A common carrier may agree with such other carrier as it may
choose to forward beyond its own line goods it has transported to
its terminus, and, if it has adequate terminal facilities at a sea
port sufficient for all freight destined for that place, it is not
obliged to allow other and competing carriers to load and discharge
at a wharf owned by it and erected for facilitating the
transportation of through freight to points beyond that place.
The fact that a wharf is built by a railroad company on what
might be the extension of a public street, under permissions of the
municipality, does not, in the absence of express stipulations,
make it a public wharf or affect the company's right of sole
occupancy or power of regulation thereof.
Certiorari to the Circuit Court of Appeals for the Fifth Circuit
to review a judgment of that court affirming one in favor of the
West Coast Naval Stores Company (hereinafter called the plaintiff),
against the railroad company (hereinafter called the defendant),
for damages for refusing to permit the plaintiff to use the wharf
of defendant at Pensacola for the
Page 198 U. S. 484
transportation of plaintiff's property, as stated in the
declaration.
The action was brought in the Circuit Court of the United States
for the Northern District of Florida.
The plaintiff's declaration contains two counts, which are
substantially the same, and it is therein averred that the
plaintiff is a citizen of Florida and the defendant is a citizen of
Kentucky, and that the latter is a common carrier, and carries
goods into Pensacola over its railroad, and, among them, the goods
of the plaintiff. The course of business between the two companies
has been for the plaintiff to obtain transportation of its
turpentine and rosin from its yard near Pensacola, and its
warehouse in that city, by means of a switch, built for that
purpose by the defendant, to defendant's main line, and thence to
the wharf of defendant (which plaintiff alleged was a public wharf)
by means of the cars and upon the railroad of the defendant. The
wharf extended into the Bay of Pensacola, and was used by defendant
(and by persons bringing goods over the defendant's railway to and
into Pensacola) for the purpose of shipping such goods from the
wharf to vessels destined for other ports. After defendant had
transported the goods of the plaintiff to the wharf of defendant,
the plaintiff had been accustomed to ship to other ports by
vessels, with the managers of which plaintiff had contracts of
carriage; that in the midst of the prosecution of such business
defendant had notified plaintiff that it would thereafter refuse,
and it did thereafter refuse, to allow plaintiff to transport its
goods to the wharf for the purpose of there loading them on such
vessels as above mentioned, and refused to permit the wharf and
railway of defendant to be used in the prosecution of plaintiff's
business insofar as the prosecution would involve the use of the
vessels chosen by the plaintiff for the shipment of the goods from
Pensacola to the damage of the plaintiff, as set forth in the
declaration.
The defendant filed several pleas to this declaration, and the
plaintiff demurred to them, which demurrer was overruled
Page 198 U. S. 485
by the circuit court. Upon writ of error, the circuit court of
appeals reversed that judgment, 121 F. 645, and when the case came
down, the defendant withdrew all former pleas and filed in the
circuit court another plea, as follows:
"The defendant, withdrawing all former pleas, pleads to the
first and second counts of the declaration as follows:"
"1. That the defendant has adequate depots and yards in the City
of Pensacola for the receipt and delivery of all merchandise
committed to it for transportation to and delivery at Pensacola.
