Copyright
Thomas Johnson Michie.

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

. (page 123 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 123 of 214)
Font size
QR-code for this ebook


filing and publishing of such rate is ex-
cepted from the term of such contract by
the acts of congress regulating commerce
which are a part thereof. Armour Pack-
ing Co. V. United States, 153 Fed. 1, 82
C. C. A. 135, 14 L. R. A., N. S., 400.

An interstate shipper is liable to pay
the freight fixed by printed and published
schedules of the initial carrier on file with
the interstate commerce commission, not-
withstanding any stipulations in the bill
of lading to the contrary. Yorke Furni-
ture Co. V. Southern R. Co. (S. C), 78
S. E. 67.

Made before act took effect.— Act Cong.
Feb. 4, ]ss7. entitled "An act to regulate
commerce," al)rogated all existing con-
tracts with common carriers for special
interstate commercial rates, and vested in
the federal courts or tribunals specified



therein exclusive jurisdiction to inquire
into and adjust such interstate rates as
are alleged to be unfair or discriminative.
Fitzgerald v. Fitzgerald, etc., Constr. Co.,
41 Neb. 374, 59 N. W. 838.

Payment of schedule rate as prerequi-
site to recovery of goods. — 24 Stat. 379,
declares that, if any common carrier shall
receive from any person a greater or less
compensation for any service rendered
than it receives from others for a like
service, such carrier shall be guilty of un-
just discrimination, which is declared to
be unlawful. Held, that where plaintiff
sued a railroad company to recover cer-
tain chattels without first paying freight
charges thereon according to the com-
pany's published schedule, and plaintiff
claimed an agreement whereby transpor-
tation charges were to be less than the
published schedule, there could be no re-
covery, such contract being unlawful as
to both parties. Church v. Minneapolis,
etc., R. Co., 85 N. W. 1001, 14 S. Dak.
443.

66. Taenzer & Co. v. Chicago, etc., R.
Co., 191 Fed. 543, citing Gulf, etc., R.
Co. V. Hefley, 158 U. S. 98, 39 L. Ed.
910, 15 S. Ct. 802; Texas, etc., R. Co. v.
Mugg, 202 U. S. 242, 50 L. Ed. 1011, 26
S. Ct. 628; Armour Packing Co. v. United
States, 209 U. S. 56, 52 L. Ed. 681, 28 S.
Ct. 428; New York, etc., R. Co. v. Inter-
state Commerce Comm.. 200 U. S. 361. 50
L. Ed. 515. 26 S. Ct. 272.

67. The interstate commerce law (Act
Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S.
Comp. St. 1901, p. 3154]) abrogated the
right of the carrier and shipper to fix the
freight rate by contract; the law fixing
the rate. Baltimore, etc., R. Co. v. New
All)any Box, etc., Co., 48 Ind. App. 647,
94 N. E. 906, 96 N. E. 28.

68. Armour Packing Co. v. United
States, 209 U. S. 56, 52 L. Ed. 681, 28 S.
Ct. 428; Louisville, etc., R. Co. v. Mottley,
219 U. S. 467. 55 L. Ed. 297, 31 S. Ct. 265,
34 L. R. A.. N. S., G71.

69. Made before act took effect. — New
York, etc.. R. Co. v. Interstate Commerce
Comm., 200 U. S. 361, 50 L. Ed. 515, 26 S.
Ct. 272.



§ 4140 carrie:rs. 3754

Where Rate Intentionally Misquoted. — The contract being against the
public policy of the L'nited States, as expressedly declared by these statutes,
the fact that the shipper did not intend to violate the law is immaterial.'^"
Where an unusually low rate has been given by the agent of several connecting
carriers _ on a shipment of unusual character, and the initial carrier willfully
misroutes the goods so that the shipper is compelled to pay a much higher rate,
such initial carrier can not escape liability for damages on the ground that the
rate given was in violation of interstate commerce lawJ^

