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the lawful charges via another available route of the class designated by shipperthat is, all-rail or rail-and-water-over which such agent had applicable rates which he could lawfully use, and responsibility for agent's error is admitted by the carrier, such carrier may, as to shipments moving subsequent to March 18, 1907, 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 of the class designated 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 carrier whose agent caused such overcharge and must not be shared in by or divided with any other carrier, 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 soliciting or commereial agents of carriers induce shippers to route shipments over a particular line via which a higher rate obtains than is effective via some other line.
Rule limited to bona fide cases of error or oversight. The rule is intended to apply to cases in which the agents who bill or actually forward or divert shipments through error or oversight send the shipments via routes that are more expensive than those directed by shippers or available in the absence of routing instructions by shippers. It must not be used in any case or in any way to "meet' or "protect" a rate via another route or gateway via which the adjusting carrier has not in its tariffs at the time the shipment moves rates which are available and lawfully applicable thereto, nor as a means or device by which to evade tariff rates or to meet the rate of a competing line or route, nor to relieve shipper from responsibility for his own routing instructions.
Carrier admitting responsibility for misrouting may adjust with delivering carrier if shipment has not been delivered or if it has been delivered undercharged (issued November 15, 1907). The prerequisites to any refund under this rule are admission by carrier of responsibility for its agent's error in misrouting the shipment, and such carrier's willingness to bear the extra expense so caused, without recourse upon any other carrier for any part thereof. If, therefore, the error is discovered before the shipment has been delivered to consignee or before charges demanded upon same have been paid, the carrier acknowledging responsibility for the error may authorize the delivering carrier to deliver shipment upon payment of the charges that would have applied but for the misrouting and to bill upon it for the extra charge; or, if the shipment has been delivered undercharged before the error is discovered, the carrier that acknowledges responsibility for the error may pay the undercharge to the carrier that delivered the shipment instead of requiring it to collect the undercharge from shipper, to be refunded to shipper.
Distinct from cases under Rule 74.-Complete distinction must be observed between cases to which this rule applies and those provided for under Rule 74.
Coöperation by and responsibility of shippers and consignees.-Shippers must bear in mind that there is a limit beyond which an agent of a carrier could not reason ably be expected to know as to terminal delivery or local rates at distant points and on lines of distant roads to or with which he has no specific joint through rates. Consignors and consignees should coöperate with agents of carriers in avoiding misunderstandings and errors in routing and must expect to bear some responsibility in connection therewith.
71. Maximum rates and fares not specific rates and fares (issued March 18, 1907). -Rule 4 and Rule 34 prohibit including in a tariff any rule or regulation which in any way or in any terms authorizes substituting for any rate or fare named in the tariff a rate or fare 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. These rules are intended to bring about entire discontinuance of tariff rules which provide that rates or fares 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 or fares named in tariff such combination will apply, or for equalizing or protecting any rate or fare via another line or route or gateway, etc. The intent is that as rapidly as tariffs can be reconstructed in ac
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cordance with the regulations issued by the Commission they will state in specific, clear, and unambiguous terms the rates and fares and their application.
Combinations of lawfully published bases of rates or fares instead of maximum rates or fares-Specific joint through rate or fare must be invariably applied.-The Commission decides that, pending the complete elimination of such rules, a rate or fare that is stated in a tariff as applicable to a certain point as a maximum is not a specific through rate or fare to that point, and that a rate or fare made up under Rule 5 or Rule 36 may be used in preference to such maximum rate or fare if there is no applicable rate or fare via the route over which shipment or passenger moves, other than the one made by such maximum rule. In every instance where there is a specific joint through rate or fare from point of origin to point of destination it must be applied to through shipments or passengers regardless of possible lower combinations. (See Rules 5, 36, and 55.)
