Copyright
Thomas Johnson Michie.

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

. (page 96 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 96 of 214)
Font size
QR-code for this ebook


in connection with the receipt, delivery, elevation, and transfer in transit, venti-
lation, refrigeration or icing, storage, and handling of property transported.^^
It is evidently the intention of congress, in the employment of the term "trans-
portation," to include all kinds of instrumentalities of shipment and carriage.^'"'
Elevation as a grain is included in "transportation." ^^ Cartage of sugar from

be necessary to allege that they were delivery, and handling of property trans-
given "knowingly." United States v. Del- ported. Southern R. Co. v. Reid, 222 U.
aware, etc., R. Co., 152 Fed. 269. S. 424, 56 L. Ed. 257, 32 S. Ct. 140.

54. United States v. Standard Oil Co., 59. Pitcairn Coal Co. v. Baltimore,
148 Fed. 719. etc., R. Co., 165 Fed. 113.

55. Definitions.— Act June 18, 1910. ch. 60. Elevation of grain.— "The long
309, Fed. St. Anno. Sup. 1912, p. 113. mooted question as to whetlier elevation

e*» -D :i ^ J 1 J. i. ^ r^ was such a part of transportation as to

56. Railroad. — Interstate Commerce , • •, -^.i * ., • • i-\- c 4.\
r«„ -n • iciTTC^^ir-ooT bring it within the jurisdiction of the in-
Lomm. v. Brimson, 154 U. S. 447, 38 L. . T <. • •

TTA if\A-v io c; rt- iioK terstate commerce commission was an-

JiO. 1U4 7, ],. .>. (^t. ll<!5. swered by the Act of June 29, 1906 (34

57. Regulation.— Ames v. Union Pac. Stat. at L. 584, 590, chap. 3591, U. S.
R. Co., 64 Fed. 165. See Boston, etc., Comp. Stat. Supp. 1909, p. 1150). in which
Railroad v. Hooker, 233 U. S. 97, 34 S. congress declared that the term 'trans-
it. 526. portation' shall include * * * ^\\

58. Transportation. — -Interstate Com- * * * facilities of shipment, * * *
merce Comm. v. Brimson, 154 U. S. 447, irrespective of ownership, * * * and
38 L. Ed. 1047, 12 S. Ct. 1125; Texas, all services in connection with tlie
etc., R. Co. V. Interstate Commerce * * * elevation and transfer in transit
Comm., 162 U. S. 107, 40 L. Ed. 940, 16 '* * * and handling of property trans-
S. Ct. 666. ported." Carriers were required "to pro-
Transportation within the meaning of vide and furnish such transportation upon

the Interstate Commerce Act means not reasonable request therefor." Union
only the physical instrumentalities, but Pac. R. Co. v. Updike Grain Co., 222 U.
all services in connection with receipt, S. 215, 56 L. Ed. 171, 32 S. Ct. 39.



§ 3989 CARRIERS. 3608

refinery to cars is not transportation, nor a service connected with such trans-
portation, within the Interstate Commerce Act, and hence an allowance therefor
in the freight rate constituted an illegal rebate.*'^

Wharfage and Terminal Company. — A corporation created to carry on,
conformably to a municipal ordinance and a confirmatory statute intended to se-
cure public shipping facilities, a wharfage business at a seaport and to furnish
terminal facilities for a railway and steamship system of which it forms a part
and by which it is controlled through a holding company, is a common carrier, and
as such is subject to the jurisdiction of the interstate commerce commission act-
ing in the exercise of its authority, under the act to regulate commerce, to pro-
hibit undue preferences. *'-

Rebate. — The word "rate," means the net amount the carrier receives from
the shipper and retains, and any device by which such amount is reduced below
the rate given in the published schedule is one for the giving of a rebate.'^^

"Charges." — In the provision contained in the first section of the interstate
commerce law, that all charges made for any service rendered or to be rendered
in the transportation of passengers or property as aforesaid or in connection
therewith, or for receiving, delivering, storage, or handling of such property,
shall be reasonable and just, and every unreasonable charge for such service is
prohibited and declared to be unlawful, the word "charges'' is used in the tech-
nical sense of segregated items of expense, or dues demanded in connection
with the "transportation," or with the "receiving," etc., the accessorial service
described by the latter terms (which include cartage) being thus distinguished
from the transportation. And, although these terms are not repeated with the
same particularity in §§ 2, 3, and 4, this segregation of the two kinds of service
is not to be overlooked, in their construction.'^'*

"Rates in Force." — See elsewhere.*^"

