hand at 7 a. m. September 21, 1946, or arriving prior to 7 a. m. September 27, 1946, the unloading of which was interfered with by the strike of the truck drivers in the New York metropolitan area.

Rule 8, section G, of the afore-mentioned demurrage tariff provides that when, because of a strike of the consignee's employees, it is impossible to unload cars, detention due to that cause shall be charged for at the rate of $1.20 per car per day from the first 7 a. m. after such interference begins until the first 7 a. m. after such interference ceases, with no free time or allowance for Sundays or holidays. Adjustment of charges on that basis is permitted under the tariff if consignee files claim within 30 days after termination of strike.

The storage charges, concerning which certain of the complainants presented evidence, are those applying at defendants' piers or stations at which there are no team track facilities and at which the freight is unloaded by the railroads. Forty-eight hours free storage time is authorized, after which the charges were 1.8 cents per 100 pounds per day for the first 5 days and 3.7 cents per 100 pounds for each succeeding day.

Storage charges, like demurrage charges, embody a penalty element, which is designed to induce removal of freight from the carrier's facilities. Lighterage and Storage Regulations at New York, 35 I. C. C. 47. That the charges here in issue contain such an element was affirmed by a railroad witness.

In respect of demurrage charges, complainants seek reparation to the basis of $1.20 per car per day. They ask that the entire amount of the storage charges be declared unreasonable. The prayer for relief is predicated upon the principle that charges of a penal nature imposed for the purpose of inducing the release of a carrier's equipment or facilities for other use are unjust and unreasonable when the shipper is powerless to act through causes beyond his control. This principle was first given approval in Chrysler Corp. v. New York Central R. Co., 234 I. C. C. 755, wherein the Commission found the normal demurrage charges on cars held within the shipper's plant due to a sit-down strike of its employees were unreasonable to the extent that they exceeded $1.20 per car per day, without allowance of free time or for Sundays or holidays. The charge found reasonable was calculated as compensatory to the railroads, being predicated upon the then existing per diem rate of $1 per car plus 20 cents for other expenses. Effective January 1, 1945, the per diem charge was increased to $1.15. In Balfour, Guthrie & Co. v. Chicago, M., St. P. & P. R. Co., 235 I. C. C. 437, and Chronicle Publishing Co. v. Great Northern Ry.

Published in supplement 54 (effective July 1, 1946) to Agent B. T. Jones' tariff I. C. C. 3963, rule 5, item 820.

Co., 243 I. C. C. 279, the same demurrage charge was found reasonable in the case of detention caused by a strike of workers who were not employees of the shipper.

The normal charges for demurrage embrace both compensatory and penal elements, the latter being designed to induce prompt release of equipment. Chrysler Corp. v. New York Central R. Co., supra, page 759, and cases there cited. At various times in the past several years service orders have been issued by division 3 as an aid in the relief of car shortages, which have superimposed drastically increased penal charges on the normal demurrage charges. Nevertheless these charges have also been found unreasonable where the shipper has been able to establish a high degree of diligence, in view of attendant conditions, in releasing or attempting to release railroad equipment. L. D. McFarland Co. v. Southern Pac. Co., 263 I. C. C. 579; Catz American Sales Corp. v. Erie R. Co., 268 I. C. C. 791; Armour & Co. v. Atchison, T. & S. F. Ry. Co. 269 I. C. C. 449; Dunn Sulphite Paper Co. v. Grand Trunk W. R. Co., 269 I. C. C. 595; Pillsburg Mills, Inc., v. Great Northern Ry. Co., 270 I. C. C. 381; Iversen v. United States, 63 Fed. Supp. 1001, affirmed per curiam on motion, 327 U. S. 767, 327 U. S. 819; but where the evidence has disclosed that the shipper failed to exercise due diligence reparation has been denied. Hooker Electrochemical Co. v. New York Central R. Co., 266 I. C. C. 802, Williamson Candy Co. v. Lehigh Valley R. Co., 266 I. C. C. 803, Eagle Cotton Oil Co. v. Gulf, M. & O. R. Co., 268 I. C. C. 391, Docket No. 29710, Continental Can Co., Inc., v. Pennsylvania R. Co., 270 I. C. C. 42. There is no hard and fast rule as to what constitutes due diligence. It depends upon the circumstances disclosed in each individual proceeding. In some proceedings, for example, it has been deemed that the shipper was obligated to divert, reconsign, or store shipments or cancel orders, Williamson Candy Co. v. Lehigh Valley R. Co., supra, Hooker Electrochemical Co. v. New York Central R. Co., supra, Eagle Cotton Oil Co. v. Gulf, M & O. R. Co., supra, Continental Can Co., Inc., v. Pennsylvania R. Co., supra, while in others the circumstances were such that the shipper was held not under obligation to take action of this character. Catz American Sales Corp. v. Erie R. Co., supra, Pillsbury Mills, Inc., v. Great Northern Ry. Co., supra. We proceed therefore to examine the evidence here presented.

