DAMAGES-Continued.
General Readjustment-Continued.
The fact that a lower rate for the future was prescribed in a general
revision of rates which resulted in both increases and reductions
throughout an extensive territory, did not in and of itself establish
that the prior rate was unreasonable to the extent that it exceeded
the rate subsequently established. But where the evidence was
persuasive that a particular rate assailed was clearly unreasonable,
all the facts and conditions considered, the measure of damages was
the difference between the applicable rate assailed and the maximum
rate which reasonably should have been applied by the carrier prior
to the general readjustment. Dennery v. Houston & Texas Central
R. Co., 164 (168).
The commission refused to consider rates in effect prior to the south-
western revision as unreasonable, as the readjustments following
that revision were of a general nature, covered more or less extensive
territories, and resulted in both increases and decreases in rates.
Accordingly, reparation was denied on poultry from Texas points to
New Orleans, to the basis of rates therein prescribed. Pennington
Produce Co. v. Texas & Pac. Ry. Co., 229 (232).
The rate sought was part of the general revision of rates on brick in
107 I. C. C. 702, but no finding was made therein as to the past and
the record in the case under consideration did not warrant giving a
retroactive effect to the rates prescribed in that case. Sioux City
Brick & Tile Co. v. Chicago & N. W. Ry. Co., 405 (406-407).
While reparation has been denied following a general readjustment of
rates, as the rates charged were unreasonable under any adjustment,
reparation was awarded on shipments of empty storage tanks, set up,
from Burkburnett, Tex., to Kingsmill, Tex., over an interstate
route, to 52.5 per cent of first-class rates prescribed in the south-
western revision, to which basis reparation was awarded in 132 I. C. C.
56 and 146 I. C. C. 149. Skelly Oil Co. v. Atchison, T. & S. F. Ry.
Co., 410 (411-412).
While reparation has generally been denied in connection with the
readjustment of rates under the southwestern revision, reparation on
shipments moving prior to that revision was awarded to the basis of
the class rates prescribed therein, subject to the minimum weight
under the rate assailed, where complainants had been subjected to an
unreasonable classification rating which had been applied in con-
junction with class rates which had subsequently been themselves
materially reduced. Fisher Supply Co. v. Alabama & V. Ry. Co.,
711 (718-719).
Misrouting: Although shipments were misrouted by the defendant carrier,
that line was not required to pay the entire amount of reparation because
the rate charged over the route of movement was unreasonable to the
extent that it exceeded a rate applicable over the route the shipments
should have moved and the same lines would have transported the traffic
if it had moved over the lower-rated route. Dixie Foundry Co. v. Evans-
ville & O. Ry. Co., 413 (416).
DAMAGES-Continued.
Parties Entitled to:
Although most of the freight charges were ultimately borne by the
consignor, reparation was awarded complainant, the consignee, who
paid them, following the principle that in determining who is entitled
to reparation it is not necessary for the commission to go beyond the
first step, which is taken when the charges are paid. General Grinding
Wheel Corp. v. Southern Ry. Co., 34 (35–36).
The shipper having paid the freight charges and deducted them from
the invoices was entitled to bring the action and to any award of
reparation found warranted, in the absence of objection by the party
bearing the charges or the beginning of an action by such party.
However, a copy of a written instrument which was dated after the
complaint was filed and purported to assign to the complainant all
choses in action which had accrued or might thereafter accrue to the
Illinois Glass Company based on shipments of glass bottles was
insufficient evidence to establish the complainant's right to repara-
tion on shipments on which that company paid or bore the charges.
Creomulsion Co. v. Southern Ry. Co., 95 (99).
Consignees who paid freight charges, although later they deducted
similar amounts from the invoice prices, were the proper parties to
seek reparation:
Southwest Utility Ice Co. v. Atchison, T. & S. F. Ry. Co., 146 (149).
Vinita Wholesale Grocery Co. v. Arkansas Valley Ry. Co., 739
(740-741).
As held in 236 U. S. 662, a finding of unreasonableness in the past
inures to the benefit of every person who has paid and borne the
unreasonable charges and who initiates his claim within the statutory
period. Brannon Coal Co. v. Southern Ry. Co., 486 (487).
Pendente Lite: Although there was no specific prayer in the complaint
covering shipments moving pendente lite, yet under the principle announced
in 269 U. S. 217, the complainant was entitled to reparation for any
shipments moving subsequent to the filing of the complaint, on submission
of Rule V statements and supporting affidavits, unless carriers objected
to such proof. Southwestern Broom Mfg. Co. v. Atchison, T. & S. F.
Ry. Co., 724 (728).
