taken into consideration in determining
the rate. Arlington Heights Fruit Ex-
change v. S. P. Co., 20 I. C. C. 106, 108.

(e) Oranges and lemons picked early
in the season can be sent through under
ventilation in an ordinary box car,
while those picked later must be
shipped under ice. HELD, that in de-
termining the additional charge which
the shipper who requires the refrigera-
tion should pay in addition to the
amount exacted from the shipper who
does not receive refrigeration, the cost
of the additional haul on the ice should
be charged against the refrigerated
shipment, otherwise the grower who



REFRIGERATION, 4 (f) (i)



709



picks his oranges early in the season,
when they can be sent through under
ventilation, will be compelled to con-
tribute to the expense of transporting
the fruit of his neighbor who does not
market his crop until later. Arlington
Heights Fruit Exchange v. S. P. Co.,
20 I. C. C. 106, 109.

(f) Complainant shipped oranges and
lemons from California east. After
loading the car is taken to some gath-
ering point, either San Bernardino, on
the Santa Fe R. R., or Colton, on the
Southern Pacific R. R. The refrigera-
tion charges were $60 to the Missouri
River, $62.50 to Chicago and similar
points, $72.50 to Buffalo and Pittsburgh,
$75 to New York and $77.50 to Boston.
The Chicago rate was considered as a
test of the others. HELD, that in fix-
ing the refrigeration charge the elements
to be considered are the cost of the
ice, cost of repairs to bunkers, expense
of hauling the ice, the element of risk
assumed in the rendering of the service,
and a fair profit on the transaction. Ad-
judged by these considerations, the re-
frigeration charges are not excessive. Ar-
lington Heights Fruit Exchange v. S. P.
Co., 20 I. C. C. 106, 111.

(g) Complainant attacked refrigeration
rates on strawberries shipped from Nor-
folk and Olny, Va., and Marion and
Pittsville, Md., to Boston. From Vir-
ginia points the carload rate on 32-quart
crates, minimum 300 crates, was 18c
per crate, yielding a per car revenue of
$54; on 48-quart crates, minimum 200
crates, rate per crate 27c, revenue per
car $54; 64-quart crates, minimum 160
crates, rate per crate 34c, revenue per
car $54.40. The rates from Maryland
points, a haul a hundred miles less
yielded a revenue of approximately $6 a
car less, the same minimum being ap-
plied and the rate per crate for the 32-
quart crates being 2c less; for the 48-
quart crate 3c less; and for the 60-quart
crate. 4c less, than from the Virginia
points. Since 1905 the rates from these
points had been gradually reduced.
HELD, that the rate from Norfolk on the
first type of crate should not exceed 16c,
on the second type 24c, and on the third
30c; the rates from the other points be-
ing made from Ic to 2c lower respectively;
and in view of the gradual and material
concessions the defendants have made in
the rates from time to time they must be
presumed to have acted in good faith in



the exercise of their judgment. Repara-
tion denied. Sweeney, Lynes & Co. v. N.
Y. P. & N. R. R. Co., 20 I. C. C. 600.

(h) Moving citrus fruits under refrig-
eration is more expensive than under
ventilation. Arlington Heights Fruit Ex-
change v. S. P. Co., 19 I. C. C. 148, 154.

