seven instances. The old rates favored
Memphis in many instances more than
5c per 100 Ibs. and differences in rates
ranging from J /4c to more than 6c
prevailed from points of production
within short distances from Memphis.
HELD, the rates attacked were unrea-
sonable to the extent that they exceeded
the new rates published since the hear-
ing. The question of reparation held
open for further evidence. Sondheimer
Co. v. I. C. R. R. Co., 17 I. C. C. 6^, 70, 71.
(q) Where discontinuance of a cer-
tain privilege with respect of one com-
modity would not banefit those shipping
another commodity to whom it is denied,
and where the denial to them does not
benefit those to whom it is granted, the
discrimination is not undue. Wholesale
Fruit & Produce Ass'n v. A. T. & S F
Ry. Co., 17 I. C. C. 596, 601.
(r) While it might be reasonable to
withhold milling-in-transit privileges from
a product that is essentially different
from the raw material and from the other
products of the same raw material which
are accorded transit rates, as, for ex-
ample, a liquid product of grain, it is
clearly discriminatory to single out one
or more of several milled products of
grain and withhold from it or them a
transit privilege which is granted at that
or some other competitive point to other
milled products of grain of substantially
similar character, value and packing, and
which are transported under substan-
tially the same conditions, attended by
substantially equal risks, where there is
competition between the millers of the
grain, either in marketing their product
or in securing their material for milling.
Douglas & Co. v. C. R. I. & P Ry. Co.
16 I. C. C. 232, 244.
(s) In 1903 complainant established a
starch manufacturing plant at Cedar
Rapids, la., and in 1908 had $500,000 in-
vested in it and $150,000 working cap-
ital. For many years a large cereal mill
had been located in Cedar Rapids and
enjoyed milling-in-transit privileges on
grain. Before establishing its plant com-
plainant consulted with defendant car-
riers and was assured that it would be
granted as liberal transit privileges as
were allowed to other manufacturers of
grain products at Cedar Rapids. In 1908
defendants withdrew from complainant
the milling-in-transit privileges on grain
manufactured into starch and established
starch rates, resulting in increases of
from 25 to 100 per cent. Milling-in-
transit privileges were not withdrawn
from other manufacturers located at
Cedar Rapids who made products other
than starch from corn. Complainant had
no competitors in the manufacture of
starch located at Cedar Rapids, but on
account of the withdrawal of the priv-
ileges complainant was at a serious dis-
advantage in the purchase of com at
various points on defendants' lines.
HELD, complainant was unduly discrim-
inated against by the withdrawal of such
privileges and defendants should adjust
their rates so as to remove it. Douglas
& Co. v. C. R. I. & P. Ry. Co., 16 I. C. C.
(t) It is discrimination to grant com-
mercial elevation at one locality and
deny it at another. Washer Grain Co. v.
M. P. Ry. Co., 15 I. C. C. 147, 158.
(u) Defendant's rules limited less-
than-carload shipments of petroleum to
one day a week. Complainants' com-
petitor constructed tank stations at
points along defendant's line, from which
it supplied tank wagons, distributing said
product in the surrounding territory. Said
competitor was thus enabled to furnish
oil every day of the week, while com-
plainants could supply the same only one
day. To permit shipments on more than
one day a week would require additional
equipment. HELD, the rule attacked,
resulting in unjust discrimination be-
tween shippers, should be changed so as
to permit the shipments on two days
each week and that said days should be
separated by at least two intervening
days. National Petroleum Ass'n v. L. &
N. R. R. Co., 15 I. C. C. 473, 476.
(v) Any regulation or practice that
unlawfully discriminates against one
shipper and affords undue preference to
another shipper is a regulation or prac-
tice affecting rates within the meaning
of section 15 of the amended Act of Jan.
29, 190G. Rail & River Coal Co. v. B. &
. R. R. Co., 14 I. C. C. 86, 89.
