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

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R. A. 453. or whether it was by parol agreement on

95. Actual weight of goods. — Pennsyl- a mistaken quotation of the rates made
vania R. Co. v. Mogi, 128 N. Y. S. 643. In' the agent at point of shipment; and
71 Misc. Rep. 412. whether the shipper was ignorant of the

96. Actual weight instead of car ca- actual published rate is immaterial. St.
pacity. — Where a carrier receives goods Louis, etc., R. Co. v. Wolf, 100 Ark.
for interstate shipment under the Inter- 22, 139 S. W. 536.

state Commerce Act providing that the 97. Where others may make same con-
prescribed rates shall be charged on the tract. — Kirby v. Chicago, etc., R. Co., 242
basis of the marked capacity of the car, 111. 418, 90 N. E. 252.
and its agent by mistake quotes and 98. Where schedule changed after con-
fixes a rate for a car of eighty thousand tract made. — Southern R. Co. v. Wilcox,
pounds capacity, based on the shipments' 99 \'a. 394, 39 S. E. 144.
actual weight of forty thousand pounds, 99. Purchase and sale of goods. — New
the carrier's lien is for the amount fixed York, etc., R. Co. v. Interstate Com-
by the published rates, and can be dis- merce Comm., 200 U. S. 361, 50 L. Ed.
charged and the consignee become enti- 515, 26 S. Ct. 272.

3759 interstate; commerce: act. § 4140

moving in such commerce is found in the act, it does not foUow that the provi-
sions which are expressed in that act should not be appHed and be given their law-
ful effect. Even, therefore, if the result of applying the prohibitions as we have
interpreted them will be practically to render it difficult, if not impossible, for a
carrier to deal in commodities, this affords no ground for relieving us of the
plain duty of enforcing the provisions of the statute as they exist. ^ As the pro-
hibition of the Interstate Commerce Act is ever operative, even if the facts es-
tablished that at the particular time the contract was made, considering the then
cost of coal and other proper items, the net published tariff of rates would have
been realized by the carrier from the contract, which is not the case, it is ap-
parent that the deliveries under the contract came under the prohibition of the
statute whenever, for any cause, such as the enhanced cost of the coal at the
mines, an increase in the cost of the ocean carriage, etc., the gross sum realized
was not sufficient to net the carrier its published tariff of rates. This must be
the case in order to give vitality to the prohibitions of the interstate commerce
act against the acceptance at any time by a carrier of less than its published
rates. 2

Contract Unenforceable. — The rule that an illegal contract will not be en-
forced at the suit of either party, and that the law leaves each party where it
finds him, is applicable to a contract for a charge of a rate different from the
schedule.'^ It being set up in defense that by reason of a large claim against the
carrier, arising out of a similar preceding contract between same parties, from
which it was released as part consideration for making the contract now con-
sidered, and that this caused the price largely to exceed in reality the cost of the
coal with the published rates added thereto, it was held : Concluding, therefore,
that both the contracts made by the carrier with the purchaser were contrary to
public policy, and void because in conflict with the prohibitions of the act to reg-
ulate commerce, it obviously follows that such contracts were not susceptible of
being enforced by the purchaser, and afforded no legal basis for a claim of the
purchaser against the carrier, and therefore this was no valid defense to the
charge of infringing these prohibitions of the statute.^ A contract between plain-
tiff, a lumber company, and defendant, an interstate railroad company, by which
plaintiff agreed to build a private track on its own lands connecting with defend-
ant's line, and to ship all of its product, with a certain exception, over defend-
ant's road, in consideration of which defendant agreed to furnish cars and to
carry plaintiff's product at certain rates diff'ering from its established and pub-
lished rates, was an entire and indivisible agreement, and being illegal as in viola-
tion of the Interstate Commerce Act, no action can be maintained for its breach
by defendant for refusing to furnish cars.-"*

Estoppel to Assert Invalidity of Contract. — The act of the agent of a
railroad company in contracting to carry goods at an illegal rate will not estop
the carrier from repudiating such contract, as an estoppel can not be founded
upon an illegal act.''

