Copyright
Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

. (page 120 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 120 of 214)
Font size
QR-code for this ebook


to provide for these subjects was among the principal purposes of the act.^'^ And
it is apparent that the means by which these great purposes were to be accom-
plished was the placing upon all carriers the positive duty to establish schedules
of reasonable rates which should have a uniform application to all and which
should not be departed from so long as the established schedule remained un-
altered in the manner provided bv law.^'^

Construction — "Rates in Force. "^ — "Rates in force," to which the act
applies, are not limited to rates under which transportation has actually taken
place, but are those which the carrier has established as its present charges, as
distinguished from those which are obsolete, tentative, or perhaps only to take
eft'ect in the future. They are rates open to public inspection and on which
shipments may be made, if offered. ^^

"Between Two Points." — The act declares that it shall be unlawful for any
common carrier. i)arty to any joint tariff', to charge or receive a greater or less
compensation for the transportation of persons or property or for any services
in connection therewith, between any points as to which a joint rate is named
thereon than specified in the schedule filed by the commission in force at the
time. The words "between two points'' do not limit such provision to points
on the established route, but the provision prohibits the transportation of prop-
erty between terminals in diff'erent states at a greater or less rate than the es-
tablished rate, without reference to routes.'^*^'

§ 4127. Shipment over Connecting Carrier. — The acceptance by an in-
itial carrier of a through shipment to be carried at less than the lawful rates is
not rendered lawful by the fact that such carrier had a contract with a connecting
carrier whose line formed a part of the through route that the latter would not
increase its rate during a certain time and on the faith of such contract made a
similar contract wdth the shipper, where in the meantime the connecting carrier
had in fact published and filed with the commission a new schedule increasing

65. Preference of ports of one state 68. Texas, etc., R. Co. v. Abilene Cotton
over ports of another. — Armour Packing Oil Co., 204 U. S. 426, 51 L. Ed. 553,
Co. V. United States, 209 U. S. 56, 52 L. 27 S. Ct. 350, 9 Am. & Eng. Ann. Cas.
Ed. 681, 28 S. Ct. 428, affirming judg- 1075, citing Cincinnati, etc., R. Co. v. In-
ment, 153 Fed. 1, 82 C. C. A. 135, 14 L. terstate Commerce Comm., 162 U. S. 184,
R A., N. S., 400; Chicago, etc., R. Co. 40 L. Ed. 935, 16 S. Ct. 700; Interstate
V. United States, 209 U. S. 90, 52 L. Ed. Commerce Comm. v. Cincinnati, etc., R.
698. 28 S. Ct. 439, affirming judgment, 157 Co., 167 U. S. 479, 42 L. Ed. 243, 17 S.
Fed. 830. Ct. 896.

66. Relation to provision against dis- 69. Construction — "Rates in force."—
crimination. — Texas, etc., R. Co. v. Al)ilene Judgment United States v. New York,
Cotton Oil Co., 204 U. S. 426, 51 L- Ed. etc., R. Co., 153 Fed. 630, reversed in 92
553, 27 S. Ct. 350, 9 Am. & Eng. Ann. C. C. A. 331, 166 Fed. 267.

Cas. 1075. 70. "Between two points." — United

67. Interstate Commerce Comm. v. Cin- States v. Pennsylvania R. Co., 153 Fed.
cinnati, etc., R. Co., 167 U. S. 479, 42 L. 625.

Ed. 243, 17 S. Ct. 896.



