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subject to parts I and III and certain carriers subject to the latter are exempt from the liability, as will be pointed out later.

When part II of the act was enacted as the "Motor Carrier Act, 1935,” it was believed that conditions in motor transportation were not stabilized and that the subjection of motor carriers to liability for damages should be deferred until the difficult initial problems in connection with the new regulation of those carriers had been more nearly worked out. Nearly 12 years have elapsed since the enactment of part II, however, and the time now seems ripe for imposing such a liability. It has been generally assumed that motor carriers are subject to common-law liability for their wrongful acts, including the charging of unlawful rates, but it appears that common-law remedies have been invoked against these carriers very infrequently. Shippers familiar with the relatively simple remedy provided by section 16 of the act have recently urged that a similar remedy be made applicable to motor common carriers. We agree with that view.

Section 308 of the act, added by the Transportation Act of 1940, provides for payment of reparation by water carriers engaged in transportation subject to part III by way of the Panama Canal and common carriers by water "on the high seas or the Great Lakes on regular routes from port to port." Carriers by water on inland waterways, not being named in this section, are exempt. We see no reason for this exception, which is of very little practical importance. When carriers of this type participate in joint rates with rail carriers, as they generally do, they become subject to the liability imposed by section 16 of part I. The exemption therefore extends only to their port-to-port transportation.

The limited experience under part IV so far has not shown any important need for a provision authorizing awards of reparation against freight forwarders. Nevertheless it seems desirable and logical that all four parts of the act be uniform in providing such a remedy, and the amendment of part IV here proposed therefore seems opportune.

S. 1194 would apply only to common carriers. We see no reason for including contract carriers either by motor vehicle or by water. At present the wording of section 308 (a) apparently subjects contract carriers by water by way of the Panama Canal to liability for damages, but there appears to be no good reason why they should be included.

S. 1194 closely follows the wording of sections 16 and 308, the present provisions of the act relating to reparation awards, with one exception. Section 308 (f) (1) provides that complaints for the recovery of damages or overcharges shall be filed with the Commission within 3 years from the time the cause of action accrues, and not after. The corresponding period in section 16 is 2 years, having been reduced from 3 years in 1940. The difference between these two sections may have been due to inadvertence. In our opinion the period should be uniform as proposed in S. 1194. It has been suggested the period should be uniformly as long as 4 years, but in our opinion 2 years are ample. We recommend that S. 1194 pass. Respectfully submitted,

WALTER M. W. SPLAWN, Chairman.
CHARLES D. MAHAFFIE,
JOHN L. ROGERS,

Legislative Committee.

APPENDIX TO THE LETTER OF THE LEGISLATIVE COMMITTEE UNDER DATE Of May 7, 1947, MAKING COMPARISONS BETWEEN THE SECTIONS AND PARAGRAPHS OF S. 1194 AND COMPARABLE PROVISIONS OF SECTIONS 8, 9, ETC., OF PART 1 OF THE ACT S. 1194, introduced by Senator Reed, is entitled "A bill to amend the Interstate Commerce Act with respect to the liability of common carriers by motor vehicle, common carriers by water, and freight forwarders for payment of damages to persons injured by them through violations of such Act." The provisions of S. 1194 are counterparts of existing provisions in part I.

Section 204a (1) authorizes the Commission to award damages for the exaction of unreasonable rates, etc., against motor carriers. It reads as follows:

"SEC. 204a. (1) In case any common carrier by motor vehicle subject to the provisions of this part shall do, cause to be done, or permit to be done any act, matter, or thing in this part prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this part required to be done, such carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this part,

together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case."

The only changes in section 204a (1) from the existing provisions of section 8 are the insertion of the words "by motor vehicle" in lines 1 and 2 of the above paragraph, and the use of the word "carrier" in line 6 instead of “common carrier” as used in section 8.

Section 6 of S. 1194 adds a corresponding section, 406a (1), which is also based on section 8, and is the same in language as section 204a (1) relating to motor carriers, except that section 406a (1) applies to freight forwarders.

