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"spotting" cars on the shipper's tracks in sen-Ferguson Fruit Co. v. Michigan Cent,
its own yards could not be collected as a R. Co., 148 Fed. 968, 79 C. C. A. 46.
terminal charge, where it had never been "In Walker r. Keenan, 19 C. C. A. 668,
published as such. New York, etc., R. 73 Fed. 755, the court, in discussing the
Co. V. General Elect. Co., 146 N. Y. S. Keith Case, said there was no reason why
322, 83 Misc. Rep. 529. the compensation of a carrier should not

97. Decree, 43 C. C. A. 209, 103 Fed. me apportioned if the public convenience
249, affirmed in Interstate Commerce were subserved thereby, but that since
Comm. V. Chicago, etc., R. Co., 186 U. the passage of the interstate commerce
S. 320, 46 L. Ed. 1182, 22 S. Ct. 824; law the apportionment should be speci-
Knudsen-Ferguson Fruit Co. v. Michi- fied in the tariff schedules for the infor-
gan Cent. R. Co., 148 Fed. 968, 79 C. C. mation of shippers." Knudsen-Ferguson
A. 46. Fruit Co. v. Michigan Cent. R. Co., 148

"In Interstate Commerce Comm. v. Fed. 968, 79 C. C. A. 46.

Chicago, etc., R. Co., 186 U. S. 320, 46 98. Knudsen-Ferguson Fruit Co. v.

L. Ed. 1182, 22 S. Ct. 824, the court up- Chicago, etc., R. Co., 149 Fed. 973.

held the right of the railroads to make 99. Charges for icing.— Knudsen-Fer-

a distinct charge from the point of ship- guson Fruit Co. v. Michigan Cent. R.-

ment to Chicago, and a separate termi- Co., 148 Fed. 968, 79 C. C. A. 46.



3743 INTERSTATE COMMERCE ACT. § 4132

ing that the question was foreclosed by any provision of the act of congress,
has thus expressed its views : 'There are at least three methods which may be
adopted by the carrier in imposing such charges. It may charge for the ice
actually used at so much per ton ; it may charge for the service of refrigeration
at so much per car, whatever the quantity of ice consumed may be ; or it may
charge at a rate by the hundred pounds, when property moves under refrigera-
tion. All these different systems have their advantages and disadvantages.
Some witnesses were in favor of one system, some of another. It is not within
the province of this commission to prescribe the method which shall l^e adopted,
so long as the price charged the shipper is fair.' " ^

Cartage. — It is doubtful whether cartage, when furnished without charge
t)y a railroad company, comes within the meaning of the phrase "terminal
■charges," or can be regarded as "a rule or regulation" which in anywise "changes,
affects or determines" any part or the aggregate of the rates, fares and charges. ^
However, it has been said, in a matter of this kind, much should be left to the
judgment of the commission, and should it direct, by a general order, that rail-
way companies should thereafter regard cartage when furnished free as one of
the terminal charges, and include it as such in their schedules, such an order
might be regarded as a reasonable exercise of the commission's power. ^ There-
fore, it has been held that the failure of a railroad company to state in its sched-
ules posted and published at a point on its line, the fact that it furnishes free
cartage at such point, is not a violation of § 6 of the interstate commerce act,
from the fact that the failure to publish the fact of free cartage in its schedule
might result in ignorance by some shippers of the existence of such a privilege.'^

Privileg-es and Facilities Granted. — The furnishing of lumber for bulk-
heads for a grain car was not the furnishing of "privileges of facilities" within
the meaning of the Interstate Commerce Act, requiring the schedules filed by a
carrier with the interstate commerce commission to state the privileges and fa-
cilities granted or allowed by the carrier, and the fact that a carrier's printed
schedule did not show that bulkheads were furnished in grain cars would not
prevent a shipper, who furnished material for constructing bulkheads in cars
furnished him for shipping grain, in order to make the cars available for use,
from recovering the expense of such bulkheads from the carrier ; the carrier
being under a common-law obligation to pay such expense.^

