initial carrier, having failed to obtain further and definite instructions before forwarding, is liable for damages resulting from misrouting.25 The initial carrier will be held liable for misrouting upon a shipment forwarded via a route taking a combination rate higher than that applicable through another recognized gateway.26 Delivering lines owe to shippers under joint rates the obligation to do what they reasonably can to avoid delays in the delivery of their traffic.27 But no obligation rests upon carrier to hunt up unnatural connections or practically unknown gateways in order to determine lowest possible combination. 28 It is not unreasonable to require of the carrier to ascertain before receiving export cotton for transportation to Galveston whether it can be cared for at Galveston upon its receipt. 29 A carrier which without authority diverted traffic from the route specified in the bill of lading is liable for increased charges resulting from such unauthorized diversion. 30 A carrier is liable in damages who fails to route shipments via cheapest available route, and thereby deprives complainant of reconsigning privileges.31 Where a consignor specified a route in bill of lading, and also designated a rate therein not applicable to the route named, it was held that the initial carrier, having failed to obtain further and definite instructions before forwarding, is liable for damages resulting from misrouting. 32

§ 870. Carriers not compelled to bill through.

Under the original Act no power was given to the Commission to compel through billing, routing or rating by connecting lines. This can be done only by contract or arrangement between the carriers, and the Act did not

25 Whaley-Warren Lumber Co. v. C. C. & O. Ry., 21 I. C. C. R. 530. 26 Goodman M'fg Co. v. P. R. R. Co., 26 I. C. C. 423.

27 Detroit Reconsigning Case, 25 I. C. C. 392.

28 Hettler Lumber Co. v. G. & S. I. R. R. Co., 20 I. C. C. R. 14.

29 Galveston Commercial Ass'n v. A., T. & F. Ry. Co., 25 I. C. C. 216. 30 Weyl Zuckerman & Co. v. C. M. Ry., 27 I. C. C. 493.

31 Newman Lumber Co. v. M. C. R. R., 26 I. C. C. 97.

32 Ludowici-Celadon Co. v. M. P. Ry., 22 I. C. C. 588.

compel connecting carriers to make mutual contracts.33 With nothing more than section 3 in the Act in the earlier days, there were sweeping decisions in the courts, holding that an interstate carrier did not violate that section by exacting the prepayment of freight on all property received from it at a given station from one connection, although it did not require its charges to be paid in advance on freight received from a competing carrier at such station. The courts went so far as to say that an interstate carrier which enters into an arrangement with a connecting carrier for through billing, rating, and loading, and for the use of its tracks and terminals, is not obliged to make the same arrangement with other connecting carriers, though the physical facilities for an interchange of traffic are the same.34 It should be noted that these decisions are still good law when the issue is whether the carrier by refusing to act in conjunction with another carrier has discriminated in such a way as to violate these provisions of the Act.

§ 871. Discrimination forbidden where public duty involved. Where there are two rival lines of steamboats on a river

33 Central Stockyards Co. v. Louisville & N. R. R., 192 U. S. 568, 48 L. ed. 565, 24 Sup. Ct. 339; Kentucky & I. Bridge Co. v. Louisville & N. R. R., 2 L. R. A. 289, 2 Int. Com. Rep. 351, 37 Fed. 567, 629; Little Rock & M. R. R. Co. v. St. Louis, I. M. & S. Ry., 2 Int. Com. Rep. 763, 41 Fed. 559; Chicago & N. W. Ry. v. Osborne, 3 C. C. A. 347, 4 Int. Com. Rep. 257, 52 Fed. 915; Oregon Short Line & U. N. Ry. v. Northern P. R. R., 4 Int. Com. Rep. 718, 9 C. C. A. 409, 15 U. S. App. 479, 61 Fed. 158, affirming 4 Int. Com. Rep. 249, 51 Fed. 465; Little Rock & M. R. Co. v. St. Louis S. W. R. Co., 26 L. R. A. 192, 4 Int. Com. Rep. 854, 11 C. C. A. 417,

27 U. S. App. 280, 63 Fed. 775; St. Louis Drayage Co. v. Louisville & N. R. Co., 5 Int. Com. Rep. 137, 65 Fed. 39; Allen v. Oregon R. & Nav. Co., 98 Fed. 16.

34 Mattingly v. Pennsylvania Co., 2 Int. Com. Rep. 806, 3 I. C. C. 592; Re Clark, 2 Int. Com. Rep. 797, 3 I. C. C. 649; Re Joint Water & Rail Lines, 2 Int. Com. Rep. 486, 2 I. C. C. 645; Capehart v. Louisville & N. R. R., 3 Int. Com. Rep. 278, 4 I. C. C. 265; Commercial Club v. Chicago, R. I. & P. Ry., 6 I. C. C. Rep. 647; New York, N. H. & H. R. R. v. Platt, 7 I. C. C. Rep. 323; Savannah Bureau of Freight & Transp. v. Louisville & N. R. R., 8 I. C. C. Rep. 377.