1. New York, etc., R. Co. v. Interstate Inmy Box, etc., Co., 48 Iiid. App. 647, 94
Commerce Comm., 200 U. vS. 361, 50 L. N. E. 906, 96 N. E. 28.

Ed. 515, 26 S. Ct. 272. Under the Interstate Commerce Act

2. New York, etc., R. Co. v. Inter- (Act Feb. 4, 1887, c. 104. 24 Stat. 379 [U.
state Commerce Comm., 200 U. S. 361, vS. Comp. St. 1901, p. 3I54|), a person
50 L. VA. 515, 26 vS. Ct. 272. dealing with a carrier is as effectually

3. Contract unenforceable. — Taenzcr & bound by the law and the orders of the
Co. V. Chicago, etc., R. Co., 191 Fed. 543. commerce commission, as to both freight

4. New York, etc., R. Co. v. Interstate and ])assenger tariffs, as is the carrier it-
Commerce Comm., 200 U. S. 361, 50 L,. self, and neither is estopped to assert the
Ed. 515, 26 S.- Ct. 272. illegality of a contract made in violation

5. Taenzer & Co. v. Chicago, etc., R. of the act and orders of tlie commission.
Co.. 191 ]'\-d. 543. Melody v. Great Northern R. Co., 25 S.

6. Estoppel to assert invalidity of con- Dak. 606, 127 N. W. 543, Ann. Cas.
tract.— Baltimore, etc., R. Co. v. New Al- 1912C, 727.

§ 4140 CARRIERS. 3760

Effect on Action for Breach of Contract. — The illegality of a contract for
the interstate shipment of freight at a less rate than specified in the printed
schedules of rates, which is prohibited by the interstate commerce act, prevents
the recovery by the shipper for a breach thereof."

Right of Passenger to Ride on Ticket. — A ticket issued to a passenger by a
carrier in violation of the terms and conditions of orders of the interstate com-
merce commission confers no right to passage, and is not required to be accepted
by the conductor of a train, and such passenger may be ejected without liability
by the carrier to damages.^

Carrier's Lien. — Whatever may be the rate agreed upon, the carrier's lien
on the goods is, by force of the act of congress, for the amount fixed by the
published schedule of rates and charges, and this lien can be discharged, and the
consignee can become entitled to the goods, only by the payment, or tender of pay-
ment, of such amount.^

Recovery of Excess of Schedule over Contract Rate. — In interstate com-
merce, the freight charges are fixed by the rates filed and posted in accordance
with the act and where a carrier quotes a lower rate and collects it, it may there-
after recover the difirerence between the rate collected and that which should
have been collected.!*^ And where the published rate is collected at the destina-
tion, the difiference between the rate agreed upon and the published tarifif can not
be recovered in an action by the shipper. ^^ On an interstate shipment a given
rate, less than the lawful schedule rate, was quoted to the shipper by the agent of
the railroad at the point of shipment. On the arrival of the goods at their desti-
nation the road exacted the schedule rate, whilst the shipper insisted he was enti-
tled to the lower and quoted rate. And a recover}' of the excess collected over
ihe quoted rate was allowed by a court of the state of Texas. Reversing the
judgment, it was here held that the rate fixed in the schedule filed pursuant to
the act to regulate commerce was controlling, that it was beyond the power of
the carrier to depart from such rates in favor of any shipper, and that the
erroneous quotation of rates made by the agent of the railroad did not justify
recovery, since to do so would be in efi^ect enabling the shipper, whose duty it
was to ascertain the published rate, to secure a preference over other shippers,
contrary to the act to regulate commerce. ^^

