causes beyond the carrier's control; but the stipulation was void as against loss due to the carrier's negligence or other misconduct. 266 There is no lawful authority for a tariff provision establishing two rates for same transportation service and same liability in connection therewith.26€ The initial carrier should not only advise shipper of lower rates applying in case of release of valuation, but, when informed of the shipper's desire to avail himself of such lower rates, should obtain the shipper's signature in accordance with the tariffs. 26 Even since the sweeping provisions of the Carmack Amendment against all limitation of liability for loss, a stipulation in a shipping contract limiting the carrier's liability in case of the loss of an interstate shipment of cattle to the agreed value of $20 for each cow, made to secure the lower of two rates on file with the Commission, has been held not forbidden by the provisions of this amendment prohibiting exemptions from the liability.26€ The latest case on this point goes so far as to hold that if the property is apparently of greater value than the limitation, and no notice of the requirement in the tariff that a higher value must be declared has come to the owner, still the scheduled provisions govern the situation and no more than the amounts stated therein on the conditions named can be recovered. 267

Topic C. Joint Tariffs and Schedules

§ 836. Meaning of joint tariff.

Two kinds or classes of routes are recognized and provided for, namely, the line of a single carrier, and a continuous line or route operated by more than one carrier where the participating carriers establish joint rates or

266 In re Released Rates, 11 I. C. C. 550.

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

26d Western Classification Case, 26 I. C. C. 442.

26 e Missouri, K. & T. R. R. v. Hamman Bros., 227 U. S. 637, 33 Sup. Ct. 397.

261 Boston & M. R. R. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526.

Joint through

charges for such continuous line or route. routes and rates are ordinarily the subject of agreement between the participating carriers; but when this is established, and until finally abrogated or changed, they are required by the statute to be kept open to public use.27 The publication by a carrier subject to the Act of the aggregate local rates between points on its own line and those on the line of a connecting carrier with which it has no joint tariff, is not illegal; but it cannot lawfully add to the duly established rates of another carrier any amount it pleases less than its own rate, and publish and use that sum as a through rate, without the consent of the other company. Such a through rate is not a joint rate, for joint rates can be made only by concurrence or assent; nor is it a combination rate, for one of its component parts has no legal existence or sanction as a separate or. local charge, and there must be lawful rates upon both the roads before there can be a lawful combination of rates.28 There is a decision in a State court to the effect that a combination rate, not being a joint rate, need not be posted, and is not subject to the Act.29 But when rates established to apply between points within a single State are applied as part of combination rates on transportation between different States, such State rates, as well as the interstate rates with which they are combined, must be published at stations and filed with the Commission.30

§ 837. Making and filing jointly.

Any one member of a joint combination may file copies of joint tariff for all the members.31 And where one carrier files and properly publishes a joint tariff, he is not

27 Consolidated Forwarding Co. v. Southern Pacific Co., 9 Int. Com. Rep. 182.

28 New York, N. H. & H. R. R. v. Platt, 7 Int. Com. Rep. 323.

29 Gulf, C. & S. F. Ry. v. Nelson (Tex. Civ. App.), 23 S. W. 732.

30 Re Export Rates from Points East and West of Miss. River, 8 I. C. C. Rep. 185.

31 Re Filing Copies of Joint Tariff, 1 Int. Com. Rep. 76, I. C. C. 225.

affected by the failure of other carriers properly to publish it.32 The tariffs need not be filed at a non-competing point. 33 A railway stage route and hotel association are not connecting carriers who can make and file a joint tariff.34 The schedule having failed to limit rates published in tariff to certain routes the rate applies via the lines of all carriers parties to the tariff.35 Where an initial line publishes and maintains one joint tariff which is not properly concurred in by its connections, and at the same time another joint tariff naming higher rates and properly concurred in, the latter tariff names the legal rate and must be applied.36 There is not what can be considered a through route and joint rate where one of connecting roads has not filed a tariff with Commission. The initial carrier is liable in reparation, where it published a joint through rate in which connecting lines had not concurred, the combination rate legally applied being found unreasonable.38 An attempt to connect outbound interstate movements with inbound movements to a concentrating point under rates not on file with Commission is unlawful.39 Any lawful charge or any factors making up by combination a lawful charge must be duly scheduled. By a rule of construction of schedules, where there are two rates one a joint rate and the other a combination rate the joint rate is the legal rate. 41

37

10

§ 838. What particulars must be published.

