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of lading have been issued, and which, to N. E. 456; Siebert v. Erie R. Co. 163 await the carrier's convenience, are left N. Y. Supp. 111; Standard Combed standing on a semipublic siding at a station Thread Co. v. Pennsylvania R. Co. 88 N. where there is a regularly appointed agent, J. L. 257, L.R.A.1916C, 606, 95 Atl. 1002; are not covered by the provision in the bill of lading that "property destined to or Charles Bianchi & Sons v. Montpelier & taken from a station, wharf, or landing at W. River R. Co. 92 Vt. 319, 104 Atl. which there is no regularly appointed agent 144; Chickasaw Cooperage Co. v. Yazoo shall be entirely at risk of owner after un- & M. Valley R. Co. 114 Ark. 71, 215 S. loaded from cars or vessels or until loaded W. 897. into cars or vessels, and when received or delivered on private or other sidings, wharves, or landings shall be at owners' risk until the cars are attached to and after they are detached from trains." [For other cases, see Carriers, II. b, 3, in Digest Sup. Ct. 1908.]

[No. 216.]

Argued April 22, 1921. Decided June 1,

1921.

Mr. John W. Cutrer argued the cause, and, with Messrs. Sam C. Cook, Jr., and John C. Cutrer, filed a brief for respondents:

The Mississippi supreme court has correctly construed the contract of the carrier, no matter in what light the contract may be considered.

Atl. 144.

Yazoo & M. Valley R. Co. v. Nichols, 120 Miss. 690, 83 So. 5; Bers v. Erie R. Co. 176 App. Div. 241, 163 N. Y. Supp. ΟΝ N WRIT of Certiorari to the Su-114; Charles Bianchi & Sons v. Montpreme Court of the State of Missis-pelier & W. River R. Co. 92 Vt. 319, 104 sippi to review a judgment which affirmed a judgment of the Circuit Court of Coahoma County, in that state, in favor of shippers in a suit against a carrier to recover the value of a shipment destroyed by fire while in a car standing on a siding. Affirmed.

See same case below, 120 Miss. 690, 83 So. 5.

The facts are stated in the opinion. Mr. Charles N. Burch argued the cause, and, with Messrs. H. D. Minor, Clinton H. McKay, and W. S. Horton, filed a brief for petitioners:

The stipulation of the bill of lading in question, so far as pertinent here, applies at all stations, whether agency or nonagency stations.

Bers v. Erie R. Co. 176 App. Div. 241, 163 N. Y. Supp. 114, 225 N. Y. 543, 122 N. E. 456; Siebert v. Erie R. Co. 163 N. Y. Supp. 111; Standard Combed Thread Co. v. Pennsylvania R. Co. 88 N. J. L. 257, L.R.A.1916C, 606, 95 Atl. 1002; Charles Bianchi & Sons v. Montpelier & W. River R. Co. 92 Vt. 319, 104 Atl. 144; Chickasaw Cooperage Co. v. Yazoo & M. Valley R. Co. 141 Ark. 71, 215 S. W. 897.

The words "private or other sidings," as used in the stipulation, include an industry track built beyond the way lands of the railroad company, upon the application of and under contract with the owner of a public gin, primarily to serve the gin and its patrons, though the track may be used for other railroad purposes, for the convenience of the railroad company or other shippers.

Bers v. Erie R. Co. 176 App. Div. 241, 163 N. Y. Supp. 114, 225 N. Y. 543, 122

The uniform bill of lading has no more effect to give this court jurisdiction than if a special contract to govern the terms of some other particular shipment were the subject-matter of this controversy.

Alaska S. S. Co. v. United States, 259 Fed. 713; United States v. Alaska S. S. Co. 253 U. S. 113, 64 L. ed. 808, 40 Sup. Ct. Rep. 448; Interstate Commerce Commission v. Illinois C. R. Co. 215 U. S. 470, 54 L. ed. 287, 30 Sup. Ct. Rep. 155; Cleveland, C. C. & St. L. R. Co. v. Dettlebach, 239 U. S. 588, 60 L. ed. 453, 36 Sup. Ct. Rep. 177.

