(dissenting).
The only shipments involved in this action are the shipments of rough hardwood lumber from Woodville, Miss., to Alexandria, La., between September 12, 1942, and May 12, 1943. The freight charges claimed by appellee represent the unpaid balance of charges from these shipments. By Section 3, paragraph 2 of the Interstate Commerce Act, 49 U.S.'C.A. § 3(2), payment of freight at Alexandria was prerequisite to delivery of shipments by appellee. This payment, however, was subject to such rules and regulations as the Commission had prescribed.1 Whether the finished products manufactured from this inbound rough lumber would be shipped out in sufficient tonnage within the time prescribed to secure a through-tariff rate under I.C.C. Tariff No. 1540 was, to put it mildly, uncertain. In order to secure the benefit of the through-transit rate and the credit privilege with respect to the freight then due, the appellant executed a contract agreeing to reship sufficient finished products within the time limit and gave bond to secure the payment of the amount of the unpaid freight if it failed to reship as it had agreed. Appellant failed to keep its agreement. It never shipped out the finished product, hence the through-rate never came into existence. Appellee’s claim, therefore, is, as stated, for the unpaid balance of the freight on the shipments of rough lumber into Alexandria. By Section 16(3) (e), appellee’s cause of action accrued when these shipments were delivered at Alexandria on and prior to May 12, 1943.2 Under Section 16(3) (a), the cause of action became extinct two years after the cause of action accrued and could not be extended by agreement.3 Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96.
I would reverse the judgment appealed from.
49 U.S.C.A. § 3 (2) provides: “No carrier by railroad subject to the provisions of this chapter shall deliver or relinquish possession at destination of any freight transported by it until all tariff rates and charges thereon have been paid, except under such rules and regulations as the commission may from time to time prescribe to govern the settlement of all such rates and charges ■s * *_» (Emphasis added.)
49 U.S.C.A. § 16(3) (e) provides: “The cause of action in respect of a , shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after.”
49 U.S.C.A. § 16(3) (a) provides: “All actions at law by carriers subject to this chapter for recovery of their charges, or any part thereof, shall be begun within two years from the time the cause of action accrues, and not after.”