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Applications by express company or agent authorized to file the tariff.-That when an express company gives an agent authority to file tariff or tariffs and supplements thereto in its name, place, and stead, or concurrence in tariff or tariffs and supplements thereto which another express company or its agent may file thereunder, the agent or express company to whom such authority or concurrence is given has, under the terms of the authority or concurrence, the power and the right to request, in the name and on behalf of the express companies participating in such tariff or tariffs, permission to amend same on less than statutory notice.
Request must come from one who issues the tariff.-Such requests as to joint tariffs must be made by the agent or the express company that is authorized to file the tariff and in making them form same as that prescribed for use of individual carrier shall be used, except that the request must state that it is made in the name and on behalf of all parties to the tariff, and that formal authority to file the tariff, or formal concurrence in the tariff, is on file with the Commission from each of them. Concurring express companies bound by act of authorized agent.-Request will be signed and verified by the agent or officer who makes it, and every express company that has, by formal authority or concurrence, made itself a party to such tariff will be held bound by the act of its agent under such authority or by its concurrence. This rule will, in so far as is possible, be applied to tariffs now on file, and will be effective in all cases from and after August 1, 1908.
32. Division of joint rates-Contracts and agreements for must be filed.-A contract, agreement, or arrangement between express companies governing the division between them of joint rates on interstate business is a contract, agreement, or arrangement in relation to traffic within the meaning of section 6 of the act to regulate commerce, and a copy thereof must be filed with the Commission. Where such contract, agreement, or arrangement is verbal or is contained in correspondence between the parties or rests on their custom and practice, a memorandum of its terms must be filed with the Commission.
33. Diverting traffic because of blockades.—Whenever, by reason of blockade upon the line of an express company resulting from storm, washout, wreck, or similar casualty, it becomes necessary for it to divert to the line of another express company traffic that is in transit, the express company so diverting its business should pay the express company or companies upon whose line such traffic is carried regular tariff cates from and to the points between which it or they transport such diverted traffic, except that if the express company accepting such diverted traffic is participant in a joint tariff in which the diverting line is also a participant and under which the diverted traffic is being moved, settlement may be made on basis of the division of the through joint rate.
This rule does not apply in cases of congested lines due to heavy traffic or ordinary
34. Free transportation of passengers in connection with shipments of property.— Section 1 of the Act provides that free transportation may be furnished "to necessary caretakers of live stock, poultry, and fruit." This provision in the statute is construed to mean necessary caretakers of live stock, poultry, or fruit that is loaded and ready for movement, or the movement of which is actually contracted for or that is actually in transit. This transportation must be the same for all under like circumstances and must be published in the tariff governing transportation of the commodity. Tariff may provide that caretaker sent out to return with shipment that is arranged for or that is in transit will be required to pay fare going and that such fare will be refunded if person so sent does return as actual caretaker of shipment for which he is sent.
Includes vegetables.-The Commission is of the opinion that the term "fruit" in this connection includes perishable vegetables when shipped under conditions that render caretakers "necessary.
35. Transportation for government.-Section 22 of the Act authorizes carriers to grant free or reduced rate transportation of property for the United States, State, or municipal governments, or for charitable purposes or for exhibition at fairs and expositions. This special provision and the words "reduced rates' are construed to be special authority for carriers to depart from established tariff rates; and for such
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transportation of property as is provided for in said section 22 it is not necessary for carriers to provide tariffs or observe tariff rates and regulations.
Reduction may not be made through a third party.-Reduced rates may be granted to the United States, State, or municipal governments only in instances in which the transaction is directly between the carrier and such government, and may not include those in which a contractor or other third person or party is interested.
36. Payment for transportation.-Nothing but money can be lawfully received or accepted in payment for transportation subject to the Act, whether of passengers or property, or for any service in connection therewith, it being the opinion of the Commission that the prohibition against charging or collecting a greater or less or different compensation than the established rates in effect at the time precludes the acceptance of services, property, or other payment in lieu of the amount of money specified in the published schedules.
Application of rates in force on other lines unlawful.-The law makes it clear that no carrier can lawfully apply to transportation over its lines any rate or charge that is not plainly stated in its own tariffs at that time.