Mr. Justice Brandeis delivered the opinion of the court:

In November, 1917, the Yazoo & Mississippi Railroad Company issued to Nichols & Company a bill of lading for 31 bales of cotton, which had been loaded into a box car at Alligator, Mississippi, for shipment to Memphis, Tennessee. Before the loaded car had been attached to any train or engine it was destroyed by fire. The shipper sued in a state court of Mississippi to recover the value of the cotton. The carrier contended that, by the terms of the bill of lading, it was relieved from liability. The provision relied upon was the second clause of the last paragraph of § 5 of the uniform bill of lading, approved by the Interstate Commerce Commission June 27, 1908, and duly filed and published as part of the railroad's tariff. The paragraph referred to is this:

"Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent

shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels and when received or delivered on private or other sidings, wharves or landings shall be at owners' risk until the cars are attached to and after they are detached from trains."

The shippers insisted that the provision did not apply, because at Alligator there was a regularly appointed agent, and that the second clause of the paragraph, like the first, was applicable only to stations where there was none. The shippers also contended, on the following facts, which [544] were undisputed, that the place where the car was received was, in effect, a part of the carrier's terminal, and not a "private or other" siding within the meaning of the above provision.

The cotton had been loaded from the platform of a gin located at the blind end of a spur which leads from the main line at a point near the depot. The spur, which is 1,000 feet long, had been built by the railroad many years before, at its own expense. About half of it is on the railroad right of way, and runs parallel to the main line; the rest is on private land. Under the contract for building the spur the landowner furnished free the right of way over his own land; but the railroad was to have full control over the spur, and reserved the right to abandon it at any time and remove the track material. The spur was used generally by the public for loading and unloading carload freight. The only track scale at Alligator was on it, as was also another gin.

Each party requested a directed verdict. A verdict was directed for the shippers. The judgment entered thereon was affirmed by the supreme court of Mississippi on the ground that the clause in question applies only to stations at which there is no regularly appointed agent. 120 Miss. 690, 83 So. 5. In the appellate courts of the states in which the question had arisen the decisions were conflicting.1 For this reason a writ of certiorari was granted. 251 U. S. 550, 64 L. ed. 409, 40 Sup. Ct.

Rep. 219. The only question requiring decision here [545] is whether the court below gave the correct construction to the clause. In our opinion it did.

Whether goods destroyed, lost, or damaged while at a railroad station were then in the possession of the carrier as such, so as to subject it to liability in the absence of negligence, had, before the adoption of the uniform bill of lading, been the subject of much litigation. At stations where there is a regularly appointed agent the field for controversy could be narrowed by letting the execution of a bill of lading or receipt evidence delivery to and acceptance by the carrier; and by letting delivery of goods to the consignee be evidenced by surrender of the bill or execution of a consignee's receipt. But at nonagency stations this course is often not feasible. There the field for controversy as to the facts was particularly inviting and the reasons persuasive for limiting the carrier's liability. Local freight trains are often late. Shippers or consignees cannot be expected to attend on their arrival. Less than carload freight awaiting shipment must ordinarily be left on the station platform, to be picked up by the passing train, and lots arriving must be dropped on the platform, to be called for by the consignee. At such stations the situation in respect to carload freight is not materially different. And this is true whether the car be loaded for shipment on the public siding or on a neighboring private siding, and whether the arriving loaded car be shunted onto a public siding or a private siding. There carload, as well as less than carload, freight, whether outgoing or incoming, must ordinarily be left unguarded for an appreciable time. It is not unreasonable that shippers at such stations should bear the risks naturally attendant upon the use. The reason why an agent is not appointed is that the traffic to and from the station would not justify the expense. The station is established for the convenience of shippers customarily using it. And the paragraph here in question [546] was apparently designed to shift 1916C, 606, 95 Atl. 1002; Bers v. Erie R. Co. 225 N. Y. 543, 122 N. E. 456, 176 App. Div. 241, 163 N. Y. Supp. 114; Siebert v. Erie R. Co. 163 N. Y. Supp. 111. See also Charles Bianchi & Sons v. Montpelier & W. River R. Co. 92 Vt. 319, 104 Atl. 144; Bainbridge Grocery Co. v. Atlantic Coast Line R. Co. 8 Ga. App. 677, 70 S. E.