Where Mistake in Quoting Rate. — A common carrier may exact the regu-
lar rate for an interstate shipment, as shown by its printed and published sched-
ules on file with the interstate commerce commission and posted in the stations
of such carrier, as required by the Interstate Commerce Act, although a lower
rate was quoted by the carrier to the shipper, who shipped under the lower rate
so quoted;"- since otherwise, a discrimination in favor of the shipper would
result, and this is so whether the mistaken rate is fixed in the bill of lading, or
whether it was by parol agreement on a mistaken quotation of the rates made
by the agent at point of shipment ; and whether the shipper was ignorant of the
actual published rate is immaterial.'-* A railroad company being prohibited by
the interstate commerce act from charging any less freight on interstate traffic
than prescribed by the interstate commerce commission for the route over which
the shipment is actually carried, no contract, and no mistake in naming a wrong
rate, can affect the right to collect such prescribed rate."^ Where a carrier made
an unintentional mistake in quoting a freight rate less than the regular tariff
rate on file with the interstate commerce commission upon which the shipper
fixed a price to be asked a customer for grain shipped and the dift'erence between
the quoted rate and the regular rate on file with the commission was subsequently
collected, there could be no recovery by the shipper against the carrier; the
Interstate Commerce Act binding both parties.'^ -^ A contract between a station
agent and a shipper for an interstate shipment was entered into on authority
from railwav headquarters, acting under the mistaken supposition that the ship-
ment was to be within the state. The rate agreed on was less than the rate
posted under the interstate commerce law. The contract could not be enforced."^
A carrier can not contract for a different rate, directly or indirectly, as by pay-
ment under a mistake of fact as to weights, and settlement of such mistake.''^

70. Where rate intentionally misquoted. Co., 212 Fed. 324.

— New York, etc., R. Co. v. Interstate Where a shipper of flour was. by a
Commerce Comm., 200 U. S. 361, 50 L. mistake of a responsible officer of plain-
Ed. 515, 26 S. Ct. 272; Texas, etc., R. Co. tiff railroad company, given a rate which
V. MuRg, 202 U. S. 242. 50 L. Ed. 1011, was less than that legally prescribed and
26 S. Ct.' 628; Taenzer & Co. v. Chicago, shipped pursuant to such rate for two
etc., R. Co., 191 Fed. 543. years, the railroad company, upon discov-

71. Pond-Decker Lumber Co. v. Spen- ering the mistake was entitled to recover
cer, 30 C. C. A. 430, 86 Fed. 846. the difference between the legal rate and

72. Where mistake in quoting rate.— the rate paid by the shipper; equities in
United 5/(7/«.— Judgment, 98 Tex. 352, 83 favor of the shipper constituting no de-
S W. 800, 107 Am. St. Rep. 633. reversed fense. Central R. Co. v. Mauser, 88 Atl.
in Texas, etc., R. Co. v. Mugg, 202 U. S. 791, 241 Pa. 603.

242 50 L Ed. 1011, 26 S. Ct. 628; New 73. St. Louis, etc., R. Co. v. Wolf, 100

York, etc., R. Co. v. United States, 212 Ark. 22, 139 S. W. 536.

U. S. 500, 53 L. Ed. 624, 29 S. Ct. 309; 74. Louisiana R., etc., Co. v. Holly, 127

Gulf, etc., R. Co. V. Hefley, 158 U. S. La. 615, 53 So. 882.

98, 39 L. Ed. 910. 15 S. Ct. 803; Hhnois ^^ Schenberger v. Union Pac. R. Co.,

Cent. R. Co. v. Henderson Elevator Co.. g^ -^^^ ^9 ^^3 p^^, 433 33 l R. A.,

226 U. S. 441, 57 L. Ed. 290, 33 S. Ct. 176; j^ g 39^'

?nn"34- fis S°W'997'-' ""■ ^°" ''' ^°' ^S-" Houston, etc., R. Co. v. Dumas

"^Tcafrie'r'is'noYliable for the damages (Tex. Civ. App.), 43 S^ W. 609.

resulting from its mistake in quoting a 77. St. Louis, etc., R. Co. v. ^pnng

rate less than the full published rate. River Stone Co., 169 Mo. App. 109, 154

Hamlen & Sons Co. v. Illinois Cent. R. S. W. 465.