(w) The giving of an unjust prefer-
ence in wharfage privileges to an ex-
412 FACILITIES AND PRIVILEGES, 21 (x) FOREIGN COMMERCE, 1 (b)
porter of cotton seed products cannot
be justified on the ground that such
course has proved beneficial to cotton
seed interests generally; that better
prices have prevailed, and that more
economic methods of doing business have
resulted therefrom. Carl Eichenberg v.
Southern Pacific Co., 14 I. C. C. 250, 269.
(x) A railroad company by granting
a privilege which, although ostensibly
open to the whole public, can, in the
nature of things, only be taken ad-
vantage of by certain shippers, creates
thereby a discrimination which may or
may not be undue, according to the cir-
cumstances in each case. Traffic Bureau
of St. Louis v. C. B. & Q. R. R. Co., 14
I. C. C. 317.
(y) Defendant carriers allowed %c
per 100 Ibs. to dealers in grain in Mis-
souri River cities as an elevation allow-
ance. They extended no such allow-
ance to dealers located in Mississippi
River cities. As a result it cost the lat-
ter dealers %c per 100 Ibs. more to
move grain from points of purchase
through their elevators and beyond to
points of sale than the same transporta-
tion cost dealers in Missouri River cities.
It appeared that the weighing of grain
to determine the amount due the original
seller thereof could only be practically
accomplished through the process of ele-
vation. Defendants were subjected at
Missouri River points to competition with
a carrier entering from the northwest,
which they did not meet with at Missis-
sippi River points. HELD, distinguish-
ing In the Matter of Allowances to Ele-
vators by the Union Pacific R. R. Co., 12
I. C. C. 85, that the elevator allowance
constituted an undue and unlawful dis-
crimination. Traffic Bu. Merchants' Ex-
change v. C. B. & Q. R. R. Co., 14 I. C. C.
(z) A railroad company by extending
a privilege of value to one member of
the shipping public, when that privilege,
In the nature of things, is not desired
and cannot be used by other members of
the public, is thereby guilty of a dis-
crimination in favor of the one who can
and does use the privilege. Traffic Bu.
Merchants' Exchange v. C. B. & Q. R. R.
Co., 14 I. C. C. 317, 331.
(aa) The Commission will neither ap-
prove nor permit the application of tran-
sit privileges under circumstances that
would impair the integrity of the through
rate. Blackwell Milling & Elevator Co.
v. A. T. & S. F. Ry. Co., Unrep. Op. 483.
(bb) Transit privileges withheld from
complainant, which had been extended
to it in common with others without
tariff authority, and which later had been
extended to its competitors under au-
thority of a lawful tariff and which in-
advertently was not made applicable
from the complainant's shipping station.
HELD, unjust discrimination. Stras-
burg Steam Flouring Mills v. S. Ry. Co.,
Unrep. Op. 531.
Prior to the amendment of June 29,
1906, to the Act it had no application to
ferries except where a railroad used and
operated a ferry as a part of its road.
(Gummere, C. J., dissenting.) N. Y.
C. & H. R. R. R. Co. v. Freeholders of
Hudson, 76 N. J. L. 64, 681, 74 A. 954.
See Facilities and Privileges, 15 (u).
See Facilities and Privileges, 18
(cc), 20 (f) ; Loss and Damage, 6
(ii); Through Routes and Joint
Rates, 20 (c) ; Substitution of Ton-
nage, 2 (b); Switch Tracks and
Switching, 5 (c), 8 (a), (b).
See Lighterage, 3 (I).
See Alaska; Export Rates; Import
Traffic, II (f) ; Interstate Com-
merce, 1 (a).
T. CONTROL AND REGULATION.
1. Jurisdiction of Commission.
(a) The Interstate Commerce Com-
mission has jurisdiction and authority
to regulate rates on freight actually
moving in foreign commerce, for that
part of the carriage through the United
States, whether such transportation be
interstate or wholly within one state.