(i) Complainant asparagus growers in
the Charleston district, S. C., attacked the
rate of 90c per crate of 24 bunches, weigh-
ing 65 Ibs., to Boston and of 65c per
crate to Washington, Baltimore, Philadel-
phia and New York. The refrigeration
charges were 21c per crate on a mini-
mum carload of 230 crates and 15c on a
minimum of 325 crates to New York and
the other cities named except Boston,
and to Boston were 24^c and 17^0 per
crate, respectively, for the same mini-
mum carloads. Complainants alleged un-
just discrimination against small shippers
in that defendants refused to furnish re-
frigeration for less-than-carload lots. The
average net return to growers of aspara-
gus for 1908 and 1909 was about $4.50
per crate, exclusive of transportation and
refrigeration charges and commissions.
Conflicting evidence indicated that the
gross selling price at New York ranged
from about $6 to $8 per crate. The as-
paragus grown around Charleston was
transported by boats to the vegetable
wharves in Charleston of defendants
Southern Ry. and Atlantic Coast Line. It
comprised one-third of all vegetable
traffic moving over the wharves. De-
fendants unloaded the vegetables from
the boats to the wharves. The refriger-
ating company loaded them into the car.-.
The traffic was forwarded in expedited
trains of light tonnage that were given
preference over all other trains except
passenger trains. While defendants
formerly granted refrigeration on less-
than-carload shipments, the evidence in-
dicated that to do so under the rates at-
tacked would result in loss to both the
railroads and the refrigeration companies.
The practice at other producing points
was to consolidate small shipments In
carloads. The minima under the rates com-
plained of could be easily loaded. The
charge for refrigeration from Charleston
to New York was over $48 per car of 21,-
125 Ibs., when 325 crates were loaded. In
1907 on business over the A. C. L., the
profit from refrigeration was $4.06 and
in 1906, $3.36 a car, which profit accrued
entirely to the refrigeration company
and not to the carriers. In Florida Fruit,



710



REFRIGERATION, 4 (j) 7 (a)



etc., Ass'n v. A. C. L. R. R. Co., 14 I. C.
C. 467, the Commission found that re-
frigeration charges of $70 per car of 21,-
400 Ibs. on fruit and vegetables from
Florida and northern points were not un-
reasonable. The 65c rate complained of
to New York had been in effect since
1903. From 1894 to 1899 the rate was
85c, and from 1900 to 1902, 80c. Some
7,000 cars of vegetables per year were
shipped from the Charleston district. On
account of the absence of refrigeration
by water lines and the longer time re-
quired to get to market, the rates com-
plained of were but slightly influenced
by water competition. On asparagus un-
der the rates attacked the earnings via
the Atlantic Coast Line for the year 1908
averaged about $198 per car. Defendants'
earnings on lettuce from Charleston to
New York were about $156 per car. In the
Florida Fruit, etc., Ass'n case, 14 I. C. C.
467, a rate on vegetables of 43c per crate
of 50 Ibs. from Florida base points to
New York was held to be reasonable,
which rate did not, however, include the
gathering charge or the rates up to the
base points. The average loading of
vegetables was found in that case to be
17,600 Ibs. and the per car earnings, $150.
Jacksonville is 1,000 miles and Charles-
ton 740 miles from New York. A rate of
60c per crate from Charleston via the
Atlantic Coast Line to New York would
yield per car earnings of $180 and one
of 55c, $165. The losses to the carriers
from damage and deterioration of as-
paragus were heavy. HELD, that in view
of the cost of the service, comparisons
with rates in other localities, and former
decisions of the Commission, the refrig-
eration charges complained of were not
shown to be unreasonable or to discrim-
inate unjustly against the shippers of
less-than-carload lots; but that the rates
attacked were unreasonable to the extent
that they exceeded 60c, Charleston to
New York, 58c to Philadelphia, 56c to
Baltimore and Washington, and 70c to
Boston. No reparation to be awarded on
past shipments. Asparagus Growers
Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 423,
427, 429.

(j) Non-refrigerated freight should be
hauled at something less than refriger-
ated products. Ozark Fruit Growers'
Ass'n v. St. L. S. F. R. R. Co., 16 I. C. C.
106, 115.

(k) Refrigeration charges on ship-
ments of strawberries and peaches from



the Ozark fruit country to Denver, Kan-
sas City, Omaha, St. Louis and Chicago
as representative points, are considered,
and, in view of the cost of ice placed in
bunkers and the service of icing and re-
icing and charge for like service in other
sections, are held not- to be unreasonable.
Similar questions involved in Ozark Fruit
Growers' Ass'n v. St. L. & S. F. R. R. Co.,
16 I. C. C. 106. Ozark Fruit Growers'
Ass'n v. St. L. & S. F. R. R. Co., 16 L C.
C. 153.

