The implied agreement of a common carrier is to carry safely and
deliver at destination within a proper time; evidence of diligence
and no unreasonable delay excuses.
A carrier who agrees to expedite assumes a more burdensome
liability, and can exact a higher rate, than where mere carrier's
liability exists.
An interstate carrier can assume an extra liability for
expediting, provided it makes and publishes a rate therefor and
opens it to all.
To agree with a particular shipper to expedite a shipment at
regular rates, where no rate has been published for special
expediting, is a discrimination and as such a violation of the
Elkins Act of February 19, 1903, 32 Stat. 847, c. 708, and relief
on the contract will be denied.
The broad purpose of the Commerce Act to compel the
establishment of reasonable rates and uniform application will not
be defeated by sanctioning special contracts giving special
advantages to particular shippers.
To guarantee a particular connection and transportation by a
particular train amounts to giving a preference when not open to
all and provided for in the published tariffs, and, under the
Elkins Act, is an illegal discrimination.
A shipper is presumed to know what the published rates are, and
if they do not contain provisions for the special service
guaranteed to him, he must be taken as having contracted for a rate
discriminatory in his favor.
Where plaintiff sues only on a special contract for prompt
delivery by specified train, and there is no count for negligence
as a carrier only, his claim for damages based on such negligence
is not presented, and cannot be considered, on the record.
242 Ill. 418 reversed.
The facts, which involve the validity under the Elkins Act of a
special contract for prompt delivery of goods by an interstate
carrier, are stated in the opinion.
Page 225 U. S. 162
MR. JUSTICE LURTON delivered the opinion of the Court.
Action in assumpsit to recover damages for the breach of a
special contract for the shipment of a carload of high-grade horses
from Springfield, Illinois, to New York City. There was a jury,
verdict and judgment, which was affirmed by the Supreme Court of
Illinois. The facts essential to be here stated are these: Kirby
was engaged in developing high-grade horses, and desired to send a
carload to be sold at a public sale to be held in Madison Square
Garden, New York City. Several routes were available, and the
published livestock rates for carload shipments were the same by
each route. It was, however, desirable to send them by the route
which would insure their arrival in the shortest time after
delivery to the carrier.
The declaration in substance avers that the plaintiff in error,
knowing the anxiety, of the shipper for quick transportation, and
that the horses were to enter the horse sale to be held late in the
month, did, on January 24, 1906, contract and agree to carry a car,
rented by defendant in error, loaded with horses, for the
consideration of $170.60, over its own rails from Springfield to
Joliet, Illinois, and there deliver so that it would be carried by
a fast stock train known as the "Horse Special," over the M. C.
Railroad, through to New York. Said horse special was run but three
times each week, and was due to leave Joliet the following morning.
It is then alleged that the defendant in error, as directed by the
railroad company, delivered and loaded his horses on the afternoon
of the twenty-fourth, but that the company did not promptly carry
and deliver the same to the said fast stock train on
Page 225 U. S. 163
the morning of the twenty-fifth, as it had guaranteed to do,
having failed to make connection with that train, and, that, as a
consequence, the car was forwarded by a later and much slower
train, and the horses were delivered in New York forty-eight hours
after they would have arrived had they been carried by the Horse
Special, as the plaintiff in error undertook. As a result of this
prolonged transportation, the horses did not reach New York in time
to be put in proper condition for the horse sale, whereby the
defendant in error sustained damages aggregating several thousand
dollars.
The plaintiff in error pleaded the general issue and under this
presented certain defenses which we shall pass by, as not
constituting questions of law or fact open to review upon a writ of
error to a state court.
The single federal question arises upon the validity of the
contract to so carry these horses as to deliver them at Joilet, to
be carried through to New York by the Horse Special, leaving Joliet
on the twenty-fifth of January.
That the railroad company had established and published through
joint rates and charges upon carload shipments of livestock to New
York is not disputed. The rates furnished the defendant in error
were the regularly published rates. Those rates and schedules did
not provide for an expedited service, nor for transportation by any
particular train. Neither was Kirby required to pay any other or
higher rate for the promised special service, by which his car was
to be carried so as to be attached to the fast stock special and
carried by it to New York.
By the third section of the original Act of 1887, 24 Stat. p.