T. & P. Ry. Co. v. R. R. Commission
of Louisiana, 183 Fed. 1005, 1007.
(b) That part of a continuous haul
from a foreign country which is con-
fined to a rail transportation from a port
of entry to a point in the same state is
FOREIGN COMMERCE, 1 (c) FORWARDERS, I (d)
within the jurisdiction of the Commission
though the shipment does not move
under through billing nor did the
water and rail lines operate under
any common control or management.
In Re Rates, etc., of the Louisiana Ry.
& Nav. Co., 22 I. C. C. 558.
(c) No joint through rates are rec-
ognized with water carriers beyond the
seas. Borgfeldt & Co. v. S. P. Co.,
18 I. C. C. 552, 553.
(d) The Commission has no control
over steamships from New York to
foreign countries. Ullman v. Adams
Express Co., 14 I. C. C. 340, 345.
(e) The Commission may regulate
interstate traffic, whether by rail or
by a combined rail and water route,
from point of receipt to point of
delivery; but the Commission in its
control over foreign commerce is lim-
ited to the regulation of such traffic,
whether by railroad or by a combina-
tion of rail and water carriers, from
and to the point of transhipment. Cos-
mopolitan Shipping Co. v. Hamburg-
American Packet Co., 13 I. C. C. 266,
(f) A rail carrier may control or
connect with a line of steamships en-
gaged in foreign commerce, with which
it may interchange business as freely
as with another rail carrier, and it
may quote a combined rate for the
through movement, the agent of the
railroad company acting as the agent
of the steamship company in so doing.
An inland carrier may go into the for-
eign shipping business wthout contra-
vening any provision of the Act to
Regulate Commerce; nor is there any-
thing in such statute which denies to
a rail carrier the right to quote a rate
from an inland point to a foreign
destination over its own through route
or by any other route. But as to such
carriers engaged in foreign business,
the rail carrier has, so far as this
law is concerned, a purely contractual
or proprietary relation, not a relation
related or controlled in any manner
by the Act. On foreign commerce the
rate to be published with the Commis-
sion should be the rate to the port
and from the port, an open rate, which
any who desire to do so may use with
equal advantage. The publication of
such rate does not in any manner limit
the very valuable privilege of through
billing. Such through billing should
clearly separate the liability of the
rail and the ocean carrier and show
the published rate of the inland car-
rier. The routing of the freight, how-
ever, should remain with the shipper
and upon him may be imposed no
greater charge to the port when his
freight goes by one ocean line than
by another. Cosmopolitan Shipping Co.
v. Hamburg-American Packet Co., 13
I. C. C. 266, 281.
II. RIGHT TO COMBINE SHIPMENTS.
See Classification, 12; Express
Companies, 1 (k); Facilities and
Privileges, 10 (c).
(a) A forwarding agent is a person
within the meaning of that word as
employed in the second section of the
Act. I. C. C. v. D. L. & W. R. R.,
220 U. S. 235, 254, 31 Sup. Ct. 392,
55 L. ed. 448.
(b) Under a decision of the Com-
mission holding that carriers can not
refuse to accept at carload rates car-
loads of goods assembled by forward-
ing agents, the findings of the Commis-
sion as to the operation of the business
of forwarding agents and as to the
difficulties involved in the efforts of
carriers to determine the nature and
character of a person tendering goods
for shipment are findings of fact not
open to review by the courts. I. C. C.
v. D. L. & W. R. R., 220 U. S. 235,
256, 31 Sup. Ct. 392, 55 L. ed. 448.
(c) The finding of the Commission
that to permit carriers to discriminate
in the application of carload rates
against forwarding agents would give
rise to preferences and engender dis-
criminations prohibited by the Act em-
bodies a conclusion of fact beyond
the competency of the courts to re-
examine. I. C. C. v. D. L. & W. R.
