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erally, but to prescribe joint through rates, and part rail and part water rates.
Carriers, that is railroad companies, as distinguished from pipe-line companies, are expressly forbidden to deal in the commodities they carry, other than timber and the manufactured products thereof. This provision is to go into effect May 1, 1908.
Private car lines, including those operating refrigerating and ventilating cars, express companies, and sleeping car companies are made common carriers. Pipe line companies, persons and corporations engaged in the transportation of oil or other commodities, except water, or natural or artificial gas who transport by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, are also declared to be common carriers.
Carriers must keep uniform books, which, at all times, shall be accessible to the Interstate Commerce Commission. All reports made by carriers to the Commission must be uniform.
Switches, sidings and terminal facilities may be ordered by the Commission, and may also be directed to be furnished by the court by writ of mandamus.
Damages sustained to goods sent over a joint through route shall be borne by the initial carrier.
An appeal from an order of the Commission fixing a rate, if sustained by the court below, must be taken directly to the Supreme Court of the United States, thus abolishing intermediate appeal.
AS TO FREE PASSES.
The law, as to free passes, and free transportation, will require judicial interpretation. Congress in the Act approved June 29, 1906, enacted new legislation in this regard, but in so doing did not amend section 22 of the Commerce Act, which relates exclusively to the subject, but inserted the new legislation as part of section 1 of the Act. The amending Act declares “ that all laws, and parts of laws in conflict with the provisions of” the Act of June 29, 1906, are repealed. So much, and such parts of section 22, therefore, as conflict
with the provisions of section 1, relating to free transportation, are repealed. But if the provisions of section 22 do not directly conflict with the provisions of section 1, in this respect, both sections must stand. Under section 22 carriers could handle or carry property for the United States, State or municipal governments free, or at reduced rates. There is nothing in section 1 which is inconsistent with this provision. Under section 22, however, free passes could lawfully be given, only to officers and employees of railroads; and the principal officers of any railroad company could exchange free passes or tickets “ with other railroad companies for their officers and employees.'
The class of persons to whom free passes may issue, after January 1, 1907, will be no longer confined to the officers and employees of a railroad company, but may include the officers and employees of any “common carriers," namely, the officers and employees of any oil company using pipe lines, any express company, sleeping car company, or railroad company, their families, agents, surgeons, physicians, and attorneysat-law; and also “ witnesses attending any legal investigation in which the common carrier is interested.” To this class belongs also persons engaged in religious and charitable work.
A person transacting the business of a common carrier, or representing it in any capacity, is an agent of the carrier. Pipe line companies are engaged in refining and selling oil. Any person or corporation engaged in this business which does not use a pipe line, can not derive any benefit under the law which sanctions free transportation; but a competitor using pipe lines, could secure free transportation for its salesmen, employees, agents and attorneys. All salesmen or traveling agents of such persons or corporations, throughout the United States, would thus be enabled to carry on business free of charge, so far as transportation for these traveling agents is concerned. This exemption from charges for transportation, would give them an advantage in the market over a competitor, which would result in securing to the pipe line company a monopoly. Free transportation under such circumstances, would operate as a commercial weapon, equally as formidable, as though the carrier gave the pipe line company substantial rebates aggregating thousands of dollars annually.
An attorney-at-law elected to the legislature, if he did any work for a common carrier, could ride on' an annual pass. From this standpoint it would seem that all members of the legislature, State or Federal, who represent common carriers, could, if they chose, receive milage from the public treasury, and ride on free passes issued to them by their clients. But to the legislator who is also the attorney for the carriers, this anomaly presents itself. As attorney he would he lawfully entitled to use the pass; its use by him as a legislator would be unlawful. If he desires to retain the pass, he must either relinquish his public office, or decline to act for the carrier in the exercise of his profession.
The first instance of the results to be anticipated from the operation of the new law, in this regard, arose in West Burlington, Iowa, where it happened that all the city officials were railroad employees and as such were entitled to passes. As municipal officers, they are prohibited from receiving free transportation. The passes being considered more valuable than the official positions, the pass-holders resigned their municipal offices, in order to avoid any controversy, which might arise as to their right to use the passes.
