47C service by the carriers.1 The carrier, therefore, is entitled to extra compensation for such loading or unloading. 47d Free unloading service granted to some shippers, and refused to others, would be improper. 47 For the loading and unloading of carload freight is devolved otherwise upon the shipper and consignee. 47f It cannot, however, be stated as a matter of law that it is the absolute duty of carriers to unload carloads of package freight, nor that this duty rests upon the shipper, as it is rather a question with respect to each commodity of what, under the circumstances, is just and reasonable, and perhaps also what has been the practice.49 To make allowances based upon the performance by shippers of services which shippers are legally bound to render for themselves, is a violation of the Act.48 Trimming or leveling coal in the holds of ships is a necessary service in connection with the transportation of coal by water, and where performed by the rail carriers it must be regarded as a part of the delivery.49 But custom and conditions justify compelling shipper to stake open lumber cars.50 § 181. Refrigeration. When ice is actually needed, and used in transportation of fruit, it depends upon the circumstances of each case whether the icing is a part of preparation which can be done by the shipper, or part of refrigeration which the carrier has the exclusive right to furnish. Where a refrigeration service is entirely and wholly under the control of a carrier, which determines when ice shall be 47c Schultz-Hansen Co. v. So. Pac. Co., 18 I. C. C. 234. 47d Davies v. Louisville & N. R. R., 18 I. C. C. 540. 47e Davies v. I. C. R. R. Co., 19 I. C. C. R. 3. #1 Coke Producers' Asso. of Connellsville v. B. & O. R. R. Co., 27 I. C. C. 125. " Wholesale Fruit & Produce Ass'n v. A., T. & S. F. Ry., 14 I. C. C. 410. 48 In the Matter of Allowances for the Transfer of Sugar, 14 I. C. C. 619. 49 New England Coal & Coke Co. v. N. & W. Ry., 22 I. C. C. 398. 50 National Wholesale Lumber Dealers Assn. v. Atlantic C. L. R. R., 14 I. C. C. 154. supplied and in what quantities, the amount depending upon the manner in which the carrier itself handles the car, the refrigeration charge should be a gross sum, and shippers should not be required to pay for the ice consumed in reicing. 51 Loading the car, by whomsoever done, must be such as to prepare the freight for shipment, and a consignor may, in the absence of a regularly filed tariff covering this work, not only load perishable freight, such as fruit in a car placed at his warehouse, but may do all other acts, including precooling necessary to fit the fruit for shipment and filling bunkers in the car with ice for its preservation. 52 It should be noted that there are private lines of refrigeration cars offering their services to the shipping public which are now subject to the jurisdiction of the Commission.53 There is no apparent distinction between the duty to furnish heating and duty to furnish refrigeration; and in a recent case the use of privately owned heater cars, and the charges which may properly be made to shippers for use of such cars are fully discussed. 54 § 182. Elevation. Under the Act as amended in 1906, elevation is specifically made such a part of transportation as to bring it within the jurisdiction of the Commission, which is authorized to determine what is a reasonable allowance to the shipper for elevation services.55 And the courts have held that the Commission has no power to forbid carriers from paying or allowing for the elevation and transfer of grain in transit reasonable compensation, because there 51 Crutchfield & W. v. S. P. Co., 24 I. C. C. 651; see also Railroad Commission of Calif. v. Ala. G. & S. Ry., 32 I. C. C. 17. 52 Atchison, T. & S. F. Ry. Co. v. U. S., 232 U. S. 199, 34 Sup. Ct. 291. See also Refrigerating Charges of Kansas City So. Ry., 26 I. C. C. 617. 53 Waco Freight Bureau v. H. & T. C. R. R., 19 I. C. C. 22; see also 54 In re Advances on Potatoes, 25 I. C. C. 159; see also Re Rentals for Insulated Cars, 31 I. C. C. 255. 55 Union Pacific R. R. v. Updike Grain Co., 222 U. S. 215, 56 L. ed. 171, 32 Sup. Ct. 39. is a possibility of a future violation of the law arising out of such allowances. 56 Considering the elevator allowance cases of Supreme Court together, the Commission has concluded that it was the intention of the Supreme Court to hold that, whatever might be the case if railroad saw fit to confine its payment to elevation actually required in transportation of grain, it must, when it makes this allowance to one elevator, under such circumstances as to give that elevator payment for commercial elevation, extend the same privilege to all other elevators similarly situated. 57 A carrier subject to the Act to Regulate Commerce may either construct and operate the elevator itself, or furnish elevation by arrangement with the owner of an elevator; and the amount of compensation paid by the carrier to such owner is of no concern to shippers or to other carriers, unless it operates to affect the rates on grain, or by some device a portion of the allowance is returned to shippers, and thus becomes a rebate." § 183. Storage. 