(1) On carloads of oranges from St.
Petersburg, Fla., to Atlanta, Ga., refrig
eration charges of $45.00 per car were
collected. Defendants had no charge in
their tariffs between these points but
shortly after shipments moved published
a rate of $35.00, and offered to make rep-
aration on that basis. HELD, the rate
charged was unreasonable. Reparation
awarded on the basis of $35.00. Fain &
Stamps v. A. C. L. R. R. Co., 13 I. C. C.
529, 530.

IV. TARIFFS AND PUBLICATION.
5. Obligation to File.

(a) Where a carrier's tariff makes no
provision for refrigeration charges and
the defendant collects an excessive
charge, the Commission has no authority
to authorize the return of the whole pay-
ment but only of the excess above a rea-
sonable charge. (Cockrell, Comm'r, dis-
senting.) Memphis Freight Bureau v.
K. C. S. Ry. Co., 17 I. C. C. 90, 92.

(b) The practice of a carrier in charg-
ing for re-icing fish in transit where there
is no tariff provision therefor is unlawful.
Bannon v. Southern Express Co., 13 L C.
C. 516, 520.

6. Construction in General.

See Classification, 12 (a), 15 (c).

V. WEIGHT.
7. Minimums.

(a) Complainants attacked the mini-
mum weight on peaches from Georgia to
markets east of the Mississippi and north
of the Ohio and Potomac rivers in refrig-
erator cars, of 22,500 Ibs., which com-
pelled complainants to load peach crates
five tiers high. HELD, that the ordinary
refrigeration method will not perfectly
cool the two top tiers, because Georgia
peaches are picked and packed in very
hot weather and moved through hot
regions of the country; that the proper



REFRIGERATION, 7 (b) RELEASED RATES, 3 (a)



711



method of shipping these peaches would
be to precool the crates before loading
into the car; that comparisons cannot be
made with the transportation of Califor-
nia peaches (these peaches being cooled
by exposure to the cool night air or in
precooling stations, and subject to a cool
mountain haul shortly after moving), nor
in the northern states where there is
a short haul. Complaint dismissed.
Georgia Fruit Exchange v. S. Ry. Co., 20
I. C. C. 623.

(b) The minimum weight should be
the same for refrigeration and transpor-
tation charges. Ozark Fruit Growers'
Ass'n v. St. L. & S. F. R. R. Co., 16 I. C.
C. 106, 108.

REGROUPING OF TERRITORY.

See Differentials, 7 (d).

RELATIVE RATES.

See Advanced Rates, 15; Compara*-
tive Rates; Differentials, 2; Equal-
ization of Rates, 2 (o), (p), (q),
(r), (s), (t), (u), (v), ( W ), 8 (k),
(I), III; Evidence, 4 (a), 13, 20
(9), 28. 31, 65: Interstate Com-
merce Commission, 1 (qq); Lone
and Short HsuN. sin (a a \- p- r" J
ure' Before Commission, 2 (k), 16
(e) ; Reasonableness of Rates, 2
(sss), (tt). 10 (b), 16 (r), 28, 47
(a), 66 (c), 76 (a), 105; Repara-
tion, 16 (ssss), (wwww) ; Through
Routes and Joint Rates, 8, 15
(oooo).

RELEASED RATES.

I. CONTROL AND REGULATION.

1. Jurisdiction of Commission.
II. CONSTRUCTION AND APPLICA-
TION.

2. Duty to inform shipper.
3. Intention to use

III. LEGALITY.

4. In general.

IV. REASONABLENESS.

5. In general.

CROSS REFERENCES.

See Loss and Damage, 9; Bills of
Lading, IV.

I. CONTROL AND REGULATION.

See Interstate Commerce, 4 (o), (w).
1. Jurisdiction of Commission.

(a) It is doubtful whether the Com-
mission has power to require carriers to
publish a rate on burnt cotton released
to a valuation of 5c a lb., such rate to be
lower than on other cotton. Lesser v.
Ga. R. R., 18 I. C. C. 478, 480.



II. CONSTRUCTION AND APPLICA-
TION.
See Tariffs, 7 (ff).

2. Duty to Inform Shipper.

See Routing and Misrouting, 3 (g) ;
Tariffs, 7 (hhhh).

(a) The quotation of a released rate
should be accompanied with notice of
its nature. Southern Cotton Oil Co. v.
L. & N. R. R. Co., 18 I. C. C. 180.

