(jj) Reparation ordered for an excess
charge made because of unreasonable
requirements as to marking shipments.
Kessler & Co. v. So. Ry. Co., Unrep. Op.
12.

(kk) No justification being shown, ad-
vances held unreasonable and reparation
awarded. Swift & Co. v. C. B. & Q. R. R.
Co., Unrep. Op. 516. .

3. Power to Award Tort Damages.

See Allowances, 14 (f), (i); Special
Contracts, 4 (1) (m).

(a) In Hillsdale Coal & Iron Co. v.
P. R. R. Co., 19 I. C. C. 356; Jacoby &
Co. v. P. R. R. Co., 19 I. C. C. 392, and
Bulah Coal Co. v. P. R. R. Co., 20 I. C.
C. 52, the Commission found that the
defendant had discriminated against
the complainants in the distribution of
coal cars. Subsequently the United
States Circuit Court for the Eastern
District of Pennsylvania in Morrisdale
Coal Co. v. Penn R. R. Co., 176 Fed.
748, 183 Fed. 929, held that the Com-
mission could alone entertain a com-
plaint for damages based on such dis-
crimination. In order to prevent a mis-
carriage of justice and afford an oppor-
tunity to secure a final ruling by the
courts the Commission awards repara-
tion to each complainant based on the
difference between the average selling
price for the coal at the mine for inter-
state markets and the cost of produc-
tion during the same period, upon the
difference in the number of tons of
coal it would have mined and shipped
had its proper proportion of cars been
furnished, and the tonnage it actually did
ship. Hillsdale Coal & Coke Co. v. P.
R. R. Co., 23 I. C. C. 186.

(b) Depreciation of real estate values
and loss of tenants on account of the dis-
continuance of a passenger station and
train service thereat, are not such dam-



ages as are cognizable by the Com-
mission. Mattison v. Penn. R. R. Co.,
23 I. C. C. 233, 235.

(c) On account of unreasonable and
discriminatory rates charged for the
transportation of anthracite coal from the
Wyoming region in Pennsylvania to Perth
Amboy, N. J., and in accordance with
the conclusions announced in the original
proceedings in 21 I. C. C. 129, complain-
ant is awarded reparation in the sum of
$11,009.33 with interest from Aug. 1,
1901; to additional reparation in the sum
of $58,236.45 with interest amounting to
$27,750.65 on the individual charges com-
prising said sum from the dates of pay-
ment thereof to Sept. 1, 1911, together
with interest on said sum of $58,236.45
from Sept. 1, 1911; and to additional rep-
aration in the sum of $10,813.60 with in-
terest amounting to $1,526.53, upon the
individual charges comprising said sum
from the dates of payment thereof to
Sept. 1, 1911, together with interest on
said sum of $10,813.60, from the 1st day
of September, 1911. Meeker & Co. v. Le-
high Valley R. R. Co., 23 I. C. C. 480.'

(d) Complainant shipped by- barge
from Brevoort, Miss., to Cincinnati, O.,
a cargo of rough oak, gum and cypress
lumber. Upon arrival at Cincinnati, it
was transferred into 37 cars and charges
based on a weight of 1,053,200 Ibs. were
assessed. Complainant alleged that
owing to negligent handling at Cincin-
nati the lumber when loaded into the
cars was allowed to get wet and absorbed
water to the extent of 148,723 Ibs. At
destination complainant weighed dry
1,000 feet of each kind of lumber shipped,
applied such weights to the respective
aggregate number of feet in the cars and
obtained an estimated dry weight of
904,477 Ibs. Its asked reparation for the
difference between such estimated dry
weight and the billed weight. HELD, the
Commission is without authority under
the Act to award damages for negligence
of the kind here alleged, such matters
being within the jurisdiction of the
courts. Buffalo Hardwood Lumber Co.
v. B. & O. R. R. Co., 21 I. C. C. 536, 538.

(e) He who suffers damage by his
own fault is not held to suffer damage.
National Ass'n of Letter Carriers v. A.
T. & S. F. Ry. Co., 20 I. C. C. 6, 9.