Preferences and Prejudices:
Since to warrant an award of reparation, based on a finding of undue
prejudice, proof of specific pecuniary injury must be made, the mere
fact that complainant paid higher rates on cotton piece goods to Albion,
Ind., than were in effect to Chicago and certain other destinations,
failed to prove that it suffered pecuniary loss, and in the absence of
other evidence of damage, that the rates assailed were unduly pre-
judicial. Elin & Golub v. Baltimore & O. R. Co., 373 (375).
The fact that the actual amount of money damages suffered by com-
plainants on any particular transaction would be difficult to ascertain
offers no obstacle to a finding of undue prejudice for the future,
since the relationship between complainants and their competitors
must necessarily be affected by the freight rate, an element of cost
common to both producers. O'Meara v. Baltimore & O. R. Co.,
785 (797).
DAMAGES-Continued.
Prior Decisions:
Reparation was awarded to specified percentages of the first-class rates
prescribed in the southwestern revision, to which basis reparation
was previously awarded in 132 I. C. C. 56 and 146 I. C. C. 149:
Skelly Oil Co. v. Atchison, T. & S. F. Ry. Co., 410 (411-412).
Magnolia Petroleum Co. v. Atchison, T. & S. F. Ry. Co., 451.
Pursuant to 236 U. S. 662, which held that a finding of unreasonableness
in the past inures to the benefit of all parties who have borne such
unreasonable charges, rates on coal from certain mines in Alabama
origin groups to Meridian, Miss., found unreasonable and reparation
awarded to the basis of rates prescribed in 140 I. C. C. 131 and 146
I. C. C. 687. Brannon Coal Co. v. Southern Ry. Co., 486.
Reparation was awarded, based on a finding in 140 I. C. C. 131 even
though the rates found unreasonable in the latter decision were
approved by the commission in 35 I. C. C. 187, as no order was entered
in that case requiring the maintenance of the approved rates for the
future and the evidence in 140 I. C. C. 131, as well as in the case
under consideration, was dissimilar thereto. Id. (487).
Reparation to the basis of rates made under the distance scale pre-
scribed in 152 I. C. C. 749, 155 I. C. C. 687, denied. Application of
that scale resulted in both increases and reductions and as no repara-
tion was sought in that case, the extension of the rates therein pre-
scribed should be without peril of reparation. Duffy-Trowbridge
Stove Mfg. Co. v. Atchison, T. & S. F. Ry. Co., 543 (545).
Reparation was awarded to the basis of a distance scale prescribed in
139 I. C. C. 88, even though no reparation had been sought or awarded
in that case, since the decision therein resulted in a reduction in the
rates for distances over 60 miles but did not disturb the rates for
lesser distances, and since the distances in the case under consideration
were in excess of 60 miles. Cartier & Sons Co. v. New York, N. H.
& H. R. Co., 649 (651).
Reparation was awarded to the basis of rates on salt under the distance
scale prescribed in 120 I. C. C. 91 and 128 I. C. C. 431, similar action
having taken in several prior decisions. Vinita Wholesale Grocery
Co. v. Arkansas Valley I. Ry. Co., 739.
Reparation was awarded certain complainants who introduced no
testimony with respect to the paying or bearing of charges where it
was stipulated that such complainants had received shipments and
had paid or borne the freight charges to the same extent as had those
on whose behalf such testimony was introduced. Southwest Utility
Ice Co. v. Atchison, T. & S. F. Ry. Co., 146 (149).
The mere admission by a carrier that the rates charged were unreasonable
can not be accepted as conclusive, and the willingness of the carrier to
pay reparation can be approved only on evidence which would war-
rant an award of reparation in opposition to its wishes. Phillips
Petroleum Co. v. Atchison, T. & S. F. Ry. Co., 275 (276).
Reparation was denied in the absence of competent evidence that
complainant paid and bore the freight charges:
Advance Bag & Paper Co. v. Central R. Co. of N. J., 317 (320–321).
Hawley v.
Atchison, T. & S. F. Ry. Co., 345.
Reconsignment and Diversion: Neither the agreement to protect a rate
nor the act of forwarding a shipment contrary to the shipper's instructions
justifies charging other than the applicable rate, and such facts do not
constitute a violation of the act or form a basis for an award of reparation.
Chandler-Davis Co. v. Atlantic Coast Line R. Co., 749 (751).
Reduction in Rates (by Carrier): The fact that a lower rate was sub-
sequently established does not of itself afford a proper basis for an award of
reparation is supported by numerous decisions. Fulton Bag & Cotton
Mills v. Mississippi Warrior Service, 401 (402).
After refusal and reconsignment of a shipment carrier was without authority
to deliver to the prior consignee. Milne Lumber Co. v. Wheeling & L. E.
Ry. Co., 433 (435).
Shipment of lumber was first refused because not ordered by consignee and
although the complainant had alleged an overcharge it gave orders for
delivery to another party who refused it because of the quality. Shipment
was thereafter reconsigned to a third party who refused it until freight
charges should be paid. Complainant authorized a draft upon itself for
less than the stated charges but upon the draft being honored the ship-
ment was delivered. As the detention was not in any case caused by the
demand of an overcharge, demurrage was applicable under the demurrage
rules. Milne Lumber Co. v. Wheeling & L. E. Ry. Co., 433.
