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sumption prevails that each carrier is liable only for carriage over his own route unless he has committed himself clearly to through transportation. The mere fact that the original carrier has accepted goods marked for a point off his own route is not sufficient to overcome this presumption. In one of the leading American cases, Nutting v. Connecticut River Railroad Co.,91 it was said that in the absence of any special contract the obligation is nothing more than to transport the goods safely to the end of their road, and there deliver them to the proper carrier, to be forwarded towards their ultimate destination.

§ 864. Effect of the Carmack Amendment.

For interstate commerce the question has now become settled beyond further questioning by the so-called Carmack Amendment. This provides positively that any common carrier, receiving property for transportation from a point in one State to a point in another State shall issue a bill of lading therefor and shall be liable to the lawful holder thereof for any damage to such property caused by it or by any carrier over whose lines such property may pass. Furthermore, it is enacted that no contract shall exempt such carrier from the liability hereby imposed, thus making it simply a matter of academic interest as to whether a carrier may or may not at common law stipulate against liability where it is not to blame.92 However, the subrogation of the initial carrier, if it pays the loss, to recover from the carrier on whose line the loss happened, for the amount it has to pay to the owners, if duly established, is secured by the Amendment. And it also provides that no right of the owners to pursue such other remedies they may have shall be done away with. The courts have held, however, that any State doctrines in relation to the extent of liability in connecting carriage and the limitation of responsibility therein are thereby 226 U. S. 491, 33 Sup. Ct. 148, and cases cited.

911 Gray, 502.

92 Adams Exp. Co. v. Crovinger,

automatically made altogether inapplicable to losses occurring in interstate transportation.93

§ 865. What constitutes connecting service.

96

It would not seem that it would be a difficult question to determine whether a particular case really involves connecting service with its accompanying obligations; and yet certain decisions will show that this problem may be very difficult. Thus a transfer company employed by one carrier to transfer the goods to the next carrier,94 or a cartage company employed by the last carrier to deliver the goods to the consignee,95 or a stockyard to which a railroad delivers cattle, or a telephone used to deliver a telegram,97 or a hackman employed by a passenger at a railroad station,98 or a teamster employed by the consignee to remove goods from the carrier's station,99 are none of them connecting services. These are not all of the same class although they come to the same result. In the transfer, cartage, stockyards, and telegraph cases, there is no connecting service because the patron is dealing with but one service, which uses the others as a subordinate instrumentality to perform its service. In the hackman and teamster cases the patron employs the additional service upon a separate basis altogether.

§ 866. Obligation of initial carrier to take to connection.

In connecting carriage each party involved is not really asked to do more than his full duty within the limits of his own profession, except that the special circumstances may seem to call for unusual action to some extent. Of

93 See Boston & M. R. R. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, and cases cited.

94 Hooper v. Chicago & N. W. R. R., 27 Wis. 81, 9 Am. Rep. 439.

95 St. Louis Drayage Co. v. Louisville & N. R. R., 65 Fed. 39.

96 Central Stockyards Co. v. Louis

ville & N. Ry., 192 U. S. 568, 24 Sup. Ct. 339, 48 L. ed. 565.

97 People v. Western Union Telegraph Co., 166 Ill. 15, 46 N. E. 731, 36 L. R. A. 637.

98 Brown v. New York C. & H. R. R., 151 N. Y. 674, 46 N. E. 1145. 99 Parmelee v. Lowitz, 74 Ill. 116, 24 Am. Rep. 276.

the duty of the initial carrier to undertake service to the point of connection on its line with the succeeding carrier there can be no doubt.' This elementary point has been most litigated in recent times in regard to telegraph companies, the initial company sometimes disliking to accept a message to a connecting point, there to be delivered to another company, very often a competitor; but it is well established that each must receive and forward with diligence to the connecting line, and each will be held liable for its failure or refusal to perform that duty." In case of carriage there are usually marks on the package designating its course; moreover, its bills accompany it; in case of the telegraphing, however, it is a reasonable requirement by the first company that words designating the connection desired shall be sent with the message.3 This duty resting upon the initial party to act is positive; it is no excuse that the initial carrier believes that the succeeding carrier will refuse to accept the goods.4

§ 867. Obligation of second carrier to accept.

Of the duty in each succeeding service to receive what is properly tendered to it by its predecessor in service there can also be no doubt. It is established law, made necessary from the character of the business, that it is the duty of common carriers to accept freight tendered by another common carrier, and that a consignor of goods to be carried over successive routes makes the first and each successive carrier his forwarding agent. Each carrier who takes charge of the goods becomes an agent of the consignor to tender the goods.