Burden of Proof. — Though the parties to an interstate transportation con-
tract can not, by agreement, mistake, or otherwise, fix a rate different from any
established under the Interstate Commerce Act, nevertheless proof, in an action
for overcharge, that a rate less than that charged by the carrier at destination
was contracted for and inserted by the carrier's agent in the bill oT lading, and
that plaintiff' paid the increased rate at destination under protest, was sufficient
to establish a prima facie case, the burden then shifting to the carrier to show
that the higher rate had been established in accordance with the requirements of
the Interstate Commerce iYct.^^ In an action against a final carrier for damages
caused by its failure to deliver cattle upon their arrival of destination, and de-
manding the payment of additional freight in excess of that contracted for by
the initial carrier, where the petition alleged a valid and binding contract on the

7. Effect on action for breach of con- r. a. 385, 72 Am. St. Rep. 936; Georgia

tract.— Southern R. Co. v. Wilcox, 99 Railroad v. Creety, 5 Ga. App. 424, 63

Va. 394, 39 S. E. 144. S E 528

8 Right of passenger to ride on ticket ^^ Missouri, etc.. R. Co. v. Bowles, 1

r^?'^^..''; ?o™''xT^w^!';o ^ ^°> Ind. T. 250, 40 S. W. 899; Atchison, etc..

%12C 121 ^- ^°- "'• Holmes, 90 Pac. 22, 18 Okla. 92.

9. Carrier's lien.— Texas, etc.. R. Co. ^^^ 1^^^^^' ^^^^ ^; ^°- ^- ^'^'^^"^ S?^'
V. Musjg, 202 U. S. 242, 50 L. Ed. 1011, ton Oil Co 204 U. S. 4,26 51 L. Ed.
26 S. Ct. 628; Gulf, etc., R. Co. v. Hefley, 553, 27 S. Ct. 350, 9 Am. & Eng. Ann.
158 U. S. 98, 39 L. Ed. 910, 15 S. Ct. 802. Cas. 1075.

10. Recovery of excess of schedule 13. Burden of proof. — Hunter v. St.
over contract rate.— Southern R. Co. v. Louis, etc., R. Co., 167 Mo. App. 624, ISC-
Harrison, 119 Ala. 539, 24 So. 552, 43 L. S. W. 733.

3761 interstate; commerce act. §§ 4140-4142

part of the initial carrier and the connecting Hnes to convey the cattle to their
destination, it was not incumbent on plaintiff to allege or prove that the amount
paid as freight was the full amount that defendant should have collected under
published rates fixed by the interstate commerce commission ; but the burden was
on defendant to prove that a rate had been fixed by the commission between the
points of shipment, that such rate had been published, and that defendant only
demanded the amount so fixed and published.^"* Any departure by an interstate
railroad company from the demurrage charges fixed by its filed and published
schedules constitutes a misdemeanor.^-'*

Contract without Limitation of Liability. — A special contract for an inter-
state shipment without limitation of the carrier's liability to an agreed value has
no binding force where the carrier's tariffs on file with the interstate commerce
commission graduate the rates according to declared value and limit the carrier's
liability accordingly.^^'

§ 4141. Presumed Legal Rate. — A freight charge made by a common car-
rier which conforms to the schedule of rates required to be fixed and published by
the Interstate Commerce Act is prima facie a reasonable charge. ^'^ By requir-
ing the fixing and publication of freight rates to be charged by common carriers,
the Interstate Commerce Act supplies prima facie evidence of the contract rate,
which can only be overcome by averment in avoidance thereof. ^^

Presumed Reasonably Low Rate. — No presumption of law that a freight
rate upon a particular commodity is reasonably low exists because such rate has
been duly published and filed by the carrier with the interstate commerce com-

Demurrage Charges. — Where the charges of a railroad for demurrage are
based on tariff's filed with the interstate commerce commission, as provided by
the Interstate Commerce Act, such charges as to cars engaged in interstate com-
merce are conclusively presumed reasonable in a state court, in the absence of
any action of the commission thereon.-*^