72. Combination of joint rate or fare to common points and local rate or fare beyond (issued March 18, 1907).-In order to secure uniformity in practice and understandings and to remove the cause of many complaints, the Commission decides that when a joint through rate or fare is the same to two or more points and rate or fare on through shipment or passenger to local station to which no specific joint through rate or fare applies is made up by combination of such joint through rate or fare to common points and local rate or fare beyond, the rate or fare for through shipment or passenger must be determined by calculating the joint through rate or fare to the point from which the lower local rate or fare applies to point of destination and adding thereto such local rate or fare. For example: Joint through tariff names the same rates or fares from certain eastern points to Chicago and Milwaukee. If shipment or passenger is destined to a point to which the local rate or fare is less from Milwaukee than from Chicago, the rate or fare applied should be the joint through rate or fare to Milwaukee plus the local rate or fare from Milwaukee to destination, and unless the lines of delivering carrier reach both Chicago and Milwaukee the shipment or passenger should move via Milwaukee. If the local rate or fare from Chicago to point of destination is lower than from Milwaukee, the rate or fare should be the joint through rate or fare to Chicago plus the local rate or fare from Chicago to destination, and unless the lines of delivering carrier reach both Milwaukee and Chicago the shipment or passenger should move via Chicago.
Rates or fares for outbound through movements from such local stations and under like circumstances must be applied on the same basis where the joint through rates or fares are the same from two or more points.
Rates and fares must be those in effect over routes by which shipment or passenger moves. This does not authorize any carrier to apply to transportation over its lines any rate or fare except those stated in its own lawfully published tariffs or in the lawfully published joint tariffs in which it has concurred. If a carrier desires to "meet the rate" of a competitor, it must do so by lawfully including in its own tariffs such specific rates or fares, proportional or otherwise, as may be necessary
so to do.
Assistance by shippers.-It is suggested that shippers can assist in avoiding mistakes and misunderstandings by calling attention to the rate that should apply in such cases as come under this rule by indicating it on shipping bill in connection with routing instructions; for instance, "Rate on Milwaukee." This is, however, merely a suggestion, and does not relieve the agents of carriers from the responsibility of quoting and applying the correct lawful rate.
Rule applies to reconsignments only when provided for in tariff.-This rule does not apply in case where shipment has reached its destination as originally given by shipper and has been reconsigned, except when tariff contains reconsigning rule that provides for such application.
Rule does not apply where joint through rate or fare to destination is in effect.This rule must not apply in any case where there is an applicable specific joint through rate or fare from point of origin to point of destination. (See Rule 55.)
73. Carriers may not be given preferential rates (issued May 6, 1907).—In answer to inquiries the Commission expresses the opinion that under the law a carrier, or a person or corporation operating a railroad or other transportation line, cannot, as a shipper over the lines of another carrier, be given any preference in the application
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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 carrier shipping its fuel, material, or other supplies over the lines of another carrier must pay the legal tariff rates applicable to the same commodities shipped by an individual. There may be some instances, such as the movement of needed fuel, in which, in order to keep the trains or boats moving, such traffic could temporarily be given preference in movement without creating unjust or unwarranted discrimination.
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.
74. Return of astray shipments (issued May 6, 1907).-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 carriers 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 publish ing, 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 70.
75. Transportation of Federal troops (issued May 27, 1907).-The Commission is of the opinion that carriers, either by contract or bid or other arrangement with the War Department, may lawfully make special rates or fares for the movement of Federal troops, when moved under orders and at the expense of the United States Government, and that the rates or fares so made need not be posted or filed with the Commission.
Published rates and fares are maximum for moving Federal troops.-The lawfully published rates or fares for the transportation of the general public, in the opinion of the Commission, are to be regarded, however, as the maximum rates and fares that may lawfully be charged the Government for the movement of Federal troops.
This ruling also governs similar transportation for the naval and marine services. 76. Classification of high explosives (issued May 29, 1907).-Some freight classifi cations provide that high explosives will be "taken only by special agreement." Carriers are prohibited from carrying any traffic except under tariffs provided in the manner prescribed by law. It follows, therefore, that no traffic or transportation can be the subject of special agreement between carrier and shipper except as provided in Rule 75 and in Section 22 of the Act. If it is impracticable to classify high explosives in the classification the statement must not be, "taken only by special agreement,' but must be, "subject to regulations and rates in tariffs of the individual carriers;" and each carrier must provide in its tariffs the rates and regulations applicable to such traffic.
77. Minimum carloads-Capacity of car furnished less than that of car ordered.— Where a rate for carload shipment is relatively lower than less-than-carload rate the reasonableness of a minimum carload weight to which carload rate will apply is recognized, as is also the desirability of highest efficiency both in the movement and the loading of cars.
