
    No. 455
    CHESAPEAKE & OHIO R. CO. v. COLE et al
    Ohio Court of Appeals, First District, Hamilton County
    No. 2060.
    Decided April 9, 1923
    DEMURRAGE — (1) Requirement imposed by Interstate Commerce Commission — (2) Private sidetrack defined — (3) Notice required before railroad entitled to demurrage.
    Attotrneys — Freiberg & Geoghegan, for Railroad; Stephens, Lincoln & Stephens, for Cole, et al.
   JUSHING, J.

Epitomized Opinion

Crane & Co., a partnership, was engaged in the iumber business in Cincinnati. The concern also jwned about 25,000 acres of timherland in West Virginia. From 1909 until 1918 they had a contract with the C. & O. Railroad for the hauling of logs from this timherland to Cincinnati. In December, 1917, and Januaary, 1918, the firm shipped logs md sand from West Virginia to Brent, Ky. The :ars containing the same were placed on a siding constructed and owned by the railroad at Brent, Ky. As the Ohio River was frozen over, the logs were rot unloaded for some time. No notice was given to she partnership of the arrival of the logs. Later she railroad company sued to recover demurrage amounting to $3,379 on the theory that notice was rot required on account of a long established custom between the railroad and the partnership. As the judgment was rendered for Crane & Co., the railroad company prosecuted error. In sustaining the lower court, the Court of Appeals held:

1. Demurrage does not arise on contract or out jf tort but is a requirement imposed by the Interstate Commerce Commission having the force and effect of law.

2. A private sidetrack is one that is outside the carrier’s right of way, yard and terminals and of which the railroad company does not own either the rails, ties, roadbed or right of way; and as the facts do not disclose such a sidetrack in this case, it cannot be said to be a private sidetrack.

3. Under Interstate Commerce Commission’s rules, written notice of the arrival and placement of cars is a condition precedent to the right of the railroad company to recover demurrage, and this is true, although the sidetrack in question is used exclusively for the business of the consignee.  