3755 interstate; commerce; act. § 4140

Misrepresentation of Shipper. — Where joint tariff rates were adopted by
connecting carriers, and filed with the interstate commerce commission, as re-
quired by the interstate commerce law, fixing a lower freight rate for narrow-
gauge cars for use of railroads engaged in the carrying business than for those
intended to be used for logging purposes, a bill of lading fixing the lower rate
for cars intended to be used for logging purposes, procured through the ship-
per's misrepresentation that they were intended to be used in the carrying busi-
ness, is not binding on the railroad company, and it is entitled to recover the
higher rate from the consignee, since it would be guilty of a criminal offense,
under the Interstate Commerce Act, in accepting a lower rate than that fixed in
the schedule of rates filed with the commission.'"' The fact that it may be un-
lawful for carriers to make a difference in the rate for such cars will not pre-
vent the railroad company from recovering the higher rate for the transporta-
tion of the cars in question, where the evidence shows such compensation to be
reasonable.'''^

Shipper's Knowledge of Schedule Rate. — One who has obtained from a
common carrier transportation of goods from one state to another at a rate,
specified in the bill of lading, less than the published schedule rates filed with
and approved by the interstate commerce commission, and in force at the time,
whether or not he knew that the rate obtained was less than the schedule rate,
IS not entitled to recover the goods, or damages for their detention, upon the
tender of payment of the amount of charges named in the bill of lading, or of
any sum less than the schedule charges.'^"

Shipment Through Foreign Country. — A contract for shipment of goods
from a foreign port to an inland point in the United States for a through rate
does not necessarily violate the interstate commerce law, though the proportion
of the through rate allowed for the carriage from the port of entry to the desti-
nation is less than the rate scheduled for freight originating at such port and
carried to such destination. ^^

Shipment over Connecting Lines. — Where freight is shipped over con-
necting lines, which have agreed on a joint tariff of rates, in compliance with
the Interstate Commerce Act, the delivering line must collect the interstate com-
merce rate, and not that named in the bill of lading.^- A stipulation in a bill of
lading for a greater or less rate or permitting the carrier to make a diff'erent rout-
ing under conditions not provided for in the schedules, by which the cost to the
shipper is affected, is void, and affords no defense to an action by the shipper to
recover a sum exacted in excess of the schedule rate.^^ A contract for the ship-
ment of freight beyond the line of a receiving carrier, at a rate which it has
furnished the commission, and which is less than the aggregate of the rates
charged by the connecting carriers, is not invalid, where the receiving carrier,
without intending to violate the act, fixed such rate on quotations made to it by
the connecting carriers, one of which, in quoting its rate and that of a connecting
line, by mistake fixed the rate for such connecting line at less than it charged. •'*•*

78. Contractual rate procured through ment of goods for a rate less than the
misrepresentation of shipper. — Missouri, interstate rate of the other lines over
etc., R. Co. V. Trinity County Lumber Co., which it is forwarded, the delivering car-
1 Tex. Civ. App. 553, 21 S. W. 290. rier may collect, not only the interstate

79. Missouri, etc., R. Co. v. Trinity rate, l)ut the charges of the contracting
County Lumber Co., 1 Tex. Civ. App. line; such charges having been advanced
553. 21 v'^. W. 290. I'y it to the connecting lines at the regular

80. Shipper's knowledge of schedule rates, in ignorance of the special contract,
rate.— Gulf, etc., R. Co. v. Heflcy, 158 U. Missouri, etc., R. Co. v. Stoner, 5 Tex.
S. 9S, 39 L. Ed. 910, 15 S. Ct. 802; Texas, Civ. App. 50, 23 S. W. 1020.

etc., R. Co. V. Mugg, 202 U. S. 242, 50 83. Louisville, etc., R. Co. v. Dickerson,

L. Ed. ion, 2(\ S. Ct. (528. 191 Eed. 705, affirming judgment, 187 Fed.

81. Shipment through foreign country. 874.

— Snuthcrn I'ac. Co. v. Reckling, 17 Tex. 84. Virginia, etc., Iron Co. v. Louis-

Civ. App. 440, 43 S. W. 10C)1. ville, etc., R. Co., 98 Va. 77(), 37 S. E.

