CONFERENCE RULINGS OF THE INTERSTATE COMMERCE

COMMISSION.

Issued July 9, 1908.

[Index to Conference Rulings, See Post, Page 806.]

These rulings have been made by the Commission in conference, on the dates indicated, upon questions raised or submitted in correspondence.

April 14, 1908.

62. Boats that are not common carriers.-Certain carriers have been in the habit of advancing the charges of sailing vessels, boats, and barges bringing vegetables to their terminals to be forwarded to interstate destinations, and of entering the amount on waybills as charges in addition to their tariff rates. Upon inquiry whether the carriers may lawfully continue this practice it was held that if the boats are common carriers, making regular trips and offering their services to the general public, they must file tariffs and the practice must be discontinued until they do so.

63. Servants may not use free passes.-The word family, as used in the anti-pass provision of the Act, does not include servants. (See No. 93.)

64. Absorption of switching charges.-The tariff of a carrier provided for the absorption of switching charges. Upon inquiry it was agreed that the Commission could not sanction a practice under which switching charges are paid by the consignee, the carrier deducting the amount of the switching charges from the published rates and collecting the balance from the consignee. In all cases the carrier must collect the full tariff rates. Where its tariffs provide for absorptions of switching charges the carrier must pay the switching company for its services and not leave that to be done by the shipper.

April 18, 1908.

65. Special rates for United States, State, or municipal governments.-Section 22 of the Act authorizes the carriage, storage, or handling of property free or at reduced rates for the United States, State, or municipal governments. As has before been decided, such transportation can be granted without the publishing and filing of a tariff therefor only in instances where the arrangement is directly between such government and the carrier; but it is considered permissible for carriers to incorporate in their lawful tariffs special rates for the United States, State, or municipal governments applicable only to traffic consigned to such United States, State, or municipal government by name, in care of a recognized officer thereof.

May 4, 1908.

66. Joint rates between a water and rail carrier subjects the former to the provisions of the Act.-A steamboat line agreed upon joint rates with a rail line for certain passenger and freight traffic. Held, That it could not unite with a railroad company in making a through route and joint rate on a particular traffic without subjecting all its interstate traffic to the provisions of the law and to the jurisdiction of the Commission.

67. Handholds-Safety-appliance law. The law makes no distinction between passenger and freight cars, and handholds must, therefore, be placed on the ends of passenger cars and cabooses..

68. Adjustment of claims.-It is not a proper practice for railroad companies to adjust claims immediately on presentation and without investigation. The fact that shippers may give a bond to secure repayment in case, upon subsequent examinations, the claims prove to have been improperly adjusted does not justify the practice.

69. Error by ticket agent.—A station agent inadvertently failed to indorse "colonist ticket' on a regular ticket sold upon a published colonist rate. Held, That the connecting carriers must be paid their full proportion of the first-class rate, but that the Commission would not intervene between the initial carrier and its agent.

May 5, 1908.

70. Effect of a failure in a new tariff naming higher rates to cancel the same rates in prior tariff.-A carrier's tariff effective January 1, 1903, named certain rates between two points. By a joint tariff, effective February 1, 1908, higher rates were named between the same points, but without reference to the previous tariffs or cancellation of the lower rates therein. On March 26, 1908, a supplement was filed naming the same higher rates and canceling the rates named in the tariff of January 1, 1903. Held, That until March 26, 1908, when the original rates were canceled, they remained in effect and were the lawful rates.

71. Different fares to different societies unlawful.-A tariff covering daily picnic excursions between certain points for the season named fares for Sunday and day schools and different fares for "societies.'' Held, That the tariff is discriminatory and that the fares for the school picnics should be the same as for society picnics.

72. Reconsignment privileges and rules.-Usually the combination of local rates is higher than the through rate. Frequently a shipper desires to forward a shipment to a certain point and have the privilege of changing the destination or consignee while shipment is in transit, or after it arrives at destination to which originally consigned, and to forward it under the through rate from point of origin to final destination. Many carriers grant such privilege and generally make a charge therefor.

The privilege is of value to the shipper, and in order to avoid discrimination it is necessary for the carrier that grants such privilege to publish in its tariff that fact, together with the conditions under which it may be used and the charge that will be made therefor. Such rules should be stated in terms that are not open to misconstruction.

Some carriers do not count a change of consignee which does not involve a change of destination as a reconsignment, while others do consider it a reconsignment and charge for it as such. The Commission holds the view that without specific qualifications the term "reconsignment" includes changes in destination, routing, or consignee. If carrier wishes to distinguish between such changes in its privileges or charges it must so specify in its tariff rules. Reconsignment rules and charges must be reasonable, and a charge that would be reasonable for a diversion or change of destination might be unreasonable when applied to a simple change in consignee which did not involve change in destination or more expensive delivery.

73. Effective date of tariff filed by a carrier when first coming under the law.A carrier, under its arrangements for the first time to participate in interstate transportation, failed to note an effective date on its first tariff schedule. Held, That being that carrier's first tariff it became effective as soon as filed.