Section 204a (2) of S. 1194 provides for the filing of complaints by persons claiming to be damaged, against common carriers by motor vehicle, and reads as follows:

"(2) Any person or persons claiming to be damaged by any common carrier by motor vehicle, subject to the provisions of this part, may either make complaint to the Commission or may bring suit in his or their own behalf for the recovery of the damages for which such carrier may be liable under the provisions of this part, in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies."

This paragraph is based on section 9 of part I and the only change in existing law made by this provision of S. 1194 is the insertion of the words "by motor vehicle" in line 2, and the omission of the words "as hereinafter provided for" after the word “Commission” in line 4 of paragraph (2) of section 201a. Section 9 contains the word "common" before the word "carrier" in line 5 of paragraph (2) of section 204a (2), and also in the next line after the word "district" adds the words "or circuit." These changes are not material as circuit courts as referred to in section 9 are now known as district courts. The following language, in addition to that set out above under section 204a (2), is contained in section 9 but omitted in S. 1194: "and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding." It is assumed this last language was omitted because it was felt that under other provisions of existing law the Commission had the authority there provided for. Section 406a (2), set out at page 9 of S. 1194, is the same as section 204a (2), previously quoted, except that it applies to freight forwarders.

Paragraph (3) of section 204a, at the bottom of page 2 of S. 1194, reads as follows:

"(3) If after hearing on a complaint, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this part for a violation thereof, the Commission shall make an order directing the common carrier by motor vehicle to pay to the complainant the sum to which he is entitled on or before a day named."

The only changes made by paragraph (3) of section 204a to existing law as contained in section 16 (1) are the omission after the word "complaint" in line 1 of paragraph (3) of section 204a, of the words "made as provided in section 13 of this part," and the deletion of the words "common" and "by motor vehicle" in line 5 of paragraph (3) of section 204a. These changes are of course required because section 204a is confined to common carriers by motor vehicle.

Section 406a (3), set out at the bottom of page 9, contains the same language as section 204a (3), except that it deals with freight forwarders instead of carriers by motor vehicle.

Section 204a (4) of S. 1194, set out at the top of page 3 of that bill, reads as follows:

"(4) If a common carrier by motor vehicle does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located

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the principal operating office of such carrier, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts stated therein, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit."

This paragraph is based on section 16 (2) of part I and differs from the wording of the latter paragraph in that in line 1 of paragraph (4) of section 204a are added the words "common" and "by motor vehicle"; the last word in line 6 of said paragraph (4), "such" has been changed to "the" and in the next line of paragraph (4) of section 204a of S. 1194, the words "or through which the road of the carrier runs" appearing in section 16 (2) has been omitted in paragraph (4) of section 204a. These changes do not appear to alter the material language of section 16 (2) and are appropriate because of the difference between the carriers regulated by the respective provisions. The same comments may be made with respect to paragraph (4) of section 406a, appearing at page 10 of S. 1194, except that said paragraph (4) deals with freight forwarders.

Section 204a (5), set out at the bottom of page 3, reads as follows: "(5) All actions at law by common carriers by motor vehicles subject to this part for the recovery of their charges, or any part thereof, shall be begun within two years from the time the cause of action accrues, and not after."

This paragraph is predicated upon section 16 (3) (a) of part I, except for such changes in the language as is required because of its applicability to motor vehicles. The same thing may be said with respect to the amendments made to section 308 (f) (1) of part III, as contained in (1) (A), set out at page 6 of S. 1194, dealing with common carriers by water, and section 406a (5), set out at the bottom of page 10 of S. 1194 dealing with freight forwarders.

Section 204a (6) of S. 1194, set out at pages 3 and 4 of that bill, reads as follows:

"(6) All complaints against common carriers by motor vehicle subject to this part for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after, subject to paragraph (8) of this section."

This paragraph is predicated upon section 16 (3) (b) of part I and makes no material change therein. Corresponding provisions dealing with common carriers by water are contained in section 3 (B), quoted at page 6 of S. 1194, and paragraph (6) of Section 406a, dealing with freight forwarders, set out at page 11 of S. 1194.