Baggage Regulations. — By requiring the baggage regulations, including the
excess valuation rate, to be filed and become part of the tariff' schedules, the
rule of the common law that the carrier becomes an insurer of the safety of bag-
gage against accidents not the act of God or the public enemy or the fault of the
passenger is not changed. The effect of such filing is to permit the carrier by
such regulations to obtain commensurate compensation for the responsibility
assumed for the safety of the passenger's baggage, and to require the passenger
whose knowledge of the character and value of his bao^^age is i^eculiarlv his
own to declare its value and pay for the excess amount. There is no question of
the reasonableness or propriety of making such regulations, which would be
binding upon the passenger if brought to his knowledge in such wise as to make
an agreement or what is tantamount thereto.^

1. Knudsen-Ferguson Fruit Co. v. 3. Interstate Commerce Comm. v. De-
Michigan Cent. R. Co., 148 Fed. 968, 79 troit, etc., R. Co., 167 U. S. 633, 42 L.
C. C. A. 46. Ed. 306, 17 S. Ct. 986.

" 'This was said in a cause pending be- 4. Interstate Commerce Comm. v. De-
fore the commission involving the very troit, etc., R. Co., 167 U. S. 633, 42 L-
practice now challenged by the plaintiff.' Ed. 306, 17 S. Ct. 986.
11 Int. Com. Com'n R. 129, 141." Knud- 5. Privileges and facilities granted.^
sen-Ferguson Fruit Co. v. Michigan Loomis v. Lehigh Vallev R. Co., 132 N.
Cent. R. Co., 148 Fed. 968, 79 C. C. A. 46. Y. vS. 138, 147 App. Div. 195.

2. Cartage. — Interstate Commerce 6. Baggage regulations. — Boston, etc.,
Comm. V. Detroit, etc.. R. Co., 167 U. Railroad v. Hooker, 233 U. S. 97, 34 S.
S. 633, 42 L. Ed. 306, 17 S. Ct. 986. Ct. 526.



§ 4133 CARRIERS. 3744

§ 4133. Publishing. — Effective railroad regulations under the Interstate
Commerce Act must begin with the publicity of rates, and the penalty for failure
to publish and file the rates is as severe as the penalty for failure to observe them
after filing.''' The consignee is, on tender of the freight stipulated in the bill
of lading, though it is less than the rate approved by the interstate commerce com-
mission, entitled to possession of goods transported by connecting carriers jointly,
in the absence of proof of publication of the latter rate as provided by § 6 of
the Interstate Commerce Act.'*

Where Carrier's Line Is Wholly Intrastate. — Under the provision requir-
ing several common carriers operating a through line engaged in interstate com-
merce to file schedules of rates constituting the basis of a through interstate rate,
each carrier, though operating a line wholly within a state, which line is a por-
tion of a through route engaged in interstate commerce through a common ar-
rangement between several connecting carriers, is bound to comply with such
act.9

Prerequisite for Conviction for Giving" Rebate. — It is not essential, how-
ever, to the commission of the offense of giving a concession from a through
rate over connecting lines of railroad, under the Act of February 19, 1903, that
the rate be a joint one established by all of the carriers and published and filed
with the interstate commerce commission. If an initial carrier accepts traffic for
transportation, and issues its bill of lading over a route made up of connecting
roads for which no joint through rate has been published and filed with the com-
mission, the lawful rate to be charged is the sum of the established local rates
published and filed by the individual roads ; or if there is a local rate over one
road and a joint rate over the others for the remainder of the route, all published
and filed with the commission, the lawful through rate to be charged is the sum
of the local and joint rates. ^"'