Terminal Charges. — As used in the Act to Regulate Commerce, § 6, provid-
ing that the published schedules shall state separately all "terminal charges," the
words quoted mean a separate rate for a service at a terminal, not always rendered
in transportation from place to place, for a privilege or facility not furnished to
all shippers.*^*'

The words "knowingly and willfully" violating such act, in the Act of June
29, 1906, providing that cattle shall not be confined for a longer period than
thirty-six hours, are intended to mean either an intentional violation of the stat-
ute or an indift'erent disregard of its requirements.*"'' They described an essen-
tial element of the offense on account of which penalties are prescribed, without
proof of which they can not be recovered ; "knowingly" meaning with knowledge
of the facts which, taken together, constitute a failure to comply with the statute,

61. Cartage. — So held under Act Feb. are necessary parts, the terminal com-
4, 1887, § 15, amended June 18, 1910, § pany as well as the railroad companies."
12. American Sugar Refin. Co. v. Dela- Southern Pac. Terminal Co. v. Interstate
ware, etc., R. Co.,^200 Fed. 652. Commerce Comm., 219 U. S. 498, 55 L.

62. Wharfage and terminal company. Ed. 310, 31 S. Ct. 279.

• — "There is a separation of the compa- 63. Rebate. — United States v. Chicago,

nies if we regard only their charter; etc., R. Co., 148 Fed. 646.

there is a union of them if we regard 64. "Charges."— Detroit, etc., R. Co. v.

their control and operation through the Interstate Commerce Comm., 21 C. C.

Southern Pacific Company. This control /^ jos 74 Fed 803

and operation are the important facts to g^^ .;^^^^^ in forces."-See post, "Stat-

shippers. It ,s of no consequence tha Provision," § 4126.

bv mere charter declaration the terminal . , '

company is a wharfage company, or the 66 Terminal charges.— New York etc

Southern Pacific a holding company. R- Co. v. General Flect^. Co., 146 N. Y.

Verbal declarations can not alter the S. 322, 83 Misc. Rep. 529.

facts. The control and operation of the 67. Knowingly and willfully. — United

Southern Pacific Company of the rail- States v. Stockyards Terminal R. Co.,

roads and the terminal company have 178 Fed. 19, 101 C. C. A. 147, affirming 172

united them into a system of which all Fed. 452.



3609 INTERSTATE COMMERCE ACT. §§ 3989-3990

and "willfully" meaning purposely or obstinately, describing the attitude of a
carrier, who, having a free will or choice, either intentionally disregards the
statute, or is indifferent to its requirements."'^

§§ 3990-3991. Carriers Subject to Act— § 3990. In General.— The
first section of the act makes it clear that congress had in view the whole field of
commerce, except commerce wholly within a state, as well that between the states
and territories as that going to or coming from foreign countries. It includes
in its scope the entire commerce of the United States, foreign and interstate, and
subjects to its regulations all carriers engaged in the transportation of passengers
or property, by whatever instrumentalities of shipment or carriage. '^'^ The provi-
sions of the interstate commerce act apply to any common carrier or carriers
engaged in the transportation of passengers or property wholly by railroad, or
partly by railroad and partly by water when both are used, under a common con-
trol, management, or arrangement, for a continuous carriage or shipment from
one state or territory of the United States, or the District of Columbia, to any
other state or territory of the United States, or the District of Columbia, or from
any place in the United States to an adjacent foreign country, or from any place
in the United States through a foreign country to any other place in the United
States, and also to the transportation in like manner of property shipped from
any place in the United States to a foreign country and carried from such place
to a port of transshipment, or shipped from any foreign country to any place
in the United States and carried to such place from a port of entry either in the
United States or an adjacent foreign country.'^"

Engaged in Intrastate Commerce. — The provisions of the interstate com-
merce act have no application to the transportation of passengers or property,
or to the receiving, delivering, storing, or handling of property, wholly within
one state and not shipped to a foreign country from any state pr territory,
or from a foreign country to any state or territory."^ It is expressly provided
that the provisions of the act shall not apply to the transportation of passengers
or property, or to the receiving, delivering, storage, or handling of property
wholly within one state and not shipped to or from a foreign country from or to
any state or territory as aforesaid, nor shall they apply to the transmission of
messages by telephone, telegraph, or cable wholly within one state and not trans-
mitted to or from a foreign country from or to any state or territory as afore-
said.'^- This provision is not an exception of the intrastate carriage of interstate
commerce from the operation in the act, while leaving the intrastate carriage of
foreign commerce subject to its provisions, but is merely a disclaimer of the
intention to include purely intrastate business over which congress has no juris-
diction ; and the exception therefrom of shipments to or from a foreign country
is to avoid any possible conflict with the preceding clause, which makes such
shipments subject to the act, although their carriage in this country to or from
a port of transshipment or entry may be wholly a single state,'^^ unless, al-
though its entire line is intrastate, a carrier enters into the carriage of foreign
freight under an arrangement for continuous carriage or shipment from one
state to another.'^ But when such railroad company enters into the carriage