That neither its charter nor any statutory law has compelled or
required, or compels or requires, it to construct or maintain the
wharf mentioned in the declaration, but that it constructed the
same at an expense to it of tens of thousands of dollars for the
purpose of providing facilities for the transaction of its business
with such vessels as it might permit to come to and lie at said
wharf to take cargo. That no business has ever been done at said
wharf except the transportation by the defendant, in cars on its
railroad over said wharf, to and from vessels lying at the said
wharf, of goods brought or to be transported by said vessels and
the loading and unloading thereat of such vessels. That, in
accordance with such purpose, it made and promulgated, upon the
construction of said wharf, and more than five years prior to the
bringing of this suit, rules and regulations by which it limited
the use of its wharves, including the wharf mentioned in the
declaration,"
"to traffic handled by vessels in regular lines running in
connection with the Louisville & Nashville Railroad, and
vessels belonging to, or consigned to, Gulf Transit Company"
"(an agency of defendant), and making the use of said wharves
'for traffic in connection with vessels other than herein referred
to,' 'subject to special arrangement.' The said rules and
regulations were in operation and enforced by defendant from the
time of their promulgation, as aforesaid, up to, and at the time
of, the refusal of the defendant to permit the naval stores of the
plaintiff to be loaded from its wharf
Page 198 U. S. 486
into the 'certain vessels' mentioned in the declaration, and
still are in force and operation. That the said 'certain vessels'
were not regular lines running in connection with the Louisville
& Nashville Railroad, nor were they belonging to, or consigned
to, Gulf Transit Company, nor had they made any special
arrangements with the defendant for the use of the said wharf; but
that said vessels constituted an independent line between New York
and Pensacola, and New York and Mobile, Alabama, carrying
merchandise between the said points, and would have come in
competition with a line of steamers with which the defendant was
then negotiating for regular service in the transportation of
merchandise to and from New York and Pensacola in connection and
under traffic arrangements with defendant, and such service has
since been established, and a line of steamers is now regularly
transporting merchandise between said points in such connection and
under such traffic arrangements, and was also in competition with
the defendant itself, which was at said time, and had been for a
long time prior thereto, engaged in a like business between said
points, carrying goods by its line of railroad from Pensacola and
Mobile to River Junction, Florida, Cincinnati, Ohio, and
Montgomery, Alabama, and there delivering the same to a connecting
carrier and other carriers connecting therewith, transporting goods
to the City of New York, and receiving from said connecting
carriers at the points aforesaid, and transporting to Pensacola and
Mobile goods shipped from New York to Pensacola and Mobile."
"That the defendant has not either notified plaintiff that it
would not carry plaintiff's naval stores nor refused to transport
plaintiff's naval stores over its railway mentioned in the
declaration to and on its wharf, also mentioned in the declaration;
that it has at all times so transported them when requested so to
do by the plaintiff; that the defendant has refused to permit the
certain vessels mentioned in the declaration to take goods and
merchandise from its said wharf, to be transported by them to the
port of New York, as aforesaid, but that such
Page 198 U. S. 487
refusal was solely because the said vessels were not of either
of the classes provided for by the rules aforesaid, nor had made
special arrangements with the defendant, and would have been, as
aforesaid, in competition with the lines of vessels connecting with
the defendant, running to and from New York, and was, as aforesaid,
in competition with the defendant itself in its rail transportation
aforesaid, to and from New York city, and that the defendant was
then, and at all times had been, ready and willing to give, and did
give, to the plaintiff the same facilities for shipping naval
stores to New York, or any other port, over defendant's said wharf
as it gave to any and all other shippers; that the unloading by the
plaintiff of its said goods into said vessels necessarily involves
the lying at, attachment to, and use of the said wharf, one of the
terminals of the defendant, by the said vessels; that the said
wharf was not at the time mentioned in the declaration, and has
never been, a public wharf, unless the facts set forth hereinbefore
in this plea constituted it such."
This plea was in substance the same as the third plea which
defendant had theretofore interposed, and which the circuit court
of appeals had held bad. The plaintiff again demurred. The circuit
court sustained the demurrer, in accordance with the decision of
the circuit court of appeals, and gave leave to the defendant to
amend as it might be advised. The defendant refused to amend.
Judgment was then entered against it by default, and direction
given to proceed with the case for the purpose of having
plaintiff's damages assessed. A trial by jury upon the question of
damages was had, and the jury found a verdict for the plaintiff for
$1,000, upon which judgment was duly entered.
The defendant then sued out a writ of error to the Circuit Court
of Appeals for the Fifth Circuit, which court, adhering to the
views expressed by it on the former appeal, affirmed the judgment,
128 F. 1020, and the defendant thereupon applied to this Court for
a writ of certiorari, which was granted, and the case is now
here.
Page 198 U. S. 492
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
When this case was first before the circuit court of appeals, it
was stated in the opinion which was then delivered that the case
showed that the railroad company was in possession of a large
wharf, built at its own expense, "on the extension of a public
street in the City of Pensacola, into the deep waters of the harbor
of the city." On looking at the record before us, we find in the
pleadings no averment that the wharf in question was in fact built
as such an extension. The statement of facts preceding the opinion
of the circuit court of appeals shows, however, that there were
replications filed to the various pleas, one of which replications
contained the averment that the wharf was an extension of a street
of the City of Pensacola into the Bay of Pensacola, for a distance
of more than 500 yards, all within the limits of the City of
Pensacola, and maintained by the defendant by authority of the
city. Hence, the statement in the opinion was perfectly
Page 198 U. S. 493
correct. Subsequently to the decision of the circuit court of
appeals, and after the case was remanded to the circuit court, it
appears by the record before us that the defendant withdrew all its
former pleas, and filed the single plea set forth in the foregoing
statement of facts. To this plea no replication was filed. Counsel
for the plaintiff admits that neither the declaration nor the plea
contains any averment that the wharf in question was an extension
of a public street. If we assume what is without doubt the fact --
that the wharf was built at the foot of a public street in the City
of Pensacola and was carried out into the deep water of the bay
some hundreds of yards -- we must also assume the fact mentioned in
the brief of the defendant, and substantially set forth in the
former replication, that the building and maintaining of the wharf
were authorized by authority from the City of Pensacola and also
from the State of Florida. These facts will therefore be taken as
admitted in order that the case may be discussed upon the facts as
they really exist.
