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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