{ "id": 2995838, "name": "INDIANA HARBOR BELT RAILROAD COMPANY, Plaintiff-Appellant, v. THE BUDD COMPANY, Defendant-Appellee", "name_abbreviation": "Indiana Harbor Belt Railroad v. Budd Co.", "decision_date": "1982-10-29", "docket_number": "No. 81\u20142257", "first_page": "76", "last_page": "81", "citations": [ { "type": "official", "cite": "110 Ill. App. 3d 76" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "408 N.E.2d 944", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 91", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3182597 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0091-01" ] }, { "cite": "256 F. Supp. 99", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1543453 ], "weight": 2, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/f-supp/256/0099-01" ] }, { "cite": "551 F.2d 1134", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 980162 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/f2d/551/1134-01" ] }, { "cite": "430 F. Supp. 722", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3929377 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/430/0722-01" ] }, { "cite": "620 F.2d 307", "category": "reporters:federal", "reporter": "F.2d", "year": 1976, "opinion_index": 0 }, { "cite": "473 F. Supp. 1093", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4085594 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f-supp/473/1093-01" ] }, { "cite": "398 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "78 Ill. 2d 56", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3075676 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/78/0056-01" ] }, { "cite": "586 F.2d 588", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 841033 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/586/0588-01" ] }, { "cite": "423 F. Supp. 679", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3901514 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f-supp/423/0679-01" ] }, { "cite": "488 F. Supp. 110", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4143461 ], "weight": 2, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/f-supp/488/0110-01" ] }, { "cite": "227 U.S. 639", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8289672 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/227/0639-01" ] } ], "analysis": { "cardinality": 665, "char_count": 13834, "ocr_confidence": 0.75, "pagerank": { "raw": 9.707080592875624e-08, "percentile": 0.5299772303327337 }, "sha256": "eb1b46a5b0a32e15441b02d1200a23b13a814b58e2ebe540b3d7a303f2fc89cb", "simhash": "1:535817ce58acf732", "word_count": 2232 }, "last_updated": "2023-07-14T17:28:01.901115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INDIANA HARBOR BELT RAILROAD COMPANY, Plaintiff-Appellant, v. THE BUDD COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nPlaintiff appeals a judgment against it in an action to collect additional demurrage charges based upon a recomputation of the charges previously made.\nInitially, it should be noted that because the facts have been set forth in a prior appeal in this matter, they will be repeat\u00e9d only insofar as they are pertinent here. In this regard, it appears that since 1950, plaintiff has supplied empty railroad cars needed by defendant for the loading and transportation of its products. Cars assigned for defendant\u2019s exclusive use were stored at plaintiff\u2019s freight yard six miles from defendant\u2019s industrial plant, and plaintiff \u2014 upon receiving an order for cars \u2014 would deliver them to one of defendant\u2019s five interchange tracks located adjacent to its plant where they would remain until defendant\u2019s switching crews took them from the interchange tracks and brought them inside its plant for loading. After the cars were loaded, defendant\u2019s crews returned them to one of the interchange tracks and released them to plaintiff for delivery to defendant\u2019s customers.\nPrior to October 1973, the parties had always treated the cars as subject to demurrage from the time defendant placed them in its plant for loading until they were released to plaintiff for delivery, but plaintiff concluded that it had improperly interpreted the tariffs governing demurrage, and it notified defendant that as of October 1973, demur-rage would be assessed from the date empty cars were placed on the interchange tracks until they were released under load to plaintiff. Thereaft\u00e9r, all demurrage bills were assessed consistent with the new method of calculation and have been paid by defendant. Plaintiff, however, also issued corrected bills to defendant, pursuant to section 16(3) of the Interstate Commerce Act (49 U.S.C. sec. 16(3) (1976)) (current version at 49 U.S.C.A. secs. 11705, 11706 (1982)), for the period from March 1, 1971, to September 30, 1973, based upon a recomputation under the new method. Defendant, having already paid the charges that were assessed during that period, refused to pay the additional amount.\nPlaintiff then brought this action, seeking $425,685 from defendant for the additional demurrage charges for the stated period. Defendant counterclaimed for $40,000 \u2014 the amount of the increase in charges it had paid to plaintiff from October 1973 through the date of the filing of the amended complaint \u2014 and it later moved for and was granted summary judgment, which this court reversed and remanded in the prior appeal. The ensuing trial resulted in a finding for defendant on plaintiff\u2019s claim for the additional demurrage charges and for plaintiff on defendant\u2019s counterclaim. This appeal is brought by plaintiff from the denial of its claim.\nOpinion\nThe sole question presented here is the propriety of the trial court\u2019s finding that plaintiff may not recover additional demurrage charges from defendant for the period from March 1, 1971, through September 30, 1973.