It was at first held that the published tariff should

32 Virginia C. & I. Co. v. Louisville & N. R. R. (Va.), 37 S. E. 310. 33 Chicago & N. W. Ry. v. Osborne, 52 Fed. 912.

34 Wylie v. Northern Pac. R. R., 11 I. C. C. Rep. 145.

35 Kennedy & Co. v. St. L. S. W. Ry., 22 I. C. C. R. 277.

36 St. Paul Board of Trade v. M., St. P. & S. Ste. M. Ry., 285.

37 Fish & Co. v. N. Y. C. & St. L. R. R., 19 I. C. C. 452.

38 Texico Transfer Co. v. L. & N. R. R., 20 I. C. C. R. 17.

39 St. Paul Board of Trade v. M., St. P. & S. Ste. M. Ry., 19 I. C. C. 285.

40 Kile& M.v. D. Ry., 15 I. C. C.235. 41 Arabol M'fg Co. v. S. B. Ry., 25 I. C. C. 429.

definitely name all the participating roads and indicate the various routes by which they undertake to afford transportation at designated rates. Theoretically, at least, it said, such a disclosure is necessary to a complete statutory joint tariff. And it was ordered that all carriers concerned should file an acceptance of the tariff.42 But the Supreme Court of the United States finally held that the carrier publishing a through tariff might reserve the right to route the goods as it pleased beyond its own terminal.43 However, by a subsequent amendment to the Act it is provided that the tariff naming joint through rates should show the number of the routes and give the shipper his choice. 44 A carrier published a joint tariff, showing it could make delivery on track of carrier from whom it had not obtained concurrences; the consignee paid the drayage charges on the shipment, which the connecting line refused to deliver without payment of switching charges, and it was held that these drayage charges constituted the measure of damage. 45 All this is consequent upon the rule that carriers cannot engage in through transportation without publication of definite and specific rates, including all services incident to through movement.“

§ 839. Rates based upon combinations.

46

It is fundamental that there can be but one legal rate between two points. This rate must be the local rate if over one road, or the joint rate if over a through route composed of two or more roads which have agreed to a joint rate, or a combination of separately established rates applicable on through business over a through route which does not enjoy a joint rate." Where a through

42 In re Form and Contents of Rate Schedules, 6 I. C. C. Rep. 267.

43 Southern Pacific Co. v. Int. Com. Comm., 200 U. S. 536, 26 Sup. Ct. 330.

44 See Express Rate Cases, 24 I. C. C. 380.

45 Edison Portland Cement Co. v. D., L. & W. R. R., 22 I. C. C. 382. 46 Hampton M'fg Co. v. Q. D. S. S. Co., 27 I. C. C. 666.

47 Laning-Harris Coal & Grain Co. v. Missouri P. R., 11 I. C. C. 154

rate is published it governs the situation, even making unavailable a proportional rate, which could otherwise be used in getting a favorable combination. 48 Where no

joint rate is lawfully fixed the duty of the carriers is to apply the lowest combination of intermediate rates.19 There is no other rule possible than that in absence of a joint through rate, the combination of locals constitutes the through rate. 50 A carrier failing to route goods so as to give the shipper the advantage of the lowest combination by any natural route will be held responsible in reparation proceedings.

$840. What combinations are justified.

51

It is not asked to post at stations all factors in local combinations with others, only the joint rates in force from that point. A factor in a combination not on file with Commission, and used in absence of through rate may be set aside. 52 It is the carrier's own tariff, in the theory here applied, not that of its connections which governs. 53 Rates not filed with the Commission are not lawful factors in combinations.54 A rate between two points in a State to be applicable to a shipment beyond out of the State must be filed with this Commission. 55 Where an initial carrier publishes a joint tariff, which is not properly concurred in by its connections, it is ineffective as such.56 Where a carrier filed and posted tariff stating a through rate to points on a line, which was not named as a party and had not concurred, it was held that charges would be collected on the basis of the combination of these

48 Lindsay Bros. v. B. & O. S. W., 16 I. C. C. 6.

49 Alpha Portland Cement Co. v. P. R. R., 20 I. C. C. 640.

50 Fish & Co. v. N. Y. C. & St. L.

R. R., 19 I. C. C. 452.

51 Canadian Valley Grain Co. v. Chicago & R. I. P., 18 I. C. C. 509.

Co. v. St. L. S. W. Ry., 28 I. C. C. 701.

53 Falls & Co. v. Chicago, R. I. & P. Ry., 15 I. C. C. 269.

54 Hagan Iron Co. v. Pennsylvania R. R., 18 I. C. C. 529.

55 Johnson v. M., St. P. & S. S. M. Ry., 22 I. C. C. 255.

56 Kennedy & Co. v. St. & S. W.

52 Mercantile Lumber & Supply Ry., 22 I. C. C. 277.