R. Co., 234 I. C. C. 755, Balfour, Guthrie & Co. v. Chicago, M., St. P. & P. R. Co., 235 I. C. C. 437, and Chronicle Publishing Co. v. Great Northern Ry. Co., 243 I. C. C. 279, the Commission found unreasonable the collection of the usual demurrage charges for detention of cars on |