R., 220 U. S. 235, 255, 31 Sup. Ct.
392, 55 L. ed. 448.
(d) A finding of the Commission
that to permit forwarding agents to
avail themselves of carload rates does
not result in unjust discrimination to
shippers is one of fact and is not
open to review in the courts. I. C. C.
v. D. L. & W. R. R., 220 U. S. 235, 255,
31 Sup. Ct. 392, 55 L. ed. 448.
FORWARDERS, I (e) II (d)
(e) Under the English Act regulat-
ing commerce a carrier is forbidden
to charge a higher rate for the carriage
of goods for an intercepting or forward-
ing agent than for others. I. C. C. v.
D. L. & W. R. R., 220 U. S. 235, 254,
31 Sup. Ct. 392, 55 L. ed. 448.
(f) The settled meaning which was
affixed to the Equality Clause of the Eng-
lish Act to regulate commerce at the
time of the adoption of the American Act
to regulate commerce applies in constru-
ing the second section of the Act with re-
spect to the right of a carrier to charge a
higher rate for the carriage of goods
for an intercepting or forwarding agent
than for others. I. C. C. v. D. L. &
W. R. R., 220 U. S. 235, 254, 31 Sup.
Ct. 392, 55 L, ed. 448.
(g) The fact that a carrier has the
authority to fix rates does not give it
the right to discriminate as to those
who shall be entitled to avail of them.
I. C. C. v. D. L. & W. R. R., 220 U. S.
235, 254, 31 Sup. Ct. 392, 55 L.. ed. 448.
(h) A forwarding agent engaged in
assembling express packages belonging
to others and sending same in bulk
by express, is not a common carrier
so as to be precluded from claiming
the benefit of an express company's fa-
cilities. California Commercial Ass'n v.
Wells-Fargo & Co., 14 I. C. C. 422,
II. RIGHT TO COMBINE SHIPMENTS.
See Discrimination, 6.
(a) A carrier cannot, when goods
are tendered to it for transportation,
make the mere ownership of the goods
the test of the duty to carry or dis-
criminate in fixing the charge for car-
riage, not upon any difference inhering
in the goods or in the cost of the
service rendered in transporting them,
but upon the mere circumstance that
the shipper is or is not the real owner
of the goods. Hence a forwarding
company is entitled to aggregate pack-
age shipments so as to take advantage
of a carload rate. I. C. C. v. D. L. &
W. R. R. Co., 220 U. S. 235, 252, 31
Sup. Ct. 392, 55 L. ed. 448.
(b) Complainants attacked the bulk
shipment rule in the Official Express
Classification which practically prevent-
ed the consolidation of L. C. L. ship-
ments by a forwarding company in
order to give consignors the car-
load rate. HELD, that it is unlawful
for defendants to make the ownership
of property a test for the imposition
of rates, and that the rule is unjustly
discriminatory, unjust, unfair and unrea-
sonable, because it provides that de-
fendants snail collect a greater com-
pensation from certain persons for
transportation of property subject to
the Act than it collects from other
persons for doing a like and contem-
poraneous service in the transporta-
tion of a like kind of traffic under sub-
stantially similar circumstances and
conditions, in violation of section 2 of
the Act. Reparation awarded. Cali-
fornia Commercial Ass'n v. Wells-Fargo
& Co., 21 I. C. C. 300.
(c) Where shipments belonging to,
and ultimately intended for, various con-
signees have been united in a bulked
shipment from one consignor to one
consignee, it is unlawful for the car-
rier to refuse to apply the rate appli-
cable upon the shipment as a whole
and to insist upon making a separate
charge upon the package or packages
intended for each ultimate consignee.
California Commercial Ass'n v. Wells-
Far^o & Co., 21 I. C. C. 300.
(d) Defendant express company's
rules provided that two or more pack-
ages of specified weight at a specified
rate, when forwarded by one company,
from the same point, on the same day,
to one consignee, whether from one
or more shippers, must be aggregated,
if a lower charge was made thereby.
