1. Where shipments originating in Canada moved to delivery
points in the United States on combination through rates, an award
of reparation based on a finding by the Interstate Commerce
Commission that the proportional rate for that part of the route
from the international boundary to destination was unjust and
unreasonable in violation of the Act cannot be sustained in the
absence of claim or finding that the through rate was unreasonable.
P.
294 U. S.
462.
Page 294 U. S. 459
2. Where a through rate is just and reasonable, there is no
damage to the shipper as a result of a participating carrier
receiving an undue proportion of the charges. P.
294 U. S.
463.
72 F.2d 587 reversed.
Certiorari, 293 U.S. 551, to review a judgment affirming a
judgment of the District Court in a proceeding to enforce an award
of reparation by the Interstate Commerce Commission. 142 I.C.C.
543.
MR. JUSTICE BUTLER delivered the opinion of the Court.
Respondent sued the railway company in the District Court for
Minnesota to recover $3,990.20 awarded by the Interstate Commerce
Commission as reparation. Alberta Coal Sales Co. v. Canadian Nat.
Rys., 142 I.C.C. 543. That court gave him judgment; the Circuit
Court of Appeals affirmed.
Great Northern Ry. Co. v.
Sullivan, 72 F.2d 587. We are called on to decide whether the
uncontroverted facts and those found by the commission are
sufficient to warrant the conclusion that he sustained damage in
consequence of violation of the Act by defendant.
Plaintiff, a wholesale dealer, bought carloads of lignite at
mines on the Canadian Pacific in Alberta, and sold the same to
retail dealers and others in North Dakota at Great Northern
stations in competition with other fuels. The shipments moved on
combination rates, being the sum of proportionals made respectively
by the Canadian Pacific and the Great Northern, [
Footnote 1] applicable from mines to
destinations, and on through bills of lading issued by the former,
routing over its railroad to junction with the latter
Page 294 U. S. 460
at the international boundary, and thence over the railroad last
mentioned to places of delivery. The combination rates necessarily
reflect agreement, express or implied, between the connecting
carriers to establish a through route for continuous carriage from
origin on one to destination on the other. Each proportional
necessarily was a part of the through rate, and was capable of use
only as such.
St. Louis S.W. Ry. Co. v. United States,
245 U. S. 136,
245 U. S. 139
note 2. They show the basis of division of charges between
connecting carriers, and serve precisely as do agreed divisions of
charges based on joint rates. A proportional differs from a local
rate in that it covers only terminal service at place of receipt or
at place of delivery, but cannot, as does the local rate, cover
both.
Lewis-Simas-Jones Co. v. Southern Pacific Co.,
283 U. S. 654,
283 U. S. 663.
[
Footnote 2] There
Page 294 U. S. 461
was no applicable joint rate. The Great Northern collected the
charges and paid the Canadian Pacific amounts equal to the
proportionals established by the latter.
Plaintiff and another complained to the commission alleging the
proportionals filed by the Great Northern and other American
carriers to be unjust and unreasonable in violation of § 1. They
did not attack the combination or allege aught against the Canadian
Pacific proportional. They prayed merely reasonable maximum
American proportionals and reparation to the extent of the excess
over such maxima. The commission found the American proportionals
to be unjust and unreasonable so far as they exceed specified
maxima which it made applicable in lieu of those assailed. It made
no finding concerning the reasonableness of the Canadian
proportionals or of the combination through rates. There being no
claim or finding to the contrary, the charges collected on these
shipments must be deemed to have been just and reasonable. Indeed,
dissenting commissioners, without opposition on the part of the
others, state that they are affirmatively shown to be
reasonable.
The Great Northern was by the Act required to file tariffs
establishing reasonable proportionals to constitute
Page 294 U. S. 462
and to be kept in force as factors in the combination through
rates applicable to plaintiff's shipments. Its failure to specify
just and reasonable charges was a violation of the Act. And, if
injured thereby, plaintiff is entitled to recover the damages
sustained in consequence of such failure. 49 U.S.C. § 8. Plaintiff
invokes
News Syndicate Co. v. N.Y. Central R. Co.,
275 U. S. 179, and
Lewis-Simas-Jones Co. v. Southern Pacific Co., supra. But
neither is like this case. In each, shipments moved from an
adjacent country into the United States on through rates made by
joint action of the participating foreign and American carriers.
The American carrier, having violated the Act by failure to file
any tariff to cover its part of the transportation, collected
freight charges found to be excessive, and, as one of two or more
joint tortfeasors, was held liable to the extent that the charges
it exacted were in excess of what the commission ascertained to be
just and reasonable. But here, the charges collected were not
excessive, and confessedly the same amounts lawfully might have
been collected without injury or damage to plaintiff if only the
connecting carriers had imposed the charges by means of "joint"
instead of the "combination" through rates that they did
establish.