1 Seasongood v. Tennessee & O. R. Transp. Co., 21 Ky. Law Rep. 1142, 54 S. W. 193.

2 See Western Union Telegraph Co. v. Simmons (Tex. Civ. App.), 93 S. W. 686.

3 United States v. Northern Pac. Ry. Co., 120 Fed. Rep. 546; Wampum Cotton Mills v. Carolina &

And a telegraph company

N. W. Ry. Co., 150 N. C. 608, 64
S. E. 588.

4 Telephone Co. v. Brown, 104 Tenn. 56, 55 S. W. 155, 50 L. R. A. 277, 78 Am. St. Rep. 906.

See particularly the case of Andrus v. Columbia & O. Steamboat Co., 47 Wash. 333, 92 Pac. 128, 130.

It

chosen as the connection is in default when it refuses to accept a message tendered by the initial company." follows that the connecting company can make no unreasonable requirement which would seriously interfere with the course of through service. A connecting railroad cannot require as to freight tendered by a connection that the shippers must themselves appear at the point of connection, and rebill their goods. Nor can a telegraph company make the vexatious requirement that it will not recognize the tendering company as the agent of the sender unless he files a written power of attorney.

§ 868. Obligations as to routing.

The Act now provides that not only may shippers route their own goods when connecting carriage is in question, but where there is a choice of through routes the shipper may not be prevented from taking which he chooses; and jurisdiction exists in the Commission to award damages resulting from misrouting. It has often been held that reparation may be awarded for failing to route via the lower combination. 10 Section 15 of the Act now establishes duty of carrier to forward according to instructions in bill of lading." The shippers' right to choose, thus given, cannot be overbalanced by so-called "natural routes." 12 A shipper may insist on a railroad short hauling itself.13 But if goods are left to a carrier it is under no duty to turn over to competitors with a lower rate. 14 Where instructions call for delivery by a certain road, the shipment, it seems, should be delivered to such

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10 C. H. Algert Co. v. D. & R. G. R. R., 20 I. C. C. 93.

11 Weyl-Zuckerman & Co. v. C. M. Ry., 27 I. C. C. 493.

12 Refuge Cotton Oil Co. v. St. L., I. M. & S. Ry., 27 I. C. C. 117.

13 Ch. of C. of Milwaukee v. Chicago, R. I. & P. Ry., 15 I. C. C. 460. 14 Paragould Lumber Co. v. M. P., Unrep. 485.

road at a junction over which the lowest rate is applicable. 15 And where there are no instructions the carrier must choose the cheapest connections. 16 Where the rate is the same the carrier may route as it pleases, in absence of instructions.17 The mistake of the shipper as to what rate is applicable to his shipment, is no basis for reparation.18 Instructions "all rail" govern, even if "rail and water" are cheaper. 19 Where a rate does not apply via the route named, the carrier should ascertain from the shipper whether the rate or the route is to be followed.20 The fact that shipper gave routing instructions over route taking higher rate, does not relieve carrier of liability, if that rate is unreasonable.21 Where instructions were to use the most direct route with a through rate, and no rate was applicable from origin to destination, a shipment was forwarded via a circuitous route; but reparation was awarded on the basis of a subsequently established rate via more direct route. 22

§ 869. Fixing the blame for misrouting.

Both initial and connecting lines may be liable in damages for misrouting; the carrier at fault is liable for forwarding cars by more expensive route contrary to or in absence of instructions.23 A carrier is liable in damages where a shipper is injured as a result of a carrier's failure to route by the cheapest available route in the absence of routing instructions. 24 Where a consignor specified a route in bill of lading, and also designated a rate therein not applicable to the route named, it was held that the

15 Ryland & Brooks Lumber Co. v. G. & O. Ry., 21 I. C. C. 520.

16 Marshall & M. G. Co. v. St. Louis & S. F. R. R., 16 I. C. C. 385. 17 Shipper P. Ass'n v. Atlantic C. L. R. R., 14 I. C. C. 476.

18 Running v. C., St. P. M. & 0. Ry., 19 I. C. C. 565.

19 Hollingshead & B. v. P. & L. E., 13 I. C. C. 193.

20 Gibson Fruit Co. v. C. & N. W. Ry., 21 I. C. C. 644.

21 Shoupe & Co. v. T. & B. V. Ry., 26 I. C. C. 570.

22 Samuels & Co. v. St. L. S. W. Ry., 20 I. C. C. 151.

23 Beekman Lumber Co. v. L. Ry. & N. Co., 19 I. C. C. R. 343.

24 Poor Grain Co. v. C., B. & Q. Ry. Co., 12 I. C. C. 418.

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