roads it is not necessary that they should all adopt the same policy. One of them may extend a low rate for a special service without in any way involving its connections. But whenever a shipper seeks lower rates because of competitive conditions, he must address his appeal to the carrier. If it refuses to make any concessions to the conditions which prevail, the shipper has no ground of complaint. The Act excuses the carrier in making certain discriminations, but it does not clothe the shipper with any new rights whereby he may compel discrimination. Topic F. What Circumstances Justify Preferential Rates § 803. Substantial difference of conditions which justify discrimination. The circumstances or conditions prevailing at two points may be so different as to necessitate a difference in rates. The Act recognizes this as a good defense to the carrier which allows such dissimilarity to be reflected in its rates. While it is true that the carrier's motive in fixing a rate will not in itself prevent the rate from being unduly discriminatory, yet if the carrier can prove a substantial dissimilarity of condition, such as competition, that will go far toward relieving it from the charge that the rate was intended to work injustice. 10 The duty of a carrier to refrain from giving preference or advantages to one shipper or locality over another exists only where substantially the same or similar conditions are prevalent.11 9 Topeka Banana Dealers' Ass'n v. St. L. & S. F. Ry., 13 I. C. C. 620. 10 Interstate Commerce Commission v. C. G. W. Ry., 209 U. S. 108, 52 L. ed. 705, 28 Sup. Ct. 493. 11 U. S. v. O. R. & Nav. Co., 159 Fed. 975; Railroad Commission v. L. & N. Ry., 11 I. C. C. 300; Pittsburgh Plate Glass Co. v. P., C., C. & St. L. Ry., 13 I. C. C. 87; Black Mountain Coal Land Co. v. Southern Ry., 15 I. C. C. 286; Fort Dodge Although the third section of the Interstate Commerce Act does not carry the phrase embodied in section 2, "under substantially similar circumstances and conditions," it contains the words, "in any respect whatsoever"; and therefore the thought contained in section 2 must be present to the mind in considering under section 3 what preferences or advantages are undue or unreasonable.12 Hence when unjust discrimination against one point and undue preference in favor of another are alleged, because of lower rates to the latter, and equality of rates is demanded as a cure for such unjust discrimination against the former, it must be shown that the circumstances and conditions at the two points are substantially similar, and that the lower rates at the one point were the result of the voluntary action of the carriers at that point.13 But the "circumstances and conditions" referred to in section 2 of the Act are those which arise within the field of haulage and not those which exist outside.14 Furthermore, unlike circumstances which will justify discrimination must be connected with the traffic over the line on which the discrimination is made. "If the respondent is acting, or claims to act, under the compulsion of circumstances and conditions of its own creation or connivance in the making of an exceptional rate, then these will not avail it." 15 Therefore where goods were offered to a carrier at Mobile it could not charge more than the Mobile rate, on the ground that the carriage of the goods really originated at another place and had been brought from there by a cheap conveyance instead of by a carrier with whom the present carrier had a traffic arrangement; 16 and the same thing is 27 I. C. C. 468; Mississippi River Case, 28 I. C. C. 47. 12 Board of Trade of Carrollton v. C. of G. Ry., 28 I. C. C. 154. 13 Bainbridge Board of Trade v. L. H. & St. L. Ry., 15 I. C. C. 586. 14 Pennsylvania Ry. v. Interna tional Coal Mining Co., 173 Fed. 1. 15 Business Men's Ass'n v. C., S. P., M. & O. Ry., 2 Int. Com. Rep. 41, 2 I. C. C. Rep. 52. 16 Bigbee & W. R. Packet Co. v. M. & O. Ry., 60 Fed. 545. true in the case of carriage of passengers.17 In determining whether the conditions at two points are sufficiently unlike to warrant different rates, the carrier is not obliged to give to every difference the same weight which the Commission must give when it is asked to determine whether an undue discrimination exists; 18 but the difference in transportation conditions must be substantial in order to justify a difference in rates, 19 and must be clearly shown.20 The rates applicable to each kind of traffic must necessarily be made with reference to the circumstances governing the production, transportation and marketing of the various products.21 The dissimilarity of condition which is most widely found, or which at any rate is most frequently alleged by the carrier as justification for a difference in rates, is the existence of competition at the preferred point which does not obtain at the complaining point.22 § 804. Cost of service as a difference of condition. Another primary consideration for the carrier is the cost of the service rendered. If conditions at a given point render service at that point more expensive than at another, it must pay the penalty in the form of higher rates. It cannot be relieved of its disadvantages by an equalization of rates. 23 Among such conditions are steep grades making difficult operation, 24 the necessity of crossing a river on a toll bridge, 25 and heavy terminal expenses, which 17 Bennett v. Dutton, 10 N. H. 481, B. & W. 105. 