First we review briefly the general situation resulting from the strike. It included drivers for most private companies as well as those employed by contract and common carriers. As indicated, the strike began on September 1, 1946, and there was a general settlement on October 29, 1946, but in the meantime some companies made individual settlements with their drivers and the latter returned to work. The

strikers formed picket lines in the immediate vicinity of the railroad stations and team tracks, and by force or threats prevented access thereto. In some places and at some times they encroached upon railroad property. The effectiveness of the pickets in preventing access to railroad property varied from place to place and from time to time. On occasion shippers were able to accomplish deliveries surreptitiously; for example, by having the cars moved to stations where the pickets were less vigilant or temporarily absent. Sometimes the strikers permitted drivers of companies who had made individual settlements to pass through the picket lines but sometimes they did not. That the strike seriously interfered with the delivery of freight cannot be questioned. Officers and supervisory employees of complainants testified to this effect. While their testimony is predicated upon reports made to them by drivers, rather than personal observation, it is, nevertheless, confirmed by railroad witnesses who had first-hand knowledge. The evidence shows that the railroads likewise experienced great difficulty in performing their pick-up and delivery service. During at least a part of the strike period there was an embargo against freight destined to the New York area except when consigned to private sidings. The record does not disclose all of the facts concerning this embargo. Prior to September 1, 1946, the imminence of the strike had been given wide publicity in the press and by radio, and it was a matter of common knowledge. Further developments in the strike situation were likewise given daily publicity.

We consider now the evidence pertaining to the individual claims. Complainant Clover Leaf Paint and Varnish Company on July 16, 1946, ordered a carload of resin to be shipped to it late in August 1946, from Crawley, Ga. The shipment was made on August 29, 1946. On Septembear 5, 1946, the Long Island Railroad notified complainant of the arrival of this shipment at this carrier's Eighth Street yard in Long Island City, N. Y. Delivery of the shipment was made on September 20, 1946, for which demurrage and track-storage charges in the amount of $179.86 were, on October 3, 1946, paid by complainant. On May 13, 1947, defendants refunded to complainant $19.52 on that shipment. When the car arrived, complainant's truck drivers were on strike and they remained so until September 10, 1946. The traffic manager of complainant testified that subsequent thereto and until delivery of the shipment, complainant's truck drivers refused to pass through picket lines.

Complainant did not file a claim for reduction of the demurrage charges that were collected for the period up to September 10 when its employees were on strike. If it had done so it would have been entitled to refund in accordance with the provisions of the demur

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rage tariff above described. On cross-examination complainant's witness was unable to explain how it was possible for it to take delivery on September 20 but not prior thereto. It is not definitely shown by the evidence that during the period from September 10 to September 20 complainant was prevented from receiving its shipment because of circumstances beyond its control.

We find that the assailed charges are not shown to have been unreasonable.