35

plying between the same points, and carrying freight for hire, both bearing the same relation to a railroad company and both seeking its services to forward their freight to the same points of destination, and the company systematically discriminates against one by charging on goods coming to or from it fifty cents a hundred more for freight than in the case of the other, a suit for such discrimination can be brought. And where a tariff of a railroad company fixes a rate on shipments originating on its own line, or on certain enumerated connecting lines, it assumes the obligation to carry at that rate for shippers whose shipments originate on other lines as well; and, if such shipper is required to pay for such services at a higher rate than that named in the tariff, he is entitled to recover the amount of the overcharge. 36 And in general it may be said that no policies can be adopted inconsistent with public duty whereby prejudice is done to connecting business. An arrangement by which a stage line refused to take through on the same day passengers coming by a rival line was held illegal long ago in a leading case.37 And more recently a contract by a steamboat owner not to receive goods consigned to points beyond its line was held illegal. 38

Topic B. Requisites as to Through Rates

§ 872. Joint rates must be reasonable.

The shipper or consignee has no direct interest in the way a joint rate is divided between the carriers, nor in the amount of the division received by each carrier. The entire through rate is what interests the public, and in so far as a carrier gives up a part of its fair division for the sake of obtaining business the public is not concerned. 39 It it clear, of course, that the entire rate must not be so low

57.

35 Samuels v. L. & N. Ry., 31 Fed.

36 Missouri, K. & T. Ry. v. New Era Milling Co., 100 Pac. 273.

37 Bennet v. Dutton, 10 N. H. 481.

38 Seasongood V. Tenn. & O. Transp. Co., 24 Ry. L. Rep. 1142, 54 S. W. 193.

39 Re Proposed Advances in Freight Rates, 9 I. C. C. Rep. 382, 433.

as to be unremunerative, and thus burden the local traffic. 40 As the rates for long distances cannot be exactly compared with those for short distances, the proportion received by one carrier out of a long distance through rate is not necessarily the measure of its share of a joint rate over a materially shorter distance; though it may be considered in determining the rightful relation of the two rates."1 When a joint rate is unreasonable the liability of defendants is joint and several, and Commission may award reparation against one, though other roads which performed part of service are not parties. 42 When a through route has been established by agreement of the carriers, every shipper must be allowed the benefit of it.43 The obligation to establish through routes and joint rates is imposed by section 1 as it now reads. 44

§ 873. Limitations upon joint rates.

It is entirely proper that two carriers should combine to form a single route and name a single rate for that haul. This will usually result in a lower rate than the sum of the two individual rates by reason of the relative economy of the long haul. For plainly a railroad may charge more for transporting its local passenger between two termini than it receives for transporting a through passenger over the same distance in the division of the through rate with other railroads. 45 When such a through rate has been established by the agreement of the carriers, every shipper is entitled to it; if some shippers are given an advantage

40 Lippman v. Illinois Cent. R. R., 2 Int. Com. Rep. 414, 2 I. C. C. Rep. 584.

41 Colorado F. & I. Co. v. Southern Pac. Co., 6 I. C. C. Rep. 488.

42 Webster Grocer Co. v. C. & N.

W. Ry., 21 I. C. C. 20.

43 Rea v. Mobile & O. Ry., 7 I. C. C. Rep. 43.

44 Florida Cotton Oil Co. v. C. of G. Ry., 19 I. C. C. 336.

45 Union Pacific Ry. Co. v. United States, 117 U. S. 355, 6 Sup. Ct. 772, 29 L. ed. 920; Texas & P. Ry. Co. v. Interstate Com. Comm., 162 U. S. 197, 16 Sup. Ct. 666, 40 L. ed. 940; Parsons v. Chicago & N. W. Ry. Co., 167 U. S. 447, 17 Sup. Ct. 887, 42 L. ed. 231; Tozer v. United States, 52 Fed. 917.

over others in such shipment it will be a case of illegal discrimination. 46 It should be noted throughout this discussion that under section 1 the carriers must make reasonable rates applicable to through routes. 47 And the Commission is expressly empowered to determine the reasonableness of any part of the aggregate of charges for interstate transportation and to establish joint rates.48 The carriers establishing it must be prepared to furnish suitable instrumentalities of shipment and carriage; if any mistake is made by the first carrier in forwarding over the route that carrier is responsible. 49

§ 874. Nature of a joint rate.

A joint rate is a unit even though divided between several carriers arranging themselves into through route.50 Where a joint through route has been formed, the rate charged is a through rate, and a shipment will move upon the rate existing at the time it is billed by the initial carrier; the adoption of a joint through rate will not affect a shipment moving upon a combination through rate.51 It follows that where between the same points via the same route, there are two rates-one a joint rate and the other a combination rate-the joint rate is the legal one. The Commission has never held that a through rate which is equal to the sum of the intermediate local rates is in itself sufficient to call for a reduction. 53 But very often a joint through rate will be held unreasonable to the extent that it exceeds the combination of local rates. 54 The test of reasonableness is applied, not to the separate factors,

46 Blair v. Sioux City & P. Ry. Co., 109 Ia. 369, 80 N. W. 673; Bras v. McConnell, 114 Ia. 401, 87 N. W. 290.

47 Flour City S. S. Co. v. L. V. R. R., 24 I. C. C. 179.

48 Sunderland Bros. Co. v. St. L. & S. F. R. R. Co., 23 I. C. C. 259. 49 Pond-Decker Lumber Co. V. Spencer, 86 Fed. 846.

52

50 Re Through Rates & Through Rates, 12 I. C. C. 163.

51 Re Through Rates & Through Rates, 12 I. C. C. 163.

52 Arabol M'fg Co. v. S. B. Ry., 25 I. C. C. 429.

53 Appalachia Lumber Co. v. L. & N. R. R., 25 I. C. C. 193.

54 Kessler & Co. v. L. & N. R. R., 25 I. C. C. 397.