(f) While it might possibly be the
right of parties in the exercise of good
judgment to resort to the telegraph as a



REPARATION, 3 (g) (p)



721



means of correspondence in a dispute
over excessive freight rates, such ex-
pense is not justified where the result
does not justify the outlay. Schulz Co.
v. C. M. & St. P. R. R. Co., 20 I. C. C.
403, 405.

(g) Damages due to inability to com-
pete in common market can not become
the subject of reparation. Sondheimer
Co. v. I. C. R. R. Co., 20 I. C. C. 606, 609.

(h) Damages such as decline in the
market price of a commodity and lost
commissions for sale of such commodity
due to the negligence of a carrier in not
obeying reconsignment instructions are
not matters within the jurisdiction of the
Commission. Hanley Milling Co. v. Penn-
sylvania Co., 19 I. C. C. 475, 476.

(i) Reparation awarded for failure to
comply with reconsignment instructions;
but the decline in the market price of a
commodity and commissions for its sale
are not within the Commission's juris-
diction. Hanley Milling Co. v. P. Co., 19
I. C. C. 475, 476.

(j) No reparation can be awarded by
the Commission for damages in a matter
of car supply caused by the cancellation
of a rate on the strength of which a con-
tract was made. American Creosote
Works v. I. C. R. R. Co., 18 I. C. C. 212,
214, 215.

(k) The Commission has no jurisdic-
tion to award damages to a shipper for
loss of business and the cancellation of
contracts of sale resulting from the
granting by a carrier of an unjustly dis-
criminatory rate to the shippers compe-
titor, and resort must be had to the
courts. American Creosote Works v. I.
C. R. R. Co., 18 I. C. C. 212, 215, 216.

(1) Complainant shipper of wall plas-
ter charged its customers lOc each for
the sacks in which the plaster was
shipped and upon return of the sacks re-
funded this lOc charge. Defendants' tar-
iffs provided for a rate of one-half fourth
class on bags tied up in bundles and
properly tagged so as to show the con-
signor and consignee. The rate on bags
shipped otherwise was fourth class. In
practice many bags without identifica-
tion tags were returned to complainant
and it was unable to determine to which
customer credit should be given. Com-
plainant sought to recover reparation for
the amount of $8 allowed to a customer
on 80 bags, which it alleged were prop-



erly packed and tagged by the customer
and delivered to defendant on the ground
that defendants had failed to preserve
intact the tags and marks so as to en-
able complainant to know to what cus-
tomer a particular package of bags was
received. HELD, since the claim was
for general damages and not for damages
measurable by a rate the Commission
had no jurisdiction to award the repara-
tion asked. Acme Cement Plaster Co. v.
Wabash R. R. Co., 18 I. C. C. 557, 558.

(m) Reparation is refused for the
shrinkage in cattle due to delay in ship-
ment caused by washouts on defendant's
lines, since the Commission has no jur-
isdiction over loss and damage claims
not arising from any duty imposed on
the carriers by the Act, such as destruc-
tion of property from accident, loss by
stealing or fire, etc. Carstens Packing
Co. v. O. R. R. & Nav. Co., 17 I. C C.
125, 126, 127.

(n) An act of negligence which de-
prives the shipper of the enjoyment of
an unlawful rate can not be made the
basis of a claim for reparation. Folmer
& Co. v. G. N. Ry. Co., 15 I. C. C. 33, 36.

(o) The Commission has no power
either to enforce the specific perform-
ance of contractural obligations or to
award damages for the breach of such
agreements between carriers and ship-
pers. General Electric Co. v. N. Y. C. &
H. R. R. R. Co., 14 I. C. C. 237, 242.

