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[ADMINISTRATIVE RULINGS AND OPINIONS.]
tariff regulation will also contain Commission's order requiring the maintenance of such rate or regulation for at least one year.
Carrier must have authority-Principle underlying order extended to other cases.No carrier 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 shipments, but no refunds shall be made upon such like shipments except upon specific authority from the Commission therefor.
Pay charges demanded by carrier-Demurrage charges accruing pending dispute or subsequent to consignee's refusal to accept shipment. 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. The Commission will not ordinarily include in reparation award demurrage charges which accrue pending adjustment or subsequent to consignee's refusal to accept the shipment and pay the lawful charges thereon, but in special cases such demurrage charges may be included in the amount of refund.
It is the duty of the delivering carrier to collect, and of the consignee to pay, demurrage charges as per lawful tariffs. Demurrage charges accruing because of error of a carrier are considered in the same light as are other additional transportation charges caused by carrier's error; and if adjusted, the full expense thereof must be borne by the carrier whose agent is responsible for the error. (See Rule 70.) Reparation only on basis of rate that is in tariff.-The Commission has repeatedly announced the view that the law does not ermit the use of any rate or fare except that contained in a lawful tariff that is applicable via the line, route, and gateway over and through which the shipment or passenger moves. The lawful rate or fare for through movement is the through rate or fare, wherever such through rate or fare exists, even though some combination makes a lower rate or fare and even though the practice in the past has been to give to some the benefit of such lower combination. The Commission long since extended to carriers, in a general order, permission to reduce, on one day's notice, a joint commodity or class rate or fare that is higher than the sum of the locals between the same points to make it equal the sum of such locals. If, therefore, carriers have maintained through rates or fares that are higher than the sums of the locals between the same points, it is because of their desire so to do, and not, as some agents of carriers have informed shippers, because the law or the Commission forces them to do so. (See Rule 56.)
If a carrier desires to give its patrons the benefit of the same rate or fare that applies via another line or gateway, and which is lower than its own rate or fare, it can do so by lawfully incorporating that rate or fare in its own tariffs, and so give the benefit of it to all of its patrons alike. The law forbids giving such lower rate or fare 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 or fare 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 carriers and shippers take pains to be certain that correct rates are quoted and correct routing is given.
Statute of limitation.-Claims filed since August 28, 1907, must have accrued within two years immediately prior to the date upon which they are filed; otherwise they are barred by the statute. Claims filed with the Commission on or before August 28, 1907, are not affected by the two years limitation in the Act. 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.
82. Refunds and commissions (issued July 8, 1907).-The Act prohibits a carrier from demanding, collecting, or receiving a greater or less or different compensation for transportation than that named in its tariffs in effect at the time. It prohibits the rebating or refunding to any person in any manner, or by any device whatsoever,
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any part of the lawful charges so collected. It is therefore manifestly unlawful for a carrier to refund to any association, committee, or person any part of the charges collected by the carrier as a condition of the sale of transportation. A carrier's agents may, as a matter of convenience, sell admission tickets to entertainments in connection with which excursion-fare tickets are sold, but the purchase of such admission ticket must not be made a condition of the sale of transportation ticket. Entertainment provided, or contribution made, by a carrier.-(Effective March 1, 1908.) The Act does not prohibit a carrier from providing in its own interest and as a means of stimulating travel over its line an entertainment at a point on its line; nor from contributing to the expense of such an entertainment if such contribution be made in a definite sum and be in no way dependent or contingent upon the number of tickets sold, and provided that no part of such contribution be by any device or through any person whatsoever permitted to effect any departure from or discrimination under the carrier's tariff fares. (Amended May 12, 1908. See Supp. to Tariff Circular 15-A, sec. 15.)
83. Responsibilities of carriers under tariffs (issued November 15, 1907).-Prior to May 1, 1907, the date upon which the Commission's freight tariff rules became effective, no uniform or definite practice or rule was followed by carriers in regard to concurrence in joint tariffs. The plan most generally followed was for each carrier to file with the Commission a statement that it thereby concurred in any tariff, issued by any carrier, and in which it was shown as a participant, except when it gave to the Commission specific notice of nonconcurrence in particular issues. Some carriers, however, did not file such a declaration, but accepted traffic and settlements under joint tariffs in which they were shown as participants, although no concurrence therein had ever been given.
The general, if not universal, understanding and practice was that every carrier had a right to issue tariffs containing joint through rates or fares over the lines of other carriers named therein as participants, to note therein that the carriers named as participants would certify their concurrence to the Interstate Commerce Commission, and for all to use such tariffs except in cases where carriers specifically certified to the Commission their nonconcurrence in certain publications.