Paragraph (7) of section 204a, as amended by S. 1194, reads as follows:

"(7) For recovery of overcharges, action at law shall be begun or complaint filed with the Commission against common carriers by motor vehicle subject to this part within two years from the time the cause of action accrues, and not after, subject to paragraph (8) of this section, except that if claim for the overcharge has been presented in writing to the carrier within the two-year period of limitation said period shall be extended to include six months from the time notice in writing is given by the carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice."

This paragraph makes no material changes in section 16 (3) (c) of part I, and corresponding provisions dealing with water carriers are contained in paragraph (C) of section 3, set out at pages 6 and 7 of S. 1194. The same thing is true as to paragraph (7) of section 406a, applying to freight forwarders, and set out at page 11 of S. 1194.

Paragraph (8) of section 204a, applicable to motor carriers, appears on page 4 of S. 1194, and reads as follows:

"(8) If on or before expiration of the two-year period of limitation in paragraph (6) or of the two-year period of limitation in paragraph (7) a common carrier by motor vehicle subject to this part begins action under paragraph (5) for recovery of charges in respect of the same transportation service, or, without beginning action, collects charges in respect of that service, said period of limitation shall be extended to include ninety days from the time such action is begun or such charges are collected by the carrier. "

It is predicated on section 16 (3) (d) of part I and makes no changes in the language thereof except that required by the difference in the subject matter.

The same thing is true with respect to paragraph (D) of section 3, appearing on page 7 of S. 1194, dealing with common carriers by water, and paragraph (8) of section 406a, appearing at page 11 of S. 1194, dealing with freight forwarders. Paragraphs (9), (10), and (11) of section 204a of S. 1194 reads as follows: "(9) The cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after.

"(10) A complaint for the enforcement of an order of the Commission for the payment of money shall be filed in the district court or the State court within one year from the date of the order, and not after.

"(11) The term 'overcharges' as used in this section shall be deemed to mean charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the Commission."

These paragraphs are in the exact language of section 16 (3) (e), section 16 (3) (f) and section 16 (3) (g), respectively. The same thing is true with respect to paragraphs (9), 10), and (11), amending section 406a, dealing with freight forwarders, and set out at page 12 of that bill.

The next suggested amendment to paragraph (12) of section 204a is contained in paragraph (12), set out at page 5 of S. 1194, and which reads as follows: "(12) The provisions of this section shall apply only to cases in which the cause of action may accrue on or after the date of the enactment of this section." This paragraph appears to be predicated upon section 16 (3) (h) of part I, which reads as follows:

"(h) The provisions of this paragraph (3) shall extend to and embrace cases in which the cause of action has heretofore accrued as well as cases in which the cause of action may hereafter accrue, except that actions at law begun or complaints filed with the Commission against carriers subject to this part for the recovery of overcharges where the cause of action accrued on or after March 1, 1920, shall not be deemed to be barred under subdivision (c) if such actions shall have been begun or complaints filed prior to enactment of this paragraph or within six months thereafter."

S. 1194 appears to differ from existing provisions in section 16 (3) of part I, in that it confines its provisions to future proceedings. Corresponding provisions with respect to common carriers by water are contained in section 3 (b), set out at page 7 of S. 1194; and, with respect to freight forwarders, a corresponding provision is contained in paragraph (12) of section 406a, set out at page 12 of S. 1194.

Paragraph (13) of section 204a, as amended by S. 1194, appears at pages 5 and 6 of that bill and reads as follows:

“(13) In such suits all parties in whose favor the Commission may have made an award of damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any district where any one of such joint plaintiffs could maintain such suit against any one of such joint defendants; and service of process against any one of such defendants as may not be found in the district where the suit is brought may be made in any district where such defendant has his or its principal operating office. In case of such joint suit the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the defendant found to be liable to such plaintiff."

This paragraph is predicated upon section 16 (4) of part I and makes no material changes therein, except that it is confined to a different type of carrier. No corresponding provisions are found in the amendments made to part IV, relating to freight forwarders, as contained in section 406a, and it may be that this omission should be called to the attention of the committee.