82. Shipment over connecting lines. — 3U).
Where a carrier makes a contract for sliip-



§ 4140 CARRIERS. 3756

The agent of an interstate railway contracted with a shipper to transport Hve
stock from a point in Arkansas to a point in Oklahoma. The shipments had to
pass over the lines of the initial carrier and of another interstate carrier. The
junction point was in Kansas. No through rate had ever been filed with the
interstate commerce commission and published, but the initial carrier had on
file and published an interstate rate on shipments from the point of origin of the
shipments involved to the junction point, and the delivering carrier had on file
and published a rate from the junction point to destination. The through rate
contracted for by the initial carrier was less than the sum of the combined rates.
Under the Interstate Commerce Act requiring the filing and publication of rates
and forbidding interstate carriers from charging greater or less rates, the special
contract was void, and the delivering carrier who on delivery of the consign-
ment to it by the initial carrier had paid the freight charges of the initial car-
rier in accordance with its tarifl^ was entitled on delivery of the shipments to the
consignee to collect from him the freight charges so paid, and its freight charges
in accordance with the tariff on file.®^

Estoppel can not be based on an illegal contract; consequently the col-
lection by an interstate carrier of a lesser rate than that contained in the public
schedule, which is contrary to the provisions of the Interstate Commerce Act,
can not raise an estoppel, precluding the carrier from collecting the balance. ^^

Under Joint Schedule. — Where carriers have filed and published schedules
of joint through rates, it is the right of a shipper to have his property trans-
ported upon the lines joining in such schedules and at the rates therein specified,
and the carrier receiving it can not avoid its obligation by any contract inserted
in its bill of lading.^''' An initial carrier which has become a party to a joint
through rate for the transportation of property over its own and connecting
lines between two points in dift'erent states, which rate has been filed and pub-
lished as required by the act, can not lawfully transport property between such
points at a less and unpublished rate over another route and with different con-
nections.^^

Shipment of Fruit. — Where the initial carrier guaranteed a through rate
and had the privilege to route the goods over the roads of the connecting car-
riers, it was held that the fruit was a special business and had nothing in com-
mon with other freight ; therefore, there was no unlawful discrimination be-

85. Atchison, etc., R. Co. v. Bell, 31 The fact that this rate was contrary to the
Okla. 238, 120 Pac. 987, 38 L. R. A., N. rates filed with the interstate commerce
S., 351. commission having been discovered, the

86. New York, etc., R. Co. v. York, etc., shippers were notified that the rate would
Co., 215 Mass. 36, 102 N. E. 366. not be adhered to before the cars were

87. Under joint schedule. — Dickerson v. shipped, and defendants refused to de-
Louisville, etc., R. Co., 187 Fed. 874; Wa- liver the cars without payment of the
bash R. Co. v. Priddy, 101 Ind. 483, 101 schedule rate. Held, that there was no
N. E. 724. authority for any rate on such shipment

Defendants' connecting carriers oper- less than the joint rate from Kansas City

ated a through line from Kansas City to to Spokane plus the rate from St. Louis

Spokane, and had filed a through rate on to Kansas City. Coeur D'Alene, etc., R.

-empty freight cars traveling on their own Co. v. Union Pac. R. Co., 95 Pac. 71, 49

wheels of $90 per car in addition to freight Wash. 244.