68. United States v. St. Joseph Stock 71. Engaged in intrastate commerce. —
Yards Co.. 181 Fed. 625. Interstate Comniorcc Conini. v. Rrimson,

69. Carriers subject to act— Texas, etc., 154 U. S. 447, 38 L. Ed. 1047, 12 S. Ct.
R. Co. V. interstate Cdmmerce Comm., 1125; Cincinnati, etc., R. Co. v. Interstate
162 U. S. 197, 40 L. Ed. 940, 16 S. Ct. 666. Commerce Comm., 162 U. S. 184, 40 L.

70. Interstate Commerce Comm. v. VA. 9;{5, 16 S. Ct. 700, 4 Am. & Eng. R.
Brimson, 154 U. S. 447, 38 L. Ed. 1047, Cas., N. S., 223.

12 S. Ct. 1125; Interstate Commerce 72. Fed. Stat. Anno. Supp. (1912), p.

Comm. V. Baltimore, etc., R. Co., 145 112; [35 Stat. L. 544]. Act June 18, 1910.

U. S. 263, 36 L. Ed. 699, 12 S. Ct. 844; 73. Denver, etc., R. Co. v. Interstate

Texas, etc., R. Co. v. Interstate Com- Commerce Comm., 195 Fed. 968.

merce Comm., 162 U. S. 197, 40 L. Ed. 74. Cincinnati, etc., R. Co. v. Interstate

940, 16 S. Ct. 666. Commerce Comm., 162 U. S. 184, 40 L.



§ 3990 CARRIERS. - 3610

of foreign freight, by agreeing to receive the goods by virtue of foreign through
bills of lading, and to participate in through rates and charges, it thereby becomes
part of a continuous Hne, not made by a consolidation with the foreign companies,
iDUt made by an arrangement for the continuous carriage or shipment from one
state to another, and thus becomes amenable to the federal act, in respect to such
interstate commerce. The railroad company does not escape from the supervision
of the commission by requesting the foreign companies not to name or fix any
rates for that part of the transportation which took place in the state when the
goods were shipped to local points on its road, having still left its arrangement
to stand with respect to other designated points."^ While a through bill of
lading is the usual method in use by connecting companies, this must not be
understood to imply that a common control, management or arrangement might
not be otherwise manifested. '^*^

Between Points in Same State Through Other State. — A shipment of
grain over a single railroad between two points, l)oth within the same state, is not
an interstate shipment, so as to bring it within the terms of the Interstate Com-
merce Act, and authorize a federal court to compel such shipment, by mandamus,
at the same rates charged other shippers of a like commodity, merely because
the line of road between the two terminal points passes through other states.'^'''
A shipment from New York City to Buffalo, by way of New Jersey and Pennsyl-
vania, is interstate commerce, and so is subject to the provisions of the Act of
Feb. 19, 1903, as to rebates; the Interstate Commerce Act of Feb. 4, 1887, though
providing that the provisions of the act shall apply to any carrier engaged in the
transportation of passengers or property from one state to any other state, having
a proviso that the provisions of this act shall not apply to the transportation of
property "wholly" within one state."^ A shipment of grain over a single railroad
iDetween two points, both within the same state, is not an interstate shipment, so
as to bring it within the terms of the Interstate Commerce Act, by reason of the
fact that the grain was received at the initial point from a carrier by which it was
transported from a point in another state, and was there stored in an elevator
for further shipment, where it was not taken bv the first carrier under a through
bill of lading.'

Under Common Control for Continuous Carriage. — This act does not in-
clude or apply to all carriers engaged in interstate commerce, but only such as
use a railway, or a railway and watercraft, "under common control, management,
or arrangement for a continuous carriage or shipment" of property from one
state to another; nor does it apply to the carriage of property by rail wholly
within the state, although shipped from or destined to a place without the state,
so that such place is not in a foreign country.'-*' When a carrier unites with

Ed. 935, 16 S. Ct. 700, 4 Am. & Eng. 80. Under common control for continu-

R. Cas., N. S., 223; Interstate Com- ous carriage. — E.x parte Koehler, 30 Fed.

merce Conim. v. Detroit, etc., R. Co., 167 867.