BILL OF LADING COMPULSORY.
One of the most important features of the legislation of 1906, is the provision contained in section 20, which makes it obligatory upon every common carrier not only to give the shipper a receipt or bill of lading, but which also forbids the carrier to seek to exempt itself from liability, by conditions, or limitations, which it may see fit to print upon the receipts or bills of lading which it issues. The statute expressly declares that the carrier “shall be liable to the lawful holder ” of such receipt or bill of lading, “ for any loss, damage or injury to such property caused by it," or by a connecting carrier, and provides expressly that “ contract, receipi, rule or regulation shall exempt such common carrier," from the liability imposed by the statute.
BILLS OF LADING — LAW AS TO VESSELS.
Any uniform bill of lading to be used by common carriers, must be free from the limitations and conditions usually contained in bills of lading and receipts devised for the purpose of relieving the carriers from liability. It is customary for the carrier, if the shipper insists, to offer two bills of lading or receipts, one of which acknowledges the receipt of the goods, to be carried to a certain place for a specific rate, and containing a printed stipulation relieving the carrier from all liability in case the goods are lost or destroyed. The carrier usually offers to transport the goods at a trifling reduction in cost of carriage in case such receipt is given. The ordinary bill of lading, however, usually contains specific exemption clauses, inserted for the benefit of the carrier.
In order to establish the carrier's liability, and protect the public from uni-lateral contracts containing conditions which must result in a law suit, in case the shipper seeks redress for property lost or destroyed, while in the custody of the carrier, Congress, under section 20 of the Commerce Act, has established a uniform rule governing kills of lading in all interstate transactions.
COASTWISE STEAMSHIPS AND CARRIERS BY WATER.
Owners of vessels, including coastwise steamships and vessels bound for foreign ports, are not within the Commerce Act, and are not bound by its provisions, unless they operate a railroad or a pipe-line in conjunction with the vessels. Such owners are common carriers by virtue of their employment. But the statute is made applicable only to carriers engaged in the transportation of passengers or property, “wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment.” In defining these words, the courts have held that an agreement among carriers to transport property over a number of lines, at a fixed through rate, and agree among themselves expressly, or by implication to a division of the charges, such a transaction will constitute “a common arrangement for a continuous carriage or shipment
» within the meaning of the statute.
Carriers by water, however, who are not within the statute, so far as the conditions in bills of lading are concerned, are governed by the provisions of an act approved February 13, 1893, known as the Harter Act, entitled "An act relating to navigation of vessels, bills of lading, and to certain obligations, duties, and rights, in connection with the carriage of property.” This statute forbids the insertion of clauses in bills of lading or receipts purporting to relieve the carrier from liability, and limits the liability of carriers “transporting merchandise or property to or from any port of the United States of America," upon certain conditions.
Except as modified by statute, there is no distinction between the liability of a carrier by land and a carrier by water. Both are common carriers by virtue of their employment, and whenever they undertake such employment their liability attaches. In the case of a carrier by water, who receives no franchise, and conducts business in an enrolled or licensed vessel, plying the ocean, which is the great highway of nations, his liability and the liability of his vessel attaches when the lien for freight attaches. Under a contract of affreightment the ship and cargo have reciprocal rights, each having a lien against the other to enforce these rights. The elements of such a contract are that the ship is seaworthy, including competent officers and crew, and properly provisioned, in order to carry and deliver the cargo, and to properly navigate the ship without needless delay or deviation. The rule defining a ship-owner's liability is clearly stated by Mr. Justice Brown as follows:
Any contract by which a common carrier of goods or passengers, undertakes to exempt himself from all responsibility for loss or damage, arising from the negligence of himself or servants is void as against public policy, as attempting to put off the essential duties resting upon every public carrier by virtue of his employment, and as tending
10. 8. ex rel. Interstate Com. Co. v. Seaboard Railroad, 82 Fed. R. 563.
Calderon v. Atlas Steamship Company, 170 U. S. 272, citing from Chicago, Milwaukee Railway v. Sabon, 169 U. S. 133