\nInitially, we note that the demurrage tariffs pertinent here include Freight Tariff No. 4 \u2014 1, I.C.C. No. H \u2014 36, effective June 1, 1968, and Freight Tariff No. 4-J, I.C.C. No. H-59, effective April 1, 1973, which replaced and is phrased identically to Tariff No. 4 \u2014 1, and in Section 1, Rule 3, Item 910 thereof, there are two relevant sections which are set forth as follows:\n\u201cSECTION D. \u2014 *** on cars to be delivered on other-than-public-delivery tracks, time will be computed from the first 7:00 A.M. after actual *** placement on such tracks.\nTime computed from actual placement on cars placed at exactly 7:00 A.M. will begin at the same 7:00 A.M.; actual placement to be determined by the precise time the engine cuts loose. * * *\nNOTE. \u2014 \u2018Actual Placement\u2019 is made when a car is placed in an accessible position for loading or unloading or at a point previously designated by the consignor or consignee. ***\nSECTION E. \u2014 *** on cars to be delivered on interchange tracks of industrial plants performing the switching service for themselves or other parties, time will be computed from the first 7:00 A.M. after actual *** placement on such interchange tracks until return to the same or another interchange track. Time computed from actual placement on cars placed at exactly 7:00 A.M. -will begin at the same 7:00 A.M.; actual placement to be determined by the precise time the engine cuts loose.\u201d\nThe law conclusively presumes that shippers are aware of lawful tariff rates (Kansas City Southern Ry. Co. v. Carl (1913), 227 U.S. 639, 57 L. Ed. 683, 33 S. Ct. 391; Illinois Central Gulf R.R. Co. v. Tabor Grain Co. (N.D. Ill. 1980), 488 F. Supp. 110), and where error or misrepresentation of a proper rate is made by a carrier, a shipper may riot invoke the doctrine of waiver or estoppel against the right of a carrier to enforce legally applicable rates (Illinois Central Gulf R.R. Co. v. Tabor Grain Co.; Illinois Central Gulf R.R. Co. v. Golden Trian gle Wholesale Gas Co. (N.D. Miss. 1976), 423 F. Supp. 679, aff\u2019d (5th Cir. 1978), 586 F.2d 588; Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, 398 N.E.2d 3; see generally 13 Am. Jur. 2d Carriers sec. 109 (1964)). To hold otherwise would undermine the general purposes of tariffs to promote uniformity and to avoid rate discrimination among shippers. (Illinois Central Gulf R.R. Co. v. Tabor Grain Co.) However, where an ambiguous tariff is drafted by the carrier and its construction is in doubt, the tariff should be construed in favor of the shipper since the carrier is presumed to have used language necessary to protect its interest. Further, railroads which drafted tariffs and acquiesced in the shipper\u2019s interpretation over a long period of time are deemed to have given the tariff the same interpretation as the shipper. Illinois Central Gulf R.R. Co. v. Tabor Grain Co.; Norfolk & Western Ry. Co. v. Continental Grain Co. (E.D. Mo. 1979), 473 F. Supp. 1093, aff\u2019d (8th Cir. 1980), 620 F.2d 307; Kansas City Southern Ry. Co. v. Kansas City Power & Light Co. (W.D. Mo. 1976), 430 F. Supp. 722, aff\u2019d (8th Cir. 1977), 551 F.2d 1134; Calcium Carbonate Co. v. United States (S.D. Ill. 1966), 256 F. Supp. 99.\nIn Calcium Carbonate Co., two railroads submitted revised tariff rates to plaintiffs, who were in the business of selling and shipping ground limestone, contending that the rates collected and charged during the preceding three years were inapplicable and that a higher scale was controlling. The controversy involved a dispute over the meaning of language in the applicable tariff and, in finding for plaintiffs, the court reasoned:\n\u201cWe think it highly significant that the intervening railroads for a period of more than three years accepted without question the certification made by plaintiffs and other shippers of ground limestone as being in substantial compliance with Section 4. ***. As the railroads were the progenitors of the tariff and acquiesced in plaintiffs\u2019 interpretation for such a long period, we think the inference inescapable that they interpreted it in the same manner. To think otherwise would necessarily attribute to the carriers a degree of indifference, negligence or plain stupidity, for which the record furnishes no justification.\u201d 256 F. Supp. 99,103.\nSimilarly, in Tabor Grain Co., where the court distinguished between misapplication of a tariff and the interpretation of ambiguous language, the court held:\n\u201cThe court finds that defendants are not invoking \u2014 nor could they invoke \u2014 the doctrine of waiver or estoppel. The ICG now may believe that the tariff was misapplied from 1976 to 1978. However, the evidence clearly reveals that during that period both the shippers and the carrier interpreted the language in the same way; or at the very least that the carriers willingly acquiesced in, and in fact supported, the shipper\u2019s interpretation. Given these findings, plaintiff cannot successfully argue that the tariff was merely misapplied. The procedures followed and the rates applied were the result of a joint agreement by the shippers and the carriers regarding the proper application of Tariffs 604 and 804.\u201d 488 F. Supp. 110,121.\nIn the instant case, plaintiff has no quarrel with the decisional law holding that ambiguities in tariff provisions will be construed in favor of the shipper, but it maintains that demurrage charges were improperly assessed during the period in question and that no tariff ambiguity exists with respect to sections D and E, which it contends are unrelated and must be read separately. Plaintiff further maintains that demurrage should have been computed during this period under section E, because that section specifically refers to the situation, as here, where cars were \u201cdelivered on interchange tracks of industrial plants performing the switching services for themselves\u201d and that, pursuant to this language, demurrage charges began to run from the time cars were placed on defendant\u2019s interchange tracks.