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foreign country" as meaning one between which and the United States there is the possibility of substantial continuity of rails.

146 (113). Place of incorporation of the carrier immaterial. The commission has ruled that a foreign railroad corporation such as the Grand Trunk Railroad Company, carrying on its traffic between the United States and Canada, was subject as to its business in the United States to the same rules and conditions as domestic carriers. 3 I. C. C. Rep. 89, and 2 Int. Com. Rep. 497; 4 I. C. C. R. 447, and 3 Int. Com. Rep. 417. But while a corporation engaged in interstate traffic in the states is subject to the act as to such traffic, the jurisdiction of the commission is necessarily limited to the United States and does not extend to a question of alleged local discrimination in a foreign country as Canada. 10 I. C. C. R. 217.

The control of international transportation between Canada and the United States by a joint commission is now (1911) the subject of conference between these countries. A treaty is to be proposed and the necessary legislation passed in both countries.

8 147 (114). The intention of interstate shipment not sufficient. Transportation is not made interstate and subject to the jurisdiction of the commission by the intention of the shipper that when the shipment is delivered by the carrier in the same state it shall be further transported by another carrier into another state. 1 I. C. C. R. 30, and 1 Inter. 607. Thus, fruit delivered to a consignee at Jersey City under rates made to Jersey City on traffic originating in New Jersey, though destined for the state of New York, is not interstate traffic and the commission had no authority over such freight. 2 I. C. C. R. 142, and 2 Int. Com. Rep. 84.

In Gulf C. & S. F. R. Co. v. Texas, 204 U. S. 403, 51 L. Ed. 540 (1907), the court affirmed 97 Texas, 274, in holding that the regulations of the state railroad commission applied to a shipment from one Texas point to another, although the shipment originally was from a point in South Dakota. The intention of the owner to forward the shipment from its original terminal point to another point in the same state did not make the shipment between the two latter points by a connecting carrier an interstate shipment. This was not a case of reconsignment, but the original bill of lading was taken up and a new bill of lading issued from Texarkana, Tex., to Goldthwaite, Tex. The state law,

therefore, controlled. See also C., N. O. & T. P. R. Co. v. I. C. C., 162 U. S. 184, 40 L. Ed. 935 (1896), and 21 I. C. C. R. 207.

§ 148 (115). All instrumentalities of shipment or carriage.The term "railroad" as used in the original act expressly included "all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement or lease," and the term "transportation," the act declared, "shall include all instrumentalities of shipment or carriage." It was held in the first important case arising under the act (Kentucky & Indiana Bridge Co. v. L. & N. R. Co., 37 Fed. Rep. 567 (1889), circuit court, Justice Jackson, afterwards of the supreme bench), that this inclusion of bridges and ferries as subject to the act did not apply, where a bridge was not operated by the bridge company but by the railroad companies under contract with the bridge company. In such cases the court said the bridge company was not, either in law or fact, a common carrier within the scope and meaning of the section. The railroad company using the bridge, and not the bridge company was the common carrier.

It was ruled by the commission in 1 I. C. C. R. 495, and 1 Int. Com. Rep. 775, that a railroad company chartered by the state of Tennessee, owning a short road wholly in that state, neither operating its road nor owning any rolling stock, but used and operated as a means of conducting interstate traffic in coal by the companies owning a connecting interstate road, was one of the instrumentalities of interstate commerce and subject to the act. These definitions of what is included by the terms "railroad" and "transportation" have been extended by the amendments to 1906 and 1910, and a reference to the amended section as printed above will show what is meant.

§ 149 (116). Delivery, cartage, storage and demurrage charges. Under the original act the inclusion in the requirement of reasonableness of charges for the services rendered in receiving, delivering, storing and handling property did not impose any additional duty upon the carrier in regard to the delivery or storage of property, and the carrier was not obliged under this section to deliver or store otherwise than as required by its common law duty as a carrier. These services, including any charges for demurrage and other terminal expenses, which have been included under the general term of accessorial serv

ices, are now subject to the act, whenever rendered in connection with interstate traffic, as to the reasonableness of the charges under this section. It also follows that such services must be rendered without discrimination as between individuals in violation of section 2, and without undue preference as between localities or kinds of traffic under section 3.

It was said by the supreme court in the Grand Haven Cartage Case, Commission v. Railroad Co., 167 U. S. 633, 1. c. 645, 42 L. Ed. 306 (1897), that while cartage was not in general a terminal expense and not in general assumed by the carrier, the transportation as a rule being ended when the freight was received at the warehouse, that it was a reasonable exercise of the commission's power to direct in a general order that the railroad companies should thereafter regard cartage as one of the terminal charges to be published in their schedules, as required under section 6 (As to ruling of the commission thereunder, see infra, sec. 6, and note, and 7 I. C. C. R. 1. c. 591).

