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In other words, that language which is all together in this bill has been taken from section 16 of part I, and from section 8, and from section 9. But it has all been consolidated here. So far as part I is concerned, you would find this language in various sections of part I; that is skipping from here to there, that is, in sections 8, 9, and 16.
Mr. Hinshaw. My point is that in this bill, H. R. 2324, there is no intention to make any difference in the treatment of this subject in part II, III, and IV from that which has been established in part I of the act.
Mr. Estes. That is right; yes, sir.
Mr. Carson. I am fully in accord with the 2-year provision in this bill, as I see that you are, Mr. Estes. It seems to me that a person can determine their rights within that 2 years without any question. But what concerns me most is the thing that apparently has been disturbing to you: as to what statute will apply, as to whether in the State where the shipment originates or where it terminates. Those are the difficulties that we are confronted with constantly in all kinds of actions.
We have pending in Congress now the Jennings bill, H. R. 1639. I do not know if you are familiar with that bill or not. The Jennings bill is attempting to establish a jurisdiction of courts, and prevent these ambulance-chasing lawyers, whom I detest and despise, from removing those cases to those jurisdictions where they know they will get large verdicts.
In my own instance, just as an example, with the Pennsylvania Railroad we are compelled to try many of our cases in the Federal court of Chicago, even though they happen in Ohio, and I would say the majority of our cases are being tried in the Federal court in New York. The Jennings bill is going to eliminate that, and we have passed a venue act in the State of Ohio limiting the actions to be brought in the place where the action occurs; or in the residence of the plaintiff, in other words.
The language of this bill, on page 3, indicates that the common carrier who does not comply with the statute or the complainant or any person for whose benefit the order was made, may file in district court of the United States for the district in which he resides, or in which is located the principal offices of such carrier, or in the State court of general jurisdiction having jurisidction of parties.
I am wondering if your legal department has gone into that phase of it and you will be fully protected in preventing the same type of suits we have under the Federal Employees Liability Act being brought in those jurisdictions where they receive the largest verdicts.
You will have, no doubt, offices in many principal cities of the United States. And under the present laws a suit can be brought at any point where they can get service upon you. That is a thing that disturbs me most in this: whether or not that provision of the Jennings bill, in other words, might be placed in this bill to eliminate the very thing which we are trying to eliminate in the Jennings bill.
Mr. Estes. That language in paragraph 4 of page 3 which is intended to apply to notor carriers is almost the identical language
contained in section 16, paragraph 2 of part I of the Interstate Commerce Act. It was put in this bill so that there would be uniformity in the Interstate Commerce Act.
As I say, I am not a lawyer, but my thought on that would be, Congressman, that if it is the view of Congress that it would be desirable to pass the Jennings bill, then that would change automatically all four parts of the act if this bill is passed, H. R. 2324, and the Jennings bill would change all four parts of the act at one time so that we keep it on a uniform basis, at least until they are amended by the Jennings bill.
But we do think whatever is done with respect to one type of carrier, or a shipper using that type of carrier, should be done with respects to all types of carriers alike.
Mr. CARSON. I certainly agree with you. And I think it would be a benefit to you and all the carriers to have some uniform law made as to where these suits are to be brought.
Mr. Estes. I am inclined personally to agree with you, although I think perhaps lawyers could comment more intelligently on that phase of the matter.
Mr. CARSON. Thank you.
Mr. Estes. Mr. Chairman, we have with us the vice president of the league, Mr. Arthur H. Schwietert, who is from Chicago; he would like to make about a 2-minute statement, if that pleases the committee, at this time.
The CHAIRMAN. What is the name, please?
Mr. Estes. Mr. S-c-h-w-i-e-t-e-r-t, from Chicago. He is the vice president of the league.
STATEMENT OF A. H. SCHWIETERT, VICE PRESIDENT, THE NA
TIONAL INDUSTRIAL TRAFFIC LEAGUE, CHICAGO, ILL. Mr. SCHWIETERT. My name is Art Schwietert. My address is 1 North LaSalle Street, Chicago, Ill. I appreciate the opportunity to say just a word on this bill at this time.
I am traffic director of the Chicago Association of Commerce and Industry, as Mr. Estes has said; also vice president of the National Industrial Traffic League.