Carriers provide cars of varying dimensions and capacities, and they provide minimum weights for the several kinds of cars based upon those dimensions and capacities. At times when transportation facilities are inadequate to supply the demand upon them it is frequently difficult or impossible for the carrier to furnish a shipper with a car of the dimensions or capacity desired by him, although the carrier has in its tariffs provisions for the use of such car. Manifestly it is not equitable or proper to require the would-be shipper to pay additional transportation charges for the privilege of using a car of different dimensions or capacity from that which would suit his shipment or forego entirely his desire to ship.
Some carriers provide elastic rules which properly permit the use of cars of different dimensions or capacities when they are furnished by the carrier in lieu of those
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desired or ordered by the shipper. Other carriers do not so provide, and as a result many instances arise in which the initial carrier under such provision furnishes the shipper with cars at its convenience and connecting carriers that have not adopted similar provisions assess higher charges in accordance with their tariffs, thus imposing upon the shipper a wholly unexpected, and, in the view of the Commission, unreasonable, charge.
The Commission believes it to be the duty of every carrier to incorporate in its tariff regulations a rule to the effect that when carrier cannot promptly furnish car of capacity or dimensions desired by the shipper, and for its own convenience does provide a car of greater capacity or dimensions than that ordered, such car may be used on the basis of the minimum carload fixed in the tariffs for cars of the dimensions or capacity ordered by the shipper; and that if a car of smaller capacity than that ordered by the shipper is furnished, it may be used on the basis of actual weight when loaded to its full visible capacity, or that that portion of the shipment which cannot be loaded into the smaller car will be taken in another car and the shipment treated as a whole on the basis of the minimum fixed for the car ordered by the shipper; and that if the carrier is unable to furnish a car of large dimensions, ordered by shipper, it may furnish two smaller cars which may be used on the basis of the minimum fixed for the car ordered; it being understood that shipper may not order a car of dimensions or capacity not provided for in the carrier's tariffs.
In all such cases the capacity of the car ordered, the date of such order, the number, initials, and capacity of the car furnished should be stated on the bill of lading and the carrier's waybill.
In case of controversy between shippers and carriers caused by absence of such rule from tariffs which provide graduated minima for cars of different sizes the Commission will regard such tariffs as prima facie unfair and unreasonable.
It is the duty of carriers to provide reasonable facilities for transportation, and if they cannot furnish equipment to move the carloads provided for in their regulations it is clearly their duty to provide some other method of transporting as one shipment, and at the rate named therefor, such carload weight when tendered by shipper. 78. Movement of shipments refused by consignees or damaged in transit (issued June 3, 1907).-In one form or another many carriers 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 answer to request for ruling the Commission expresses the opinion that 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 carrier 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 carrier'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 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 carrier 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 carrier 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
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provide that rule for return of shipments applies only via the route and line over which the shipment moved. Uniformity among carriers in rules and practices in such matters as these is desirable and contributes to thorough understandings and harmony between carriers and shippers.
Damaged in transit shipments left on hands of carrier must be hauled over its lines as its own property would be.-Where a shipment is refused and is left on the hands of the carrier it is believed that the carrier, 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.
79. Correspondence with Commission on freight and passenger matters (issued November 16, 1906).-It is believed that the best results and understandings will be reached if the conducting of ordinary correspondence between carriers and the Commission is confined to as few persons as possible. Request is therefore made that the traffic manager or the general passenger and general freight agents of each road designate not more than two officials or other representatives to respectively conduct the correspondence with the Commission on freight and passenger matters, and to promptly advise the Commission of such appointments.
80. Distribution of official circulars and rulings (issued November 16, 1906).—It is obviously impracticable for the Commission to place copies of its official circulars and rulings in the hands of all the officers of carriers or to furnish copies for distribution among them. The officers at the head of traffic departments, or in charge of the passenger and freight departments, respectively, will please designate for each road one official in the passenger department and one in the freight department (unless both are under one head officer and one appointment is considered sufficient), to whom such circulars and rulings are to be sent; and arrange for such designated officials to disseminate the information among other interested officers and agents. Please report these appointments to the Commission as early as possible.
Mailing list. With the view of giving prompt information to those who may be interested, the Commission will upon application place upon its mailing list regularly organized boards of trade, chambers of commerce, commercial clubs, and shippers' associations, for the purpose of mailing to them covies of official circulars containing rulings and orders of the Commission.
81. Special reparation on informal complaints (issued June 7, 1907).-To assist in the settlement of certain claims of shippers against carriers, 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 carrier or carriers, 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 Commission 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 carrier or carriers 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 carrier 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