(b) On cotton linters in carloads
from Montgomery, Ala., to Minneapolis,
charges were collected at a combination
rate of 81c, made up of 48c, Montgom-
ery to Evansville, plus 33c thence to
destination. Defendant quoted a rate
of 74c to complainant, which was the
combination rate through Evansville
when released to a valuation of 2c a
lb. The defendant omitted to advise
complainant that the rate was so lim-
ited and the bills of lading tendered
by complainant therefore contained no
release clause signed by complainant.
HELD, under Administrative Ruling of
November 9, 1909, defendant owed the
duty of informing complainant and secur-
ing its endorsement on the bills of lading
of the released valuation clause. Repara-
tion awarded on the basis of 74c. The
case was not one where the shipper
was obliged to pay the legal rate even
though an erroneous rate was quoted.
Southern Cotton Oil Co. v. L. & N. R.
R., 18 I. C. C. 180, 181.

(c) Defendants' rates on cotton lint-
ers from Meridian, Miss., to New Or-
leans was 30c per 100 Ibs., value lim-
ited to 2c per lb., when not so limited
the rate was 46c, said rate being ap-
plicable to cotton. Complainant asked
defendant's agent for the lowest rate
and was informed that it was 46c.
The value of the linters shipped was
about 2c per lb. It was not intended
that linters should be shipped at the
46c rate applying to cotton but said
rate was instituted to prevent the
shipment of cotton as cotton linters.
Complainant in ignorance of the lower
rate shipped at the 46c rate. HELD,
he was entitled to damages on the basis
of the lower rate. Salomon Bros. Co.
v. N. O. & N. E. R. R. Co., 15 I. C. C.
332, 333.

3. Intention to Use.

(a) One Long shipped from El
Paso, Tex., to Bakersfield, Cal., 692



712



RELEASED RATES, 3 (b) 4 (c)



head of cattle. At the time of execu-
tion of the live stock contract the ship-
per and the agent of the initial line
intended that the live stock should
be shipped at a released valuation of
$10 per head, but through inadvertance
on the part of the agent and shipper
the released valuation of $10 per head
was not specified in the contract. The
cattle were shipped under valuation
of $30 per head on account of this over-
sight. Complainant paid the excess
in the rate. In the live stock contract
the correct lower rate of $107 per car
was inserted but the printed liability
of $30 for each cow was not changed.
HELD, in view of the fact it was the
intention to write the released valua-
tion of $10 per head on the printed
contract in place of the value of $30
printed thereon as shown by the in-
sertion in the printed contract of the rate
applicable only on such released valua-
tion, the inadvertence of the car-
rier and the shipper should not oper-
ate to deprive complainant of the speci-
fied tariff rate. Reparation awarded.
Miller & Lux v. S. P. Co., 20 I. C. C.
129.

(b) Complainant did not sign bill of
lading as required by tariff, although
lower rate was inserted by carrier's
agent. Reparation awarded. Robinson
Clay Product Co. v. B. & O. R. R. Co.,
Unrep. Op. 250.

(c) Where rates were based upon de-
clared valuation and the shipper failed
to so declare, reparation declined on
basis of invoice presented by consignee.
Dueber Watch Case Mfg. Co. v. St. L. &
S. F. R. R. Co., Unrep. Op. 396.

III. LEGALITY.
4. In General.

(a) Section 20 of the Hepburn Act
provides that the carrier shall be liable
"for any loss, damage or injury to such
property caused by it ... and no
contract, receipt, rule or regulation
shall exempt such common carrier, rail-
road or transportation company from
the liability hereby imposed." HELD,

1. If a rate is conditioned upon the
shipper's assuming the risk of loss
due to causes beyond the carrier's con-
trol, the condition is valid.

2. If a rate is conditioned upon the
shipper's assuming the entire risk of
loss, the condition is void as against



loss due to the carrier's negligence or
other misconduct.