§ 4127 CARRIERS. ■ 3738

the rateJ^

Necessity for Contract for Through Carriage. — In the concert of action,
in the successive receipt and movement of traffic by connecting- carriers under
through bills of lading for continuous carriage, is manifested the common ar-
rangement contemplated by the interstate commerce laws, and no previous formal
contract is necessary to bring the carriers under the provisions of the law.'^^
The sanction of the other roads to schedules of freight rates containing a head-
ing indicating their adoption by a particular road "in connection with" other
designated railroads, which are the roads over which a haul, when there is such,
from common points to the particular railroad would be made, is not essential
to the establishment of such rates in a proceeding involving shipments over
such railroad and a connecting line not included among the other roads desig-
nated, from a city which is not one of the common points."^ It was not shown
that these schedules were sanctioned by the other railroads designated therein,
they being the roads over which the haul to the garnishee's road from the com-
mon points was to be made when the shipments were received from connecting
lines at those points. Such a showing, however, was not necessary here. The
other roads had no interest in the rate as applied to shipments received by the
garnishee from the northern line at Kansas City, as were the shipments in
question. As applied to them the rate was not joint, but an individual rate of
the garnishee. The sanction of the other roads was essential only to its appli-
cation to the haul from the common points, when there was such.'^'* A railroad
company which as initial carrier received an interstate shipment to be trans-
ported over its own and other lines under a joint through rate established and
filed was not authorized to divert the shipment to another road, not a party to
the joint rate, because its connecting refused to receive it, and is liable to the
shipper for the excess of freight charged resulting from such diversion."^

Actual Relation of Carrier Immaterial. — \\'here a railroad company op-
erating an interstate road treated points on a connecting road which it also oper-
ated as within a certain coal district, from all points in which, whether on such
line or its own line, it made and published the same r?tes, such road for freight
purposes was a part of its line, and its relations with the owner thereof are im-
material.'^'

Other Carriers Not Specified in Schedule. — Schedules of freight rates of
a designated railroad, indicating that they were adopted by it "in connection with"
other specified roads over which shipments from the common points, if any,
would be made, may be applicable to a shipment over a different railroad from a
city which is not a common point, where such schedules do not restrict the rate
to shipments received from the roads specified but indicate its applicability to
shipments received from any connecting line.'^''' When, under the provisions of
§ 6 of the act, two or more common carriers lawfully contract for the establish-
ment of through routes at or upon joint through rates, they can not be compelled
to concede to all other connecting railroads the same or equal through rates, on
traffic which the latter may offer for transportation.'^^

71. Shipment over connecting carrier.— 75. Louisville, etc.. R. Co. v. Dickerson,
Chicago, etc.. R. Co. v. United States, 191 ped. 705, affirming judgment, 187 Fed.
157 Fed. 830, affirmed in 209 U. S. 90, 52 874.

^'rr^'^'-J'^^' ^-^ ^i ^^' ^^^' .u f *u u 76. Actual relation immaterial.— Penn-

72. Necessity for contract for through ^ j^^^;^ r Co. v. International Coal Min.
carriage.-Chicago etc., R. Co. y. United ^o.. 97 C. C. A. 383. 173 Fed. 1.

States, 157 Fed. 830, affirmed m 209 U. ^ , . ._,.,,

S. 90, 52 L. Ed. 698. 28 S. Ct. 439. 77. Other earners not specified in sched-

73. Kansas, etc.. R. Co. v. Albers Comm. ule.— Kansas, etc., R. Co v. A bers Comm.
Co., 223 U. S. 573, 56 L. Ed. 556. 32 S. Co., 223 U. S. 573. 56 L. Ed. 556, 32 S.
Ct. 316. Ct. 316.

74. Kansas, etc., R. Co. v. Albers Comm. 78. Kentucky, etc.. Bridge Co. v. Louis-
Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. ville, etc., R. Co.. 37 Fed. 567, 2 L. R.
Ct. 316. A. 289.