18 Hitchman Coal & Coke Co. v. V. & O. Ry., 16 I. C. C. 512. 19 In re Restricted Rates, 20 I. C. C. 426. 20 Bovaird Supply Co. v. A., T. & S. F. Ry., 13 I. C. C. 56. 21 East St. Louis Cotton Oil Co. v. St. L. & S. F. Ry., 20 I. C. C. 37. 22 Competition as a dissimilarity of circumstances and conditions is treated in secs. 792-802. 23 Bellsdyke Coal Co. v. North British Ry., 2 Ry. & Can. Tr. Cas. 105; Nitshill Coal Co. v. Caledonian Ry., 2 Ry. & Can. Tr. Cas. 39. 24 Buckway v. U. & D. Ry., 8 I. C. C. 21; Billings Chamber of Commerce v. C., B. & Q. Ry., 19 I. C. C. 71; Board of Trade of WinstonSalem v. N. & W. Ry., 26 I. C. C. 146. 25 Freight Bureau v. Cincinnati, N. O. & T. P. Ry., 7 I. C. C. 180; Commercial Club v. C. & N. W. Ry., 7 I. C. C. 386. are inevitably larger in a great center like Kansas City than in a smaller place where terminal work can be done more expeditiously and economically. 26 The location of a point on a branch line, involving as it usually does two or three terminal charges, presents a dissimilarity of condition as compared with points on the main line. 27 The volume of traffic and the possibility of back freights are also conditions which may justify a difference in rates, especially when light traffic is joined with difficult operation. 28 A difference in population and tonnage may constitute a dissimilarity which will make it lawful for a carrier to collect and deliver at its own expense in a city of 70,000, while not doing so in a city of 6,000.29 Ports, even more than inland centers, differ from one another in the circumstances and conditions surrounding transportation, and the promptness with which a shipper releases equipment at one yard, where the facilities are ample, cannot reasonably be taken as conclusive in determining what would constitute promptness at another port.30 Other circumstances than cost to the carrier may be considered. The fact that dealers at a particular point must pay for a team haul of from 20 to 40 miles justifies a difference in rates.31 Whether the Great Lakes are open or closed to navigation may 26 Rice v. Western N. G. & P. Ry., 2 I. C. C. 298, 2 I. C. C. Rep. 389; Kansas City Transportation Bureau v. A., T. & S. F. Ry., 15 I. C. C. 491. 27 Lehman v. Texas & P. Ry., 3 I. C. C. 706, 5 I. C. C. 44; Kansas City Transportation Bureau v. A., T. & S. F. Ry., 15 I. C. C. 491; Board of Trade of Winston-Salem v. N. & W. Ry., 16 I. C. C. 12. But see Santa Rosa Traffic Ass'n v. So. Pac. Ry., 24 I. C. C. 46. 28 New Orleans Cotton Exchange v. I. C. Ry., 2 Int. Com. Rep. 777, 3 I. C. C. Rep. 534; Railroad Commission v. L. & N. Ry., 11 I. C. C. 300; Chicago Lumber & Coal Co. v. T. S. W. Ry., 16 I. C. C. 326; Billings Chamber of Commerce v. C., B. & Q. Ry., 19 I. C. C. 71; Board of Trade of Winston-Salem v. N. & W. Ry., 26 I. C. C. 146; Cherokee Lumber Co. v. A. C. L. Ry., 27 I. C. C. 438. 29 D., G. H. & M. Ry. v. Int. Com. Comm., 74 Fed. 803. See also on population as a difference of condition, Anacostia Citizens' Ass'n v. B. & O. Ry., 25 I. C. C. 411; Philadelphia Veneer & Lumber Co. v. C. Ry. of N. J., 25 I. C. C. 653. 30 Lynah & Read v. B. & O. Ry., 18 I. C. C. 38. 31 Laner & Son v. So. Pac. Ry., 18 I. C. C. 109. influence the rates on copper and copper wire.32 When a station is situated more than a mile from the business center of the city free cartage is justified, though it is not given in a neighboring city where the station is near the business center. 33 It has even been held that long established custom may be a "circumstance" justifying a difference in rates.34 But even where dissimilarities of circumstance justify a preference, the carrier is not relieved altogether from the restraint of section 3 of the Act, and the amount of discrimination must not be greater than the dissimilarity of circumstances demands, or than is warranted by the greater service which the carrier performs. 36 § 805. Reconsignment arrangements and other transit privileges. A very important feature in modern railroading is the permission given to the owners of goods in transit to have the advantages of the through rate upon paying a very small additional premium, although the transit is interrupted in order to do something to the commodities in question at some intermediate point, to prepare them for market, or even entirely to change their form by manufacture of some sort. A carrier may grant to a shipper the right to stop in transit to mill or clean or bag his grain, compress his cotton, or even to search for a local market, and then pursue the journey again, and charge a through rate for the whole transit; and this practice does not 32 Michigan Copper & Brass Co. v. D. S. S. & A. Ry., 25 I. C. C. 357; American Insulated Wire and Cable Co. v. C. & N. W. Ry., 26 I. C. C. 415. 33 Interstate Commerce Commission v. D., G. H. & N. Ry., 167 U. S. 633, 42 L. ed. 306, 17 Sup. Ct. 986. 34 D., G. H. & N. Ry. v. Int. Com. Comm., 74 Fed. 803. 35 Brady v. Penn. Ry., 2 Int. Com. Rep. 78, 2 I. C. C. 131; Planters' Gin & Compress Co. v. G. & M. V. Ry., 16 I. C. C. 131; Sondheimer v. I. C. Ry., 17 I. C. C. 60; Galveston Commercial Ass'n v. A., T. & S. F. Ry., 25 I. C. C. 216. But see Hitchman Coal & Coke Co. v. V. & O. Ry,, 16 I. C. C. 512. 36 In re Wharfage Charges at Galveston, 26 I. C. C. 695. |