379, c. 104, it is made unlawful to give any undue or unreasonable
"preference or advantage" to any particular person, or to subject
any particular person to "any undue or unreasonable prejudice or
disadvantage in any respect whatever." By the sixth section of the
same act, it is required that the carriers subject to the act
shall
Page 225 U. S. 164
print and keep for public inspection schedules showing the
rates, charges, and classifications, "and any rules or regulations
which in any wise change or affect or determine any part or the
aggregate of such aforesaid rates and fares and charges." The same
section also provides as follows:
"And when any such common carrier shall have established and
published its rates, fares, and charges in compliance with the
provisions of this section, it shall be unlawful for such common
carrier to charge, demand, collect, or receive from any person or
persons a greater or less compensation for the transportation of
passengers or property, or for any services in connection
therewith, than is specified in such published schedule of rates,
fares, and charges as may at the time be in force."
By the Act of February 19, 1903, known as the Elkins Act,
amending the Act of 1887, 32 Stat. p. 847, c. 708, it is made
"unlawful for any person, persons, or corporation to offer,
grant, or give, or to solicit, accept, or receive, any rebate,
concession, or discrimination in respect of the transportation of
any property in interstate or foreign commerce by any common
carrier subject to said Act to Regulate Commerce and the acts
amendatory thereto, whereby any such property shall, by any device
whatever, be transported at a less rate than that named in the
tariffs published and filed by such carrier, as is required by said
Act to Regulate Commerce and the acts amendatory thereto, or
whereby any other advantage is given or discrimination is
practiced."
The implied agreement of a common carrier is to carry safely and
deliver at destination within a reasonable time. It is otherwise
when the action is for a breach of a contract to carry within a
particular time, or to make a particular connection, or to carry by
a particular train. The railroad company, by its contract, became
liable for the consequence of a failure to transport according to
its terms. Evidence of diligence would not excuse. If the
Page 225 U. S. 165
action had been for the common law carrier liability, evidence
that there had been no unreasonable delay would be an answer. But
the company, by entering into an agreement for expediting the
shipment, came under a liability different and more burdensome than
would exist to a shipper who made no such special contract.
For such a special service and higher responsibility, it might
clearly exact a higher rate. But, to do so, it must make and
publish a rate open to all. This was not done.
The shipper, it is also plain, was contracting for an advantage
which was not extended to all others, both in the undertaking to
carry so as to give him a particular expedited service, and a
remedy for delay not due to negligence.
An advantage accorded by special agreement which affects the
value of the service to the shipper and its cost to the carrier
should be published in the tariffs, and, for a breach of such a
contract, relief will be denied because its allowance without such
publication is a violation of the act. It is also illegal because
it is an undue advantage in that it is not one open to all others
in the same situation.
In
Armour Packing Co. v. United States, 209 U.
S. 57,
209 U. S. 72,
MR. JUSTICE DAY, dealing with a violation of the act by carrying
out a contract for a rate after the rate had been changed by
publication of a higher rate, said:
"The Elkins Act proceeded upon broad lines, and was evidently
intended to effectuate the purpose of Congress to require that all
shippers should be treated alike, and that the only rate charged to
any shipper for the same service under the same conditions should
be the one established, published, and posted as required by law.
It is not so much the particular form by which or the motive for
which this purpose was accomplished, but the intention was to
prohibit any and all means that might be resorted to to obtain or
receive concessions and rebates from the fixed rates, duly posted
and published. "
Page 225 U. S. 166
The broad purpose of the Commerce Act was to compel the
establishment of reasonable rates and the uniform application. That
purpose would be defeated if sanction be given to a special
contract by which any such advantage is given to a particular
shipper as that contracted for by the defendant in error. To
guarantee a particular connection and transportation by a
particular train was to give an advantage or preference not open to
all, and not provided for in the published tariffs. The general
scope and purpose of the act is so clearly pointed out in
New
York, N.H. & H. Railroad Company v. Interstate Commerce
Comm., 200 U. S. 361,
200 U. S. 391,
and in
Texas & P. Railroad Company v. Abilene Cotton Oil
Co., 204 U. S. 426, as
to need no reiteration.
That the defendant in error did not see and did not know that
the published rates and schedules made no provision for the service
he contracted for is no defense. For the purposes of the present
question, he is presumed to have known. The rates were published
and accessible, and, however difficult to understand, he must be
taken to have contracted for an advantage not open to others.
Texas & P. Railway Co. v. Mugg, 202 U.
S. 242.
The claim that the defendant in error may recover upon the
carrier contract, stripped of the illegality, under
Merchants'
Cotton Press Co. v. Insurance Co., is not presented by this
record. The declaration counted only upon the breach of a special
contract which was illegal. There was no count based upon the
carrier's liability for negligence in not promptly shipping and
delivering. The judgment was rested upon the damages resulting from
the breach of the special contract, and not at all upon the
liability of the carrier otherwise.
For the error in not holding the special contract invalid under
the Interstate Commerce Act, the judgment must be reversed and the
case remanded for such further proceedings as are not inconsistent
with this opinion.