3739 INTERSTATE COMMERCE ACT. § 4127

Where No Joint Rate Established. — Shipments over connecting lines, even
though moving on through bills of lading, must, under the Interstate Commerce
Act, take the lawfully established local rate in force on each line, where there i?
no established joint through rate."^ An agreement with a single shipper for ship-
ments over connecting lines having no joint through rate, at less than the estab-
lished local rates for each road, is void and does not prevent the collecting of the
established local rate by such carriers, under the Interstate Commerce Act of
February 4, 1887, § 6, as amended by the Act of March 2, 1889, providing the
manner for establishing rates, and making it unlawful for a carrier to depart
from any rate so established and in force at the time and requiring connecting
carriers agreeing on joint through rates to file schedules with the commission, and
prohibiting any deviation from an established joint rate while in force. ^'^

Shipment from Common Point. — Schedules of freight rates of a designated
railroad "in connection with" other specified roads may be made applicable to a
shipment over different railroad from a city which is not a common point. ^^

What Amounts to Establishing Rate. — The Missouri Pacific Railway Com-
pany received carloads of beer in St. Louis for transportation to Leadville, Colo.,
issuing receipts therefor showing contents, weight, destination, and consignee,
and that the shipment was received subject to its uniform bill of lading, to be
delivered to the consignee and routed over the line of the Denver & Rio Grande
Railroad Company. At Pueblo, Colo., it turned the cars over the latter com-
pany, which moved them to Leadville on a local waybill, showing the consignor
and consignee and the rate and charge of each company. The two companies
had no established joint rate between St. Louis and Leadville, but they constantly
exchanged traffic between such points; each charging its own local rate to and
from Pueblo. The total freight was collected by one, either from the consignor
or consignee, and daily settlements were made between them. Held, that such
course of business was in fact the establishment of a "through route" between
the two points, within the meaning of § 6 of the Interstate Commerce Act, as
amended by Act June 29, 1906, c. 3591, § 2, 34 Stat. 586 (U. S. Comp. St.
1909, p. 1153), which requires the filing of schedules of the "separately estab-
lished rates" applied by a carrier on through traffic, when there is a through
route, but no joint rate, and that such rate established by the Denver Company
was within the terms of the act, and as a part of the through charge was subject
to regulation by the interstate commerce commission under § 15 of the act as
amended. ^-

Necessity for Publication of Rates. — Lender the Interstate Commerce Act
requiring the filing with the commission of established joint rates by connecting

79. Where no joint rate established.— carriage was the sum of such two rates,

Kansas, etc., R. Co. v. Albers Comm. or 49^ cents per 100, and that under the

Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. interstate commerce law. as amended by

Ct. 316. Act March 2, 1889, c. 382, 25 Stat. 855

Through shipments of iron pipe were fu. S. Comp. St. 1901, p. 3156], neither

made from points in New Jersey and line over which the shipments passed

Pennsylvania to Winnipeg, Canada, part could lawfully charge a greater or less

over the Baltimore & Ohio Railroad and sum than was specified in the filed and

part over tlie Philadelphia & Reading to published schedule of rates to which it

the Great Lakes; thence by the Mutual ^as a party. United States v. Wood, 145

Transit Company, a water carrier, to Du- pg^. 405.

luth; and thence by the Great Northern 80 Kansas, etc., R. Co. v. Albers Comm.

Railway and its connections. There was ^^ ^^^ ^ g 5^3^ 5g ^_ ^^ 55(5^ 32 §_ q,

no through joint rate filed or published, ^^^'

l^e^: j5n^;omids\^tte^e,rt\ieli?i^r%o1n?s 81. Shipment from conj.on point-
ed Duluth published and filed by partici- !^,^"ff^i;'l'.o \^^- FH^t .2 SS' 316'
pating carriers, and one of 25 cents per 223 U. S. 573, 56 L. Ed. 550, 32 S._ Ct. 316.
100 between Duluth and Winnipeg filed 82. What amounts to establishing rate.
by the Great Northern Railway Company. —Denver, etc., R. Co. v. Interstate Com-
Held, that the lawful rate for the through merce Comm., 195 Fed. 968.



§§ 4127-4129



CARRIERS.