3. If a rate is conditioned upon the
shipper's agreeing that the carrier's
liability shall not exceed a certain
specified value

a. The stipulation is valid when loss
occurs through causes beyond the car-
rier's control.

b. The stipulation is valid, even
when the loss is due to the carrier's
negligence, if the shipper has himself
declared the value, expressly or by
implication, the carrier accepting the
same in good faith as the real value,
and the rate of freight being fixed
in accordance therewith.

c. The stipulation is void as against
loss due to the carrier's negligence or
other misconduct if the specified
amount does not purport to be an
agreed valuation, but has been fixed
arbitrarily by the carrier without refer-
ence to the real value.

d. The stipulation is void as against
loss due to the carrier's negligence
or other misconduct if the specified
amount, while purporting - to be an
agreed valuation, is in fact purely fic-
titious and represents an attempt to
limit the carrier's liability to an arbi-
trary amount. In Re Released Rates,
13 I. C. C. 550, 561.

(b) It cannot be expected that ship-
pers will always be familiar with the
terms of the carrier's rate schedule
and bills of lading or that they will
invariably know their legal rights.
Practically they often have no choice
but to accept the terms that are offered
them. This being so, it is essential
that the carrier's dealing with the
shipper should be free from the sus-
picion of unfairness or imposition of
any description. The provisions of tar-
iffs and bills of lading should be fair
and unambiguous and free from sus-
picion of illegality. The shipper should
be allowed his choice of rates which
leave the carrier's liability unlimited
as at common law, or lower rates
based upon such limited liability as
the law sanctions. In Re Released
Rates, 13 I. C. C. 550, 562.

(c) In tariffs concerning the fixing
of rates on the basis of limited liability
the words "value limited to

are misleading. The phrase, "Agreed to



RELEASED RATES, 4 (d) REPARATION, 1 (b)



713



be of the value of ," is less ob-
jectionable. It is fixed with ref-
erence to the real value of the property,
and because of an agreement that the
amount of recovery shall be limited to
an arbitrary specified amount. In Re
Released Rates, 13 I. C. C. 560, 564.

(d) A tariff rule stipulating that the
carrier shall incur no liability for losses
"from any cause on property carried
on open cars," is improper, such a stip-
ulation being legally unenforceable. In
Re Released Rates, 13 I. C. C. 560,
565.

(e) A tariff providing that where
shipments are not made under an agree-
ment for limited liability they shall be
subject to an additional charge of
20 per cent, is unlawful, said increase
being unreasonable and out of all pro-
portion to the larger risk involved. In
Re Released Rates, 13 I. C. C. 560,
565.

IV. REASONABLENESS.
5. In General.

See Evidence, 12 (7) (a),
(a) Defendants' published rates on
marble from Long Island City, N. Y.,
to Shipman, Va., were 18c per 100
Ibs. when released to a value of 20c
per cubic foot, and 22c per 100 Ibs.
when released to a value of 40c per cu-
bic foot. Unless released the first
class rate of 54c was, as in the ship-
ment in question, applied. It appeared
that the fair average value of cut
marble to be used for building pur-
poses was from $3 to $5 per cubic foot.
HELD, the classification requiring a
release to 40c per cubic foot in order
to entitle complainant to a better
than the first-class rate was unreason-
able and complainant was entitled to
reparation on the basis of the 22c
rate. Cohen & Co. v. S. Ry. Co., 16
I. C. C. 177, 178.

REPARATION.

I. JURISDICTION OF COMMISSION.

1. Necessity of primary action
by Commission.

2. Necessity and effect of find-
ing of unreasonableness.

3. Power to award tort dam-
ages.



II. RIGHT TO RECOVER.

4. Necessity of protest.

5. Necessity of first paying

tariff rate.

6. Parties entitled to recover.
7. Statute of limitations.

III. CIRCUMSTANCES DETERMINING

RIGHT.

8. Erroneous publication.
9. Failure to post tariff.
10. Laches.

11. Rate via competing line.
12. Readjustment of rates.
13. Res judicata.
14. Special rate.
15. Unpublished charges.
16. Voluntary or subsequent re-
duction.