§ 4142. As Constructive Notice to Shipper. — Where a carrier has pro-
mulgated its rates under the interstate commerce law, and has complied with the
statute by filing a copy of the schedule with the commission, deposited a copy
with its agent, and posted copies in two conspicuous places in the depot, the
shipper is presumed to know the existence of the schedules and the rates con-
tained therein. -1 The shipper as well as the carrier is bound to take notice of the

14. Southern Kansas R. Co. v. Bur- 19. Presumed reasonably low rate. —

gess Co. (Tex. Civ. App.), 90 S. W. 189. Illinois Cent. R. Co. v. Interstate Com-

15. Lehigh Valley R. Co. v. United merce Comm., 206 U. S. 441, 51 L. Ed.
States. 110 C. C. A. 513, 188 Fed. 879, 1128, 27 S. Ct. 700.

affirming judgments, United States v. 20. Demurrage charges. — ^Erie R. Co.

Philadelphia, etc., R. Co., 184 Fed. 543, v. Wanaque Lumber Co., 75 N. J. L. 878,

and United States v. Lehigh Valley R. 69 Atl. 168.

Co., 184 Fed. 546. 21. As constructive notice to shipper.

16. Contract without limitation of lia- — ^St. Louis, etc., R. Co. v. Faulkner
bility.— Atchison, etc., R. Co. v. Robin- (Ark.), 164 S. W. 763; Christl v. Mis-
son, 233 U. S. 173, 34 S. Ct. 556; Atchi- souri Pac. R. Co. (Kan.), 141 Pac. 587;
son, etc., R. Co. v. Moore, 233 U. S. 182, Mires v. St. Louis, etc., R. Co., 134 Mo.
34 S. Ct. 558. App. 379, 114 S. W. 1052.

17. Presumed legal rate. — Baltimore, Every shipper is presumed to know the
etc., R. Co. V. La Due, 108 N. Y. S. 659, schedules for interstate rates fixed by
57 Misc. Rep. 614. the interstate commerce commission, and

Rates fixed and published by the inter- whether the rates charged by the car-
state commerce commission must be con- rier were the regular tariff rates or not.
sidered reasonable and must stand until Wyrick v. Missouri, etc., R. Co., 74 Ato.
the rate is changed upon application to App. 406.

the commission. Wabash R. Co. v. A shipper is chargeable with knowl-

Priddy. 101 Ind. 483, 101 N. E. 724. edge of the lawful rate on his shipment

18. Baltimore, etc.. R. Co. v. La Due, where it has been published and filed as
108 N. Y. S. 659, 57 Misc. Rep. 614. required by law, where it is accessible to

§8 4142-4143



filed tariff rates and that so long as they remain operative they are conclusive
as to the rights of the parties, in the absence of facts or circumstances showing
an attempt at rebating or false billing. -

A shipper is conclusively presumed to know the published rates of an inter-
state carrier, and may not rely on the representations of the carrier's agent. ^^

Rate Based on Value of Freight. — A shipper's knowledge that the carrier's
rate was based upon the value of the shipment is to be presumed where this plainly
appears from the terms of the bill of lading and from the published rates on file
with the interstate commerce commission.-^

§ 4143. As to Joint Rates. — A tariff rate between two points on different
railroads, filed and published by one company and concurred in by the other, which
does not designate any particular route, must be held as a matter of law to apply
to the natural and direct route over the lines of the two companies between the
designated points, and to constitute the lawful rate over such route. -•'^ Nothing in
the provisions of the act requiring joint traffic rates, when agreed upon, to be filed
with the interstate commerce commission, and made public when required, and
empowering the commission to prescribe forms of schedules of such rates, forbids
the adoption by common carriers, as part of an agreement for a through rate from
California to the East for oranges and other citrus fruits, of a rule under which
the right of routing beyond its own terminal is reserved to the initial carrier as
the condition of guarantying the through rates to the shipper, where such rule has
served, as was intended, to break up rebating by the connecting lines, and, in its
practical operation, the actual routing is generally conceded to the shipper, and his

the public, unless he was misled after
using proper diligence to ascertain such
rate. United States v. Standard Oil Co.,
155 Fed. 305.