The circuit court of appeals, in the same Grand Haven Cartage case, in their opinion, 21 C. C. A. 103, and 74 Fed. 803 (1896), which was approved by the supreme court, called attention to the distinction between the American and English customs of delivery of goods by carriers. Free cartage had been developed in the acts of the English railways from their competition with the carrier companies who used their lines, but that no such conditions had been developed in the growth of our American system of transportation, where it was very exceptional for railroads to do the carting required for delivering and collecting the goods. The service was essentially a distinct and separate service from rail carriage and purely accessorial.

The fact that a railroad company for many years had paid the charge for hauling freight from wharves to its station did not bind it to continue that practice, and, if not bound by contract, it might stop doing so at any time. 1 I. C. C. R. 107, 1. Int. Com. Rep. 363.

As to storage charges, it was ruled by the commission (10 I. C. C. R. 352), that a railroad freight depot and a public warehouse are not used for the same purposes, and a charge for storage in a railroad depot may properly be made higher than a public warehouse charge, with the object of compelling the expeditions removal of freight, without violation of this section.

The reasonableness of the regulations for demurrage and

other accessory services as well as the reasonableness of the charges, have been reviewed by the commission. In Hite v. Central R. R. of N. J., C. C. A. 3rd Circuit, 171 Fed. 370 (1909), reversing the judgment in 166 Fed. 926, it was held that the circuit court had jurisdiction to determine the indebtedness of a shipper to a railroad company for demurrage under the rules adopted by the company where it depended on the construction and not on the reasonableness of the rules, although the latter question, that of reasonableness, was one primarily for the commission.

In Michie v. N. Y., N. H. & R. Co., 151 Fed. 694, C. C. A. of Mass. (1907), a suit brought to recover the amount of a demurrage charge of $1.00 per day for hay storage, the charge was held not unreasonable. It was ruled by the commission in 8 I. C. C. R. 531, that the making of demurrage charges to commence before the expiration of a reasonable time for loading or unloading was a violation of this section. As to charges of demurrage upon private cars, see infra, § 254.

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§ 150. Commerce court on terminal facilities and plant facilities. In the case of the A. T. & S. F. R. Co. et al. v. The Commission, the commerce court, 188 Fed. 229 (1911), denied a motion to dismiss under the provisions of section 1 of the act creating the court and made an order suspending the order of the Interstate Commerce Commission (18 I. C. C. R. 310), condemning the charge of two dollars and a half a car made by the railroads for delivering and receiving interstate carload freight in Los Angeles to a number of industries located upon spurs or side tracks within their respective switching limits. The order was not based upon the excessiveness of the charge for the service, but upon the theory that the carrier had already been paid for the service by the payment of the regular tariff rate from the point in Oregon to destination. The commission found that the industrial track upon which the service was rendered was a terminal facility of the railroad, and not a plant facility of the industry, and that the service for which the charge was made was the same service as that which was performed by the carrier in delivering freight at its depot or team tracks. The court held that such a finding of the commission was not one which precluded the court from coming to a different conclusion upon the record. That if there was a substantial conflict in the evidence, the court would feel bound by the finding of the commission,

unless clearly and palpably against the weight of the testimony. But that the court was not concluded by the finding of the commission based upon admitted facts which did not tend to sustain the conclusion reached. The court said that the contention that the transportation of cars and freight to and from industrial plants located from one-fifth of a mile to seven miles from the main track of the carrier was the same service which the carrier performed and for which it is paid by the general tariff charge when it delivers freight at its depot in Los Angeles, or at the team tracks, was so contrary to the admitted physical facts as to be wholly untenable. It seemed clear that in the absence of statute the railroads were not bound to perform this industrial track service, and if they voluntarily performed it under an arrangement with the owner of the industrial plant, there was no reason why they might not charge a reasonable price therefor, and the charge in question was conceded to be reasonable. It seems that the railroads filed with their general tariffs with the Interstate Commerce Commission a tariff for this industrial track service and there was no evidence that the railroads had ever waived the right to charge for this service. See Interstate Commerce Commission v. Stickney, 215 U. S. 105. The court therefore concluded that the carrier was not bound by law to deliver freight at the industrial plant and therefore it was a special service for which it was entitled to charge. There was no claim that the charge was unreasonable in itself, or that it involved any undue preference, or was discriminatory in any way. The order of the commission was therefore suspended.

§ 151. Bulk grain storage as part of transportation.-The "elevation, and transfer in transit," of grain with such "storage" as may be incidental thereto is clearly a part of "transportation" both under the common law and as defined in this section. When performed by the carrier, or its agents, the charges must be just and reasonable. Such services, however, are not those which have received so much attention from the commission. The elevator cases considered by the commission have arisen by reason of the carriers' contracting with certain large shippers to perform these services. The result has been that the shippers had a dual relationship to the grain they handled: (1) with respect to their personal ownership of the grain, and (2) as agents of the carriers for its transfer. In the process of transfer these shippers cleaned, sorted, graded, clipped, mixed and otherwise treated

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