17. Willingness of carrier to
pay.

IV. LIABILITY FOR REPARATION.

18. Measure of reparation.
19. Parties to make refund.
20. Release of liability.
V. PROCEDURE.

21. Formal proceedings.
22. Informal proceedings.
23. Court pleadings.

CROSS REFERENCES.
See Advanced Rates, VII; Allow-
ances, VI; Claims; Interstate Com-
merce Commission, VI; Passenger
Fares and Facilities, IV; Precool-
ing, IV; Special Contracts, 4;
Weights and Weighing, V.

I. JURISDICTION OF COMMISSION.

See Interstate Commerce Commis-
sion; Reasonableness of Rates, 1
(r), (u), (v).

1. Necessity of Primary Action by Com-
mission.

See Cars and Car Supply, 6 (a);
Courts, 11 (a).

(a) An action cannot be maintained
against a carrier in a state court under
sections 9 and 22 of the Act to recover
reparation for unjust discrimination in
charging a published rate of 50c higher
per ton for coal loaded from wagons than
the published rate when the coal is
loaded from tipples, where no prior ap-
plication has been made to the Commis-
sion for relief. Robinson v. B. & O. R. R.
Co., 222 U. S. 506, 509; 32 Sup. Ct. 114;
5-6 L. ed. 114.

(b) Where the Commission has found
that a particular rate is unreasonable, a
shipper seeking reparation, who was not
a party to the complaint before the Com-
mission, cannot bring suit in a United
States Circuit Court under section 9 of



714



REPARATION, 1 (c) (q)



the Act, but must apply to the Commis-
sion for reparation, the remedy provided
in section 16 of the Act being exclusive^
Phillips Co. v. G. T. W. Ry. Co., 195 Fed.
12, 18.

(c) The Interstate Commerce Commis-
sion has power to determine the reason-
ableness of rates and likewise is author-
ized to award reparation, and in both re-
spects, where the reparation arises from
a readjustment of rates, its conclusions,
being administrative, are final and con
elusive, unless the Commission has in
some particular matter in the contro-
versy exceeded its prescribed functions.
Fidelity Lumber Co. v. G. N. Ry. Co., 193
Fed. 924, 928.

(d) A shipper cannot maintain an
action at law in the courts for excessive
and unreasonable freight charges ex-
acted on interstate shipments, where the
rates charged were those which had been
duly fixed by the carrier according to the
Act and had not been found to be un-
reasonable by the Interstate Commerce
Commission. American Union Coal Co.
v. Penn. R. R. Co., 159 Fed. 278, 280.

(e) The Commission can award dam-
ages only for a violation of the Act. Buf-
falo Hardwood Lumber Co. v. B. & O.
S. W. R. R. Co., 21 I. C. C. 536, 538; Good-
man Mfg. Co. v. C. B. & Q. R. R Co, 21
I. C. C. 583, 584.

(f) Damages directly resulting from a
violation of the Act and measurable by a
difference in rates may be awarded by
the Commission. Bowles & McCandless
v. L. & N. R. R. Co., 19 I. C. C. 563, 664.

(g) The Act affords the shipper a
means of recovering excessive charges
on shipments made by him in the past
under rates that were unjust and un-
reasonable. Arkansas Fuel Co. v. C.
M. & St. P. Ry. Co., 16 I. C. C. 95.

(h) The Commission may award
damages on past shipments if proof
shows the rates under which shipments
moved were excessive. Arkansas Fuel
Co. v. C. M. & St. P. Ry. Co., 16 I. C.
C. 95, 98.

(i) Where the Commission finds the
rate exacted to have been unreasonable
it may award as reparation the differ-
ence between that rate and that which
is reasonable, notwithstanding the for-
mer was the rate duly established by
the carrier for the time being. Allen



& Co. v. C. M. & St. P. Ry. Co., 16
I. C. C. 293, 295.

(j) The Act confers authority on the
Commission to investigate complaints
alleging unreasonable charges, and, after
full hearing on formal complaint, to
condemn such charges as are found
to have been unreasonable and to
award reparation thereunder. Swift &
Co. v. C. & A. R. R. Co., 16 I. C. C.
426, 428.

(k) The Commission is authorized
to award reparation to any person or
persons found to be damaged by any
common carrier subject to the provi-
sions of the Act, for a violation thereof.