3740



carriers, where a receiving carrier files with the commission an established joint
rate, failure of the other connecting carriers to give publicity to the rate does not
invalidate a contract for the shipment of freight over such connecting lines, as
violative of the interstate commerce law, which is otherwise valid. '"^^^

§ 4128. Shipment Through Foreign Country. — The rates of transporta-
tion from places in the United States to ports of transshipment and from ports of
entry to places in the United States of property in foreign commerce, carried
under through bills of lading, are required to be filed and published. '^•^

Inland and Ocean Carriage. — If property is carried under a joint through
rate by virtue of a common control or arrangement of inland and ocean carriers,
the joint rate is required to be filed and published. ^-^ Where property is carried
under an aggregate through rate, which is the sum of the ocean rate and the rate
from or to a place in the United States to or from the port of transshipment or
of entrv, the latter rate is required to be filed and published.^''

Shipment to Foreign Country under Local Bill. — Shipments of freight
under local bills of lading calling for transportation from interior points in Louis-
iana to New Orleans, there to be delivered to the shipper's or consignee's order,
but intended by the shippers to be exported to foreign countries, and treated ac-
cordingly by both shippers and carriers, constitute foreign commerce, and as such
are governed as to the intrastate transportation by the tariffs on file with the
interstate commerce commission, to the exclusion of the rates established by the
state railroad commission.^"

§§ 4129-4131. Form, Requisites and "Validity— § 4129. In General.

— The interstate commerce commission may determine and prescribe the form in
which the schedules, required by the act to be kept open to public inspection, are
to be prepared and arranged, and may change the form from time to time as shall



83. Necessity for publication of rates. —

Virginia, etc., Iron Co. v. Louisville, etc.,
R. Co., 37 S. E. 310, 98 Va. 776.

84. Shipment through foreign country.
— Armour Packing Co. v. United States,
82 C. C. A. 135, r53 Fed. 1, 14 L. R. A.,
N. S., 400.

A carrier, which had never published or
filed with the Interstate Commerce Com-
mission a through rate to a foreign port,
was neither required nor could it make a
through rate to such port without violat-
ing Hepburn Act June 39, 1906, § 2. Ham-
len & Sons Co. v. Illinois Cent. R. Co.,
212 Fed. 324.

85. Inland and ocean carriage. — Act
Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S.
Comp. St. 1901, p. 3154]; Armour Pack-
ing Co. V. United States, 153 Fed. 1, 82 C.
C. A. 135, 14 U R. A., N. S., 400.

86. Armour Packing Co. v. United
States, 82 C. C. A. 135, 153 Fed. 1, 14 U
R. A., N. S., 400.

87. Shipment to foreign country under
local bill. — Railroad Comm. v. Texas, etc.,
R. Co., 229 U. S. 336, 33 S. Ct. 837.

A shipment of lumber destined by the
purchaser for export, made by the seller
under a local bill of lading from an in-
terior point in Texas to a Texas Gulf
port, at which the lumber was unloaded
without delay by the purchaser's order
into slips or docks, in reach of ship's



tackle, and was then loaded into char-
tered ships, by which it was carried to
foreign ports — such shipment not being
an isolated one, but typical of many oth-
ers — constitutes foreign commerce, and as
such is governed by the tariffs on file with
the interstate commerce commission to
the exclusion of the rates established by
the state railroad commission, although
the seller had no connection with the
lumber after it reached the railway termi-
nus, and had no concern with its desti-
nation after it came into the hands of
the purchaser, and no knowledge thereof,
and although the lumber had no definite
foreign destination at the time of the ini-
tial shipment. Texas, etc., R. Co. v. Sa-
bine Tram Co., 227 U. S. Ill, 33 S. Ct.
229.

In Southern Pac. Terminal Co. v. In-
terstate Commerce Comm., 219 U. S. 498,
55 L. Ed. 310, 31 S. Ct. 279; Railroad
Comm. V. Worthington, 225 U. S. 101, 56
L. Ed. 1001, 32 S. Ct. 653, and Texas, etc.,
R. Co. V. Sabine Tram Co., 227 U. S. Ill,
33 S. Ct. 229, there was necessarily a
local movement of freight, and it neces-
sarily terminated at the seaboard, but it
was decided that its character and con-
tinuity as a movement in foreign com-
merce did not terminate, nor was it af-
fected by being transported on local bills
of lading. Railroad Comm. v. Texas, etc.,
R. Co., 229 U. S. 336, 33 S. Ct. 837.



