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§ 167. Bulked Shipments. It has been held110 in England that a railway company cannot legally charge a greater sum for the carriage of a package containing several parcels belonging to different persons than for a package containing several parcels all belonging to one person. The English rule was held by the majority of the Commission, Mr. Commissioner Lane writing the opinion, to be the law in the United States.111 From this rule Commissioners Knapp and Harlan dissented. The question coming before the Circuit Court, Circuit Judges Lacombe, Ward and Noyes adopted the dissenting opinion of Mr. Commissioner Knapp.112 It is difficult to see what interest a carrier has in the question of whether or not the several packages constituting a carload of freight belong to one or more persons. When only one bill of lading is issued and only one person is dealt with, why should a carrier ask as to the title to the several parcels? Does not the rule announced by the court, supra, open an opportunity for illegal devices? Suppose a shipper claims he owns all the packages and they are billed to one consignee, it would in some cases, be impossible to prove that the shipper's statement was not true. In a case where a shipper concealed the true ownership he would get a carload rating, while the more honest shipper would pay the higher rate. Discrimination refers to the matter of carriage and character of the commodity, not to the question of title. If the shipments move the same way, with the same expense to the carrier, and are of like kind of traffic, it should make no difference whether the shipper is the real owner or only trustee for the real owners.

§ 168. Carload Freight-Ownership of. The next preceding section, taken from the first edition of this book, was written prior to the decision of the Supreme Court in the Bulked Shipment case.113 In that case, decided April 3, 1911,

110 Crouch v. G. N. R. Co., 11 Ex. 742, 25 L. J. Ex. 137, Baxendale v. L. & S. W. Ry., 4 H. & C. 130, 35 L. J. Ex. 108, L. R. 1 Ex. 137, 12 Jur. (N. S.) 274, 14 L. T. 26, 14 W. R. 458.

111 California Com. Asso. v. Wells Fargo Ex. Co., 14 I. C. C. 422; Export

Shipping Co. v. Wabash R. Co., 14 I. C. C. 437, and cases cited in the prevailing and dissenting opinions.

112 Delaware, L. & W. R. Co. v. Int. Com. Com., 166 Fed. 499.

113 Int. Com. Com. v. Delaware, L. & W. R. Co., 220 U. S. 235, 252,

the rule announced in the text was stated to be the law. In the course of the opinion, it was said:

"The contention that a carrier when goods are tendered to him for transportation can make the mere ownership of the goods the test of the duty to carry, or, what is equivalent, may discriminate in fixing the charge for carriage, not upon any difference inhering in the goods or in the cost of the service rendered in transporting them, but upon the mere circumstance that the shipper is or is not the real owner of the goods is so in conflict with the obvious and elementary duty resting upon a carrier, and so destructive of the rights of shippers as to demonstrate the unsoundness of the proposition by its mere statement."

In giving the reason for the conclusion reached, the court said:

"Moreover, the unsoundness of the contention is demonstrated by authority. It is not open to question that the provisions of Section 2 of the Act to Regulate Commerce were substantially taken from Section 90 of the English Railway Clauses Consolidated Act of 1845, known as the Equality Clause."

The principle being thus established, it is now universally followed.

It has been held that, in such shipments, the forwarding agent is so far the agent of the shipper as to bind him by a contract for released rates.114

§ 169. Train Loads.-The usual course of business must be considered in determining questions of discrimination, and while there may be some basis in logic for the claim that a lower rate per car should be made on train loads than on carloads, in fact train loads are rarely used and such a unit of

253, 55 L. Ed. 448, 31 Sup. Ct. 392, citing as construing the English Equality Clause, Great Western R. Co. v. Sutton, 1869-L. R. 4, H. L. 226, 38 L. J. Ex. 177, 22 L. T. 43, 18 W. R. 92; Evershed v. London & N. W. Ry. Co., 1878-33 App. Cas. 1029,

and Denaby Main Colliery Co. V. Manchester, etc., R. Co. 1885-11 App. Cas. 97.