To now undertake to check out and follow down definite and actual concurrence of carriers in tariffs issued prior to May 1, 1907, would be a hopeless task; and to declare unlawful all tariffs, and participation therein, which were not so definitely and actually concurred in, other than by use thereof, would be to overthrow practically all such joint tariffs and leave transportation in chaos.
Some carriers have sought to evade liabilities under such joint tariffs on the plea that they never concurred therein, although in each instance so far brought to notice such carrier is shown to have accepted traffic and collected charges thereon in accordance with such tariff up to, and in some instances subsequent to, date of filing notice of nonconcurrence.
Under tariffs filed prior to May 1, 1907, carriers are responsible, in accord with custom then generally followed, except when and after they filed specific notice of nonconcurrence in certain issues. Such complications are impossible as to tariffs issued subsequent to May 1, 1907, if the Commission's tariff regulations are observed. The Commission can not undertake to now excuse carriers from responsibilities placed upon them by tariffs that were issued prior to May 1, 1907, and in which they are named as participants in conformity with customs that were followed so generally and for so long a time as to render them binding upon those who did not give notice of nonconcurrence, except in accordance with and subsequent to filing of specific notices of nonconcurrence.
The Commission's tariff regulations require that the carrier or joint agent that issues a joint tariff shall, before issuing same, have secured 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.
Carrier not bound by being named as participant in tariff without its authority. -A carrier has no means of preventing another carrier from naming it as party to a joint tariff without proper authority so to do. It can not, however, be bound by such unauthorized act, and it is its obvious duty to refuse to recognize or apply any
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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 or passengers 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 carrier that issued the tariff, or, if the tariff is issued by a joint agent and attorney for two or more carriers, will rest upon that one of his principals that accepts and forwards the business under that tariff.
Policy of Commission on complaints. In passing upon a complaint of overcharge growing out of improper or unlawful inclusion of any carrier's name in the list of participating carriers in the tariff under which the business was accepted and forwarded the Commission will apply the principles above stated.
84. Extensions of time on limited tickets-Extension may include members of family traveling together-Extensions in cases of quarantine-Provision for extension must be in tariffs (issued November 15, 1907).-Carriers may provide in their tariffs that limited passenger tickets may be extended in case of the illness of the passenger holding such ticket. Tariffs must give the title of the officer who shall have authority to give such extension, and such officer shall be required by the carrier to keep a memorandum of each instance in which such extension is given, and the data upon which it is allowed. Such information shall be subject at any time to be called for by the Commission. This rule must be applied strictly and in good faith, and upon the carrier is placed the responsibility of strict conformity thereto. Only such illness as makes travel dangerous to the health of the traveler will justify the extension herein provided for. The extension may also be granted to one or more members of the family of the passenger who is ill when traveling together, and to persons who are subject to an established quarantine. Stop-over privileges for a limited time may be granted for the same causes and under the same conditions and restrictions as justify extension of time on limited tickets. No extension of time upon limited tickets or stop-over privilege will be recognized as valid unless provision therefor is made in the carrier's published tariffs.
85. Withdrawal of filed tariffs not permitted.-Not infrequently the Commission is requested to return to carriers tariff publications which have been received and filed by the Commission in the ordinary course of business. Such requests are usually based on the desire to substitute some corrected or changed publication for the one that has been filed. Manifestly it would be improper for the Commission to permit such substitutions or to surrender any tariff publication duly and properly received and filed by it, unless such surrender is caused by rejection of such publication by the Commission because of illegality or irregularity in connection therewith. To surrender publications duly filed and permit the substitution of others would involve a species of falsification of the records which could not be permitted.
86. Ocean carriers-when not subject to the act.-Ocean carriers between ports of the United States and foreign countries not adjacent are not subject to the terms of the act to regulate commerce; nor to the jurisdiction of the Commission.
Export and import tariffs.-The inland carriers of traffic exported to or imported from a foreign country not adjacent, must publish their rates and fares to the ports and from the ports, and such rates or fares must be the same for all regardless of what ocean carrier may be designated by the shipper or passenger.
Through rates or fares may be shown.-As a matter of convenience to the public they may publish in their tariffs such through export or import rates or fares to or from foreign points as they may make in connection with ocean carriers. Such
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tariffs must, however, distinctly state the inland rate or fare as above provided; and need not be concurred in by the ocean carrier, because, concurrence can be required from, and is effective against, only carriers subject to the act.
Must be filed and posted.—Whichever plan of publishing these rates and fares is followed the tariffs must be filed and posted, and may be changed only upon statutory notice or under special permission for shorter time.
Through export and import billing.-Export and import traffic may be forwarded under through billing but such through billing must clearly separate the liability of the inland carrier or carriers and of the ocean carrier, and must show the tariff rate of the inland carrier or carriers.