§ 5. The routing directions once given in writing are binding on shipper and carrier alike. The Commission holds that, whenever a shipper gives instructions to forward his goods via a particular route, the carrier is relieved of the duty of ascertaining whether the goods could be moved by another route at a lower rate. It is only when a shipper is damaged by a failure to observe his routing instructions that the Commission awards reparation, unless the rate via the route directed is found unreasonable. Where the failure is one to make proper delivery due to error of the shipper in marking his packages, however, the shipper must bear the resulting freight charges, even though the bill of lading bears the correct address.1 Americans have so frequently given the same name to towns in different states that there is always possibility of error on this score: the Railway Guide lists fifteen Albanys, five Detroits, twelve Denvers, and no less than twenty-six Washingtons. There is a Boston in Georgia, a Philadelphia in Mississippi, a New York in Alabama, but only one Chicago. The marvel is that, in the face of this handicap, so few mistakes are made when the lack of system in the usual shipping room is taken into account.

By no means all of the traffic comes to the carrier with routing instructions. In the absence of specific through routing by the shipper, it is the carrier's duty to route the shipment via the cheapest reasonable route known to him of the class designated by the shipper (all rail, rail and water, etc.) via which there are lawful rates. If the carrier's agent fails in this duty, and thus most railroad presidents. It is not always easy to have the operating department deliver the service the traffic department sells, or to have traffic department sell only the grade of service the operating department can deliver. But the mere transportation of shipments is not all of the service the railroad sells; and by the little courtesies accorded his customers the freight solicitor makes friends: the relationship is very largely a personal one. He must arrange for tracing cars, for tracing claims which may become buried in a claim office, for arranging for new rates, and for a sympathetic presentation of shippers' needs at meetings of railroad officers. His job is to express by actions the interest of the railroad in its customers. He is not paid simply to give away cigars.

1 Parlin & Orendorf Plow Co. v. U. S. Express Co., 26 I. C. C. 561. The Commission (Conference Ruling 91) has held that a much longer and a more indirect route is not a reasonable route. An interesting dispute involving substantially the same principle, but complicated by considerations of state and interstate rates, arose in connection with unrouted freight from Duluth to Minnesota points moving on the Northern Pacific, which had two routes available from Duluth to destination. One was wholly within the state of Minnesota and one extended through Wisconsin. On the latter

causes extra expense to the shipper over and above the lawful charges via another available route of the class designated by the shipper, the carrier, on admitting responsibility for the error, may adjust the overcharge so caused by refunding the difference. between the lawful charges via the route over which shipment moved and what would have been the lawful charges via the cheaper available route which could have been lawfully used. This refund must in no case exceed the actual difference between the lawful charges via the different routes specified, and must in every instance be paid in full by the carrier whose agent caused the overcharge. It may not be shared in by or divided with any other carrier, corporation, firm or person. This ruling seeks to remove the temptation for a disguised payment of rebates. The authority for payment therefore does not extend or apply to instances in which soliciting or commercial agents of carriers induce shippers to route shipments over a particular line via which a higher rate obtains than is effective via some other line. Nor can it be used in any case or in any way to "meet" or "protect" a rate via another route or gateway when the adjusting carrier's tariffs, at the time the shipment moves, do not contain rates which are available and lawfully applicable. The authority may not be used as a means or device by which to evade tariff rates or to meet the rate of a competing line or route, nor

the interstate rate was higher than the intrastate rate applicable on the former, the intrastate rate having been reduced by the Minnesota authorities. The Northern Pacific during the period when the legality of the intrastate rates was in litigation, and while they were enjoined, under the injunction overruled in the Minnesota Rate Cases, carried the freight over the interstate route and assessed the higher rate applicable to that route. On a claim for damages for alleged failure to transport by the cheaper, or intrastate route, the Northern Pacific proved that it was its practice to move all outbound freight from Duluth over the interstate route and inbound freight over the intrastate route, because of the grades encountered and the relatively lower cost of such operation. The Supreme Court upheld it in this practice, saying:

"In the absence of shipping instructions it is ordinarily the duty of the carrier to ship by the cheaper route. But the duty is not an absolute one. The obligation of the carrier is to deal justly with the shipper, not to consider only his interests and to disregard wholly its own and those of the general public. If, all things considered, it would be unreasonable to ship by the cheaper route, the carrier is not compelled to do so. The duty is upon the carrier to select the cheaper route only 'if other conditions are reasonably equal.' Resort to the more expensive route may be justified. And the justification may rest either upon the peculiar circumstances of a particular case or upon a general practice. In the cases before us the justification is rested upon a general practice." Northern Pacific Railway Co. v. Solum, 247 U. S. 477, 482.