\nIt is defendant\u2019s position that the definition of actual placement appearing in the \u201cNote\u201d between sections D and E, in Rule 3 is controlling of the provisions of both sections, and under that definition, when cars were delivered to the interchange tracks of industrial plants performing switching services themselves, demurrage computations were not to begin until the cars were \u201cplaced in an accessible position for loading or unloading or at a point previously designated\u201d by the parties. Defendant reasons that in the instant case, while there is evidence that plaintiff delivered cars to and removed cars from the interchange tracks of defendant, there never was a point designated by the parties for the placement of cars and, in light thereof, defendant concludes that demurrage was properly calculated because actual placement of the cars occurred only when they were \u201cplaced in an accessible position for loading.\u201d\nThus, the significant question presented is whether the tariff is ambiguous with respect to whether the \u201cNote\u201d definition of actual placement is applicable to section E, and from our examination of the records and briefs filed in this and the prior appeal, it is our view that ambiguity does exist in this regard. This ambiguity is also indicated in the contention of plaintiff that the \u201cNote\u201d definition of actual placement does not apply to section E because that section has its own ex-elusive definition of the term in its language that \u201cactual placement [is] to be determined by the precise time the engine cuts loose.\u201d We note, however, that this exact language is also in section D, and it thus appears to us that it is not a definition but rather was used in both sections solely to ascertain \u201cthe first 7:00 A.M.\u201d after actual placement on those tracks, which would be determined from the time the engines cut loose from the cars. Thus, if we accepted this contention of plaintiff, that the \u201cNote\u201d definition did not apply to section E, we would also have to find that it did not apply to section D.\nFurthermore, we note that section D pertains to cars delivered \u201con other-than-public-delivery tracks,\u201d with demurrage charges to be computed from \u201cthe first 7:00 A.M. after actual *** placement\u201d on those tracks. Section E concerns cars delivered \u201con interchange tracks of industrial plants performing the switching services for themselves\u201d with time to be computed from \u201cthe first 7:00 A.M. after actual *** placement\u201d on those tracks. An ambiguity additionally exists in the description of the tracks in that, while each section provides for a different method of demurrage computation, both sections would appear to control the present case. Section D refers to \u201cother-than-public-delivery tracks,\u201d and Section 1, Item 20(c) of Tariff 4 \u2014 1 states that \u201c[flor the purpose of these rules, a privately owned *** track ***, will constitute an \u2018other-than-public-delivery\u2019 track.\u201d It would appear also that each of the interchange tracks here is a private track, which is defined in Section 1, Rule 1, Item 900, of Tariff 4 \u2014 1 as \u201ca track outside of this railroad\u2019s right of way, yard and terminals and of which this railroad does not own either nails, ties, roadbed or right of way.\u201d\nWe conclude that the ambiguity found within sections D and E must be construed in defendant\u2019s favor. This is particularly true since it clearly appears that the manner in which the demurrage rules were applied was the result of joint agreement between the parties, and both plaintiff and defendant accepted and acquiesced in the interpretation of the ambiguously drafted tariff for a period of 23 years. Defendant was thus entitled to rely on the interpretation given the tariffs by plaintiff for the relevant period prior to October 1, 1973. Accordingly, we hold that the trial court properly found defendant was not liable to plaintiff for the additional demurrage charges sought in its action, and we affirm the judgment appealed from.\nAffirmed.\nLORENZ and WILSON, JJ., concur.\nMonetary charges assessed by a carrier against a shipper for detention of a car held by the shipper for loading or unloading after a period of \u201cfree time\u201d allowed by the demurrage tariffs.\nIndiana Harbor Belt R.R. Co. v. Budd Co. (1980), 87 Ill. App. 3d 91, 408 N.E.2d 944.\ndefendant subsequently reduced its claim to $399,280 in an amendment to its second amended complaint.\nDefendant has not appealed the adverse ruling on its counterclaim.", "type": "majority", "author": "PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "Anna M. Kelly, of Chicago, for appellant.", "Vedder, Price, Kaufman & Kammholz, of Chicago (Victor L. Lewis, Allan E. Lapidue, and Richard A. Kaminsky, of counsel), for appellee." ], "corrections": "", "head_matter": "INDIANA HARBOR BELT RAILROAD COMPANY, Plaintiff-Appellant, v. THE BUDD COMPANY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 81\u20142257\nOpinion filed October 29, 1982.\nAnna M. Kelly, of Chicago, for appellant.\nVedder, Price, Kaufman & Kammholz, of Chicago (Victor L. Lewis, Allan E. Lapidue, and Richard A. Kaminsky, of counsel), for appellee." }, "file_name": "0076-01", "first_page_order": 98, "last_page_order": 103 }