1 The clause was held not applicable in | McClure v. Norfolk & W. R. Co. 83 W. Va. 473, 98 S. E. 514; Jolly v. Atchison, T. & S. F. R. Co. 21 Cal. App. 368, 131 Pac. 1057. It was applied under different facts in Chickasaw Cooperage Co. v. Yazoo & M. Valley R. Co. 141 Ark. 71, 215 S. W. 897; Standard Combed Thread Co. v. Pennsylvania R. Co. 88 N. J. L. 257, L.R.A. | 154.

right of way is immaterial. The construction contended for by the railroad, even if not applied to team tracks in the freight yards of a great city, would place all loaded cars arriving elsewhere at the owner's risk from the moment they were detached from a train, although the consignee had not even been notified of their arrival.

It is clear that the immunity conferred by the last paragraph of § 5 does not apply to loaded cars on the spur here involved. Whether the same rule should apply to cars on strictly private industry tracks effectively separated from the terminal, and exclusively under private control, like the industry tracks involved in Bers v. Erie R. Co. 225 N. Y. 543, 122 N. E. 456, we have no occasion to determine. Affirmed.

the risk from the carrier to shipper or consignee of both classes of freight. It does so in the case of less than carload freight by having the carrier's liability begin when the goods are put on board cars, and end when they are taken off. It does so in the case of carload freight by limiting liability to the time when the car is attached to or detached from the train. But, at a station where there is a regularly appointed agent it would be obviously unreasonable to place upon the shipper, after a bill of lading has issued, the risks attendant upon the loaded car remaining on the public siding because it has not yet been convenient for the carrier to start it on its journey. It would likewise be unreasonable to place upon the consignee at such a station the risk attendant upon the arriving car's remaining on the siding before there has been notice to the consignee of arrival and an opportunity to accept UNITED STATES OF AMERICA, Plff. in delivery. The situation there would be practically the same whether the loaded cars were left standing on a public siding or on a siding to a private industry on the railroad's right of way, as in Swift & Co. v. Hocking Valley R. Co. 243 U. S. 281, 61 L. ed. 722, 37 Sup. Ct. Rep. 287, or on a siding partly on the to the Federal district courts by the provi1. The exclusive jurisdiction granted railroad's right of way and partly on sion of the Lever Act of August 10, 1917, private land, as in Chicago & N. W. R. § 10, where a person is dissatisfied with the Co. v. Ochs, 249 U. S. 416, 63 L. ed. 679, President's award of compensation for war P.U.R.1919D, 498, 39 Sup. Ct Rep. 343, supplies requisitioned by him under that and Lake Erie & W. R. Co. v. State Pub-section, is to be exercised in accordance lie Utilities Commission, 249 U. S. 422, 63 L. ed. 684, P.U.R.1919D, 459, 39 Sup. Ct. Rep. 345, when the siding is, either by state law or by agreement and in fact, a part of the carrier's terminal system.

If we approach the construction of the second clause of the last paragraph of 5 of the uniform bill of lading in the light of this practical situation all doubt as to its meaning must vanish. It could not have been intended that at stations where there are regularly appointed agents outgoing loaded cars for which bills of lading have issued, and which are left standing on a siding solely to await the carrier's convenience, are to be at the risk of the shipper. And this is true whether the siding [547] be a strictly public one or a semipublic one, as in the Ochs and Lake Erie & W. R. Co. Cases, supra, and the case at bar; or whether it be a siding privately used, but owned by the railroad, as in the Swift & Co. Case, supra; and in such cases the fact that the spur exfends over land not part of the carrier's

Err.,

V.

CHARLES G. A. PFITSCH.

(See S. C. Reporter's ed. 547-554.)

Jury right to suit against United
Lever Act.

States

with the law governing the usual procedure of the district court in actions at law for money compensation in which the right to cordance with the provisions of the law a jury trial is an incident, and not in acgoverning the exceptional jurisdiction concurrent with the court of claims where it sits without a jury.

[For other cases, see Jury, I. b, 1, a, in Digest

Sup. Ct. 1908.]

Note. As to constitutional right of trial by jury-see notes to Justices of Supreme Ct. v. United States, 19 L. ed. U. S. 658; Eilenbecker v. District Ct. 33 L. ed. U. S. 801; Gulf, C. & S. F. R. Co. v. Shane, 39 L. ed. U. S. 727; Perego v. Dodge, 41 L. ed. U. S. 113, and Thompson v. Utah, 42 L. ed. U. S. 1061.