Our members have, for some time past, given consideration to the matter of a uniform statue of limitations for parts, II, III, and IV of the act, and endorse this bill which provides for the same period of limitations for the motor carriers, freight forwarders, and the water carriers that we have in connection with part I for rail carriers.
I had hoped to have a prepared statement in which I wanted to give the committee some specific examples to show the present operation of the various State statutes, and the confusion and complications that exist from the necessity of using the State statutes instead of a uniform statute. I did not have time to prepare that statement, and would appreciate the opportunity, Mr. Chairman, of preparing such a statement within the next few days and filing it with your committee, and ask that it be made a part of the record. I think such a statement would be helpful to the committee in considering this measure.
The CHAIRMAN. If the statement is prepared promptly, you may have the privilege of making it a part of your remarks.
Mr. SCHWIETERT. Thank you.
STATEMENT OF THE CHICAGO ASSOCIATION OF COMMERCE AND IN
DUSTRY IN SUPPORT OF H. R. 2324
The Chicago Association of Commerce and Industry, hereinafter referred to as the association, is an organization composed of approximately 4,700 individuals, firms, and corporations with the object of protecting and promoting industry, trade, and the public good.
The association has for several years favored a uniform statutory period of limitation for the filing of claims for overcharges, undercharges, and other damages for all types of carriers subject to the provisions of the Interstate Commerce Act. The last action expressing such view and recommending a 2-year statutory period was taken by the Industrial Traffic Council at its regular monthly meeting held on Thursday, March 6, 1947. The Industrial Traffic Council is a division or section of the association consisting of the traffic representatives of shippers located within the Chicago metropolitan area.
Basically H. R. 2324 provides, first, a uniforın period of 2 years within which claims by shippers against carriers for overcharges and for damages-except loss and damage to property-must be filed with motor carriers, water carriers, and freight forwarders subject to parts II, III, and IV of the Interstate Commerce Act, and the same period of limitation within which carriers, subject to these three parts, must file their action against shippers for the recovery of undercharges. Second, the bill gives the Interstate Commerce Commission authority to award damages in cases where persons have been injured by unlawful acts of the carriers. It should not be urderstood that the bill gives the shipper any additional or new rights against the carrier, but merely simplifies the procedure and eliminates the complex and expensive combined Commission-court procedure now required by placing the entire matter in the hands of the Interstate Commerce Commission. This subject will be discussed more in detail later in our statement.
Consideration of the bill may be divided into two parts: the first dealing with the provisions relating to a uniform statutory period for the filing of overcharge and undercharge claims and the second dealing with the procedure and period of limitation relative to the filing of claims for damages, or what is commonly referred to, and will be hereinafter referred to, as reparation.
OVERCHARGE AND UNDERCHARGE CLAIMS
At present there is no provision in part II of the Interstate Commerce Act dealing with common carriers of property by motor vehicle, nor in part IV dealing with the freight forwarders limiting the time when claims for overcharges and undercharges must be filed. The time within which such claims must be filed is, therefore, limited only by the several State
statutes which vary widely, as indicated by the statement filed by F. F. Estes, appearing before the committee on Tuesday, March 18, 1947, on behalf of the National Industrial Traffic League. It will be noted that the periods range from 2 to 15 years.
Part III of the act, dealing with common carriers by water, now contains a provision limiting the time within which claims for overcharges and reparation against water carriers may be filed, to 3 years, but contains no limitation upon the time within which carriers may file claims against shippers for undercharges, thus leaving the varying State statutes to apply.
The bill would provide a uniform period within which claims must filed in connection with transportation via all carriers by making carriers subject to parts II, III, and IV subject to provisions similar to those contained in section 16 of part I of the act applicable to rail carriers.
The present situation is unsatisfactory to shippers and to many carriers. It results in discrimination by providing different periods of time for shippers and carriers depending upon the State within which they are located, the points between which the traffic happens to move, or the State within which the action is brought. A uniform period within which both carriers and shippers should file their claims would be beneficial to both, and the 2-year period provided for in the bill is fair and equitable.
