Topic B. Departure from Published Rates

§ 824. Reparation for improper charges.

Where a shipper has paid charges for transportation service, alleged to have been improper, it is a case for the Commission to decide the reasonableness of the charges, and to award reparation. 56 But where shipments have been made with the agreement that rate published should be reduced and reparation thereafter given, the Commission will refuse to sanction any such deal.57 If the situation whereby the shipper was forced to pay the tariff rate of the carrier is one which bears unjustly upon the shipper by reason of the fault of the carrier, a showing to this effect makes a typical case for resort to the Commission subsequently for reparation. Thus if a larger car is furnished to a shipper than the size he ordered the minimum should only be based on the car ordered. 58 And so if one large car is ordered, and two smaller ones are sent, the basis of the minimum is the car ordered. 59 If, on the other hand, complainant's error in making out the shipping ticket caused the shipment to go wrong, the carrier is not responsible, and the case will be dismissed.60 The principle running through all the cases plainly is that in first instance a shipper must pay the carrier what the tariff fairly requires of him by proper interpretation, even if the carrier is willing to waive the provisions of his tariff.61 If then he can show that what he was compelled to do by the operation of this rule was prejudicial to him, he should have reparation for the wrong done him by the carrier.

§ 825. Certain technical points discussed.

A carrier should not be penalized for a purely technical

omission or error made in an effort to bring its tariff into conformity with the regulations.62 The carrier should be considered blameless, if it has relied upon the terms of a schedule which could not reasonably be misunderstood.63 On the other hand, if the carrier is to blame for the way in which the schedule is framed, and the error in the tariff has resulted in loss to the shipper, damages will be awarded.64 Where a class rate tariff contained no reference to a commodity rate tariff, it was held that a mere technical omission did not invalidate the commodity issue.65 But it is matter of substance not of form which requires that local rates when applied to interstate business must be filed with the Commission.65 However it has been deIcided that the factor of intermediate rates not on file with Commission, and used in absence of through rate may be held unreasonable.66 Nothing is better established than that a rate once scheduled is put beyond any arguing between the carrier and the shipper as to its propriety or impropriety; if the carrier should concede its unreasonableness it would be illegal for the shipper to accept this concession.67 Indeed, under the system now prevailing nothing but fidelity to the schedule can save the carrier from prosecution for violation of the Act for charging less than the rates filed with the Commission.68

§ 826. Criminal liability for violation.

The Act requires publication and maintenance of definite transportation charges; it is the law that carriers shall publish their tariffs and adhere to these tariffs.69 It was believed that in no other way could the discriminations

62 Highland Pk. M'fg Co. v. So. Ry., 26 I. C. C. 67.

63 Sanders v. C. M. & St. P. Ry., Unrep. op. 672.

64 Bowles & McCandless v. L. & N. R. R., 19 I. C. C. R. 563.

65 Highland Park M'fg Co. v. S. Ry., 26 I. C. C. 67.

65 Re Export Rates East & West

of Miss. River, 8 Int. Com. Rep. 185.

66 Mercantile Lumber & Supply Co. v. St. L. S. W. Ry., 28 I. C. C. 701. 67 Old Dominion C. & S. Co. v. P. R. R., 17 I. C. C. 309.

68 Voorheds v. O. C. L. Ry., 16 I. C. C. 42.

69 In re Restricted Rates, 20 I. C. C. R. 426.

which had formerly existed be prevented; and in the enforcement of these provisions the Commission has no discretion. The intention of Congress is, in the absence of express exceptions, to prevent a departure from the published schedules in all manner of carriages, whether gratuitous or otherwise." A carrier cannot depart to any extent from its published schedules of rates for interstate transportation on file without incurring the penalties of the statutes.72 The law places the same obligation upon the shipper as upon the carrier to observe lawful tariff provisions; and so it would seem that a false representation of the contents of a package on the part of the shipper is prohibited by the law.73 Where a carrier willfully and knowingly demands and receives storage charges against a shipper for car detained at a point other than the customary and usual place of delivery or point of destination, it is criminally liable under the Act. In view of the express provision that no transportation shall be performed save in pursuance of schedules on file, the Commission will be vigilant to see that criminal prosecution is the result of any flagrant violation.75

§ 827. Essentials of the crime.