114 Great Northern Ry. Co. V. O'Conner, 232 U. S. 508, 58 L. Ed. 703, 34 Sup. Ct. 380.

quantity would not be equitable or justified. This principle is well expressed by the Commission as follows:

"Whatever difference there may be in the cost to the carrier between traffic in train loads and traffic in carloads, it appears from the general course of legislation with respect to commerce between the states, from the debates and reports of the various committees in Congress when the Act to Regulate Interstate Commerce was under consideration, from the better considered court opinions, and from the reports and opinions of this Commission, that to give greater consideration to train-load traffic than to carload traffic would create preference in favor of large shippers and be to the prejudice of small shippers and the public. ''115

§ 170. Classification of Commodities Should Be Without Discrimination.-Classification of commodities, like any other act of the carrier affecting the rate to be charged, must be reasonable, and such classification must be based on a real distinction.118 Unless the distinction is real, it would violate Section 2 of the Interstate Commerce Act and discriminate between "like kinds of traffic." A uniform classification would be much better than the differences now existing in that respect, and the Commission "has sought as far as practicable to secure the establishment throughout the country of a uniform classification of freight.''117 We have seen (Section 98, ante) that low-grade traffic of prime utility and moving in large quantities demands a comparatively low rate. The principles of classification are so important and are so clearly stated by Prof. Henry C. Adams, former Statistician of the Interstate Commerce Commission,118 that it is valuable to reproduce them here:

"Principles underlying freight classifications. It was dis

V.

115 Anaconda Copper Mining Co. v. Chicago & E. R. Co., 19 I. C. C. 592, 596; Carstens Packing Co. Oregon S. L. R. Co., 17 I. C. C. 324, 328. See also Sec. 122, ante; Burlington C. R. & N. Ry. Co. v. Northwestern Fuel Co., 31 Fed. 652; Paine Bros. v. Lehigh Valley R. Co., 7 I. C. C. 218.

116 Stowe-Fuller Co. v. Pennsylvania Co., 12 I. C. C. R. 215, 220.

117 Duluth Shingle Co. v. Duluth, etc., R. Co., 10 I. C. C. R. 489, 504. 118 Railways in United States, part 2, pp. 14, 15.

covered early that the charges for transportation of different articles of freight could not be apportioned among such articles with regard alone to the cost of carriage. This basis of determining the charges, it was found, would confine to narrow limits the movement of different articles, whose bulk or weight was large in comparison to their value, while heavier articles with less bulk would be made to pay disproportionately low rates.

"Under the system of apportioning the charges strictly to the cost, some kinds of commerce which have been very useful to the country and have a tendency to bring different sections into more intimate business and social relations could never have amounted to any considerable magnitude, and in some cases could not have existed at all, for the simple reason that the value at the place of delivery would not equal the purchase price with the transportation added. The traffic would thus be precluded, because the charge for carriage would be greater than it could bear. On the other hand, the rates for the carriage of articles which, with small bulk or weight, concentrated great value would, on that system of making them, be absurdly low when compared to the value of the articles, and perhaps not less so when the comparison was with the value of the service in transporting them.

"Accordingly, it was found not to be unjust to distribute the entire cost of service among all articles carried on a basis. that gave greater consideration to the relative value of the service than to the cost. Such a method would be most beneficial to the country; it would enlarge commerce and extend communication, and would be better for the railroads because of the increased traffic which would be brought to them.

"The value of the article carried under this system would be the most important element in determining what freight charge it should bear. Other considerations, however, equally important must not be overlooked when the freight classification is to be made. The classifications as now constructed have for their foundation the following elements:

"The competitive element or the rates made necessary by competition.

"The volume of the business-that is, the tonnage movement.

"The direction in which the freight moves, that is, whether it moves in the direction in which most of the freight is transported or in the reverse direction in which empty cars are running.

"The value of the article.

"The bulk and weight.

"The degree of risk attending transportation.

"The facilities required for particular or special shipments. "The conditions attending transportation, such as furnishing special equipment, as in the case of private dressed-beef cars or cars specially adapted for freight of a perishable nature, or cars of large size for freight of extraordinary bulk.

"Another condition which has also received consideration is the analogy which the new articles to be classified bear to other articles found in the classification.

"The conditions under which railroad companies can afford to transport traffic have a large influence in determining the classification.

"These are the general rules under which classifications are constructed, and while to a large extent controlling, the classifications are, notwithstanding, in a great measure a series of compromises, the participants in which are not alone the railroads, but also the shippers and representatives of business interests throughout the country, the latter being afforded ample opportunity to join with the railroads in the discussion as to the proper classification of articles of shipment affecting their interests.

"While the pressure for reductions is very strong from certain localities, concessions are not now so readily granted, as the territory covered by the freight classifications is so large that great care in the assignment of articles to particular classes must be taken in order to avoid working an injury to any particular section. The commercial and transportation interests are regarded as identical, and the welfare of the whole territory and all interests affected must be

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