DAMAGES OR REPARATION
Under section 16 (3) (b) complaints against railroads for the recovery of reparation must be filed with the Commission within 2 years, and under section 308 (f) (1) complaints against water carriers for the recovery of damages or reparation must be filed with the Commission within the 3 years from the time the cause of action incurs. No similar provision is contained in part II for carriers by motor vehicle, nor in part IV for freight forwarders.
Under section 16 (1) of part I, the Commission is given power to make an order directing the railroads to pay to the complainant the sum to which complainant is entitled, if, after hearing, the Commission finds that the carrier has violated some provision of the act, and that the complainant is entitled to damages. Under section 16 (2) provision is made for the enforcement of the Commission's order in any district court or State court of general jurisdiction having jurisdiction of the parties, and in such suit the findings and order of the Commission shall be prima facie evidence of the facts stated therein. No similar provision is contained in part II or part IV of the act, however, this does not mean that shippers may not obtain redress from the carriers for similar violations of the act.
PRESENT PROCEDURE FOR RECOVERY OF DAMAGES
The right and opportunity of a shipper to obtain redress from motor carriers and freight forwarders exists at the present time; however, it requires combined Commission and court procedure which is frequently too expensive to justify such action, particularly where claims are relatively small or in the case of small shippers who do not have the staff and facilities for handling such matters. That shippers now have the right to recover for damages cannot be disputed.
In the Bell Potato Chip Company v. Aberdeen Truck Line et al, 43 M. C. C. 337, decided April 4, 1944, hereinafter called the Bell case, the Interstate Commerce Commission treated fully the right of the Commission to make an administrative determination of the lawfulness of rates charged on past shipments. The question had been considered several times in decisions by divisions of the Commission and such action by divisions was thoroughly reviewed. The Commission reached the conclusion that it had authority to pass upon the lawfulness of rates on past shipments under part II of the act, and made a finding that the rates charged on potato chips from Portland, Oreg., to points in Idaho and Washington were unreasonable in the past. They also found the rates to be unreasonable for the future and issued an appropriate order to carry into effect the finding with respect to rates for the future, but could not issue an order with respect to the rates on past shipments.
In order to obtain redress against an unwilling carrier, the shipper must, after having obtained a finding from the Interstate Commerce Commission that the rate charged on past shipments was unlawful proceed with an action in court, using the Commission's decision as evidence of the unreasonableness or unlawful character of the rate charged, but proceeding otherwise like an original suit in court.
In the Bell case the Commission, however, further held that in order to prevent the filing of frivolous or moot complaints, proceedings involving past unreasonableness, unjust discrimination, or undue prejudice under part II should not be brought before it prior to the institution of a suit in court in which damages are sought predicated upon the unlawîulness alleged in the complaint. This means that a shipper must first file his suit in court seeking damages for the maintenance of the unlawful rates by the carrier. Then the shipper must file his complaint with the Interstate Commerce Commission and obtain from the Commission a finding with respect to the lawfulness of the rates assailed. If the Commission finds that the rates charged were unlawful, then the shipper goes back to the court and seeks damages in the amount of the difference between the rate paid and the rate found reasonable by the Commission.
It would seem unnecessary to point out that this procedure is expensive and unduly burdensome to small shippers, resulting, in many instances, in discouraging the filing of actions for damages even though the shipper has suffered a loss and must assume the burden thereof. Shippers should not be forced to assume burdens and incur damages because of unlawful acts of the carrier without reasonable opportunity to obtain redress.
We find no similar cases involving complaints against freight forwarders; however, there are comparable provisions in part IV of the act governing freight forwarders with those contained in part II of the act governing motor carriers on which the Commission predicated its decision in the Bell case. It would, therefore, be logical to assume that the Commission would reach similar conclusions in proceedings brought before it against freight forwarders and would hold that it had the authority to make an administrative finding as to the lawfulness of rates and charges on past shipments.
The bill, H. R. 2324, therefore, does not give to the shipper a new right for the recovery of damages from motor carriers or freight forwarders, but merely simplifies and makes less expensive the procedure by placing in the hands of the Interstate Commerce Commission not only the authority to make a finding as to the lawfulness of the rates charged on past shipments, but also the authority to issue an order requiring the carrier to pay to the shipper the sum to which he is entitled within a specified time.
The bill would be particularly beneficial to small shippers who cannot take advantage of the present more expensive procedure. The