•earned by the use thereof in transit. De- An agreement with a single shipper for

fendants and the Missouri Pacific Rail- shipment over connecting lines having no

road Company operating a line from St. joint through rate at less than the local

Louis to Kansas City had never published rates for each road held void and not to

a joint free rate on such cars from St. prevent collecting the established rates

Louis to Spokane, nor was the Missouri by such carriers under Interstate Com-

Pacific a party to any contract to trans- nierce Act Feb. 4, 1887, § 6, as amended

port plaintiff's cars from St. Louis to Spo- by Act March 2, 1889, § 1. Kansas, etc.,

l<ane without charge other than the freight R. Co. 7'. Albers Comm. Co., 32 S. Ct.

earned by such cars. Defendants had no 316, 223 U. S. 573, 56 L. Ed. 556, reversing

line between St. Louis and Kansas City, judgment 99 Pac. 819, 79 Kan. 59.
but contracted to transport the cars from 88. United States v. Vacuum Oil Co.,

Kansas City to Spokane for a free rate. 153 Fed. 598.



3757 INTERSTATE COMMIjRCr; ACT. § 4140

tween the shippers, and the provision in the Interstate Commerce Act prohibit-
ing unlawful discrimination was not applicable. ^^

Contract for Excursion Rates. — Where a carrier sells a return excursion
ticket for interstate transportation at a rate duly scheduled and filed as recjuired
by the Interstate Commerce Act, to expire on a certain date three days later
than allowed by the schedule, the carriage of the passenger during the three
days, the mistakenly written expiration date of the ticket issued to the passenger,
is not a violation of the Interstate Commerce Act, since the erroneous issuance
of a ticket in terms not conforming to the actual contract does not make an un-
lawful contract.'"^

Contract with Owner of Private Track. — An agreement by an interstate
railroad carrier to accept less than its established and published rate by dividing
the same with a shipper which built a private track over its own lands connected
with the railroad company's line violates the Interstate Commerce Act, and is
wholly illegal and unenforceable. '^^

Contract for Rebate. — Under this section of the Interstate Commerce Act
a railroad's agreement to refund a part of rates lawfully charged and collected
is in violation of law and unenforceable.'^-

Contract at Existing Rate for Fixed Time. — A contract between a car-
rier and a shipper to transport the latter's goods in interstate or foreign com-
merce, at the then established rate, for a definite time, is ineffective after a
higher rate has been filed and published as required by law.'^^

Milling- in Transit Agreement.— In a suit against a railroad for breach of
a contract to maintain rates from a factory to competitive points not exceeding
the rates from two other places, and providing for a milling in transit agree-
ment whereby the railroad was to credit on the freight charges on manufactured
goods any freight on raw material shipped to the factory, the railroad filed a
plea alleging that when the contract was made it was a common carrier engaged
in interstate as well as domestic commerce, that it had then caused to be pub-
lished schedules showing rates charged, that the rates specified in the contract
were less than the published schedules, and that the contract was in violation of
the act, and a further plea alleging in addition that the published schedule had
been filed as required by the act. General demurrers were filed to each plea,
and also a special demurrer to the former plea, on the ground that it was not
shown that the railroad could not lawfully have amended its schedules so that
it could lawfully have performed the contract, or that the schedules had been
filed with the interstate commerce commission as required by the act, and to the
latter plea on the ground that it was not shown that if the railroad should per-
form the contract it would be required to make any unreasonable preferences.
The demurrers, general and special, were erroneously sustained. '-^^

89. Shipment o£ fruit. — Southern Pac. "We think the cases of Texas, etc., R.
Co. V. Interstate Commerce Comm., 200 Co. v. Abilene Cotton Oil Co., 204 U. S.
U. S. 536, 50 L. Ed. 585, 26 S. Ct. 330. 426, 51 L. Ed. 553, 27 S. Ct. 350, 9 Am.

90. Contract for excursion rates. — Illi- & Eng. Ann. Cas. 1075, and Texas, etc.,
nois Cent. R. Co. v. Fleming, 148 Ky. R. Co. v. Cisco Oil Mill, 204 U. S. 449,
473. 146 S. W. 1110; Illinois Cent. R. Co. 51 L. Ed. 562, 27 S. Ct. 358, referred to
t;. Roberts, 148 Ky. 478, 146 S. W. 1113. by the learned counsel for the appellant,

91. Contract with owner of private shed strong collateral light upon this in-
track. — Tacnzer & Co. v. Chicago, etc., R. quiry, whilst not on exactly the same
Co., 191 Fed. 543. case on their facts." Gulf, etc., R. Co. v.