(p) During February, 1907, complain-
ant shipped seven carloads of coal from
Marion, 111., consigned to itself at Minne-
apolis, the cars reaching there on vari-
ous days between March 4th and 18th,
1907. On April 6th, 1907, complainant
advised defendant the coal had been sold
to the N. P. R. R. and requested delivery
to that company. Defendant was In-
formed by the N. P. R. R. that it would
accept delivery only upon condition that
all transportation, switching and demur-
rage charges were paid by complainant.
Defendant thereupon informed complain-
ant of the amount of the freight charges
and of the demurrage charges of $1 per
day up to April 17th. Complainant paid
freight charges but refused to pay any
demurrage charges accruing after April
6th. The cars remained on defendant's
tracks until May llth, when they were
sold for demurrage charges. Complain-
ant sued for damages. HELD, if com-
plainant's contention was that demurrage



722



REPARATION, 4 (a) 5 (b)



charges did not .constitute a lawful lien
upon the property and defendant's act
amounted to an unlawful conversion, ac-
tion should have been brought before a
court and not before the Commission.
Complaint dismissed. MacBride Coal &
Coke Co. v. C. St. P. M. & R. Co., 13 I.
C. C. 571, 572.

II. RIGHT TO RECOVER.

4. Necessity of Protest.
See Infra, 16 (g).

(a) In a suit in the courts for dam-
ages against a carrier for unjust discrim-
ination in granting rebates to a compet-
ing shipper, protest by plaintiff against
the payment of charges assessed on his
shipments is not prerequisite to recov-
ery. Mitchell Coal & Coke Co. v. Penn.
R. R. Co., 181 Fed., 403, 410.

(b) In a suit at law for damages
against a railroad for discriminating in
rates in favor of a competitor, the fail-
ure of plaintiff to make payment under
protest is not fatal to recovery. Penii.
R. R Co. v. International Coal Mining
Co., 173 Fed., 1, 7.

(c) To maintain a petition before the
Commission for the recovery of excessive
freight charges 'it is not necessary that
the payment of freight should have been
made under protest. National Refining
Co. v. A. T. & S. F. Ry. Co., 18 I. C. C.
389, 390.

(d) It is not necessary that freight
charges shall have been paid under pro-
test in order to maintain a petition be-
fore the Commission for the recovery of
excessive charges. Nollenberger v. M.
P. Ry. Co., 15 I. C. C. 595, 596.

(e) In view of the necessary relations
between the carrier and shipper, the de-
pendence in modern business life of the
latter upon the former, the right and
duty of the carrier in the first instance
to fix its charges, its obligation to adhere
to the same until altered in the manner
prescribed by law, and its right to en-
force such charges by retaining posses-
sion of the freight transported, or to de-
mand payment of the freight charges as
a prerequisite to the transportation,
places the parties upon an unequal foot-
ing so as to relieve the shipper from
the necessity of protest against the pay-
ment of an unlawful rate. Southern Pine
Lumber v. Southern Ry. Co., 14 I. C. C.
195, 197.



(f) Proceedings for reparation before
the Commission for indemnitory dam-
ages are purely statutory and correspond
to actions at law sounding in tort; the
violation of the law produces the injury
and completes the offense and the per-
son injured does not have to perform
any conditions to entitle him to recover
for the damage sustained. For this rea-
son protest upon payment of the unlaw-
ful rate is unnecessary. Southern Pine
Lumber Co. v. Southern R. Co., 14 I. C.
C. 195, 197.

(g) Complainant sought to recover
an overcharge on a carload of lumber,
Columbus, Miss., to Moline, 111., of 2c
per 100 Ibs. In a previous case before
the Commission the rate charged by de-
fendants covering the points in question
was condemned and the rate claimed by
complainant ordered, and defendant was
a party in that case. Complainant paid
the excess charge in the present case
without making protest to defendant.
HELD, such protest was not necessary,
and complainant was entitled to recover
the excess with interest. Southern Pine
Lumber Co. v. Southern R. Co., 14 I. C. C.
195, 197.

(h) Protest against the payment of
unreasonable and excessive freight rates
is not a necessary prerequisite to the
recovery of damages on account of the
exaction of unjust, unreasonable
^nd unlawful charges. Nicola, Stone &
Myers Co. v. L. & N. R. R. Co., 14 I.
C. C. 199, 205.