Counsel for plaintiff now asserts, and we assume, that the
gravamen of plaintiff's complaint is not that the defendant would
not transport plaintiff's goods, or any part of them, on
defendant's lines, from the wharf in question,
"but only that defendant would not permit plaintiff's goods to
be at, from, or by means of defendant's wharf loaded upon, or
delivered to, the said vessels,"
with the managers of which plaintiff had contracted to have its
goods transported to other ports. This means of transportation, by
such vessels as plaintiff should choose, is asserted by it as a
right because it contends that the wharf of defendant, under the
averment to that effect in the declaration, and not denied, in
terms, in the plea, taken in connection with the facts stated in
such plea, was a public wharf, or that, at least, the defendant had
devoted it to a public use. The defendant, in its plea, sets up
facts which it avers show the wharf was not a public one. The
plaintiff insists that the plea shows that the defendant built and
used the wharf itself, and permitted a large part of the public
to
Page 198 U. S. 494
use it, including, at any rate, those who were engaged in
traffic handled by vessels belonging to regular lines running in
connection with the defendant, and also including vessels belonging
or consigned to the Gulf Transit Company, an agent of defendant,
together with those who were using the wharf under some special
arrangements between them and the defendant. All this, the
plaintiff contends, amounted to making the wharf a public one, or
at least that it thereby became a facility to the use of which the
public as a public had a right on payment of reasonable
compensation. If plaintiff chose to employ, for the further
transportation of its goods, the vessels with the managers of which
the defendant had some business arrangement or contract, it is not
denied that the defendant would and did permit such transportation.
In this respect, there is no allegation that the plaintiff did not
have equal facilities with all other shippers. Defendant's plea
avers that it did give to plaintiff the same facilities for
shipping its goods over defendant's wharf that it gave to any or
all shippers. In brief, the fact seems to be that the only
complaint of the plaintiff is that defendant will not permit
competing vessels to make use of its wharf for the purpose of such
competition.
We do not see that the fact that the wharf was erected under
authority from the city at the foot of a public street of the city,
makes any material difference in the character of the wharf, or
that the right of plaintiff to select its own vessels to continue
from that wharf the transportation of its goods is, on that ground,
enhanced, or the right of defendant to control the wharf for its
own use when erected is thereby diminished. The right to erect the
wharf was granted by the proper authorities, and, so far as the
record shows, it was granted without imposing any conditions as to
its use by the public. We think the plaintiff had no right of
access to the wharf founded simply upon the fact that it was
erected under proper authority, in the harbor of Pensacola, and at
the foot of one of the public streets of that city. The question of
the rights of plaintiff must really
Page 198 U. S. 495
turn upon the character of the use of the wharf, whether it is
public or private.
The argument upon the part of plaintiff is, in substance, this:
true, defendant has erected a wharf, which is not in fact intended
or used as the terminus of its road at Pensacola, adequate yards
and depots having been furnished by the defendant for all goods and
passengers destined to Pensacola only; but the wharf has been
erected to enable defendant to more conveniently carry out
contracts for transportation beyond its own line, which it was not
compelled to make, and which it could carry out by such agencies as
it chose; but the plaintiff, having goods destined for points
outside of Florida, insists upon its right to use the road of
defendant not to carry these goods to Pensacola, but to defendant's
wharf, so that plaintiff may there transfer them into vessels which
it has arranged to take them; in order to do this, it is necessary
that defendant be compelled to share its possession of its own
wharf with the managers of these other vessels; for this possession
plaintiff is prepared to make reasonable compensation. The right on
the part of the plaintiff is urged as the result of the action of
defendant in permitting the use of the wharf as stated in the plea.