74. Hours of service law.-Employees deadheading on passenger trains or on freight trains and not required to perform, and not held responsible for the performance of, any service or duty in connection with the movement of the train upon which they are deadheading, are not while so deadheading "on duty" as that phrase is used in the act regulating the hours of labor.

May 12, 1908.

75. Validation of tickets.-The condition that a round-trip passenger ticket shall be validated for the original purchaser by carrier's agent at a given point is one of the conditions which affects the value of the service rendered the passenger and one of the conditions that must be observed the same as the rate under which the ticket is sold, which must therefore be stated in the tariff under which it is sold. The tariff may provide for validation at numerous points, and it may provide for validation at any point intermediate to the original destination named in the ticket. The conditions stated upon the ticket should not conflict with the tariff provisions, but if in any case there should inadvertently be conflict between the tariff provisions and the conditions stated on the ticket the tariff rule must govern.

76. Redemption of passenger tickets.-The unused portion of a passenger ticket, when presented by the original holder to the carrier that issued it, may lawfully be redeemed by the carrier by paying to the holder the difference between the value of the transportation furnished on the ticket at the full tariff rates and the amount originally paid for the ticket.

May 14, 1908.

77. Transit privileges not retroactive.-Rule No. 6 of Bulletin No. 1, providing that the benefit of reconsignment privileges cannot be given retroactive effect is held to include cleaning, milling, concentration, and other transit privileges.

June 1, 1908.

78. Grain doors.—A carrier may not lawfully reimburse shippers for the expense incurred in attaching grain doors to box cars unless expressly so provided in its tariff.

June 2, 1908.

79. "Private side tracks'' and "private cars' defined.—(1) A private side track, as this expression is used in the opinion In the Matter of Demurrage Charges on Privately Owned Tank Cars, is one which is not owned by the railroad, is outside the carrier's right of way, yards, or terminals, and to which the railroad has no right of use superior to the right of the shipper. This definition is based, as we think it should be based, upon consideration of the carrier's right to the use of the track rather than the ownership of the land or rails.

(2) A private car is defined in the opinion as "a car owned and used by an individual, firm, or corporation for the transportation of the commodities which they produce or in which they deal." It will include also cars owned and leased to shippers by private corporations.

(3) The rule as to demurrage charges on private tank cars is applicable to all other private cars used by the railroads and paid for on a mileage basis.

(4) It is not the intention of the Commission that its ruling shall be given a retroactive effect. The demurrage question has been in a state of great confusion, and the desire of the Commission is to establish a uniform, fair, and practicable system for the future. Claims for refund of demurrage charges previously collected in accordance with regular tariff rules will not be entertained with favor.

June 9, 1908.

80. Shipment that moved in under a former tariff does not lose the benefit of transit privilege canceled pending the out movement.-A tariff enabled shippers to concentrate commodities on local rates at a certain point for shipment within a named period in carload lots, the in-bound billing to be surrendered and through rates from point of original shipment to apply. Before the period for taking advantage of this privilege had expired a new tariff made a new arrangement. Held, That with respect to shipments that had moved to the concentrating point under the old tariff and which moved out within the period therein allowed, the old rate should apply.

81. Supplementing mileage books by paying regular local mileage rates.-The practice under a published tariff rule which permits the holder of a mileage book which does not contain enough coupons to enable him to complete his journey to pay for the balance of the journey at the regular local rate per mile, as published by the carrier, is not unlawful.

82. Chartering trains.-It is not unlawful for a railroad company to publish a tariff under which a locomotive and train of cars may be chartered at a named rate, tickets for the journey on that train to be sold by the person chartering the train. 83. Blockade by flood.-A carrier accepted a carload shipment for movement to a point beyond its line. After delivering the shipment to a connection at a junction point it was advised that the connecting line had been closed by floods. The initial carrier accepted the return of the car from that line and ordered it forward to destination via another route carrying higher rates, taking this action without instruc

tions from the shipper. Held, That the initial line was responsible to the shipper for the resulting increase in the transportation charges.

84. A commodity rate takes the commodity out of the classification.—A carrier having a high-class rate on furniture with a low minimum also had a lower commodity rate with a higher minimum. In response to an inquiry whether they are privileged to use either rate as they desire: Held, That the only purpose of making à commodity rate is to take the commodity out of the classification. The commodity rate is, therefore, as stated in Rule 7, Tariff Circular 15-A, the lawful rate. And if the carrier does not desire to apply it on all shipments it must be canceled.

Also, Held, That in classifications and class-rate tariffs that are issued or supplemented hereafter carriers shall carry a rule providing that whenever a commodity rate is established it removes the application of the class rate between the same points on that commodity.

If the alternative use of class or commodity rates is necessary or desired in any instance, it may be provided by including in different sections of one and the same tariff the class and commodity rates and by including in each section the specific rule: "If the rates in section of this tariff make a lower charge on any shipment than the rates in section of this tariff, the rates in section will be applied." Similar authority for use of a distance tariff is found in Rule 10, Tariff Circular 15-A.