Section 4 of S. 1194, as set out at the bottom of page 7 of that bill, reads as follows:

"SEC. 4. Paragraph (5) of subsection (f) of section 308 of the Interstate Commerce Act, as amended, is hereby repealed."

It repeals section 308 (f) (5) of existing law which reads as follows:

"(5) The provisions of this subsection (f) shall take effect six months after this section becomes effective and extend to and embrace cases in which the cause of action has heretofore accrued."

This repeal should of course be made, because covered already in section 3 (b), set out at page 7 of S. 1194.

Section 406a, dealing with freight forwarders, is amended by adding a new paragraph, set out at page 8 of S. 1194, which reads as follows:

"(a) Any person complaining of anything done or omitted to be done by any freight forwarder, subject to the provisions of this part, in contravention of the provisions thereof, may apply to the Commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the Commission to such freight forwarder, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable time, to be specified by the Commission. If such freight forwarder, within the time specified, shall make reparation for the injury alleged to have been done, the freight forwarder shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such freight forwarder shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper."

This paragraph follows to a considerable extent the language of section 13 (1) of part I, except that it is confined to a complaint by "any person" whereas section 13 provides for the filing of complaint by “any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier," etc. In view of the definition of "person" as already contained in section 402a (1) of part IV, the change in language does not appear to be material. Other minor changes in subsection (a) of section 406, as set forth at page 8 of S. 1194 are due to the fact that this last section is dealing with freight forwarders.

COMMISSION'S JURISDICTION WITH RESPECT TO APPLICABLE RATES, REPARATION FOR UNLAWFUL RATES AND MISROUTING UNDER PART II, PART III (EXCEPT WATER TRANSPORTATION THROUGH THE PANAMA CANAL, ON THE HIGH SEAS AND ON THE GREAT LAKES) AND PART IV OF THE INTERSTATE COMMERCE ACT

APPLICABLE RATES

"Although, under part II of the Interstate Commerce Act, we have power to make findings whether rates charged in the past were applicable, we are without power to award reparation under the provisions of that part. W. A. Barrows Porcelain Enamel Co. v. Cushman M. Delivery, 11 M. C. C. 365. Accordingly, the prayer for an order requiring the defendant to refund the alleged overcharge will not be further considered." Mrs. Michael F. Donahue v. National Delivery Association, Division 2, 34 M. C. C. 202.

Other decisions to the same effect are: The Glenn L. Martin Company v. W. T. Cowan, Inc., 44 M. C. C. 726; Hausman Steel Co. v. Seaboard Freight Lines, 32 M. C. C. 31; Southern Spring Bed Co. v. Bassett, 42 M. C. C. 99.

REPARATION FOR UNLAWFUL RATES

"As pointed out in the Potato Chip case, a finding by the Commission that motor-carrier rates in the past have been unreasonable is not self-executing, and, unless the carriers concerned are willing to be governed thereby, the Commission's action is merely a step preliminary to an action in court. Whether the courts accept these administrative determinations by the Commission in respect of past reasonableness is another matter. The issue as to the Commission's jurisdiction to make the determination, however, was settled in the Potato Chip case. See also Metal Lubricants Co. v. Acme Fast Freight, 266 I. C. C. 802, in which a motion similar to that under consideration herein, on behalf of a freight forwarder, was overruled." R. T. Harris, Robert A. McMasters and John A. Cadell, dba Southeastern Metals Company v. Roadway Express, Inc., Division 3, 47 M. C. C. 395. Other decisions to the same effect are: F. B. Hill, Jr., v. Pennsylvania Truck Lines, Inc., 43 M. C. C. 319; Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337; Dixie Mercerizing Co. v. E. T. & W. N. C. Motor Transportation Co., 41 M. C. C. 355.

MISROUTING

Misrouting is regarded as an unreasonable practice for which damages may be awarded by the Commission under part I. The Commission's powers with respect to reparation for misrouting under parts II and IV and under part III except with respect to water transportation through the Panama Canal, on the high seas and on the Great Lakes is the same as that stated above with respect to unlawful rates.

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