Terminal and Demurrage Charges. — Demurrage charged for the detention
of cars in loading or unloading is a terminal charge, required to be shown by
the schedules of rates filed and published by an interstate railroad company by
the terms of the interstate commerce act which define transportation as including
all the instrumentalities and facilities of shipment and all services in connection
with the receipt, delivery, and handling of property transported, and require the
filing and publishing of schedules showing all the rates, fares, and charges for
transportation, stating separately all terminal charges. ^^ A carrier subject to
the act may furnish free cartage from its depot at one station without publish-
ing the fact, and not do so at another near by, without infringing upon § 4 or
§ 6, especially when the practice has been long established. i- Cartage is not in
general a terminal expense, and is not in general assumed by the carrier. The
transportation as between the carrier and its patrons ends when the freights are
received at the warehouse, and the charge made is for a service which end.s
there. 12 Under the facts the general traffic rate for interstate freight does not
include delivery to an industrial plant of the consignee or the transportation of
the cars from the industrial plant of the shipper to the carrier's yard or main
line over a distance varying from one-fifth of a mile to seven miles, but the car-
rier performing such service is entitled to exact a reasonable charge therefor.^*

7. Publishing.— United States v. Illinois 110 C. C. A. 51.3, 188 Fed. 879, affirming
Terminal R. Co., 168 Fed. 546. judgments United States v. Philadelphia,

8. Atlanta, etc., R. Co. v. Home, 106 etc., R. Co., 184 Fed. 543. and United
Tenn. (22 Pickle) 73, 59 S. W. 134. _ States v. Lehigh Valley R. Co., 184 Fed.

9. Where carrier's line is wholly intra- 546.

state. — United States v. New York, etc., 12. Interstate Commerce Comm. v. De-

R. Co., 153 Fed. 630. troit, etc., R. Co., 167 U. S. 633, 42 L-

10. Prerequisite for conviction for giving Ed. 306, 17 S. Ct. 986.

rebate. — Chicago, etc., R. Co. v. United 13. Interstate Commerce Comm. v. De-
States, 157 Fed. 830, affirmed in 209 U. troit, etc., R. Co., 167 U. S. 633, 42 L-
S. 90, 52 L. Ed. 698, 28 S. Ct. 439. Ed. 306, 17 S. Ct. 986.

11. Terminal and demurrage charges.— 14. Atchison, etc., R. Co. v. Interstate
Lehigh Valley R. Co. v. United States, Commerce Comm., 188 Fed. 229.



3745



INTERSTATE COMMERCE ACT.



§§ 4133-4134



As Prerequisite to Engaging in Transportation. — The act requires every
carrier subject to the act to file with the interstate commerce commission, print,
and keep open to public instruction, schedules showing all the rates for transpor-
tation between different points on its own route, and between points on its own
route and that of any other railroad company, when a through route and a joint
rate have been established, and also forbids the carrier to engage fn the trans-
portation of property between states without filing such rates. It is only the
"business" of a common carrier, which could not be exercised without filing
rates, and a railroad company was not prohibited from receiving freight for trans-
portation to another state by the fact that no through route and joint rates had
been established between the points of shipment and delivery. ^•''

§ 4134. Posting. — Copies of the printed schedules, for the use of the public
shall be posted in two public and conspicuous places in every depot, station, or
office of such common carrier where passengers or freight, respectively, are re-
ceived for transportation, in such form that they shall be accessible to the public
and can be conveniently inspected.^'* Where a schedule of rates had been filed
with the interstate commerce commission and copies thereof furnished to the
freight officers of the railroad company, it was held that such schedule of rates
had become legally operative, notwithstanding copies had not been posted in its
depots as required by the act to regulate commerce. ^"^ A carrier, filing its rates
with the interstate commerce commission as required by the interstate commerce
act is barred from making any agreement for a greater or less rate than that
prescribed by the rates filed, though it failed to post and publish the rates as
prescribed by the act, but only posted a card to the effect that the rates were in
charge of an agent in an office, and kept there for the convenience of the public. ^^
But where the evidence showed that the rate as promulgated by the interstate
commerce commission had not been posted in the station at the shipping point,
and the carrier's agent there was not notified of its existence, but acted on the
tariff sheet in his possession, contracting with reference thereto to carry hay



15. As prerequisite to engaging in trans-
portation. — Reid V. Southern R. Co., 153
N. C. 490, (59 S. E. 618.

16. Posting.— Gulf, etc., R. Co. v. Hef-
ley, 158 U. S. 98, 39 L. Ed. 910, 15 S.
Ct. 802.

17. Texas, etc., R. Co. v. Cisco Oil
Mill, 204 U. S. 449, 51 L. Ed. 562, 27 S.
Ct. 358; Kansas, etc., R. Co. v. Albers
Comni. Co., 32 S. Ct. 316, 223 U. S. 573,
56 L. Ed. 556, reversing judgment 99 Pac.
819, 79 Kan. 59.