37. Routing and misrouting-Refund can only be allowed by Commission or court. -Neglects or errors on part of agents of express companies resulting in misrouting shipments lead to claims of overcharge. No express company can lawfully refund any part of the lawful charge except under authority so to do from the Commission or from a court of competent jurisdiction.
Shipper may not be subjected to more expensive route or to inferior route.-An express company may not disregard the instructions of shippers as to intermediate routing, except when tariff of initial line reserves to it the right to dictate intermediate routing. If the express company is not willing to observe the intermediate routing instructions of shipper it must not execute bill of lading containing such routing. Express companies will be held responsible for routing shown in bill of lading.
Refund of overcharge caused by misrouting through error of express company's agent-Authority to adjust overcharges does not extend to cases in which agents induce shippers to route via more expensive line. If an express company's agent misroutes a shipment and thus causes extra expense to the shipper over and above the lawful charges via another available route over which such agent had applicable rates which he could lawfully use, and responsibility for agent's error is admitted by the express company, such express company may adjust the overcharge so caused by refunding to shipper the difference between the lawful charges via the route over which shipment moves and what would have been the lawful charges on same shipment at the same time via the cheaper available route which could have been lawfully used. Such refund must in no case exceed the actual difference between the lawful charges via the different routes as specified, and must in every instance be paid in full by the express company whose agent caused such overcharge and must not be shared in by or divided with any other express company, corporation, firm, or person. This authority is limited strictly to the cases specified and to the circumstances recited and does not extend or apply to instances in which agents of express companies induce shippers to route shipments over a particular line via which a higher rate obtains than is effective via some other line.
Distinct from cases under Rule 40.-Complete distinction must be observed between cases to which this rule applies and those provided for under Rule 40.
Cooperation by and responsibility of shippers and consignees.-Shippers must bear in mind that there is a limit beyond which an agent of an express company could not reasonably be expected to know as to terminal delivery or local rates at distant points and on lines of distant companies to or with which he has no specific joint through rates. Consignors and consignees should coöperate with agents of express companies in avoiding misunderstandings and erorrs in routing and must expect to bear some responsibility in connection therewith.
38. Maximum rates not specific rates.-Rule 4 prohibits including in a tariff any rule or regulation which in any way or in any terms authorizes substituting for any rate named in the tariff a rate found in any other tariff or made up on any combination or plan other than that clearly stated in specific terms in the tariff of which the rule or regulation is a part. This rule is intended to bring about entire
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discontinuance of tariff rules which provide that rates named in tariff will apply to certain points "as maxima," or that if a combination on some gateway or basing point makes less than the rates named in tariff such combination will apply, or for equalizing or protecting any rate via another line or route or gateway, etc. The intent is that as rapidly as tariffs can be reconstructed in accordance with the regula tions issued by the Commission they will state in specific, clear, and unambiguous terms the rates and their application.
Combinations of lawfully published bases of rates instead of maximum ratesSpecific joint through rate must invariably be applied.—The Commission decides that, pending the complete elimination of such rules, a rate that is stated in a tariff as applicable to a certain point as a maximum is not a specific through rate to that point, and that a rate made up on combination of lawfully filed tariffs may be used in preference to such maximum rate if there is no applicable rate via the route over which shipment moves, other than the one made by such maximum rule. In every instance where there is a specific joint through rate from point of origin to point of destination it must be applied to through shipments regardless of possible lower combinations. (See Rule 27.)
39. Carriers may not be given preferential rates.-In answer to inquiries the Commission expresses the opinion that under the law an express company, or a person or corporation operating a railroad or other transportation line, cannot, as a shipper over the lines of another express company or carrier, be given any preference in the application of tariff rates on interstate shipments, but it may lawfully and properly take advantage of legal tariff joint rates applying to a convenient junction or other point on its own line, provided such shipments are consigned through to such point from point of origin and are in good faith sent to such billed destination. In other words, one express company shipping its fuel, material, or other supplies over the lines of another express company or carrier must pay the legal tariff rates applicable to the same commodities shipped by an individual.
Where stock in one carrier company is owned by another carrier company, but both maintain separate organizations and report separately to the Commission, they may not lawfully carry property free for each other.