June 25, 1908.

85. Substituting tonnage at transit point.-A milling, storage, or cleaning-intransit privilege is established on the theory that the commodity may be stopped en route for the enjoyment of such privilege, and the commodity or its product be forwarded under the application of the through rate from original point of shipment. It is not expected that the identity of each carload of grain, lumber, salt, etc., can or will be preserved, but in the opinion of the Commission it is unlawful to substitute at the transit point, or forward under the transit rate, tonnage or commodity that does not move into that point on that same rate.

86. Posting tariffs at stations.-Under the order of the Commission of June 2, 1908, entitled "In the Matter of Modification of the Provisions of Section Six of the Act with Regard to Posting Tariffs at Stations," if a subsidiary or small connecting line has authorized the parent company, or principal connecting line, to publish and file for it all of its tariffs, tariffs so issued and filed on its behalf will be included in the complete public tariff files of the parent or issuing line, and it will not be neces sary for such subsidiary or small line to maintain an additional complete public file. 87. Transportation for eating houses operated by or for carriers.-Carriers subject to the Act may provide at points on their lines eating houses for passengers and employees of such carriers, and property for use of such eating houses may properly be regarded as necessary and intended for the use of such carriers in the conduct of their business. Such eating houses, however, must not serve the general public, or any portion thereof, with food prepared from commodities which have been carried at less than the full published rate, and no utensils, fuel, or servants at all employed in serving others than passengers and employees of the carrier as such should be carried at less than tariff rates. Such privileges as may be extended under this rule shall be applied only as to points local to the line on which the eating house is situated. 88. Hours of service law.-The specific proviso of the law in regard to hours of service is:

"That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and stations, continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four-hour period on not exceeding three days in any week."'

These provisions apply to employees in towers, offices, places, and stations, and do not include train employees who, by the terms of the law, are permitted to be or remain on duty sixteen hours consecutively or sixteen hours in the aggregate in any

twenty-four-hour period, and who may occasionally use telegraph or telephone instruments for the receipt or transmission of orders affecting the movement of trains. Section 3 of the law provides that:

"The provisions of this Act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen."

Any employee so delayed may therefore continue on duty to the terminal or end of that run. The proviso quoted removes the application of the law to that trip.

89. In the matter of the use of tariffs containing long and short haul clauses, maxima rules, and alternative rate or fare provisions.-Upon application of certain carriers: It is ordered, That the terms of the Commission's Special Circular No. 6, Tariff Department, of January 7, 1908, be, and they are hereby, extended to October 1, 1908, and that no change other than the extension of time is authorized in the terms or provisions of said circular.

It is further ordered, That the Commission hereby announces that it will not hereafter grant further extension of time in this matter, either by general order or in individual cases, but that from and after October 1, 1908, the Commission will adopt such means as may be necessary to deal with violations of the law or unlawful use of tariffs.

June 29, 1908.

90. Jurisdiction of act over local belt or switching lines.-The question is asked, "Is a belt line owned by a municipality, which participates in interstate movements, subject to the jurisdiction of the Act and of the Commission?" Held, That it is subject to such jurisdiction.

91. Misrouting via line that has no tariff on file.—A shipment was misrouted and passed over a route via a part of which no rate was filed with the Commission, and was thus subjected to a higher charge than the through rate via the proper route. Held, That misrouting carrier may be authorized to make refund on account of its error in misrouting shipment, and that carrier which participated in the transportation without lawful tariff applicable thereto should be dealt with through the Department of Prosecutions.

92. A much longer and more indirect route not a reasonable route.—A shipment was tendered destined to a certain point the direct route to which was over the lines of two carriers, a distance of 358 miles, the rate via that route being 22 cents. It was possible to serd the shipment around over the lines of three carriers, a distance of 617 miles, and secure a combination rate of only 19 cents. Application for refund was made account the difference between the rates. Held, That the claim for refund should be denied on the ground that the much longer and indirect route is not a reasonable route.

93. Use of passes by servants.-Opinion expressed on April 14, 1908, on the subject of use of passes by servants, is modified; and it is Held, That a household servant when traveling with a member of the family entitled to a pass is included within the term "family as used in the Act. (See No. 63.)

June 30, 1908.

94. Misrouting involving carriers not subject to the Act.-A shipment was tendered to a carrier in North Carolina, destined to California. Shipper requested that it be sent via New York and the Isthmus of Panama. Shipment was forwarded all rail under a rate alleged to be higher than would have applied via the route indicated. Held, That the Commission cannot authorize refund because no tariffs are on file with the Commission via the route over which the shipment moved, and there is therefore no official measure of the accuracy of the claim for overcharge or the amount thereof.

95. Leasing carrier's property in consideration of lessee's shipments.-A carrier leases a part of its property to a certain industry under a contract which contains the obligation on the part of the lessee industry to make all of its shipments by the line of the lessor carrier. Such a provision plainly implies that the traffic so furnished by the lessee and so secured by the lessor is an important and substantial consideration which might amount to a concession in the rates for transportation, and,