"The supreme court of the state in
this case affirmed the instruction of the
trial court upon which the case was
given to the jury and held an instruction
that the oral contract between the carrier
and shipper is binding unless it is af-
firmatively shown that the written agree-
ment, based upon the filed schedules,
was brought to the knowledge of the
shipper and its terms assented to by him
is erroneous, as it ignores the terms of
shipment set forth in the schedules and
permits a recovery upon the contract
made in violation thereof in a case where
there was no proof that there was an
attempt to violate the published rates hy
a fraudulent agreement showing rebating
or false billing of the property, and no
circumstances which would take the case
out of the rulings heretofore made by
this court as to the binding effect of such
filed schedules, and the duty of the ship-
per to take notice of the terms of such
rates and the obligation to be bound
thereby in the absence of the exceptional
circumstances to which we have re-
ferred." Atchison, etc., R. Co. v. Rob-
inson, 233 U. S. 173, 34 S. Ct. 556.

22. Atchison, etc., R. Co. v. Robinson,
233 U. S. 173, 34 S. Ct. 556; Kansas, etc.,
R. Co. y. Carl, 227 U. S. 639, 33 S. Ct.
391; Missouri, etc., R. Co. v. Harriman,
227 U. S. 657, 33 S. Ct. 397; Chicago,
etc., R. Co. V. Cramer, 232 U. S. 490, 34
S. Ct. 383; Great Northern R. Co. v.

O'Connor, 232 U. S. 508, 34 S. Ct. 380.

23. Hamlen & Sons Co. v. Illinois
Cent. R. Co., 212 Fed. 324.

24. Rate based on value of freight. —
Adams Exp. Co. v. Croninger, 226 U.
S. 491, 33 S. Ct. 148.

Having the notice which follows from
the filed and published regulations, as re-
quired by the statute and the order of
the interstate commerce commission, the
shipper might have declared the value of
his luggage, paid the excess tarifif rate and
thus secured the liability of the carrier
to the full amount of the value of his
baggage, or he might, for the purpose of
transportation, have valued it at $100 and
received free transportation and liability
to that extent only, or, as he did, he
might have made no valuation of his bag-
gage, in which event the rate and the
corresponding liability would have auto-
matically attached. Boston, etc.. Rail-
road V. Hooker, 233 U. S. 97, 34 S. Ct.

The supreme judicial court of Massa-
chusetts erred in deciding that the Inter-
state Commerce Act did not in anywise
change the common-law rule, applicable
in Massachusetts, that regulations of this
character, limiting the amount of recov-
ery for baggage lost, must be brought
home to the knowledge of the shipper
and assented to or circumstances_ shown
from which assent might be implied.
Boston, etc.. Railroad v. Hooker, 233 U.
S. 97, 34 S. Ct. 526.

25. As to joint rates. — Standard Oil
Co. V. United States, 103 C. C. A. 172,
179 Fed. 614.

3763 INTERSTATE COMMERCli ACT. §§ 4143-4146

requests to divert shipments en route are usually allowed. ^^

§ 4144. As to Privileges and Facilities. — Under the provision that the
schedule printed as by any common carrier shall plainly state all privileges or fa-
cilities granted or allowed and any rules or regulations which in any wise change,
affect or determine the value of the service rendered the passenger, shipper or
consignee, a provision in a passenger's ticket sold by a railroad company making it
nontransferable, where no such limitation is shown in the company's schedule,
is unlawful and void, and the company can not maintain a suit in equity based
on such provision to enjoin transfers of such tickets.-" Under the Act of June
29, 1906, prohibiting a carrier from extending to any shipper facilities in trans-
portation, except such as are specified in the tariff', a shipper can not, under a
^pecial contract with a carrier, claim special facilities in transportation, such as
that the freight be transferred in a single, covered express wagon by itself, so
that, in an action by a shipper based on such special contract, the express com-
pany could show as a defense that the tariff rates applicable did not provide for
such privileges.-^