U. S. 633, 42 L. Ed. 306, 17 S. Ct. 986. . When a railroad company whose line is

75. Cincinnati, etc., R. Co. v. Interstate situated entirely within a state, enters
Commerce Comm., 162 U. S. 184, 40 L. into the carriage of foreign freight, by
Ed. 93.5, 16 S. Ct. 700, 4 Am. & Eng. R. agreeing to receive goods under through
Cas., N. S., 223, followed in Louisville, bills of lading, and to participate in
etc., R. Co. V. Behlmer, 175 U. S. 648, through rates and charges, it thereby be-
44 L. Ed. 309, 20 S. Ct. 209. comes part of a continuous line, and ac-

76. Cincinnati, etc., R. Co. v. Interstate cordingly is amenable to the Interstate
Commerce Comm., 162 U. S. 184, 40 L. Commerce Act. Cincinnati, etc., R. Co.
Ed. 935, 16 S. Ct. 700, 4 Am. & Eng. R. v. Interstate Commerce Comm., 162 U.
Cas., N. S., 223. S. 184, 40 L. Ed. 935, 16 S. Ct. 700, 4

77. Between points in same state Am. & Eng. R. Cas., N. S., 223. See
through other state. — United States v. Le- also Boston & A. R. Co. v. Boston &
high Valley R. Co., 115 Fed. 373. L. R. Co.. 1 Int. Com. Rep. 571; Chicago,

78. United States v. Delaware, etc., R. etc., R. Co. v. Osborne, 53 Am. & Eng.
Co., 152 Fed. 269. R. Cas. 18, 3 C. C. A. 347, 52 Fed. 912.

79. United States v. Lehigh Valley R. The Oregon Railway & Navigation
Co., 115 Fed. 373. Company carries certain kinds of goods



3611



inte;rstate commerce: act.



§ 3990



one or more others in making a rate for interstate or foreign shipments, and a
through bill is issued therefor, it is subject to the interstate commerce act. An
express agreement for the through rate is not required, but the successive receipt
and forwarding in the ordinary course of business by two or more carriers under
through bills, or any arrangement for a continuous carriage constitutes assent to-
such conunon arrangement, and makes the carrier a party to the contract, within
the meaning of the act.'^^ The shipment of freight over a number of lines of
railroad from a point in one state to a point in another, at a through rate of
charges, under an agreement, express or implied, for a conventional division of
the charges among the different roads, constitutes a "common arrangement for
a continuous carriage or shipment," within the meaning of the interstate com-
merce act, and a road participating in such arrangement is subject to the provi-
sions of the act, though its line lies entirely within one state, and its part of the
joint charge is its regular local rate.^- When goods are shipped through from
Cincinnati to local stations on the Georgia Railroad, the initial carrier at Cincin-
nati issues through bills of lading, and quotes through rates. Said rates are ar-
rived at by adding to the rates from Cincinnati to Atlanta the full local rates of
the Georgia Railroad from Atlanta to said local stations. The Georgia Railroad
Company receives the goods at Atlanta, and transports them continuously to its
local stations, but collects full local rates from Atlanta to said local stations. The
reception, and continuous transportation, by the Georgia Railroad Company, of
freight which comes to it over other lines of railroads, destined to its local sta-
tions, for which the initial carrier has issued through bills of lading and quoted
through rates, does not constitute such an "arrangement" as is contemplated by
the first section of the act to regulate commerce, where the through rates so
quoted allow to that company its full local rates. ^^



on its steamers between Portland and
San Francisco at special and reduced
rates. The Oregon & California Railway,
under the management of the petitioner,
carries the same kinds of goods between
Portland and Ashland, and way stations
in Oregon, at special and reduced rates.
The Oregon Pacific Railway Company
carries the same kinds of goods between
certain points on the line of the Oregon
& California road and San Francisco via
its railway from Albany to Yaquina Bay,
and thence by steamer, at reduced rates,
and thereby competes with the Oregon
& California Railway and the Oregon
Railway & Navigation Company for busi-
ness between said points and San Fran-
cisco. The Oregon Railway & Naviga-
tion Company and the receiver of the
Oregon & California Railway act inde-
pendently, though concurrently, in mak-
ing these reduced rates, but no through
bill of lading or freight receipt is given,
nor is cither interested in or liable for
the carriage of the goods beyond its own
line of transportation. Held, that the
Oregon & California road and the steam-
ers of the Oregon Railway & Navigation
Company, in the carriage of the goods in
(|ucstion, are not "used under any com-
mon control, management, or arrange-
ment for a continuous carriage or ship-
ment" thereof to and from San Francisco,
within the intent and meaning of the act,
and that the carriage and handling of said
goods, so far as the receiver is concerned.



is performed wholly within the state, and
therefore specially exempted by the
terms of the act from its operation, pro-
vided the same are not directly shipped
to or from a foreign country. Ex parte
Koehler, 30 Fed. 867.

