CHAPTER XV INSTANCES OF JUSTIFIABLE DIFFERENCES § 710. Provisions of the Act. 711. Modification of the rule forbidding different rates. Topic A. Reasonable Differences § 712. What preference is undue and unreasonable. Topic B. Shipment in more Convenient Units §720. Differences in the character of the service. 721. Shipment in carloads. 722. Advantages of carload traffic. 723. Permission to mix carloads. 724. Lower rates for shipments in bulk. 725. Shipments in trainloads problematical. 726. Contracts for regular shipments. 727. Units in passenger service. 728. The basis of the differential. 729. Comparison of bulk and package rates. Topic C. Facilities Furnished by Shippers § 730. Terminal facilities furnished by shippers. 731. Undue prejudice in granting allowances. 732. Unjustifiable differences in rates. 733. Concessions to shippers in bulk considered. 734. Railroad without tank cars. 735. Transportation expenses paid by shipper. 736. Rental paid on shipper's cars. 737. Allowance for cars or facilities furnished. Topic D. Restriction to Scheduled Allowance 738. Extent of statutory restrictions. 739. Both rates must be open to all. § 740. Lighterage allowance. 741. Elevation charges. 742. Transit privileges. 743. Terminal allowances. 744. Allowances for facilities closely scrutinized. 745. Allowances for facilities still permissible. 710. Provisions of the Act. The provisions of the Act just considered, such as sections 2 and 3, forbidding disproportionate treatment where the circumstances are similar, by inference permit proportionate differences where the conditions are different. It should be noted, moreover, that since 1906 only such allowances as are published are permitted, section 6 providing that the requirements as to scheduling with the Commission shall apply to all traffic and transportation, facilities and arrangements in relation to any traffic affected by the provisions of the Act. As the Act now reads, if the owner of property transported in interstate commerce directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order. What differences are approved in passing upon rates has already been discussed in Chapters XI and XII. § 711. Modification of the rule forbidding different rates. When the services asked of the carrier are essentially dissimilar the rule against discrimination is apparently much modified. It is rightly held that different rates may be made when the cost of service is different; for to enforce equal rates under those circumstances, as has been said, would in reality be discriminatory under ordinary condi tions."2 "It must not be inferred that a common carrier, in adjusting his price, cannot regard the peculiar circumstances of the particular transportation. Many considerations may properly enter into the agreement for carriage or the establishment of rates, such as the quantity carried, its nature, risks, the expense of carriage at different periods of time, and the like; but he has no right to give an exclusive advantage or preference, in that respect, to some over others, for carriage, in the course of his business. For a like service, the public are entitled to a like price. There may be isolated exceptions to this rule, where the interest of the immediate parties is alone involved, and not the rest of the public, but the rule must be applied whenever the service of the carrier is sought or agreed for in the range of business or trade." 73 Topic A. Reasonable Differences § 712. What preference is undue and unreasonable. The words of the Act necessarily involve the idea or element of comparison of one service or traffic with another similarly situated and circumstanced, and require that, to be undue and unreasonable, the preference or prejudice must relate and have reference to competing parties, producing between them unfairness and an unjust inequality in the rates charged them, respectively, for contemporaneous service under substantially the same circumstances and conditions.74 In determining the question whether rates give an undue preference or impose an undue prejudice or disadvantage, consideration must be had to the relation which the persons or traffic affected bear to each other and to the carrier. When and so long U. S. 263, 36 L. ed. 699, 12 Sup. Ct. 844. 72 The quotation is from Messenger v. Pennsylvania R. R., 7 Vroom (36 N. J. L.), 407, 13 Am. Rep. 457, 8 Vroom (37 N. J. L.), 531, 18 Am. Rep. 754. 