(i) A protest made at the time of
the payment of freight money is not
a necessary prerequisite to maintain-
ing a complaint for reparation of un-
reasonable charges. Baer Brothers Mer-
cantile Co. v. M. P. Ry. Co., 13 I. C. C.
329, 338.

5. Necessity of First Paying Tariff
Rate.

See Infra, 6 (bb).

(a) It is not the policy of the Com-
mission to award reparation where law-
ful charges have not been paid. Peale,
Peacock & Kerr v. Central R. R. Co.
of N. J., 18 I. C. C. 25, 33.

(b) Where a shipper is entitled to
recover reparation and it appears that
the charge complained of was only
paid to defendants in part, no account
will be taken of this fact in the order
of the Commission, but the matter will



REPARATION, 6 (a) (ij)



723



be left to be adjusted between the par-
ties when payment is made under the
order. Wilson v. C. M. & St. P. Ry.
Co., 14 I. C. C. 549, 550.

6. Parties Entitled to Recover.

See Procedure Before Commission,
V, 13 (h).

(a) In a suit for damages against
a carrier for unlawful discrimination,
plaintiff is not entitled to recover for
the period during which he was him-
self seeking and obtaining unlawful
rebates. International Coal Mining Co.
v. Penn. R. R. Co., 162 Fed. 996, 997.

(b) As provided in the tariffs of the
defendants, charges on certain shipments
of grain products were assessed at the
rates in effect when the shipments moved
from the milling point and not at the
rates in effect when the grain moved
from point of origin. Complainant paid
on its shipments precisely the same basis
of rates as did its competitors. HELD,
that an award of reparation in its favor
would put it on a preferred basis as com-
pared with its competitors and in its
result work a discrimination against
them. Reparation denied. Liberty Mills
v. L. & N. R. R. Co., 23 I. C. C. 182, 186.

(c) Claims for reparation based upon
a decision of the Commission filed by
complainants not parties to the case in
which such decision was rendered will
not ordinarily be allowed unless repa-
ration was claimed in the complaint
upon which such decision was based, or
was awarded by the Commission. The
Commission may, however, in the ex-
ercise of its discretion, upon good cause
shown, and under unusual circum-
stances, specially consider a particular
claim for reparation of this class. No
unusual circumstance being presented
in this case, such a claim must be dis-
allowed. Byrnes v. A. C. L. R. R. Co.,
23 I. C. C. 251, 253.

(d) On a mixed carload shipment
of wheat and flaxseed from Esmond,
S. D., to Minneapolis, Minn., complain-
ant was charged the carload rate on a
minimum weight for each of the com-
modities. Regulations of western trunk
line tariff did not allow the bulkheading
of wheat and flaxseed unless one was
sacked. HELD, that there was no au-
thority for the exaction of rates on the
flaxseed on basis of a carload minimum.
Reparation denied, as complainant, en-
gaged in grain commission business,



had not paid the charges. Lamb, Mc-
Gregor & Co. v. C. & N. W. Ry. Co., 22
I. C. C. 346.

(e) The law contemplates that an
award of reparation shall be made to
the party actually injured. Lamb, Mc-
Gregor & Co. v. C. & N. W. Ry. Co., 22
I. C. C. 346, 348.

(f) The law contemplates that an
award of damages shall be made to the
person actually damaged. Where the
complainant does not appear to have
suffered any injury, and has no legal in-
terest in an overcharge, the Commission
can make no award of reparation.
Lamb, McGregor & Co. v. C. & N. W.
Ry. Co., 22 I. C. C. 346.

(g) The commission merchant who
has paid the freight and charged the
same back to his consignor is not
entitled to damages for an overcharge.
Lamb, McGregor & Co. v. C. & N. W.
Ry. Co., 22 I. C. C. 346.