3741 INTERSTATE COMMERCE) ACT. §§ 4129-4132

be found expedient. '^'^ The purpose of this provision was to compel the schedules
to be so drawn as to plainly inform of their import, and to exact that when
the rates were changed the change should be so stated as not to mislead and
confuse.'*^'* Nor does the provision granting power to the commission to prescribe
forms of schedules of rates, as provided for in the sixth section, have any such
ciTect.'-'"

§ 4130. Printed. — The schedules of rates, fares and charges required to be
printed l)y a common carrier shall be plainly printed in large type.'-^^

Terminal Charges. — The terminal charges of a carrier for delivering live
stock beyond its own lines to a union stockyard may be stated in a separate item,
and not necessarily upon the general freight charges of the carrier. ^^

§ 4131. Validity. — Where a railroad company filed two rates with the inter-
state commerce commission, the lower providing for an agreed valuation of live
stock shipped, which condition was invalid, under the state law, for limiting
the railroad company's liability for negligence, a decision that the shipper might
recover despite the condition, while giving him all the benefits of the higher rate,
is not erroneous in giving the shipper a less rate than required by law, because of
the filing of the schedule of rates with the interstate commerce commission, for
the validity of the agreement limiting the carrier's liability for negligence can not
be assumed to have been approved by the commission, when invalid under the
state law.'^^

§ 4132. Contents. ^It is provided that the schedules of rates, fares and
charges, required to be printed by a common carrier shall plainly state the places
upon its railroad between which property and passengers will be carried, and shall
contain the classification of freight in force, and shall also state separately the
terminal charges and any rules or regulations which in any way change, afTect, or
determine any part of the aggregate of such aforesaid rates, fares and charges. '^^

Special Charges. — It at least seems to have been recognized by congress that
there may properly be rules or regulations which in some wise change, affect, or
determine a part or the aggregate of the scheduled rates and charges, and there
is nothing in the act clearly indicating that the rate or charge for every service
must be included in one specified sum.''^

88. Form of schedules. — Interstate own yards, and that, for transportation to
Commerce Act, § 6, as amended March the Union Stockyards, a stated addi-
2, 1889; Texas, etc., R. Co. v. Abilene tional charge will be made, the amount
Cotton Oil Co., 204 U. S. 426, 51 L. Ed. of such charge being entered, not upon
553, 27 vS. Ct. 350, 9 Am. & Eng. Ann. the general freight charges of the com-
Cas. 1075. panics, but as a separate item. Decree,

89. Interstate Commerce Comm. v. Chi- Stickney v. Interstate Commerce Comm.,
cago etc R. Co., 186 U. S. 320, 46 L. 164 Fed. 638, affirmed in 215 U. S. 98,
Ed. 1182, 22 S. Ct. 824. 54 L. Ed. 112. 30 S. Ct. 66.

90. Southern Pac. Co. v. Interstate 93. Validity.— Cramer v. Chicago, etc.,
Commerce Comm., 200 U. S. 536, 50 L. R. Co., 153 Iowa 103, 133 N. W. 387.
Ed 585 26 S. Ct. 330. 94. Contents. — Interstate Commerce

91. Printed.— Gulf, etc., R. Co. v. Hef- Act, § 6, as amended March 2, 1889; In-
ley 158 U S 98 39 L. Ed. 910, 15 S. Ct. terstate Commerce Comm. v. Brimson,
802- Texas, etc., R. Co. v. Cisco Oil Mill, 154 U. S. 447, 38 L. Ed. 1047, 14 S. Ct.
204' U S 449, 51 L. Ed. 562, 27 S. Ct. 1125; Wight v. United States, 167 U. S.
358; Parsons v. Chicago, etc., R. Co., 167 512, 43 L. Ed. 258, 17 S. Ct. 822; Inter-
U S 447 42 L Ed 231 17 S. Ct. 887. state Commerce Comm. v. Detroit, etc.,

