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CHAPTER XIII

THE RIGHTS OF THE COMMON CARRIER OF GOODS

147. Compensation of the Carrier.

148.

Discrimination in the Carrier's Charges.

149. The Carrier's Lien.

The duties of the common carrier of goods, and the consequent liabilities flowing from a breach of these duties, have been already discussed. The present chapter will be devoted to the rights of the common carrier of goods. It is clear that the principal right of the carrier, the practical benefit for which he undertakes the transportation, is to earn his compensation. Around this turn all of the carrier's substantial rights. This subject will be treated under three heads:

(1) The compensation of the carrier.

(2) Discrimination in the carrier's charges.

(3) The carrier's lien for his charges on the goods shipped.

COMPENSATION OF THE CARRIER

147. The common carrier of goods is entitled to a reasonable compensation, and no more, for his services. This compensation the carrier may demand in advance.

The common carrier of goods, like other laborers, is worthy of his hire, and this hire makes the bailment of goods for transportation a bailment for the mutual benefit of both bailor and bailee. As we have already seen, the carrier is never a common carrier as to a particular shipment unless he receives a compensation for such shipment. The common carrier, although obliged to carry goods for all who offer, is not on the one hand obliged to do so gratis, nor even for an unreasonably low compensation. Such a requirement

1 Ante, chapter X.

2 Such other rights usually arise in connection with, or as qualifications of, the liabilities of the carrier. The right to make regulations has been considered in connection with the carrier's right to limit his common-law liability, with which it is often confused. The subject of regulations is treated at greater length in connection with the passenger carrier, where it assumes greater practical importance.

8 Ante, p. 304.

would amount to a confiscation of his property.

Neither can he,

on the other hand, demand whatever sum he sees fit; for, if that were permitted, he might practically nullify his obligation to carry for all, by asking exorbitant rates. The result is that the common carrier is entitled to a reasonable compensation for his services, but to no more. Under the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) all charges must be just and reasonable, and all unjust and unreasonable charges are prohibited and declared unlawful.

4 See Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819; Sandusky-Portland Cement Co. v. Baltimore & O. R. Co., 187 Fed. 583, 111 C. C. A. 439.

Carr v. Railway Co., 7 Exch. (Eng.) 707.

• Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 352, 21 N. E. 341, 4 L. R. A. 244; Harris v. Packwood, 3 Taunt. (Eng.) 264; London & N. W. R. Co. v. Evershed, L. R. 3 App. Cas. (Eng.) 1029; Holford v. Adams, 2 Duer (N. Y.) 471; Camblos v. Philadelphia & R. R. Co., 4 Brewst. (Pa.) 563, Fed. Cas. No. 2,331; Tift v. Southern R. Co. (C. C.) 138 Fed. 753, affirmed 148 Fed. 1021, 79 C. C. A. 536; L. & N. R. Co. v. Higdon, 149 Ky. 321, 148 S. W. 26; Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 353, 21 N. E. 341, 4 L. R. A. 244. The shipper may maintain an action for refusal to carry upon reasonable terms. Carr v. Railway Co., 7 Exch. (Eng.) 707, per Parke, B. Unreasonable charges exacted may be recovered. Baldwin v. Liverpool & G. W. S. S. Co., 74 N. Y. 125, 30 Am. Rep. 277; Peters v. Marietta & C. R. Co., 42 Ohio St. 275, 51 Am. Rep. 814; McGregor v. Erie Ry. Co., 35 N. J. Law, 89; Atchison & N. R. Co. v. Miller, 16 Neb. 661, 21 N. W. 451; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Id., 1 Duer (N. Y.) 209; Mobile & M. Ry. Co. v. Steiner, 61 Ala. 559; Lafayette & I. R. Co. v. Pattison, 41 Ind. 312; Central of Georgia R. Co. v. E. G. Willingham & Sons, 8 Ga. App. 817, 70 S. E. 199; H. L. Halliday Milling Co. v. Louisiana & N. W. R. Co., 80 Ark. 536, 98 S. W. 374; Reynolds & Craft v. Seaboard Air Line Ry., 81 S. C. 383, 62 S. E. 445; Joynes v. Pennsylvania R. Co., 234 Pa. 321, 83 Atl. 318. Where a railroad constructed a bridge as a part of a through route at great expense, it was entitled to charge a reasonable arbitrary rate for the transportation of freight and passengers over the same, under the rule that, where a road or part of a road is built though a mountainous country or region requiring expensive construction, the charge for service over the same may be greater than on other portions of the road, or on roads where the cost of construction per mile is less. State v. Illinois Cent. R. Co., 246 Ill. 188, 92 N. E. 814. A railway company can fix reasonable rates for carrying freight between points on a belt line operated by it, classified according to the different kinds of freight. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73, 135 S. W. 768, 33 L. R. A. (N. S.) 442. For extra services, after the arrival of the goods, the carrier may charge an extra compensation. Yazoo & M. V. R. Co. v. Searles. 85 Miss. 520, 37 South. 939, 68 L. R. A. 715.