(h) In cases involving claims for
reparation in connection with ship-
ments of property of, or intended for
the use of, a carrier subject to the
Act, and which was transported by
one or more other carriers, against which
damages had been claimed, due to
misrouting, misunderstandings as to ex-
pressions of the Commission had arisen.
HELD, carriers may have the same privi-
leges as any other shippers. As the
proportions in which the transportation
charges will be borne by the vendor
and the consignee carrier are reflected
in the contract purchase price, it is
suggested that property of a carrier
should be consigned to that carrier, at
the designated point of delivery. Also
suggested that the contract of purchase
and sale provide that the vendor bear
a certain specified part of the trans-
portation charges, provided the prop-
erty is transported by a designated
route, but if it is not so transported
the e'ntire transportation charge be
borne by the vendor. In Re Transpor-
tation of Company Material, 22 I. C. C.
439.

(ij) Firms and individuals have an
undoubted right to enter into contracts
of purchase and sale under which the
consignor pays an agreed portion of
those charges. A carrier as a shipper
has the same right. In Re Transporta-
tion of Company Material, 22 I. C. C.
439, 440.



724



REPARATION, 6 (k) (s)



(k) Ice was sold for a delivered
price and by the terms of the contract
of sale the freight money was to be
paid by the ice company (the con-
signor). Under an arrangement be-
tween that company and the con-
signee the latter in fact paid the money
to the carrier and was reimbursed
by the ice company; that is, the con-
signee was the agent of the ice com-
pany in the making of this payment
and the payment upon every rule of
law was a payment by the principal.
The ice company, therefore, and not
the consignee, is entitled to repara-
tion. Mountain Ice Co. v. D. L. & W.
R. R. Co., 21 I. C. C. 45, 51; modified, 596.

(1) Where a consignee carrier de-
ducted from the invoice price of goods a
greater sum than would have been
deducted had the shipment moved in
accordance with routing instructions
pursuant to a contract with the con-
signee carrier, damages were awarded
for the loss thus sustained. Beekman
Lumber Co. v. L. Ry. & N. Co., 21 I. C. C.
280.

(m) When by the terms of sale the
transportation charges were to be paid
by the purchaser and were in fact
so paid, the seller who was the shipper
is not entitled to reparation for the
exaction of an unreasonable rate. Fond
du Lac Church Furnishing Co. v. C. M.
& St. P. Ry. Co., 21 I. C. C. 481.

(n) Where freight charges are actu-
ally paid by the consignee but deducted
by him from the invoice price of the
shipment, the consignor is the proper
person to bring reparation proceedings
for an overcharge in the rate. Carolina
Carolina Portland Cement Co. v. C.
& O. Ry. Co., 21 I. C. C. 533.

(o) The consignor is entitled to
damages for an unreasonable rate,
where a consignee commission merchant
actually paid the freight charges, but
billed them back on the consignor,
who ultimately paid them. Young-
blood v. T. & P. Ry. Co., 21 I. C. C.
569, 570.

(p) The consignee who pays the
freight is the proper person to receive
reparation for an excessive rate ex-
acted and not the consignor. Mountain
Ice Co. v. D. L. & W. R. R. Co., 21
I. C. C. 596, 597.

(q) Complainant, manufacturer of
gasoline engines, windmills, etc., at



Evansville, Wis., bought pig iron "f. o.
b. cars, Evansville, Wis., based on pres-
ent freight rate" at a certain price
per ton. Complainant paid the freight
2harges and deducted the amount of the
same from the invoice price, returning
the expense bills to the consignor.
The contract of sale governing the
shipments contained the following
clause: "This price is based on present
tariff freight rate of $1 per ton. In
case the tariff freight rate declines,
the buyer is to have the benefit of
such decline. In case the tariff freight
rate advances, the buyer is to pay the
advance." While admitting that the
freight charges were really paid by the
consignor, complainant contended that
in view of the foregoing provision in
the contract it has paid a greater price
for the iron than it would have paid
under a lower freight rate, and that
therefore it is entitled to any difference
between the rate existing at the dates
of shipment and the lower rate which
it contends would have been reason-
able. HELD, although the rate ex-
acted was unreasonable and is reduced,
the complainant is not the party en-
titled to reparation, because the pro-
vision in the contract in regard to the
selling price of the iron, being based on
the freight rate, amounts to no more
than an agreement between the parties
as to changes which might occur in
the rate. Baker Mfg. Co. v. C. & N.
W. Ry. Co., 21 I. C. C. 605, 607.