Complainant S. H. Pomeroy Company had shipped to it from Canton, Ohio, on August 26, 1946, in Erie car No. 80287 for delivery at the Port Morris Yards, N. Y., of the New York Central Railroad, a carload shipment of sheet steel. On September 3, 1946, the railroad notified complainant of the arrival of this shipment. Complainant's purchasing agent testified that its truck drivers were not on strike at time of arrival of the car but that its drivers would not cross the picket lines, so that delivery of shipment was not made until September 20, 1946. Demurrage charges of $174.48 were collected. No explanation was given as to how it was possible to take delivery on September 20, although complainant's witness did testify that an effort was made to secure other truckmen to unload the shipment. The evidence presented in behalf of this complainant is incomplete. We find that the assailed charges are not shown to have been unreasonable.

Complainant Century Textile Company had shipped to it, October 7, 1946, from Clemson, S. C., in car CN 407122, a shipment of rayon yarn. The shipment was originally consigned to complainant, 79 Leonard St., New York City. On October 10, 1946, complainant instructed the Southern Railway to divert the car to Jersey City, N. J., and arranged with the Garford Trucking Company to take delivery of the car on its arrival. The Central Railroad Company of New Jersey on October 14, 1946, notified the Garford Trucking Company of the arrival of the car in Jersey City. The Garford Trucking Company notified complainant it could not take delivery of the shipment because of the truckmen's strike. Thereupon complainant directed a trucking company regularly employed by it to pick up the shipment as soon as possible. This company likewise reported to complainant that because of the strike its trucks were prevented from reaching the station. The company finally obtained delivery of the shipment on November 7, 1946. The delay after termination of the strike was due to the accumulation of work during the strike. Defendants collected $310.50 demurrage charges, including taxes.

We find that the assailed demurrage charges were unreasonable to the extent that they exceeded charges that would have accrued at the

rate of $1.35 per car per day without allowance of free time or for Sundays or holidays.

Complainant F. W. Anderson and Company on April 16, 1946, ordered a carload of paper from Bastrop, La. The shipment moved from Bastrop August 16, 1946, consigned to complainant at New York, care of U. S. Trucking Company. This trucking company was notified by the rail carriers on August 31, 1946, of the arrival of this shipment at New York Central Railroad pier 34, East River station. The trucking company's drivers went on strike at midnight of that date. Complainant's assistant purchasing agent testified that the abovenamed trucking company could not take delivery because of the strike, and that complainant tried to employ two other trucking companies to take delivery of this shipment, but that their employees would not cross the picket lines.

There are no track facilities at pier 34. The shipment was unloaded on the pier and there stored by the railroad. Storage charges in the amount of $1,036.20 up to October 29, 1946, when delivery was made, were collected.

Complainant's witness stated other shipments had been received by it in the metropolitan area during the period of the strike. They were not consigned directly to it, but to truckmen. The witness stated that he knew of no delay in securing delivery of the latter shipments. The witness further testified that his company was in urgent need of the paper and that no effort was made to stop or reconsign the shipment, because it was expected that it would arrive before the strike began.

We find that the assailed storage charges were unreasonable to the extent that they exceeded charges that would have accrued at the rate of 1.8 cents per 100 pounds per day for the entire period of the storage. Complainant Charles F. Hubbs and Company on August 8, 1946, ordered a carload shipment of paper towels and toweling from a manufacturer in Berlin, N. H. The shipment moved therefrom August 29, 1946, in C&O car No. 8067. The New York Central Railroad on September 3, 1946, notified complainant of the arrival of the shipment at its St. John's Park Station in New York City, but complainant did not take delivery of the shipment until September 19, 1946. Delivery of freight from platform only is provided at this station. The shipment was unloaded and stored at the station by the railroad. Storage charges in the amount of $100.76 were collected from complainant for this shipment. A witness for complainant in charge of the receipt of its materials testified that its truck drivers were not on strike at time of arrival of the shipment, that they were sent to take delivery of the shipment but were prevented from entering the St. John's Park Station by striking truckmen. He further testified that he made daily checks