92.' Terminal charges.— Carriers sepa- R. Co., 167 U. S. 633, 42 L. Ed. 306, 17

rately state the terminal charges for de- S. Ct. 986; Interstate Commerce Comm.

livering live stock beyond their own lines v. Chicago, etc., R. Co., 186 U. S. 320, 46

to the Union Stockyards in Chicago, as L. Ed. 1182. 22 S. Ct. 824; Texas, etc.,

required by Act Tune 29, 1906, c. 3591, R. Co. v. Cisco Oil Mill, 204 U. S. 449,

§ 2 (U. S. Comp. St. Supp. 1907, p. 895), 51 L. Ed. 562. 37 S. Ct. 358.

where their tariff schedules inform ship- 95. Special charges.— Knudsen-Fergu-

pers that the live stock rates to Chicago son Fruit Co. v. Michigan Cent. R. Co.,

apply only to deliveries at the carriers' 148 Fed. 968, 79 C. C. A. 46.



§ 4132 CARRIERS. 3742

Terminal Charges. — Railroad companies may make a distinct charge for car-
riage from the point of shipment of live stock to a city, and a separate terminal
charge for delivery to stockyards, a point beyond the lines of the respective car-
riers — especially in view of the sixth section of the act to regulate commerce,
providing that schedules of rates to be filed by carriers shall state separately the
terminal charges and any rules or regulations which in any wise change, affect^
or determine any part of the aggregate of said aforesaid rates and fares and
charges.^*' Carriers who had long delivered live stock to the union stockyards in
Chicago without making any distinct terminal charges did not, by giving notice to
the public that a terminal charge would be made for delivery at the stockyards,
in addition to the entire previous through rate to Chicago, and by filing a memo-
randum to that effect with their rate sheets with the interstate commerce commis-
sion, separate in their schedules the entire terminal charge from the through rate,
as required by the sixth section of the act to regulate commerce, but simply added
this additional charge to the sum of the terminal charge embraced in the prior
through rate.^^ A consignee of a shipment of fruit, which, after the same was
delivered to it and with full knowledge of the facts, paid without objection the
charges of the carrier, including a charge for icing in transit, in addition to the
published tariff rate for carriage, can not thereafter maintain an action to recover
back the amount of such icing charge, on the ground that it was illegally ex-
acted. ^^

Charges for Icing. — So far as the accomplishment of the great purposes of
the Interstate Commerce Act is concerned, it would not seem to be very ma-
terial whether charges for icing are fixed at a specified rate per ton of ice fur-
nished and therefore separately stated in the schedules, or measured accord-
ing to the weight of the commodity subject to refrigeration and the distance of
transportation, in which event they might be more easily covered into the trans-
portation rate. The former method would probably result in a closer approxi-
mation of charge imposed to value of service performed, and be more adjusta-
ble to the variable conditions of the seasons and the demands of the shippers,,
while the latter might the better conduce to simplicity in the schedules. W hich
should be adopted would seem to be a question of practice and expediency,
rather than one of law.^^ "The interstate commerce commission, not consider-

96. Terminal charges. — Decree, 43 C. C. nal charge for delivery to the stockyards-
A. 209, 103 Fed. 249, affirmed in Inter- in that city, which was a point beyond
state Commerce Comm. v. Chicago, etc., their lines; but. because it did not arise in
R. Co., 186 U. S. 320, 46 L. Ed. 1182, 22 the case, the court declined to express an

5. Ct. 824. opinion upon the question whether the
Under Act to Regulate Commerce, § rule would be applicable to terminal serv-

6, providing that terminal charges shall ices by a carrier upon its own line which
be stated in the published schedules, a it was obliged to perform as a necessary
shipper's charge against a carrier for incident to its contract to carry." Knud-



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 120 of 214)