(r) A carload of apples in transit
was purchased by complainant from
another firm, and the freight charges
up to Chicago deducted from the amount
paid by the complainant to the 'vendor.
In a similar manner the consignee f
the shipment at destination deducted
the freight charges to that point from
Chicago from the invoice of complain-
ant. Complainant secured from its
vendor an assignment of whatever in-
terest that firm might have in the re-
covery of reparation. HELD, reparation
might properly be awarded to complain-
ant. Gibson Fruit Co. v. C. & N. W.
Ry. Co., 21 I. C. C. 644, 646.

(s) Where the rate complained of
was not paid by complainant no order
for reparation will be entered. Fuller-
ton. Powell, Harwood Lumber Co. v.
V. & S. W. Ry. Co., 20 I. C. C. 86, 88;
Kaul Lumber Co. v. C. of G. Ry. Co.,
20 I. C. C. 450, 454.



REPARATION, 6 (t) (gg)



725



(t) The court cases holding that
either the consignor or consignee may
sue in case of loss or damage or
breach of the contract of affreightment
mean that each has a beneficial interest
to the extent of making either of them
a proper party plaintiff in such a pro-
ceeding. These cases do not in any
way controvert the principle announced
by the Commission that the party
paying the excessive charge is the one
entitled to an award of reparation on
finding that the rate charged is unrea-
sonable and therefore unlawful. Sunny-
side Coal Mining Co. v. D. & R. G. R.
R. Co., 19 I. C. C. 20, 21.

(u) So far as the Commission is
aware, it has never knowingly de-
parted from the rule that reparation is
due the owner of property paying ex-
cessive charges or on whose account
it was paid. Sunnyside Coal Mining
Co. v. D. & R. G. R. R. Co., 19 I.
C. C. 20, 21.

(v) Reparation is due the owner of
property paying excessive charge or
on whose behalf it was paid. Gamble-
Robinson Commission Co. v. St. L. &
S. F. R. R. Co., 19 I. C. C. 114, 116.

(w) The well-settled rule of the
Commission is that the party who has
been required to pay an unlawful rate
is the party to whom reparation should
be awarded, and the person who han-
dles produce on consignment is not en-
titled to reparation. Gamble-Robinson
Commission Co. v. St. L. & S. F. R. R.
Co., 19 I. C. C. 114, 116.

(x) If a rate charged is excessive
per se the prevalence of competitive
conditions is unimportant with respect
to the right of the shipper to recover
reparation. Southern Timber & Land
Co. v. S. P. Co., 18 I. C. C. 232, 233.

(y) No reparation will be awarded
for an unreasonable rate where the
complainant fails to show that it paid
the freight charges. Fathauer Co. v. St.
L. I. M. & S. Ry. Co., 18 I. C. C. 517,
520.

(z) Owner of freight who has paid'
an unreasonable rate entitled to repa-
ration irrespective of the profits ac-
cruing from his business. Kindelon v.
S. P. Co., 17 I. C. C. 251, 255.

(aa) Reparation in any given case
is due the person who has been re-
quired to pay an unlawful charge,



and a shipper who has paid such a
charge and is the owner of the goods
transported is entitled to repayment,
without the imposition of the impossi-
ble task upon the Commission of as-
certaining the ultimate profits which
accrued from his business, since he
is entitled to reparation irrespective
of the profits accruing from his busi-
ness. Kindelon v. S. P. Co., 17 I. C.
C. 251, 255.

(bb) Even if rates were found to be
unreasonable no order of reparation
would be entered, because complainant
has not paid the lawful charges on
shipment. Males Co. v. L. & H. Ry.
Co., 17 I. C. C. 280, 282.

(cc) If the rate was in fact unrea-
sonable, defendants must make repa-