That a carrier failed to post its sched-
ules and tariff sheets in a depot, as re-
quired by the interstate commerce law,
does not affect the validity of the rates
promulgated, filed with the interstate
commerce commission, and deposited with
the station agent. Mires z>. St. Louis, etc.,
R. Co., 134 Mo. App. 379, 114 S. W. 1052.

"Like views of the posting clause were
expressed in Texas, etc., R. Co. v. Cisco
Oil Mill, 204 U. S. 449, 51 L. Ed. 562,
27 S. Ct. 358, and upon further considera-
tion we perceive no reason for departing
from them. See, also, Kansas, etc., R. Co.
V. Albers Comm. Co., 223 U. S. 573, 56
L. Ed. 556, 32 S. Ct. 316." United States
V. Miller, 223 U. S. 599, 56 L. Ed. 568,
32 S. Ct. 323.

Where a railroad company seasonably
made out and filed its traf^c schedules,



as required by Interstate Commerce Act,
§ 6, and forwarded copies to its local
agents, the fact that some of its local
agents failed to post them did not in-
validate the rates established. Louisville,
etc., R. Co. V. Allen, 153 S. W. 198, 152
Ky. 145, petition for rehearing overruled
154 S. W. 371, 152 Ky. 837.

18. Houseman v. Fargo, 124 N. Y. S.
1086.

Erroneous quotation by agent of an in-
terstate carrier of a lower freight rate
than that fixed by the published tariff
gives no right of action to a shipper who
sustains injury by acting on the faith of
the quoted rate, though such tariff was
not posted in the carrier's local station.
Illinois Cent. R. Co. v. Henderson Ele-
vator Co., 33 S. Ct. 176, 226 U. S. 441, 57
L. Ed. 290, reversing judgment 127 S. W.
779, 138 Ky. 220.

Where defendant failed to post an es-
tal)lished rate at a station from which
plaintiff's cattle were shipped, whereby
he was compelled to pay a rate higher
than if he had shipped under a competitive
rate over another road, he was entitled
to recover the difference under Interstate
Commerce Act, § 8. St. Louis, etc., R.
Co. V. Lewellen Bros., 192 Fed. 540, 113
C. C. A. 414, writ of certiorari denied
in 32 S. Ct. 835, 225 U. S. 701.



§ 4134 CARRmRS. 3746

for a shipper, the carrier was Hable in an action by the shipper for charges in
excess of such contract rate collected at the point of destination at the rate speci-
fied in the new tariff.^^

Distinguished from Publication. — Publication and posting in the sense of
the act are essentially distinct. 2*J From all the provisions on the subject it_ is
evident that the publication intended consists in promulgating and distributing
the tariff in printed form, preparatory to putting it into effect, while the posting
is a continuing act enjoined upon the carrier, while the tariff remains operative, as
a means of affording special facilities to the public for ascertaining the rates in
force thereunder. In other words, publication is a step in establishing rates,
while posting is a duty arising out of the fact that they have been established. ^^

Posting Notice That Copies in Possession of Agent. — The provision rela-
tive to a common carrier engaged in interstate commerce over a line owned en-
tirely by it, that it shall post printed copies of its schedules of rates for the use
of the public in two public and conspicuous places in every station where freight
is received for transportation, in such form that they shall be accessible to the
public, and can be conveniently inspected, is not satisfied by the station agent
having copies of the schedule, and the posting of a notice of this fact, and that
they can be inspected on application, so as to put into effect the further provision
of the section that when the carrier shall have established and published its rates in
compliance with the provision of the section, it shall be unlawful for the carrier
to charge a smaller rate than specified in such published schedules. -^

