New Orleans, Louisiana. He replied stating it was too late to divert the car at that time, and it was later reshipped to New Orleans upon its arrival at Atlanta, pursuant to defendant's directions.
In addition, defendant claims, Hart, its manager had a telephone conversation with Bell, the freight agent at New Orleans, asking Bell to hold the car until a new deal was worked out; at which time Hart was to notify Bell where the car was to be shipped.
The issue to be decided by this court is what amount of money is due plaintiff as freight charges, which makes it necessary to decide if and when a valid diversion order was given the railroad diverting the car to a new destination.
It is my opinion that the entire amount sought in the complaint is due plaintiff because to be valid, a diversion order would have to follow the procedure set forth in the tariff governing diversions, Item 160-A on page 2 of Supplement 23, to I.C.C. No. 901, which states: '(c) d- On a 'straight' bill of lading consignment, the original bill of lading should be surrendered or other proof of ownership established.'
Item 190, page 10 of Freight Tariff 161-T provides: 'All charges against the property, whether accrued or accruing under these rules or otherwise, must be paid, or guaranteed to the satisfaction of the carrier, before car is diverted or re-consigned.'
The court finds the following ultimate and material facts:
1. No telephone conversations took place between defendant's agent, Hart, and plaintiff's freight agent, S. W. Bell.
2. S. W. Bell did not promise defendant's agent, Hart, to hold car ATSF 150101 to await further orders from defendant.
3. No effective diversion or reconsignment order was made by defendant to plaintiff, railroad or delivering railroads.
4. Plaintiff's agent and employees exercised due diligence in all their dealing with defendant, or defendant's agents, regarding the car in controversy.
5. Plaintiff or its delivering carrier reshipped car ATSF 150101 as soon as it possibly could exercising due diligence.
6. Defendant did not effectively communicate to plaintiff its desire to divert the shipment to a new destination, other than that set forth in the bill of lading, before the time the car in question through the exercise of due diligence could have been cut out or diverted prior to reaching its initial destination, at Atlanta, nor did it follow the procedure set forth in the tariff governing such a diversion or reconsignment.
Conclusion of Law
1. Plaintiff is entitled to judgment in the sum of $ 1,083.82, together with interest and costs.
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