On decisions under the Lever Actsee note to Mossew v. United States, 11 A.L.R. 1265.

On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741; B. Altman & Co. v. United States, 56 L. ed. U. S. 894, and Berkman v. United States, 63 L. ed. U. S. 877.

UNIVERSITY OF MICHIGAN

[blocks in formation]

UNITED STATES v. PFITSCH.

suit against Lever Act.

2. A direct writ of error from the Federal Supreme Court to a district court will not lie in a suit brought conformably to the Lever Act of August 10, 1917, § 10, by a person dissatisfied with the President's award of compensation for war supplies requisitioned by him under that section. [For other cases, see Appeal and Error, 866878, in Digest Sup. Ct. 1908.]

[No. 246.]

Argued March 22, 1921. Restored to dock-
et for reargument on question of juris-
diction April 11, 1921.
submitted April 25, 1921. Decided June
Reargued and
1, 1921.

IN ERROR to the District Court of the
United States for the Southern Dis-
trict of New York to review a judgment
awarding compensation for war supplies
requisitioned by the President.
missed for want of jurisdiction.

Dis

The facts are stated in the opinion. Assistant Attorney General Davis argued the cause, and, with Mr. P. M. Cox, filed a brief for plaintiff in error.

Mr. Arthur B. King submitted the cause for defendant in error. Holmes V. M. Dennis, Jr., was on the Mr. brief.

Mr. Royal E. T. Riggs filed a brief amicus curiæ.

as

548-550

at the rate of 6 per cent on the amounts
ment brought the case here by direct
from time to time unpaid. The govern-
writ of error, and assigned as the only

error that interest should not have been
allowed.

The preliminary question
direct writ of error.
whether this court has jurisdiction on
arises
The answer to be
given to it depends upon the nature of
the jurisdiction conferred upon the dis-
the jurisdiction is to be exercised in
trict court by § 10 of the Lever Act. If
the manner provided by § 24, ¶ 20, of
the district court jurisdiction concur-
the Judicial Code, which confers upon
rent with the court of claims, a direct

writ of error lies from this court. J.
Homer Fritch v. United States, 248 U.
S. 458, 63 L. ed. 359, 39 Sup. Ct. Rep.
158. If, however, the jurisdiction is
the ordinary jurisdiction of the district
court, the writ of error should have
Judicial Code. The nature of the juris-
gone, in the first instance, from the cir-
diction of the district court is of impor-
cuit court of appeals, under § 128 of the
directly involved, but because the an-
tance, not only because of the question
dentally whether plaintiffs who proceed
swer given to it will determine inci-
under 10 are entitled to a trial by
jury. For § 24, 20, of the Judicial
Code, declares that "all suits brought
and tried under the provisions of this

Mr. Justice Brandeis delivered the paragraph shall be tried by the court opinion of the court: without a jury." See United States v. McGrane, Filbin Corp. v. United States, 266 Fed. - C. C. A. —, 270 Fed. 761;

911.

Pursuant to § 10 of the Lever Act (August 10, 1917, chap. 53, 40 Stat. at L. 276, 279, Comp. Stat. §§ 3115e, 3115ii, Fed. Stat. Anno. Supp. 1918, pp. 181, 185), the President requisi- dent may requisition foods, feeds, fuels, Section 10 provides that the Presitioned for the Army on April 18, 1918, and other war supplies, with the necesa radial drill belonging to Pfitsch. The sary storage facilities, and that he shall Board of Appraisers of the War De- ascertain and pay [550] just compenpartment found its then value to be sation for them. $3,979.50, and awarded him that amount not satisfied with the President's award, But if any person is as compensation. Pfitsch declared this he is to receive 75 per cent of the amount was unsatisfactory, and insisted award, and for the balance claimed that the value was greater, and that he "shall be entitled to sue the United was entitled also to interest from the date of the taking. States On February 5, hereby conferred on the United States and jurisdiction is 1919, the government paid him district courts amount equal to 75 per centum of the mine all such controversies." to hear and deteraward. [549] Thereupon, this suit was later sections of the act, which proThree brought by him in the district court of vide for requisitioning the United States for southern New of property,—§ 12, relating to factories, other classes York, to recover the balance alleged to mines, and pipe lines; § 16, to distilled be due. The case was tried by agree- spirits; and § 25, to coal or coke plants ment, without a jury. The court found or businesses,-make provision for suits the value to be $4,550, and entered judg- against the United States to recover just ment for the part then unpaid, together compensation in terms materially difwith interest from the date of taking, ferent from that in § 10. Each of those