7 Section 1. See Judson on Interstate Commerce (2d Ed.) § 161; Interstate Commerce Commission v. Chicago G. W. R. Co., 209 U. S. 108, 28 Sup. Ct. 493, 52 L. Ed. 705; Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075.

As in the case of the innkeeper, the common carrier of goods, who cannot choose those with whom he deals, is permitted to demand his charges in advance. This is in return for the duty, imposed on him by law, of serving indifferently all those who apply. This right of the carrier has already been briefly discussed, and, as the same considerations obtain as in the case of the innkeeper,10 no further discussion is needed here. The carrier can, of course, waive his right to require payment in advance, and this he does by receiving the goods for shipment without demanding his charges.11 In such a case, the carrier cannot sue for his charges until he has fully performed his contract by completing the transportation of the goods.12

Amount of Compensation-How Fixed

The amount of the carrier's compensation may be fixed by contract, express or implied, or by statute. When the compensation is fixed by an express contract, which is lawful, that, of course, prevails.18 When the rate is not fixed by statute or express contract, then under an implied contract the customary rate (if there is one) governs, or, if there is no customary rate, the carrier may recover a reasonable compensation.15 What is a reasonable compensation, in such cases, is a question of fact for the jury.

8 Wyld v. Pickford, 8 Mees. & W. (Eng.) 443; Randall v. Richmond & D. R. Co., 108 N. C. 612, 13 S. E. 137; Lehigh Valley Transp. Co. v. Post Sugar Co., 228 Ill. 121, 81 N. E. 819; Little Rock & M. R. Co. v. St. Louis, I. M. & S. R. Co., 63 Fed. 775, 11 C. C. A. 417, 26 L. R. A. 192.

Ante, § 113.

10 Ante, § 99.

11 Grand Rapids & I. R. Co. v. Diether, 10 Ind. App. 206, 37 N. E. 39, 1069, 53 Am. St. Rep. 385. The right of a common carrier to prepayment of its charges is waived if it accepts the goods for transportation without exacting such payment in advance, and liability attaches as though the freight were actually prepaid. Gratiot St. Warehouse Co. v. Missouri, K. & T. Ry. Co., 124 Mo. App. 545, 102 S. W. 11.

12 2 Hutch. on Carr. § 799. See, also, Breed v. Mitchell, 48 Ga. 533; New York Cent. & H. R. R. Co. v. Standard Oil Co., 87 N. Y. 486; Tirrell v. Gage, 4 Allen (Mass.) 245.

13 Blackshere v. Patterson, 72 Fed. 204, 18 C. C. A. 508; Atchison & N. R. Co. v. Miller, 16 Neb. 661, 21 N. W. 451; Smith v. Findley, 34 Kan. 316, 8 Pac. 871; Baldwin v. Liverpool & G. W. S. S. Co., 74 N. Y. 125, 30 Am. Rep. 277. Cf. Southern Exp. Co. v. Boullemet, 100 Ala. 275, 13 South. 941. 14 Killmer v. New York Cent. & H. R. R. Co., 100 N. Y. 395, 3 N. E. 293, 53 Am. Rep. 194; London & N. W. Ry. Co. v. Evershed, L. R. 3 App. Cas. (Eng.) 1029.

15 Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 353, 21 N. E. 341, 4 L. R. A. 244; London, etc., Ry. Co. v. Evershed, L. R. 3 App. Cas. (Eng.) 1029; Thomas v. Frankfort & C. R. Co., 116 Ky. 879, 76 S. W. 1093, 25 Ky. Law Rep. 1051.

In recent years, the field of rate making by contract has been greatly diminished by statutes, both state and federal.16 The state statutes apply only to intrastate commerce; the federal statutes affect only interstate commerce. Such statutes in some cases prescribe specific rates, or else fix certain limits (as maximum or minimum rates) to the fixing of rates by contract. In fixing interstate rates, the Interstate Commerce Commission has, under the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), large powers. In a number of the states, somewhat similar commissions have been established, with more or less extended powers in fixing rates applicable to commerce within the state.

When the rates fixed by the state statute are unreasonably low, such a rate is in effect confiscatory. These statutes are then obnoxious to the United States Constitution, in that they deprive the carrier of his property without due process of law.18

On What Goods Carrier may Collect Compensation

The carrier can recover his compensation only on those goods which he has (1) received; (2) carried to their destination accord