Evidence failed to show that the delay in unloading shipments of scrap paper
at New Iberia, La., was the unavoidable result of flood conditions at that
point or that the demurrage charges assessed for the detention of the cars
were unreasonable. Charles Boldt Paper Mills Co. v. New Iberia &
N. R. Co., 493.
Although the governing tariff provided that no demurrage charges would be
collected where carrier's error prevented proper tender or delivery and
although carriers failed to insert in the waybills the notation "Allow Inspec
tion" that appeared in the bills of lading, nevertheless carrier's error was
not the proximate cause for delay in delivery, and the resulting demurrage
charges were applicable, since complainant, although put on notice by
carrier's refusal to permit inspection on the ground that it was not pro-
vided for in the billing, did not request inspection, as was its custom, until
after demurrage had accrued. Southern Flour & Grain Co. v. Nashville,
C. & St. L. Ry., 641.
DENSITY OF TRAFFIC. See VOLUME OF TRAFFIC.
DEPRESSED RATES. See Low AND DEPRESSED RATES.
DETENTION. See DEMurrage.
DIFFERENTIALS. See also Port DifferentiaLS AND EQUALIZATION; SPREAD
OF RATES.
The commission has recognized the unusual transportation conditions exist-
ing in New Mexico and Texas differential territory, and in consideration
of such conditions has prescribed arbitrary amounts to be added to the
rates for hauls within those sections. Artesia Alfalfa Growers Asso. s.
Atchison, T. & S. F. Ry. Co., 50 (51).
Obviously, the reasons for according to short or weak lines the right of avail-
ing themselves of a differential apply with equal force whether the line is
an originating, intermediate, or delivering carrier, and the differential
authorized by 88 I. C. C. 543 was not intended to be confined to traffic
destined to points on such lines. Columbus Brick Co. v. Columbus &
G. Ry. Co., 423 (424).
An arbitrary of 70 cents per ton to cover the entire car float or lighterage
service in New York Harbor was prescribed on shipments of roofing slag
from Reading and Swedeland, Pa., to Providence, Auburn, Esmond, and
Cranston, R. I., and Attleboro, Mass. Cartier & Sons Co. v. New York
N. H. & H. R. Co., 649.
See also PREFERENCES AND PREJUDICES.
The allegation of unjust discrimination required no discussion, as there was
no showing of discrimination between shippers in the same community.
Boger & Crawford v. Seaboard Air Line Ry. Co., 227.
Rail-and-barge rate on used burlap bags from Toledo, Ohio, to New Orleans,
La., found not unjustly discriminatory when compared with a lower all-
rail rate from Buffalo, N. Y., to New Orleans, since the application of the
latter rate was restricted to routes via the Virginia cities and since there
was no showing of any similarity of circumstances and conditions surround-
ing the maintenance of the compared rates. Fulton Bag & Cotton Mills
v. Mississippi Warrior Service, 401 (402).
No finding of undue prejudice or unjust discrimination was warranted where
free dockage was not shown to have diverted the channel of traffic from
one port to another or from one carrier to another at the same port. Wharf-
age Charges at Atlantic and Gulf Ports, 663 (689).
The practice of carriers leasing their warehouse facilities, or portions of them,
for periods of 30 to 90 days, presumably covering particular seasons, at a
rental that is not reasonably compensatory may discriminate against the
smaller shippers who must avail themselves of space at the traffic rates. Id.
(690-691).
DISTANCE. See also SHORT-LINE DISTANCE.
Other factors than distance, such as transportation conditions and volume
of movement, must be considered in determining the reasonableness of a
rate. Crawfordsville v. Cleveland, C., C. & St. L. Ry. Co., 87 (88).
DISTANCE RATES.
Rates on eggs from Lemmon, S. Dak., to Chicago, Ill,. and Milwaukee and
Waterloo, Wis., found unreasonable in the past to the extent that they
exceeded third-class rates based on the Fargo scale, but for the future
found unreasonable to the extent that they exceeded rates prescribed in
156 I. C. C. 156, which were equal to approximately 85 per cent of the third-
class rates under the Fargo scale. Reasonable rates prescribed for the
future and reparation awarded.
Chicago, M. & St. P. Ry. Co., 1.
Lemmon Grocery & Produce Co. v.
Rates on potatoes from Fort Smith, Ark., and Spiro, Okla., to Liberal, Kans.,
found unreasonable as compared with rates from Colorado and Wyoming
points, and with distance rates subsequently established in accordance with
the southwestern revision. Reparation awarded. Hutchinson Produce Co.
v. Chicago, R. I. & P. Ry. Co., 27.
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