65 L. ed.

an

1085

three sections provides in identical | ers relating to § 10, was sent to the conterms that a person dissatisfied with ference committee. 55 Cong. Rec. 5473. the President's award "shall be entitled The House conferees recommended reto sue the United States . . . in the ceding from objections to the eight manner provided by section twenty-four, other Senate amendments of this secparagraph twenty, and section one hun- tion, but they insisted upon the objecdred and forty-five of the Judicial Code." tion to the change of the jurisdictional The latter of these sections of the Judi- provision. 55 Cong. Rec. 5733-5737. cial Code confers jurisdiction upon the The Senate conferees recommended recourt of claims to adjudicate claims ceding from its amendment to the juagainst the United States, and the for- risdictional provision, and that the origmer confers upon the district courts inal House provision be restored. 55 jurisdiction concurrent with the court of Cong. Rec. 5709. In reporting for the claims in cases which do not involve House conferees, Mr. Lever said of this more than $10,000. Thus, while §§ 12, amendment: 16, and 25 of the Lever Act in terms confer jurisdiction concurrently upon the court of claims and the district courts, sitting as a court of claims, § 10, in terms, confers jurisdiction to hear all cases arising under it upon the district courts alone. The question presented to us is whether this exclusive jurisdiction granted the district courts by § 10 is to be exercised in accordance with the law governing the usual procedure of a district court in actions at law for money compensation, or by the provisions of the law governing the exceptional jurisdiction concurrent with the court of claims where it sits without a jury.

"Amendment 30. This amendment gives jurisdiction, in suits to recover just compensation under § 10 of the House bill, to the court of claims in addition to the United States district courts. The Senate recedes." 65th Congress, 1st Sess., House Report No. 117, p. 14; 55 Cong. Rec. 5737.

[552] It is plain, then, that Congress had this question presented to its attention in a most precise form. It had the issue clearly drawn between granting for the adjudication of cases arising under this section concurrent jurisdiction in the court of claims and the district courts, without a trial by jury, or of establishing an exclusive jurisdiction in the district courts, of which the right to a jury trial is an incident. The first al§ternative was rejected, and the reason given for this rejection in the statement of the House conferees is that the proposed amendment would confer jurisdiction upon the court of claims. It is difficult to conceive of any rational ground for rejecting the clear and explicit amendment made by the Senate except to accord a trial by jury. All difficulties of construction vanish if we are willing to give to the words of § 10, deliberately adopted, their natural meaning.

The legislative history of the Lever Act establishes that [551] the difference of the jurisdictional provision in 10 from those of §§ 12, 16, and 25, was the result not of inadvertence, but of deliberate action in the face of opposition. The jurisdictional provision of 10, as introduced into the House of Representatives, and as originally passed by it, was in the precise form in which it was enacted into law. 65th Cong., 1st Sess., House Rept. 75; 55 Cong. Rec. 4113. When the bill reached the Senate from the House, the Senate Committee reported an amendment striking out the House provision, and substituting a provision which made § 10 in this respect identical with §§ 12, 16, and 25. That is, the Senate committee's amendment provided that suits under § 10 should be brought against the United States "in the manner provided by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code." 55 Cong. Rec. 4626. This would have conferred concurrent jurisdiction upon the court of claims and the district courts sitting as a court of claims. As so amended, § 10 was passed by the Senate; but the House refused to concur in this amendment. And this disagreement, with eight oth

Furthermore, it is significant that this is not the only occasion upon which Congress has provided for suits against the United States exclusively in the district courts. Section 1 of the War Risk Insurance Act of May 20, 1918, chap. 77, 40 Stat. at L. 555, Comp. Stat. § 514kk, provides that suits upon insurance policies "may be brought against the United States in the district court of the United States in and for the district in which such beneficiaries or any of them reside." The Act of March 4, 1919, chap. 125, § 3, 40 Stat. at L. 1348, Comp. Stat. § 3115kk (3), which authorizes the President to requisition storage facilities for wheat, provides, in

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