Complainant association, through its
agent in New York, delivered a number
of packages to defendant consigned to
itself at San Francisco and marked
with the number of the ultimate con-
signee, and asked that the several pack-
ages bearing the same number and
therefore destined to the same ulti-
mate consignee be aggregated in order
to obtain the lower rate. Defendant
requested complainant's agent to fur-
nish a letter stating that each different
number represented one and only one
consignee, and was told that if such
letter was furnished the rule in re-
gard to aggregation would be applied.
The agent made the shipments regard-
less of the charges and thereafter fur-
nished the information requested by
defendant. The condition of requiring
information imposed by defendant was
one not specified in its rules. HELD,
complainant, having been assessed the
FORWARDERS, II (e) IMPORT TRAFFIC, I (b)
rates on the ; ^ckages separately, was
entitled to reparation on the basis of
the rates applying to aggregated ship-
ments. California Commercial Ass'n v.
Wells-Fargo & Co., 16 I. C. C. 458,
(e) An express company may not
refuse to receive at bulk rates goods
assembled by a forwarding company on
the ground that the cost of transpor-
tation is increased by the liability of
multiplicity of suits by the various
owners, since the company may stipu-
late that claims for damages shall be
preferred only by the consignor or
consignee designated in the bill of
lading. California Commercial Ass'n v.
Wells-Fargo & Co., 14 I. C. C. 422, 431,
(f) Complainant consignees employed
a forwarding company at New York
to assemble a number of packages of
goods belonging to complainants indi-
vidually, and offered same in bulk to
defendant express company to be car-
ried to San Francisco at its bulk rates.
Defendant's rules forbade its agents
from receiving goods so assembled and
complainants were charged the individual
package rate on them. HELD, said rules
were unjustly discriminatory as permit-
ting defendant to collect a greater com-
pensation from certain persons for the
transportation of property than it col-
lected from other persons for a like and
contemporaneous transportation of a
like kind of traffic under substantially
similar circumstances and conditions,
and complainants were entitled to rep-
aration on the basis of bulk rates.
(Knapp and Harlan, Comm'rs, dissent-
ing.) California Commercial Ass'n v.
Wells-Fargo & Co., 14 I. C. C. 422,
434; sustained, I. C. C. v. D. L. & W.
R. R., 220 U. S. 235, 252, 31 Sup.
Ct. 392, 55 L. ed. 448, reversing 166
Fed. 499, enjoining the Commission's
(g) Rules of defendant railroads pro-
vided that consignors or consignees
were entitled to carload rates on freight
only when they were the actual owners
of the property, and that goods com-
bined into carloads by forwarding
agents should not be entitled to carload
rates, but the names of the owners of
each package must be declared to the
railroad agent and said packages way-
billed as separate shipments. Com-
plainant forwarding agent made ship-
ments of goods assembled by them into
carloads and were charged for them at
less than carload rates. HELD, follow-
ing California Commercial Ass'n v.
Wells-Fargo & Co., 14 I. C. C. 422,
said rules were unjustly discriminatory
and in violation of section 2 of the Act,
in permitting defendant to collect from
one class of persons a higher rate than
from another class of persons for do-
ing a like and contemporaneous service
in the transportation of a like kind of
traffic under substantially similar cir-
cumstances and conditions, and com-
plainants were entitled to reparation
on the carload rate basis. (Knapp and
Harlan, Comm'rs, dissenting.) Export
Shipping Co. v. Wabash R. R. Co., 14
I. C. C. 437, 440; sustained, I. C. C.
v. D. L. & W. R. R., 220 U. S. 235,
252, 31 Sup. Ct. 392, 55 L. ed. 448; revers-
ing, 166 Fed. 499.