74

Under the Elkins Act, the acceptance by a carrier of a less sum of money than that named in its tariff for the transportation of property is a departure from the legal rate; and it is no defense against a criminal prosecution that the carrier does so in compromise of claims for loss of property in transit.76 The language of the Act being no carrier shall charge, or demand or collect, or receive a

70 Ames Bros. Co. v. Rutland R. R., 16 I. C. C. 479.

71 American Express Co. v. U. S., 212 U. S. 522, 29 Sup. Ct. 315, 53 L. ed. 635.

72 L. & N. R. R. v. Mottley, 219 U. S. 467, 31 Sup. Ct. Rep. 265, 55 L. ed. 297.

73 Bannon v. Southern Express Co., 13 I. C. C. 516.

74 United States v. Texas & P. R. R., 185 Fed. 820.

75 I. C. C. Conference Ruling, No. 184.

76 United States v. Atchison, T. & S. F. Ry., 163 Fed. 111.

greater or less or different compensation, it has been held that a railroad is criminally liable for merely demanding storage charges in excess of those lawfully applicable." Where in prosecution under the Elkins Act the indictment averred that the defendant carrier over whose line the shipment was made had established and published rate over its line of 1912 cents and the proof showed that the tariffs and schedules filed specify 18 cents over the defendant's route, it appearing that the 191⁄2 cent rate was made up by adding to the 18 cent rate the 11⁄2 cent rate of another independent carrier, there was held to be a fatal variance between the allegations and the proof.78 And where an indictment alleged that the published rate on lime was $70 a carload, the allegation was held not to be sustained by a showing from the published tariff that the rate was $3.50 per ton in carloads of at least 40,000 lbs., the charges to be assessed at $3.50 per ton on actual weight on shipments exceeding 40,000 lbs., as these variant conditions might be material in determining whether or not there had been a violation of the Act.79

§ 828. Requirements relating to filing.

One of the chief purposes of the filing is to call the attention of the Commission to a proposed change in rates.80 As the Commission has pointed out, it is necessary that all rates should be on file with it for study and comparison, if its regulation is to be intelligent and comprehensive.81 It follows that rates provided in a tariff which is not on file with Commission are not legal rates.82 And, as the protection of the shipper is a matter which the Act has also in mind, damages will be awarded for loss sustained

77 United States v. Texas & P. R. R., 185 Fed. 820.

78 United States v. Standard Oil Co., 170 Fed. 977.

79 Atchison, T. & S. F. Ry. v. United States, 170 Fed. 250.

so In the Matter of Proposed Ad

vances in Freight Rates, 9 Int. Com. Rep. 382.

81 Re Atlanta & W. P. R. Co., 2 Int. Com. Rep. 480, 3 I. C. C. Rep. 75.

82 St. Louis Blast Furnace Co. v. V. Ry. Co., 24 I. C. C. 360.

through failure to post a tariff changing rates.83 A tariff filed by the authorized agent of a carrier has the same legal status as though separately published and filed by the carrier.84 If a tariff making reductions is in due form and legally filed, whether it was filed without proper authority is immaterial,85 if the proof shows that it has been regularly used by the defendant carrier. The necessity of establishing and maintaining a steady, uniform, open tariff rate is of paramount importance, in view of the evils which the Act to Regulate Commerce attempts to correct, and obviously the most efficient method of regulation is the requirement of constant publicity.

§ 829. Conclusive presumption of legality.

The filing of schedules of rates with the Commission, as required by the Act, raises no presumption as to the legality of such rates in any proceedings before the Commission.86 But, as has been seen, the result of the provisions of this section is that in all dealings between shipper and carrier, whether out of court or in court, except in a proceeding before the Commission to have the rates altered, the rate so filed with the Commission must be taken as the reasonable rate. Whether or not the shipper knows or does not know what the rates in force are, he is bound thereby and answerable therefor; and as will be seen later the doctrine that the scheduled rate is the only legal rate is pressed to the extent of holding that the shipper must pay that rate, even if he was given to understand that the rate was lower.88 Thus the fact that a shipper is

v.

83 Canadian Valley Grain Co. C., R. I. & P. Ry., 19 I. C. C. 108. 84 Johnson & Co. v. A., T. & S. F. Ry., 21 I. C. C. 637.

85 Bd. of Tr. of Chicago v. I. C. R. R., 26 I. C. C. 545.

86 San Bernardino Bd. of Trade v. Atchison, T. & S. F. R. R., 3 Int. Com. Rep. 138.

87 One of the first cases to appre

ciate this was Van Patten v. Chicago, M. & S. P. Ry., 81 Fed. 545. See Texas & P. Ry. v. Mugg, 202 U. S. 242, 50 L. ed. 1101, 26 Sup. Ct. 268, for this doctrine in its latest development.

88 The first intimation of this was in Kinnavey v. Terminal R. R., 81 Fed. 802. See Texas & P. Ry. v. Abilene Cotton Oil Co., 204 U. S.