40. Return of astray shipments.-Instances occur in which, through error or oversight on the part of some agent or employee, a shipment is billed to an erroneous destination or is unloaded short of destination or is carried by. The Commission is of the opinion that in bona fide instances of this kind express companies may return such astray shipments to their proper destination or course without the assessment of additional charges, and may arrange for such movement of such astray shipments for each other on mutually acceptable terms without the necessity of publishing, posting, and filing tariff under which it will be done.
Complete distinction must be observed between cases to which this rule applies and those provided for under Rule 37.
41. Movement of shipments refused by consignees or damaged in transit.-In one form or another express companies provide for the return free or at reduced rates or the reconsignment under through rate from point of origin of shipments that are damaged in transit or are refused by consignees. In a nondiscriminatory way and within reasonable limits such rule is not unlawful or improper. Care should be taken to preserve the distinction between shipments in which the express company has no interest except the collection of the transportation charges and which are reconsigned or returned purely out of consideration for the interests of the owner of the shipment and shipments which, because of injury or damage in transit, are left on the express company's hands and in which it has an interest to the extent of the transportation charges and the value of the shipment.
Shipments refused by consignee.-A rule providing that shipments which are refused by consignee may be reconsigned and forwarded, under application of through rate from point of origin to final destination, either with or without the exaction of a reconsignment charge, is permissible. Such rule should provide that if reconsigned to a point beyond which takes a lower rate from point of origin the rate to first destination will be charged, and should also require satisfactory showing of actual refusal by consignee and of a genuine transaction in good faith.
Shipments damaged in transit.-A rule providing for the reconsignment or return
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free or at reduced rate of articles damaged in transit is not deemed improper if it is so framed and applied as to prevent abuse or improper practices under it. As to shipments that are not in closed packages, and thus are open to immediate inspection, the rule should provide that in order to claim return under this rule the goods shall not have left the possession of the express company before such claim is made. As to goods that are in closed packages it is believed that the rule should provide that they must be returned to the express company within ten days.
Rules must be published and applied only via route over which shipment moved.— Such rules must be in tariffs and must be applied without discrimination and should provide that rule for return of shipments applies only via the lines over which the shipment moved.
Damaged in transit shipments left on hands of express company may be hauled over its lines as its own property would be.-Where a shipment is refused and is left on the hands of the express company it is believed that the express company, when it recognizes its responsibility for the value of the shipment and the transportation charges on same, may haul it for itself to such point on its own lines as offers the best opportunities or facilities for disposing of it to advantage, just as it may haul property of its own.
42. Distribution of official circulars and rulings.-It is obviously impracticable for the Commission to place copies of its official circulars and rulings in the hands of all the officers of express companies or to furnish copies for distribution among them. The officers at the head of traffic departments will please designate for each line an officer to whom such circulars and rulings are to be sent, and arrange for such designated official to disseminate the information among other interested officers and agents. Please report these appointments to the Commission as early as possible.
43. Special reparation on informal complaints.-To assist in the settlement of certain claims of shippers against express companies and as a practical means of disposing with promptness of informal complaints that might otherwise develop into formal complaints, and in connection with which the unreasonableness of the rate or regulation is admitted by the interested express company or companies, the Commission on full information will authorize adjustment by special order if all of the facts and conditions warrant such action. The connections in which the Commission has authority to modify the provisions of the law are specified in the Act. The Commis sion will not assume to modify it in any other connections or features.
Must present plain case.-The instances in which the Commission will authorize refund or reparation on informal complaint and in an informal way will be confined to those in which the informal showing develops plainly a case in which the Commission would award reparation on formal hearing and in which an adjustment agreeable to complainant and express company or companies and in conformity with the provisions of the law is reached.