By such use, it is contended that the defendant in effect dedicated
the wharf to the public, or at least, has granted to the public an
interest in the use of the wharf.
We are of opinion that the wharf was not a public one, but that
it was a mere facility, erected by and belonging to defendant and
used by it, in connection with that part of its road forming an
extension from its regular depot and yards in Pensacola, to the
wharf for the purpose of more conveniently procuring the
transportation of goods beyond its own line, and that defendant
need not share such facility with the public or with any carriers
other than those it chose for the purpose of effecting such further
transportation.
Neither the public nor the plaintiff had such an interest in the
wharf as would give to either the right to demand its use on
payment of reasonable hire. Nor was the wharf a depot
Page 198 U. S. 496
or place of storage of the defendant for goods to be delivered
at or taken from the City of Pensacola for transportation by rail.
The defendant had adequate depots and yards in that city for the
proper storage of all merchandise committed to it for delivery at
Pensacola, or there received, to be transported therefrom by
defendant. All consignees of goods at Pensacola had equal
facilities for obtaining them there. Although not bound originally
to carry goods beyond its own terminus at Pensacola, yet the
defendant might agree to do so, and it had the right, when duly
authorized by the proper authorities, to construct facilities to
enable it to continue such transportation beyond the line of its
railroad by such other carriers as it might agree with. The city or
state authorities, in granting the right to erect such facilities,
might, of course, have attached such conditions as they thought
wise; but, in their absence, neither the public nor this plaintiff,
as the owner of goods, would have the right, on this state of
facts, to go to the wharf with vessels for the purpose of
continuing transportation of goods in competition with the
defendant. The defendant never became a common carrier, as to this
wharf, in the sense that it was bound to accord to the public or to
plaintiff a right to use it upon payment of compensation. We do not
see that the plaintiff had any right even to demand that the
defendant should carry plaintiff's goods on the rails defendant had
laid down to reach the wharf from its depot or yards at Pensacola,
the terminus of its road at that city. Those rails were only laid
for the purpose of reaching the wharf in order that defendant might
carry goods to it which it had undertaken to forward, by itself or
by vessels it had arranged with, beyond its line. Very likely it
would be bound to carry plaintiff's goods on this part of its rails
for the same purpose and on the same terms it did for others --
viz., in order that it might itself, or through others it
had contracted with, forward the goods beyond its own line. But
plaintiff demands more than this: it demands that defendant shall
carry plaintiff's goods over its rails thus laid in order that
plaintiff may itself forward its
Page 198 U. S. 497
goods by vessels of its own selection, and that defendant shall
surrender possession of enough of its wharf to enable plaintiff to
do so.
That the defendant had the right to choose its own agencies and
grant to them the exclusive privilege of access to its own wharf,
which it built only for the purpose of continuing the
transportation of goods which it had transported to the end of its
line, has in effect been decided by this Court.
Atchison
&c. R. Co. v. Denver & New Orleans R. Co.,
110 U. S. 667. In
that case it was held that, although at common law the common
carrier was not bound to carry beyond its own lines, yet it might
contract to do so, and, in the absence of statutory regulations
prohibiting it, the carrier might determine for itself what
agencies it would employ to continue the transportation, and it was
not bound to enter into agreements for such transportation with
another because it had done so with one common carrier. Having the
right, as the authorities prove, to decide what agencies it would
employ for the purpose of transporting goods beyond its own line,
and not being bound to enter into any contracts or arrangements
with one person or carrier because it had so contracted or arranged
with another, we think it follows that defendant was not obliged to
permit the public to have access to its wharf, built for the
purpose stated, simply because it granted such permission to those
with whom it made arrangements of the kind set forth in the plea.
While refusing to make any agreement with defendant for the further
transportation of plaintiff's goods beyond Pensacola, plaintiff
nevertheless claims a right to use the wharf erected by defendant
for its own purpose, as already stated. This cannot be sustained.
The principle stated in the above case is, in substance, recognized
in
Gulf &c. Ry. Co. v. Miami S.S. Co., 86 F. 407;
Little Rock &c. Ry. Co. v. St. Louis &c. Ry. Co.,
aff'g same case in 59 F. 400. The two last cases involved the
construction of the Interstate Commerce Act, but they affirm the
principle that a common carrier may agree with
Page 198 U. S. 498
such other carrier as it may choose to forward beyond its own
line the goods which it had transported to its own terminus.