92. Contract for rebate. — Louisville, Laurel Cotton Mills, 91 Miss. 166, 45 So.
■etc., R. Co. 7'. Coquillard Wagon Works' 982.

Assignees, 147 Ky. 530, 144 vS. W. 1080. A contract by a railroad comp?ny to

93. Contract at existing rate for fixed charge no greater rate from a certain fac-
time. — Armour Packing Co. v. United tory to competitive points than was
States, 153 Fed. 1, 82 C. C. A. 135, 14 charged from certain other places, and
L. R. A., N. S., 400. to maintain a "milling in transit" agrec-

94. Milling in transit agreement. — Gulf, ment, is not illegal on its face, in the
etc., R. Co. V. Laurel Cotton Mills, 91 al)scnce of any showing that the rates
Miss. 166, 45 So. 982. fixed by the contract were different from



§ 4140 CARRIERS. 3758

Actual Weight of Goods. — Lender the Interstate Commerce Act, prohibiting
discrimination by special rate or device, a contract by a carrier for transportation
for a less compensation than the published rate is invalid, and where at the time
of a shipment neither the carrier nor the shipper had any actual knowledge of the
actual weight of the goods, and the carrier received compensation based on a
specified weight while the goods actually weighed more, it could recover the bal-
ance according to the schedule of rates established and filed. "^ Where a carrier
receives goods for interstate shipment under the Interstate Commerce Act pro-
viding that the prescribed rates shall be charged on the basis of the marked ca-
pacity of the car, and its agent by mistake cjuotes and fixes a rate for a car based
on the shipments' actual weight, the carrier's lien is for the amount fixed by the
published rates, and can be discharged and the consignee become entitled to the
goods only by payment or tender of such amount. '••'''

Where Others May Make Same Contract. — A contract by a railroad com-
pany with a shipper to ship his horses to another state on a special through stock
train, was not an agreement to perform a special service in violation of the In-
terstate Commerce Act every shipper being entitled to the same privilege upon
request. '•^'■^

Where Schedule Changed after Contract Made. — Where a contract for
the interstate shipment of freight is illegal in being lower than the established
schedules, as prohibited by the Interstate Commerce Act, a subsequent lowering
of the rate to that specified in the contract does not validate the contract, and
render the carrier liable for a breach thereof, on a future increase in the rate,
and its refusal to carry the goods for the agreed rate.'*''^

Purchase and Sale of Goods. — A carrier engaged in interstate commerce,
which is not specially authorized to do so by its charter or existing legislation
prior to the interstate commerce act, violates the provisions of such act, that the
published rates must be adhered to, and prohibiting undue or unreasonable dis-
criminations, and preferences, or rebates, in substance, if not in form, by buying,
transporting and selling a commodity, even to complete a contract for the com-
modity sold, when the stipulated price does not fully cover the cost price, de-
livery and published tarift' rates. Such prohibitions would be rendered wholly
ineffective by deciding that a carrier may avoid those prohibitions by making a
contract for the sale of a commodity stipulating for the payment of a fixed
price in the future, and thereby acquiring the power during the life of the con-
tract to continue to execute it, although a violation of the act to regulate com-
merce might arise from doing so.^^ Because no express prohibition against a
carrier who engages in interstate commerce becoming a dealer in commodities

those approved by the commissions, or tied to the goods only by paying or ten-

that rates had been submitted to the com- der of such amount; since, otherwise, a

missions at all before the contract was discrimination in favor of the shipper

made. Laurel Cotton Mills v. Gulf, etc., would result, and this is so whether the

R. Co., 37 So. 134, 84 Miss. 339, 66 L. mistaken rate is fixed in the bill of lading,



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 123 of 214)