If defendant's proportional added to that established by the
Canadian Pacific had produced an unjust rate, then, to the extent
that the total charge was excessive, plaintiff would have been
subjected to a disadvantage in competing with others selling fuel
in the same territory. The commission has power to determine rates
to be unreasonable in violation of § 1 without determining whether
their application has resulted or will result in pecuniary loss or
damage to the shipper. It may determine whether a proportional
constituting a part of a combination rate violates § 1 without
passing upon the validity of the rate as a whole.
Atchison, T.
& S.F. Ry. v. United States, 279 U.
S. 768,
279 U. S. 776.
But the commission may not order
Page 294 U. S. 463
or permit payment of damages by way of reparation without
finding that the amount of the charge was unjust and unreasonable.
News Syndicate Co. v. N.Y. Central R. Co., supra, p.
275 U. S. 187.
And defendant, enforcing an unlawful charge to be divided between
it and the Canadian Pacific, would be liable as a joint tortfeasor
for the full amount of the excess.
Louisville & N. R. Co.
v. Sloss-Sheffield Co., 269 U. S. 217,
269 U. S. 231
et seq. News Syndicate Co. v. N.Y. Central R. Co.,
supra. Lewis-Simas-Jones Co. v. Southern Pacific Co.,
supra.
But the claim before us has no such foundation. Plaintiff seeks
to recover the difference between the proportional established by
defendant and that found by the commission to be just and
reasonable notwithstanding its fuel was hauled from mines to the
competitive field for a just and reasonable charge. That position
cannot be maintained, for, as to the shipments here involved, the
Great Northern proportional cannot be applied save as it is a part
of the through rate. There was a single charge which, though based
on the combination rate, was precisely the same in amount as if the
rate had been jointly made. As shown by our decision in
Louisville & N. R. Co. v. Sloss-Sheffield Co., supra,
p.
269 U. S. 234,
the division among connecting carriers of charges based on joint
rates -- those involved in that case were constructed out of
existing proportionals -- is no concern of the shipper. The
proportionals here involved are but parts of a through rate, and
cannot be distinguished from divisions of a joint rate. Morrell
& Co. v. N.Y. Central R. Co., 104 I.C.C. 104, 128. The
shipper's only interest is that the charge shall be reasonable as a
whole. It follows that retention by the defendant of an undue
proportion of just and reasonable charges did not damage plaintiff.
Louisville & N. R. Co. v. Sloss-Sheffield Co., supra,
p.
269 U. S. 234.
Parsons v. Chicago & Northwestern Ry., 167 U.
S. 447,
167 U. S.
460.
Reversed.
[
Footnote 1]
Canadian Pacific Tariff No. W-5379, I.C.C. No. W-723; Great
Northern I.C.C. No. A-5681, G.F.O. No. 435-G.
[
Footnote 2]
As to inland hauls of exports or imports by sea to or from
foreign countries,
see Mobile Chamber of Commerce v. M.
& O. R. Co., 23 I.C.C. 417, 425:
"It is easy to be misled by the use of the term 'through bill of
lading,' for it implies that the originating carrier has undertaken
to carry the traffic from point of origin to an ultimate point of
destination -- say, from Memphis to Liverpool -- and that the
originating carrier under the present law is responsible for the
fulfillment of this contract of carriage. But the through bill of
lading that is given by the rail carriers upon movements of traffic
through Mobile . . . to Europe is not at all of this character. It
is a receipt on the part of the railroad for the carriage to the
port and a receipt by the ship line for the carriage from the port
to Europe. This receipt for carriage beyond the port is not given
in the name of the rail carrier, but in the name of the steamship
company . . . ; is in reality a separate bill of lading, which is
attached to the railroad bill of lading. . . . This practice of
making a divisible bill of lading showing the ultimate destination
of the shipment by water, both of the rates being sometimes stated
separately the rate to the port and the rate from the port, or only
one rate being stated, that to the port, is a railroad practice
instituted for the convenience of all concerned. The ship line is
operated in physical connection with the rail line, but the rail
line receives none of the ship line's earnings, makes no division
of a through rate with the ship, suffers none of its loss, and
takes none of its hazards. The furnishing of a through bill of
lading in connection with ship-side delivery at the port of Mobile
is not a contract by the rail carrier for shipment beyond at a
specified rate, or at any rate, nor does it carry with it any of
the elements attaching to the through bill issued by a rail carrier
with a rail connection. To call it a through bill of lading is
therefore in fact a misnomer."
Through bills of lading issued under the Interstate Commerce
Act, § 25(4, 5), do not constitute "an arrangement for continuous
carriage or shipment" within the meaning of the Act. Bills of
Lading, 52 I.C.C. 671, 730. Export Bill of Lading, 64 I.C.C.
347.
The Commission deals with rates applicable to inland hauls above
referred to and with reparation without consideration of charges or
factors attributable to transportation by sea or in foreign
countries. Ullman v. Adams Express Company, 14 I.C.C. 340, 345;
Chamber of Commerce of N.Y. v. N.Y.C. & H.R. Co., 24 I.C.C. 55,
74; Henry Marble Co. v. B. & O. R. Co., 146 I.C.C. 414.