Storage See Facilities and Privi-
leges, 8; Time See Demurrage,
15; Interstate Commerce, 4 (s),
(t); Transportation See Crimes,
III; Express Companies, 5; Pas-
senger Fares and Facilities, 12;
Special Contract, 1 (a), 2 (a),
(zz), (aaa), (bbb); Transportation,
See Reduced Rates, 4.
See Blanket Rates, 9.
See Blanket Rates.
I. DETERMINATION OF STATUS.
II. REASONABLENESS OF RATES.
I. DETERMINATION OF STATUS.
See Procedure Before Commission,
(a) In arriving at the construction
of the term "import traffic" in a tariff,
the point of origin of the traffic, the
method and mode of transportation
from the foreign country into this coun-
try, and the point of destination must
be considered. Payne v. M. L. & T.
R. R. & S. S. Co., 15 I. C. C. 185, 190.
(b) The term "import traffic" used
vaguely and indefinitely may be import
IMPORT TRAFFIC, I (c) II (b)
traffic when taken from the ship's side,
or import traffic after it has been stored
at the port of entry for a substantial
period, or import traffic after it has
been merchandised at the port of entry,
and therefore carriers should clearly
define this phrase and similar phrases
when used in their tariffs. Payne v.
M. L. & T. R. R. & S. S. Co., 15 I. C.
C. 185, 190.
(c) The United Fruit Co. transported
bananas from Central America to New
Orleans. The Fruit Despatch Co.,
which is owned and operated by the
same officials and is practically the
same company, receives its bananas at
New Orleans and sells them in its
name. Upon arrival at New Orleans
the bananas are unloaded upon wharves
and assorted. The ripe ones are sold
in New Orleans and the green ones
are delivered to the carriers to be car-
ried to various other points in the
United States, on local bills of lading
issued to the Fruit Despatch Co. The
bananas are kept within the control
of the Fruit Despatch Co. until they
are turned over to the purchasers at
point of destination. Defendants' tar-
iffs provided a banana rate of 64c
from New Orleans to El Paso on "im-
port traffic." Another tariff contained
a rate of 82c on bananas from New
Orleans to El Paso. Complainants at
El Paso contended that the shipment
from New Orleans was not local but
was a through shipment from Central
America to El Paso and that the 64c rate
should be applied. The bananas at
New Orleans were not moved by the
rail carriers from shipside. HELD,
the bananas were not "import traffic"
within the meaning of the 64c tariff
and should take the 82c rate. Payne
v. M. L. & T. R. R. & S. S. Co., 15
I. C. C. 185, 191.
II. REASONABLENESS OF RATES.
See Branch Lines, 4 (b); Evi-
dence (13 (4); Reasonableness of
Rates, 44 (a), 84 (g).
(a) Complainant attacked as unrea-
sonable the rates assessed by reason
of defendant's rule applicable to im-
port traffic carried in the tariffs of the
B. & O. R. R. that "Rates named herein
apply only on property coming from
foreign ports into the United States
and delivered to the Baltimore & Ohio
Railroad direct from the ship's side
or dock of the vessel bringing such
property to the port of entry, or on
property received by the Baltimore &
Ohio Railroad from customs bonded
warehouses or appraiser's stores (not
internal-revenue stores)." And also
that "property, in bulk, will be held
only when in transit from foreign ports,
awaiting shipment via the Baltimore
& Ohio Railroad, when n-scessary to
prevent delay in unloading vessels and
provided storage space is available."
Complainant expected a cargo of kainit,
a potash salt mineral produced in Ger-
many, and applied to the B. & O. R.
R. for space in its bonded warehouses
at Locust Point, Md., the marine ter-
minals of that carrier. The B. & O.
R. R. having no space available, com-
plainant contracted for storage in a
bonded warehouse at Baltimore, which
was destroyed by fire prior to the
arrival of the cargo. It was thereupon
compelled to use a non-bonded ware-
house, with the result that when the
cargo was distributed to various in-
land points, the domestic rate was as-