1. Where spotting service is included in the line-haul tariff
charge, the carrier cannot charge extra for it, even when done by
assigning a special engine and crew for handling the cars on a
shipper's industrial tracks to expedite delivery at a time of
freight congestion at the terminal. P.
270 U. S.
265.
2. A contract for such special service
held void, and
the extra charge under it uncollectible, both because such charge
was illegal and because such special service was an undue
preference. P.
270 U. S. 266.
138 Va. 647 affirmed. ,
Certiorari to judgments of the Supreme Court of Appeals of
Virginia, affirming judgments rendered for the respondents in two
actions brought, the one by the railway company, the other by the
Director General of Railroads, to recover special charges for the
use of an engine and crew.
Page 270 U. S. 265
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
These actions were brought in a state court of Virginia to
recover amounts alleged to be due for the use of an engine and crew
rented or assigned by the Chesapeake & Ohio Railway Company to
Westinghouse, Church, Kerr & Co., Inc., under a contract made
in September, 1917. The latter corporation was engaged in
construction work for the government on premises at Newport News
connected by industrial tracks with the railway's main line. Owing
to war conditions, there was then serious congestion of traffic at
Newport News, and the railway failed duly to perform spotting
service for the company. To remedy this condition, the engine and
crew were assigned to the exclusive use of its traffic, payment to
be made therefor as prescribed in the contract. The use continued
from that date until April, 1918. The railway sued for the period
prior to December 28, 1917; the Director General for that later.
The defenses were want of consideration and that the contract was
void because it violated the Interstate Commerce Act and a similar
law of the state. A judgment for the defendant, entered in each
case by the trial court, was affirmed by the Supreme Court of
Appeals on the ground of want of consideration. 138 Va. 647. This
Court granted writs of certiorari. 266 U.S. 598. No question under
the state law is before us.
The service of spotting cars was included in the line haul
charge under both interstate and state tariffs. The railway
contends that, under the tariffs, no obligation rested upon the
carrier either to furnish spotting service solely for the
convenience of a shipper or to furnish him special facilities to
meet abnormal and unprecedented conditions; that the contract was
therefore not without consideration, and that, being for rental of
equipment, it was not for a common carrier service, and hence a
contract therefor was legal under the Interstate Commerce
Page 270 U. S. 266
Act, although no tariff provided for the charges. The service by
special engine and crew contracted for and given was not spotting
solely for the convenience of the shipper. It was the spotting
service covered by the tariff.
Compare Car Spotting
Charges, 34 I.C.C. 609; Downey Ship-Building Corp. v. Staten Island
Rapid Transit Ry. Co., 60 I.C.C. 543. It is true that abnormal
conditions may relieve a carrier from liability for failure to
perform the usual transportation services, but they do not justify
an extra charge for performing them. The carrier is here seeking
compensation in excess of the tariff rate for having performed a
service covered by the tariff. This is expressly prohibited by the
Interstate Commerce Act. Act of February 4, 1887, c. 104, ยง 6(7),
24 Stat. 379, 381 as amended. A contract to pay this additional
amount is both without consideration and illegal. It is no answer
that, by virtue of the contract, the shipper secured the assurance
of due performance of a transportation service which otherwise
might not have been promptly rendered, that ordinarily rental of
engine and crew is not a common carrier service, and that such
rental may be charged without filing a tariff providing therefor.
Compare Chicago, Rock Island & Pacific Ry. Co. v.
Maucher, 248 U. S. 359. To
so assure performance to a shipper was an undue preference. Hence,
the contract would be equally void for illegality on this ground.
Davis v. Cornwell, 264 U. S. 560.
Affirmed.