to relieve a shipper from responsibility for his own routing instructions.1

It must constantly be borne in mind that the law does not permit the use of any rate or fare except that contained in a lawful tariff that is applicable via the line, route, and gateway over and through which the shipment or passenger moves. The published rate is sacred. The carrier desiring to give its customers the benefit of the rate or fare applied via another line or gateway, lower than its own rate or fare, can lawfully do so only by incorporating that rate or fare in its own tariff and so giving the benefit to all alike. The law forbids extending such a rate or fare to one and withholding it from another.

The Transportation Act, 1920, while not affecting the relations of shippers and carriers relative to routing, introduced into the Interstate Commerce Act provisions designed to increase the earnings of particular lines. Any carrier deprived of its right to participate in the haul of property in conformity with routing instructions of the shipper, is entitled to recover the total amount of the rate or charge it would have received had it participated in the haul. The right of recovery is against the carrier at fault. Formerly the principal way of making up such diversions was by turning over an unrouted shipment with approximately the same revenue: a routine result of negotiation and correspondence.

§ 6. Even as to unrouted freight the right of the individual carrier has been curtailed, for "the Commission may, whenever the public interest and a fair distribution of the traffic require, direct the route which such traffic shall take after it arrives at the terminus of one carrier, or at a junction point with another carrier, and is to be there delivered to another carrier."2 Under this provision the way is open for some of the weak lines, whose traffic is small, and revenue inadequate, to apply to the Commission for relief through an order requiring its connections to deliver to it a larger percentage of unrouted freight. The Kansas City, Mexico & Orient was the first of these carriers to seek this sort of relief.

1 Conference Ruling 214; Lord & Bushnell Co. v. M. C. R. R. Co., 22 I. C. C. 463; Meeds Lbr. Co. v. A. & V. Ry. Co., 38 I. C. C. 679; Chattanooga Implement & Mfg. Co. v. L. & N. R. R. Co., 40 I. C. C. 146; National Wholesale Lbr. Dealers' Asso. v. Southern Ry., 48 I. C. C. 679, 680. Interstate Commerce Act, Sec. 15, Par. 10.

Yet it is not probable that effort on the part of the Commission to aid the weak lines in this manner is likely to prove particularly effective. Its adequacy depends upon two factors, neither of which the Commission can control: first, the relative. amount of freight coming to the connection unrouted, and second, the relative financial condition of other carriers competing for the traffic. Any general effort by the Commission to direct the delivery of unrouted freight to specified connections could have only one result: the competing carriers, if they want additional business, will put their solicitors in the field to secure routings. The entire possibility of protection to the weak lines would be completely nullified by the shipper electing to route his traffic.

CHAPTER XVIII

TERMINALS AND TERMINAL FACILITIES

Section 1. Importance of Terminals, 272-Sec. 2. The Opening of Terminals to Competitors, 275-Sec. 3. Closed and Open Terminals, 276 -Sec. 4. Emergency Control over Terminals, 279-Sec. 5. Extension of Terminals, 280.

§ 1. It was a consequence of the building of competitive railroads by private capital that some railroad companies secured more satisfactory terminal locations than others. Usually the pioneer secured the open places and river bottoms for yards. It was also inevitable that some railroad companies should have elected to develop their terminal properties more extensively than others. Managerial foresight was uneven; but early the importance of adequate terminal facilities had been generally recognized, and the railroad company, able to meet the expense, usually followed the policy of extending the terminal facilities so as to reach directly a maximum of industries. Carriers sometimes acted coöperatively. Not only were great sums expended in the development of extensive freight terminals, but the railroads deemed it desirable to modernize their passenger terminals from time to time. The passenger terminal problem, like the freight terminal problem, is most acute in congested centers. The common use of passenger terminals by suburban and through passengers has complicated the problem.

Railroad investment in terminal property is large. In a case decided by the Interstate Commerce Commission in 1909, the Great Northern Railway Company estimated the value of its right of way and terminals at $87,000,000, of which $55,000,000 was for terminals in ten cities. Of the Northern Pacific estimate of $107,000,000 as the value of its right of way and terminals, $73,000,000 was for terminals in eight cities. In the New York Harbor Case of 1917 six railroads entering New York showed 1 Spokane v. N. P. Ry. Co., 15 I. C. C. 376.