Must admit unreasonable charge.-Reparation involving refund of alleged overcharges in instances in which the lawful tariff rates have been applied will be authorized under informal proceedings, only when the express company admits the unreasonableness of the rate charged and it is shown that within a reasonable time, not exceeding six months, after the shipment moved it has incorporated in its own tariffs, or in tariffs in which it has concurred, the rate upon basis of which adjustment is sought, and has thus made that rate lawfully applicable via the route over which shipment in question moved. Adjustment of a claim of this character that is filed with the Commission within six months after the shipment moved may, however, be authorized even if more than six months have elapsed between the movement of the shipment and the effective date of tariff rate or regulation that forms the basis of such adjustment. Authority for refund on account of a reduced rate or changed tariff regulation will also contain Commission's order requiring the maintenance of such rate or regulation for at least one year.
Express company must have authority-Principle underlying order extended to other cases.-No express company may pay any refund from its published tariff charges save with the specific authority of the Commission in accordance with the provisions of the Act. When an informal or formal reparation order has been made by the Commission the principle upon which it is based shall be extended to all like
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shipments, but no refunds shall be made upon such like shipments except upon specific authority from the Commission therefor.
Pay charges demanded by express company.-The shipper should pay the lawfully published charges applicable via the route over which the shipment moves, and make claim for refund if he believes he has been overcharged.
If an express company desires to give its patrons the benefit of the same rate that applies via another line or gateway, and which is lower than its own rate, it can do so by lawfully incorporating that rate in its own tariffs, and so give the benefit of it to all of its partons alike. The law forbids giving such lower rate to one and withholding it from another, but neither the law nor the Commission stands in the way of adoption in lawful manner of the lower rate as available for all.
The Commission's power to authorize adjustments will not be exercised in such way as to create the very discriminations which the law aims to prevent. No doubt instances will occur in which seeming hardship will come to some. Much of such embarrassment will be avoided if agents of express companies and shippers take pains to be certain that correct rates are quoted and correct routing is given.
Statute of limitation.-Claims must have accrued within two years immediately prior to the date upon which they are filed; otherwise they are barred by the statute. The Commission will not take jurisdiction of or recognize its jurisdiction over any claim for reparation or damages which is barred by the statute of limitation, as herein interpreted, and the Commission will not recognize the right of a carrier to waive the limitation provisions of the statute.
44. Responsibilities of carriers under tariffs.-In the past no uniform or definite practice or rule has been followed by express companies in regard to concurrence in joint tariffs.
To now undertake to check out and follow down definite and actual concurrence of express companies in tariffs, issued prior to effective date of these regulations, would be a difficult task; and to declare unlawful all tariffs, and participation therein, which were not definitely and actually concurred in, other than by use thereof, would be to overthrow practically all such joint tariffs and leave transportation in chaos.
Express companies are responsible under tariffs, except when and after they file specific notice of nonconcurrence.-The Commission cannot undertake to now excuse express companies from responsibilities placed upon them by tariffs that have been issued, and in which they are named as participants, except in accordance with and subsequent to filing of specific notices of nonconcurrence.
These regulations require that the express company or agent that issues a joint tariff shall, before issuing same, secure the definite and affirmative concurrence of every carrier shown therein as a participant, and shall show in connection with the name of each participating carrier the form and number of the instrument by authority of which that carrier is made a party to the tariff.
Express company not bound by being named as participant in tariff without its authority. An express company has no means of preventing another express company from naming it as party to a joint tariff without proper authority so to do. It cannot, however, be bound by such unauthorized act, and it is its obvious duty to refuse to recognize or apply any such unlawful issue. It should also at once call attention of the Commission and of the one that issued the tariff to such erroneous action.
Tariff lawful as to carriers shown as participants under lawful authorizations and unlawful as to carriers named as participants without lawful authorities.-If one or more carriers are, without proper authority, so shown as participating in any tariff and other carriers are lawfully shown as parties thereto, the use of the publication is unlawful as to the carriers that are named as parties thereto without proper authority and lawful as to those that are parties to it under proper authority. The carrier over whose line shipments are sent under a joint tariff is bound by the terms of that tariff if it has lawfully concurred therein, and, if it has not lawfully concurred therein, may not accept earnings in accordance therewith, but must demand for the service performed its lawful earnings according to its lawful tariffs.
Responsibility for unlawful incorporation of a carrier in a tariff.-Responsibility for the unlawful incorporation of any carrier in a tariff will rest upon the express company that issued the tariff, or, if the tariff is issued by a joint agent and attorney