As to Stop-Over Privileges. — Where the tariff filed fails to provide for
stop-over of shipments of syrup, an agreement for such stop-over is invalid be-
cause the same service could not be demanded by other persons.-^

§ 4145. As to Contract for Exemption from Liability. — If the limita-
tion of liability for baggage is recjuired to be filed in the carrier's tariffs, the
shipper is bound by such limitation.^" The schedules are required to state, among
other things, in naming certain charges, "all other charges which the commis-
sion may require, all privileges or facilities granted or allowed and any rules
or regulations which in any wise change, affect, or determine any part or the
aggregate of such aforesaid rates, fares, and charges, or the value of the serv-
ice rendered to the passenger, shipper, or consignee." The question then is,
does the limitation as to liability for baggage based upon the requirement to
declare its value when more than $100 was to be recovered, come within that
provision? The ordinary signification of the terms used in the act would cover
such requirements as are here made for the amount of recovery for baggage lost
by the carrier.-"^

An unreasonable contract limiting the carrier's liability on an interstate
shipment of horses is invalid though the carrier had filed schedule of rates and
contracts with the interstate commerce commission. ^-

§ 4146. Change of Rates. — It is not a violation of the Interstate Commerce
Act for a railroad company to make a difference in its rates for the transpor-
tation of merchandise between different seasons of the year, carrying the same
articles at a lower rate during the summer, or dull, months, than during the win-
ter, or busy, months.^-^

26. Decree, Interstate Commerce 31. Boston, etc., Railroad v. Hooker,
Comm. V. Southern Pac. Co., 133 Fed. 333 U. S. 97, 34 S. Ct. 53G.

839, reversed in 36 S. Ct. 330, 300 U. S. Where a carrier failed to comply with

536, 50 L. Ed. 585. the Interstate Commerce Act, requiring

27. As to privileges and facilities.— the posting of a schedule of rates at all
Baltimore, etc., R. Co. v. Hamburger, 155 stations, etc., a limitation of liability in
Fed. 849. '^''' interstate shipment, recited to be in

no \\T A • T? r-> -i^r> consideration of reduced rates, was void

T o^'"i'o/\T w".'."^ ^""P- ^°" for want of consideration, as the carrier

Jowa 359, 133 N. W. 663. , , i 4.1 • 4- t <. „.,„

had under the circumstances but one

29. As to stop-over privileges.— Inter- , ^te. Griffin v. Wabash R. Co., 115 Mo.
state Commerce Act, June 39, 1906, § 6; Ann. 549, 91 S. W. 1015.

Bergin v. Missouri, etc., R. Co. (Tex. 32^ elair r;." Wells Fargo & Co., 155

Civ. App.), 150 vS. W. 1184. ^ Jowa 190, 135 N. W. 615.^^

30. As to contract for exemption from 33. Change of rates. — Interstate Corn-
liability. — Boston, etc.. Railroad v. merce Comin. v. Louisville, etc., R. Co.,
Hooker, 333 U. vS. 97, 34 vS. Ct. 530. 73 Fed. 409.

4 Car— 43

§ 4146 carrie;rs. 3764

Notice. — The act forbids any advance or reduction in rates, fares, and charges,
estabhshed and pubHshed, except upon public notice, of which changes the com-
mission shah be notified. ■'•* It is provided that reduction in such published rates,
fares or charges shall only be made after three days' public notice to be given in
the same manner that notice of an advance in rates must be given.-"^-''

Presumptions. — There is no presumption of wrong arising from a change
of rates by a carrier. -^'^ That a railroad company increased a rate from what it
had previously been raises no presumption that the new rate is unjust or unrea-
sonable. ^'^ Nor does it justify the commission in putting them back to what they
had been, without regard to whether that could be properly said of them.^^

Power of Commission. — The withdrawal by carriers' tariffs of shippers' pre-
cooling privileges for which a fixed charge was made and approved by order of
the interstate commerce commission, aft'ects a rate and the commission is acting

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 124 of 214)