81. United States v. Wood, 145 Fed.
405.

82. United States v. Seaboard R. Co., 82
Fed. 563.

83. Interstate Commerce Act (Feb. 4^
1887, 24 Stat. 379) § 1, provides that such
act "shall apply to any common carrier
or carriers engaged in the transportation
of passengers or property wholly by rail-
road, or partly by railroad and partly
by water where both are used under a
common control, management, or ar-
rangement, for a continuous- carriage or
shipment," etc. The Georgia Railroad ex-
tends from Atlanta to Augusta. It re-
quested its connections that in issuing
bills of lading to its local stations no rates-
be inserted east of Atlanta. There is no
agreement on the part of said company
for any such joint tariff as implies a re-
duced rate from Cincinnati, Ohio, to its
local stations. On the contrary, that
company collects and retains its entire
local rates on all freight shipped from
Cincinnati to its local stations. Held, that
there is no such "arrangement for a con-
tinuous carriage or shipment" existing l)e-
tween said company and its connections
as to bring the rates which are charged
to said local stations within tlic first sec-



§ 3990 CARRIERS. 3612

A steamship company, which joins with a railroad carrier in making,
filing, and publishing joint through rates for intestate traffic, is as to such traffic
used under a "common arrangement" with the railroad company, within the
meaning of the act and subject to regulation and control by the interstate com-
merce commission ; but such power to regulate and control does not extend to the
other port-to-port business of the company, whether interstate or intrastate.
Under § 20 of the act, the commission has power to require reports from such
company, and to prescribe a system of bookkeeping and accounting with respect
to such joint traffic and directly relating thereto, but it has no power to extend
such requirements to include other matters or business of the company having
no direct relation to such joint traffic.^'*

Engaged in Commerce in Territories. — By the Act of 1906, the provisions
of the Interstate Commerce Act were extended to carriers engaged in the trans-
portation of passengers or property from one state or territory of the United
States to any other state or territory, or from one place in a territory to another
place in the same territory.^^ Alaska is a territory within the meaning of this
act.®^ The authority of the secretary of the interior to review and modify rail-
way rates in Alaska conferred upon him by the Act of May 14, 1898,^"^ is super-
seded by the amendment of June 29, 1906, to the Interstate Commerce Act, which
gave to the interstate commerce commission the power to prescribe rates, and ex-
tended the provisions of the act to intraterritorial commerce.*^

Corporation Organized under State Law. — Corporations organized under
state laws, engaged in interstate commerce, are subject to control by the interstate
commerce commission, relating to uniform system of accounting and annual
reports. ^^ An electric interurban street railway company doing an interstate
business in the carriage of passengers, although incorporated under the street
railroad statutes of a state, and not authorized to carry freight, nor vested with
the right of eminent domain, is subject to the provisions of the Interstate Com-
merce Act and the interstate commerce commission has jurisdiction to prescribe
just and reasonable maximum rates to be charged by such company for the in-
terstate carriage of passengers. ^"^

When Actually Engaged in Transportation. — A corporation is a common
carrier, within the meaning of Interstate Commerce Act, only when it is actually
engaged in the business of transportation. "^

Engaged in Transportation Through Foreign Country. — Any common
carrier subject to the provisions of this act receiving freight in the United States
to be carried through a foreign country to any place in the United States shall
also in like manner print and keep open to public inspection, at every depot or
office where such freight is received for shipment, schedules showing the through

tion of the act to regulate commerce. or territory, or from one place in a terri-

Interstate Commerce Comm. v. Cincin- tory to another place in the same terri-

nati, etc., R. Co., 56 Fed. 925. tory. Interstate Commerce Comm. v.

84. Goodrich Trans. Co. z'. Interstate Humboldt Steamship Co., 224 U. S. 47-1,
Commerce Comm., 190 Fed. 943. 56 L. Ed. 849, 32 S. Ct. 556.

85. Engaged in commerce in territories. 87. Authority of Secretary of Interior.
—Act of June 29, 1906 (34 Stat, at L. —Act of May 14, 1898 (30 Stat, at L. 409,
584, chap. 3591, U. S. Comp. Stat. Supp. chap. 299, U. S. Comp. Stat. 1901, p.
1909, p. 1150), Fed. St. Anno. Sup. 1909, 1576), § 2.

p. 255; Interstate Commerce Comm. v. 88. Interstate Commerce Comm. v.



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 96 of 214)