See also Central Stock Yards Co. v. L. & N. Railway
Co., 192 U. S. 568,
192 U. S. 571;
Kentucky &c. Co. v. L. & N. R. Co., 37 F. 567;
Oregon &c. Co. v. Northern Pacific R. Co., 51 F. 465;
Ilwaco &c. Co. v. Oregon &c. Co., 57 F. 673.
The cases cited did not involve rights of parties to a wharf
situated in a harbor, but we think that the right of one carrier to
enter into arrangements with another carrier to forward its goods,
and to refuse to do so with others, or to permit such others to
avail themselves of the facilities constructed by the original
carrier for that purpose, is not altered because the facility so
constructed by it happens to be a wharf in the harbor of a city
instead of some structure on land. The wharf may be a private one,
and its owner may permit those only to have access to it that it
may choose. A private wharf may exist on the shores of a navigable
river or lake, or in a harbor of a city from which access is
obtained directly to the sea.
Dutton v.
Strong, 1 Black 23,
66 U. S. 32.
It is to be remembered that the wharf was not, in strictness,
the terminus of defendant for unloading its goods for Pensacola.
The defendant had other depots and yards for that purpose. The main
use of the wharf was only for the purpose of sending the goods
brought by defendant, to other ports as a continuation of their
carriage beyond the line of the defendant's road. How much space,
if any, it might devote to other vessels, with the managers of
which it might make special arrangements, would naturally be for
the defendant to decide, as also the particular terms of such
arrangements. The conveniences of the wharf are, of course,
necessarily limited.
It is well said by counsel for defendant in their brief that
"the very nature of a wharf, and its inadequacy to meet the
demands of every incoming vessel, necessitates that its use should
be exclusively for those with whom the carrier enters into
arrangements. The carrier has a right to select a strong
Page 198 U. S. 499
connection instead of a weak one -- one that will give assurance
of permanent business, instead of one that can offer only
occasional shipment. If the free use is incompatible with the
certain regular use by the steamer, or lines of steamers, with
which the carrier is aligned, it is too clear for further reasoning
that such carrier has the right to accept the latter and thereby
exclude the former."
The reasons for permitting such use of the wharf are manifold.
Without it, the commerce of the country in the large cities would
be cramped, if not very greatly damaged, by the uncertainty of
finding quarters for the regular and swift unloading and loading of
the vessels. But the capacity of a wharf is necessarily limited,
and if the wharf were open to all comers in their turn, there could
be no certainty as to any particular vessels' being able to reach
the wharf at any definite time, and consequently there would be a
like uncertainty as to when such vessel would be able to depart
with its load. One unexpected so-called tramp vessel might, by
arriving a few hours in advance, take possession of all that was
left of the wharf for the purpose of loading, and thus prevent the
regular steamer, arriving a little later, from coming to the dock,
unloading its cargo, and then loading with goods from the railroad.
In this way, there would be confusion in time and in the possession
of the wharf by the different vessels, and its value for the
purpose for which it was erected would be greatly reduced, if not
wholly destroyed.
The principle herein recognized has also been affirmed by this
Court in what are known as the
Express Co. Cases,
117 U. S. 1, where
it was held (because the facilities were necessarily limited) that
railroad companies had the right to contract with particular
express companies for the transportation of the traffic of the
latter over the lines of their railroads, and that the railroad
company was not bound to transport the traffic of independent
express companies over its lines in the same manner in which it
transported the traffic of the particular companies contracted with
-- in other words, that the railroad
Page 198 U. S. 500
companies were not bound to furnish, in the absence of a
statute, to all independent express companies equal facilities for
doing an express business upon their passenger trains.
These observations answer the contention of plaintiff that
defendant, by erecting the wharf and using it in the way it does,
has thereby devoted its property to a public use, and that it has
thereby granted to the public an interest in such use within the
principle laid down in
Munn v. Illinois, 94 U. S.
113. It has not devoted its wharf to the use of the
public insofar as to thereby grant to every vessel the right to
occupy its private property upon making compensation to defendant
for the exercise of such right. The reasons we have already
endeavored to give.
The judgments of the circuit court of appeals and of the Circuit
Court for the Northern District of Florida are reversed, and the
case remanded to the latter court for further proceedings not
inconsistent with this opinion.
Reversed.
MR. JUSTICE HARLAN dissents.