73 See Interstate Commerce Commission v. Baltimore & O. R. R., 145 74 This is virtually a quotation from Interstate Commerce Commission v. Baltimore & O. R. R., 43 Fed. 37. as their relations are similar or substantially" so, the carrier is prohibited from dealing differently with them in the matter of charges for a like and contemporaneous service.75 Undue preference involves comparison between the treatment given to shippers, and upon comparison a finding that one is unfairly treated. In short, any unreasonable inequality of treatment of passengers or shippers is a violation of the law. So it is an unjust discrimination to remove a colored passenger holding a first class ticket from a first class car, to a second class car, less clean and comfortable; but separation of white and colored passengers paying the same fare is not unlawful, if cars and accommodations equal in all respects are furnished to both and the same care and protection of passengers observed." So where a carrier refused to permit a sidetrack connection with its road to one coal mine, while permitting it to another under similar circumstances, it was held to be a violation of the Act. There must be such similarity of situation and feasibility of connection as will permit practical adherence to reasonable operating conditions by the carrier; but where physical conditions pertaining to the proposed connection are at least as favorable to the carrier as those pertaining to the other connections the applicant is entitled to his connection.78 § 713. Differences in transportation cost. There is no illegal discrimination unless the services compared are substantially the same. Thus a reasonable classification of commodities or passengers according to the nature of the goods or the accommodations 75 See Interstate Commerce Commission v. Chicago G. W. Ry., 141 Fed. 1003. 76 Daniels v. Chicago, R. I. & P. Ry., 6 I. C. C. Rep. 458; Page v. Delaware, L. & W. R. R., 6 I. C. C. Rep. 548; Castle v. Baltimore & O. R. R., 8 I. C. C. Rep. 333. 77 Heard v. Georgia R. R., 1 Int. Com. Rep. 719, 1 I. C. C. 428; Councill v. Western & A. R. R., 1 Int. Com. Rep. 638, 1 I. C. C. 339; Heard v. Georgia R. R., 2 Int. Com. Rep. 508, 3 I. C. C. 111. 78 Red Rock Fuel Co. v. Baltimore & O. R. R., 11 I. C. C. Rep. 438. furnished does not result in discrimination.79 "And for a like reason an inferior class of freight may be carried at a less rate than first-class merchandise of greater value and requiring more labor, care, and responsibility in the handling. It has been held that 20 separate parcels done up in one package, and consigned to the same person may be carried at a less rate per parcel than 20 parcels of the same character consigned to as many different persons at the same destination, because it is supposed that it costs less to receive and deliver one package containing 20 parcels to one man, than it does to receive and deliver 20 different parcels to as many different consignees. Such are some of the numerous illustrations of the rule that might be given." 80 § 714. Certain economies in operation. It has seemed an unjust discrimination, contrary to the spirit of the Act, to make allowances for services rendered by the locomotives of the competitors in hauling cars over private tracks.81 Likewise a lower rate to large shipper, providing elaborate facilities for prompt unloading, than accorded a small competitor, unable to provide such facilities, would constitute unjust discrimination.82 There is no illegal discrimination unless the services compared are substantially the same. Thus a reasonable classification of commodities or passengers according to the nature of the goods or the accommodations furnished does not result in discrimination.83 Nor from a transportation view point can the carriage of products, of entirely different kinds 79 For this general principle see among other cases: Brewer v. Central of Ga. Ry. Co., 84 Fed. 258; Wagner v. City of Rock Island, 146 Ill. 139; Louisville & N. Ry. Co. v. Com., 108 Ky. 628, 57 S. W. 508; Paine v. Pennsylvania Ry., 7 Kulp, 187. 80 The quotation is from Hays v. Pennsylvania R. R. Co., 12 Fed. 309. 81 Tap Line Cases, 23 I. C. C. 277. 82 In re Restricted Rates, 20 I. C. C. R. 426. 83 Lavery v. New York C. & H. R. R. R., 2 Int. Com. Rep. 210, 2 I. C. C. 338; New York Board of Trade and Transp. v. Pennsylvania R. R., 3 Int. Com. Rep. 417, 4 I. C. C. 447; Brownell v. Columbus & C. M. R. R., 4 Int. Com. Rep. 285, 5 I. C. C. 638. |