Where Copies Torn Down.— The posting of copies of rates at a railroad sta-
tion, where they are afterwards torn down, is not a compliance with the interstate
commerce act, requiring a carrier to keep copies of its schedules of rates posted
.at its stations, etc.^^

Prerequisite to Establishing Rates. — Obviously, posting is not a condition
to making a tariff' legally operative. Neither is it a condition to the continued
existence of a tariff once legally established. If it were, the inadvertent or mis-
chievous destruction or removal of one of the posted copies from a depot would
disestablish or suspend the rates — a result which evidently is not intended by the
act, for it provides that rates only lawfully established shall not be changed
otherwise than in the mode prescribed.-^ In none of its expressions is there
any suggestion that posting is a necessary step in establishing rates; that is, in
making them legally operative.^s Posting, is not essential to make rates legally
operative, and is required only as a means of aft'ording special facilities to the
public for ascertaining the rates actually in force. ^'^ But where a railroad

19. Chicago, etc., R. Co. v. Gardner necessary to the establishment of the rate;
(Tex. Civ. App.), 86 S. W. 793. and hence, where a rate is known to the

20. Distinguished from publication. — persons operating the railroad as a fixed
United States v. Miller, 223 U. S. 593, 56 rate, having a uniform character, and un-
L. Ed. 568, 32 S. Ct. 323. dertaking to treat all shippers alike in pro-

21. United States v. Miller, 223 U. S. portion to the distances shipped, then such
599. 56 L. Ed. 568, 32 S. Ct. 323. rate is established, within the meaning of

22. Posting notice that copies in posses- the section making discrimination a crime.
sion' of agent.— Wabash R. Co. r. Sloop, United States v. Howell, 56 Fed. 21.

200 Mo. 198, 98 S. W. 607. 25. United States v. Miller, 223 U. S. 599,

23. Where' copies torn down. — Griffin v. 56 L. Ed. 568, 32 S. Ct. 323.

Wabash R Co., 115 Mo. App. 549, 91 S. 26. Kansas, etc., R. Co. v. Albers Comm.

W. 1015. Co., 223 U. S. 573, 56 L. Ed. 556, 32 S.

24. Prerequisite to establishing rates.— Ct. 316; Texas, etc., R. Co. v. Cisco Oil
United States v. Miller, 223 U. S. 599. 56 Mill, 204 U. S. 449, 51 L. Ed. 562, 27 S.
L. Ed. 568, 32 S. Ct. 323. See, also, Texas, Ct. 358.

etc., R. Co. V. Cisco Oil Mill. 204 U. S. Interstate freight rates are established

449, 51 L. Ed. 562, 27 S. Ct. 358; Kansas, when schedules thereof are regularly

etc., R. Co. V. Albers Comm. Co.. 223 U. printed, filed with the interstate commerce

S. 573, 56 L. Ed. 556, 32 S. Ct. 316. commission, and kept open to public in-

The posting of schedules required by spection by the earner at its freight om-

the Interstate Commerce Act is solely for ces. although such rates may not be

the information of the public, and is not posted in public and conspicuous places,



3747 INTERSTATE COMMERCE ACT. §§ 4134-4135

company failed to post a schedule of tariff rates as required by Interstate Com-
merce Act for the use of the public in every depot where passengers of freight
are received for transportation, and a shipper in ignorance of such schedule,
relying upon a schedule previously in force, contracted for shipment of grain,
to his damage, he could recover of the railroad company therefor at common
law.2"

Prerequisite for Prosecution for Rebate. — Compliance with the require-
ments of § 6 of the act to regulate commerce of June 29, 1906, that copies of
schedules and tariff's for the use of the public shall be "posted" in two public
and conspicuous places in every depot, so as to be readily accessible to the
pubHc, is not essential to bring a tariff within the provision of such act making it
a misdemeanor for any shipper knowingly to solicit, accept, or receive a rebate
or concession whereby property is transported in interstate commerce at a less
rate than that named in the tariffs "published and filed" by such carrier, as
publication is a step in establishing rates, while posting is a duty arising from the
fact that they have been established.-'^