16 Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, 24 L. Ed. 94; Peik v. Chicago & N. W. R. Co., 94 U. S. 164, 24 L. Ed. 97; Chicago, M. & St. P. R. Co. v. Ackley, 94 U. S. 179, 24 L. Ed. 99; Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. 832, 27 L. Ed. 812; Stone v. Farmers' Loan & T. Co., 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636; Dow v. Beidelman, 125 U. S. 680, 8 Sup. Ct. 1028, 31 L. Ed. 841; Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377; Chicago, M. & St. P. Ry. Co. v. Minnesota ex rel. Railroad & W. Commission, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970; Wellman v. Chicago & G. T. Ry. Co., 83 Mich. 592, 47 N. W. 489; Pennsylvania R. Co. v. Miller, 132 U. S. 75, 10 Sup. Ct. 34, 33 L. Ed. 267. Where a shipper, under a contract with a station agent, paid freight at a rate less than the tariff rate fixed by the carrier in the schedule posted and filed with the public service commission, as required by Public Service Commission Act (Laws 1907, p. 905, c. 429) § 28, the carrier may recover from the shipper the difference between such rates. New York Cent. & H. R. R. Co. v. Smith, 62 Misc. Rep. 526, 115 N. Y. S. 838. A shipper who has obtained from a common carrier a special lower rate than the published schedule cannot maintain a claim to the special rate in opposition to the schedule rate. Foster, Glassel Co. v. Kansas City Southern R. Co., 121 La. 1053, 46 South. 1014.

17 Section 15.

18 Stone v. Farmers' Loan & T. Co., 116 U. S. 307, 335, 336, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636; Chicago, M. & St. P. Ry. Co. v. Minnesota ex rel. Railroad & W. Commission, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970; Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 20 Sup. Ct. 336, 44 L. Ed. 417. As to whether rates fixed by state statutes or state commissions are confiscatory, and on the general subject of state regulation of interstate rates, see the important case of Simpson v. Shepard (The Minnesota Rate Cases) 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511.

ing to his contract; and (3) delivered or offered to deliver.19 All three conditions must concur, however, to entitle the carrier to compensation. So, if grain heats and increases in bulk during transportation, the carrier is not for that reason entitled to increased compensation.20 Again, if part of the goods are lost during transportation (even though such loss is due to an excepted peril, for which the carrier is, of course, not responsible), the carrier is entitled to no compensation for the carriage of goods lost, unless by express contract a lump sum was to be paid, regardless of the loss of a part of the goods.21 It is immaterial as far as the carrier's commpensation is concerned, that the goods have become damaged and worthless en route, provided it was from a cause for which the carrier was not responsible. If he carries them to their destination, and is ready to deliver, he is entitled to his freight.22 The carrier, however, may recover full compensation, it is held, when, by the fault of the owner of the goods, he is prevented from completing the journey.23

Who Liable for Carrier's Compensation-Consignor or Consignee

The consignor is originally liable for the carrier's compensation, whether such consignor is, or is not, the owner of the goods.24 It is the consignor who procures the shipment of the goods by inducing the carrier to accept them for transportation. With him the

19 Gibson v. Sturge, 10 Exch. (Eng.) 622.

20 Gibson v. Sturge, 10 Exch. (Eng.) 622; Shand v. Grant, 15 Com. B. N. S. (Eng.) 324.

21 The Collenberg, 1 Black, 170, 17 L. Ed. 89; Price v. Hartshorn, 44 Barb. (N. Y.) 655; Steelman v. Taylor, 3 Ware, 52, Fed. Cas. No. 13,349; The Cuba, 3 Ware, 260, Fed. Cas. No. 3,458; Gibson v. Sturge, 10 Exch. (Eng.) 622; The Tangier (D. C.) 32 Fed. 230; Gibson v. Brown (D. C.) 44 Fed. 98; Brown v. Ralston, 4 Rand. (Va.) 504; Thibault v. Russell, 5 Har. (Del.) 293.

22 Griswold v. New York Ins. Co., 3 Johns. (N. Y.) 321, 3 Am. Dec. 490; Whitney v. New York Ins. Co., 18 Johns. (N. Y.) 208, 210; McGaw v. Ocean Ins. Co., 23 Pick. (Mass.) 405; Steelınan v. Taylor, 3 Ware, 52, Fed. Cas. No. 13,349; The Cuba, 3 Ware, 260, Fed. Cas. No. 3,458; Dakin v. Oxley, 15 C. B. N. S. (Eng.) 646; Seaman v. Adler (C. C.) 37 Fed. 268.

23 The Gazelle, 128 U. S. 474, 9 Sup. Ct. 139, 32 L. Ed. 496; Braithwaite v. Power, 1 N. D. 455, 48 N. W. 354.

24 WOOSTER v. TARR, 8 Allen (Mass.) 270, 85 Am. Dec. 707, Dobie Cas. Bailments and Carriers, 253; Davison v. City Bank, 57 N. Y. 81; Holt v. Westcott, 43 Me. 445, 69 Am. Dec. 74; Strong v. Hart, 6 Barn. & C. (Eng.) 160; Tapley v. Martens, 8 Term R. (Eng.) 451; Great Western Ry. Co. v. Bagge, 15 Q. B. Div. (Eng.) 625; Drew v. Bird, 1 Moody & M. (Eng.) 156. The shipper named in a bill of lading is liable to the carrier for the freight, although he does not own the goods, and the carrier has waived his lien thereon. WOOSTER v. TARR, 8 Allen (Mass.) 270, 85 Am. Dec. 707, Dobie Cas. Bailments and Carriers, 253. And see Union Freight R. Co. v. Winkley, 159 Mass. 133, 34 N. E. 91, 38 Am. St. Rep. 398.

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