58 Storage of commodities outside of cars for convenience of shippers while markets are being sought is not properly carrier's function.59 It is the duty of a consignee to receive his freight within a reasonable time after its arrival at destination; where he neglects to do so, the liability of the railroad as a common carrier ceases and it becomes a warehouseman. But the railroad is under no legal liability to continue to discharge the duty of warehouseman, and may insist that the freight shall be removed by the consignee.60 There is no legal right in a consignee of freight to use a car as a warehouse; and no right to use a car or track as a trading place to the embarrassment of Peavey & Co. v. U. P. R. R. Co., 222 U. S. 42, 56 L. ed. 83, 32 Sup. Ct. 1. 57 Traffic Bureau of St. Louis v. C., B. & Q. R. R., 22 I. C. C. R. 496. 58 In re Allowances to Elevators by U. P. R. R., 12 I. C. C. 85. 59 Reconsignment and Storage of Lumber and Shingles, 27 I. C. C. 451. 60 In re Advances in Demurrage Charges, 25 I. C. C. 314. the carrier.61 As it is not the duty of the carrier to furnish storage beyond a reasonable time necessary to unload, the Commission has no authority by the Act, where a carrier has not held itself out as granting storage, to order it furnished; but, if it is furnished and charged for, storage becomes an incident in connection with transportation, and the legality of the rule becomes a proper matter for consideration by the Commission.62 While carload quantities should not be received in the carrier's freight houses, nevertheless, when a carrier has actually stored and handled carload quantities, it is entitled to fair compensation for the additional service.63 Storage of grain beyond such a reasonable time as is required for its transfer ceases to have any character as transit elevation subject to the Act; it becomes commercial elevation with which the Commission has held that it is not necessarily concerned.64 § 184. Transit privileges. A transit privilege is one whereby certain things may be done to goods in transit at an intermediate point without losing the right to have the through rate apply.65 And the charge, therefore, usually in the form of a fixed sum to be added to the through rate whatever it may be, is a regulation affecting the rate of which the Commission has jurisdiction.66 The Act as amended gives to the Commission adequate power to regulate transit privileges, and it may upon full hearing prescribe such rules therefor as will in its opinion free the operation of transit privileges from illegal practices.67 Transportation itself includes such services as elevation and refrigeration, storage and delivery.68 But such transit services as milling and recon 61 Wilson Produce Co. v. Penn. R. R., 16 I. C. C. 11. 62 Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25. 63 Western Classification Case, 25 I. C. C. 442. 64 Matter of Elevation Allowances, 14 I. C. C. 315. 65 National Wool Growers' Case, 23 I. C. C. 151. 71. 66 Speigal v. S. Ry., 25 I. C. C. 67 Transit Case, 24 I. C. C. 340. 68 Re Elevation Allowances, 24 I. C. C. 197. signment, bagging and compressing, are services for which under the Act the carrier may not improperly be expected to arrange.69 And, generally speaking, the charges for fabrication in transit of any sort, if rendered, may properly be made sufficiently high to give a profit to the company." § 185. Transportation services. What is included under the head of transportation is often difficult to determine; but only for such service can special allowances be made to favored shippers." The Commission is virtually directed to limit the amount that the carrier may pay to a shipper for transportation services rendered by the latter.72 And, moreover, additional charges should be made for any independent service rendered to any particular shipper.73 It is an established principle that the carrier is entitled to repayment of the cost of the service, together with a reasonable profit on that cost, when performing auxiliary functions.74 Certain matters are plainly altogether outside of what is involved in transportation. Station restaurants, news stands, barber shops, and similar private enterprises at railroad terminals are no part of transportation service.75 Services rendered by the defendant in providing a place where consignments of perishable produce can be handled, and in assorting into lots the packages marked with the names of the single dealers to whom they are consigned, is a thing of value to the shipper for which he may properly be required to pay.76 The merchandising of grain is not part of the duty of a carrier, and for carriers to pay shippers for any of the operations of such merchandising is to make 69 Becker v. B. & M. Ry., 28 I. C. C. 645. 70 Fabrication in Transit Charges, 29 I. C. C. 70. 71 Inman, Akers & G. v. A. C. L. Ry., 32 I. C. C. 146. 72 Sterling & Son Co. v. M. C. R. R., 21 I. C. C. R. 451. 73 Pittsburgh Steel Co. v. L. S. & M. S. Ry., 27 I. C. C. 173. 74 Detroit Traffic Asso. v. L. S. & M. S. Ry., 21 I. C. C. R. 257. 75 Southwestern Produce Distributors v. W. R. R., 20 I. C. C. R. 458. 76 Davies v. I. C. R. R., 17 I. C. C. 186. |