Demurrage Charges. — A charge for demurrage on cars is not invalidated
though the rules regarding such demurrage were not posted in two public places
in the company's depot as required by the rules of the interstate commerce com-
mission. ^^

§ 4135. Filing with Commission. — Every common carrier subject to the
provisions of the Interstate Commerce Act is required to file with the interstate
commerce commission copies of its schedules of rates, fares and charges which
have been established and published in compliance with the requirements of the
act, and to promptly notify the commission of all changes made in same.=^<^ In
order to establish an interstate freight rate, under the Interstate Commerce Act
as it stood in 1908, the carrier is bound to file the schedule with the interstate
commerce commission.'^ i On action for demurrage, failure to file tariffs or
the filing of defective ones with the interstate commerce commission has • no
legal bearing on the right to recover the ordinary and usual charges. ^^ ^ com-
mon carrier is not deprived of its right to make a charge for demurrage though
the rules and tariffs are separately filed with the interstate commerce commis-
sion. ^^

as required by § 6 of the Interstate Com- Cisco Oil Mill, 204 U. S. 449, 51 L. Ed.

merce Act of February 4, 1887, as amended 562, 27 S. Ct. 358.

by the Act of March 2, 1889, as posting 27. Illinois Cent. R. Co. v. Henderson

is not essential to make rates legally op- Elevator Co., 138 Ky. 220, 127 S. W. 779.

erative, but is required only as a means 28. Prerequisite for prosecution for re-

of affording- special facilities to the public bate. — United States v. Miller, 223 U. S.

for ascertaining the rates actually in force. 599, 56 L. Ed. 568, 32 S. Ct. 323.

Kansas, etc., R. Co. v. Albers Comm. Co., 29. Demurrage charges. — Chicago, etc.,

223 U. S. 573. 56 E. Ed. 556, 32 S. Ct. 316. R. Co. v. Berwind, etc., Min. Co., 171 111.

Interstate freight rates are established App. 302.
when a schedule thereof is filed by a car- 30. Filing copies with commission.— In-
ner with the interstate commerce com- terstate Commerce Comm. v. Cincinnati,
mission and copies are furnished by the gj-^ r Qq ^m U S 479 42 L Ed 243
railway company to its freight offices, al- 17 'c,. Ct. 896; Savannah, ' etc., R. Co. v.
though such rates may not be posted, Florida Fruit Exch., 167 U. S. 512, 42 L.
as required by § G of the Act to Regulate pd. 257, 17 S. Ct. 998; Texas, etc., R. Co.
Commerce, as amended March 2 1889, c. .^,_ Abilene Cotton Oil Co., 204 U. S. 426,
;.!on^^^l - l^^- f^- ^- ^?"'P- St. 1901, 51 L. Ed. 553, 27 S. Ct. 350, 9 Am. & Eng.
p. 3158 J, which IS not made a condition Ann Cas 1075

precedent to the establishment and put- „,' tt \ ' cx t • ^ r, r^ ^^^

ting in force of the tariff of rates, but is ,/^\"""^///'';.? Q^°^\"'^,', " ^°"

a provision based upon the existence of M°- ^PP" ^'^4, 150 S. W. 733.

an established rate, which has for its ob- 32. Chicago, etc., R. Co. v. Berwind, etc.,

jcct the affording of special facilities to Min. Co., 171 111. App. 302.

the public for ascertaining the rates ac- 33. Chicago, etc., R. Co. v. Berwind, etc.,

tually in force. Texas, etc., R. Co. v. Min. Co., 171 111. App. 303.

4 Car— 41



§ 4135 CARRIERS. 3748

Agreements with Other Carriers. — It is also required that every such
common carrier shall file with the commission copies of all contracts, agree-



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