freight sufficient to bring the total charge up to the proper rate. To do so would permit the carrier to make a rate lower than it properly should make, to secure the business, and thereafter take advantage of its own wrong to increase the charge and secure the usual compensation.5 This rule is at variance with the decisions under the Interstate Commerce Act, but it is more in accordance with justice and reason, and does not make the state acts swords of offence against the shipper, as is the Interstate Commerce Act in that respect.

Sec. 595. Through rate may be less than sum of locals.— It is well settled that a through rate can be made less than the sum of the local rates between the two points. Were it otherwise, all through freight would have to be hauled at the local rates. The fact that the connecting carrier takes the goods on a vehicle pulled by horses and not by steam does not change the principle, nor that no contract exists between the two carriers for through carriage, provided the first carrier bills the goods through to the end of the second carrier's route at a rate reasonable in itself, and greater than its own local rate for its part of the carriage.6

Sec. 596. Right of state to compel the issuance of mileage tickets at reduced rates. A state statute, requiring railroad companies to sell 1,000 mile mileage tickets at a reduced rate, is not a valid exercise of the right of the state to fix maximum rates for transportation, but an arbitrary enactment in favor of those able or willing to purchase the reduced rate ticket. But

5. Railroad Co. v. Seitz, 214 Ill. 350, 73 N. E. 585, 105 Am. St. Rep. 108, affirming 105 Ill. App. 89.

Rev. St., 1894, § 5333, prohibiting railroad companies "doing business in the state of Indiana" from increasing or advancing their rates of freight above, or charging for transportation more than what they charged at the time the freight was tendered to them, is not invalid as a restriction upon

interstate commerce. Chicago, etc. Railroad Co. v. Wolcott, 141 Ind. 267, 39 N. E. Rep. 451, 50 Am. St. Rep. 320.

6. Railway in Kentucky v. Commonwealth, 25 Ky. L. Rep. 1078, 77 S. W. Rep. 207.

7. Beardsley v. Railroad Co., 162 N. Y. 230, 56 N. E. Rep. 488, reversing 44 N. Y. Supp. 175, 15 App. Div. 251, and 40 N. Y. Supp. 1077, 17 Misc. 256, and following

a state statute requiring the issuance of 1,000 mile mileage books at reduced rates, although unconstitutional so far as it purports to operate retrospectively on corporations already in existence, may be upheld as to companies subsequently incorporated under the laws of that state. A regulation as to the price of transportation which would be an illegal exaction when sought to be imposed on existing corporations solely by legislative fiat, may, in the case of future corporations, be the mere performance of the obligation of a contract.8

Sec. 597. Discrimination between localities.-Discrimination between cities or localities in the same state is subject to state regulation.9 But a discrimination in rates against a city in a state in favor of points outside the state on the same line of railway cannot be subject to consideration under a state law 10

In Arkansas it has been held that the question of discrimination in furnishing facilities to shippers of different localities is affected by the existence of competition at one point and its non-existence at another point. There was a strong dissenting opinion, however, and the rule as adopted by the majority of the court would certainly place shippers at non-competitive points at a disadvantage.11

Sec. 598. A state may regulate domestic long and short haul rates. A state, without violating the constitution of the United States may declare either in its own constitution or by statute that it shall be unlawful for any person or corporation, owning or operating a railroad in that state, to charge or receive any greater compensation in the aggregate for the trans

Railway Co. v. Smith, 173 U. S. 684, 43 L. Ed. 858, 19 Sup. Ct. R 565, reversing Smith v. Railway Co., 114 Mich. 460, 72 N. W. Rep. 328.

8. Purdy v. Railroad Co., 162 N. Y. 42, 56 N. E. Rep. 508, 48 L. R. A. 669, affirming 54 N. Y. Supp. 1114, 33 App. Div. 643.

9. Cohn v. Railway Co., 181 Mo. 30, 79 S. W. Rep. 961.

10. Railway Co. v. Haas (Tex.) 17 S. W. 600.

11. A failure on the part of a railroad company to furnish facilities for forwarding all cotton offered at a terminal point on its line where there was no competi

portation of passengers or property of like kind, under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance.12 But while the state may constitutionally prohibit a short haul charge in excess of a long haul charge, it can only do so when both kinds are within the limits of the state. To hold otherwise would be to give a state power to compel the carrier to regulate, adjust or fix his interstate rates with some reference at least to his rates within the state, thus enabling the state by constitutional provision or by legislation to directly affect, and in that way to regulate, to some extent the interstate commerce of the carrier, which power of regulation the Constitution of the United States gives to the Federal Congress.13

Sec. 599. A shipment is an entirety in reference to long and short haul clause.-A shipment cannot be split into parts to bring it within a state constitutional or statutory long and short haul clause. The contract is usually for the entire haul, and must be considered as an entirety. The haul must be over the same line usually, and if part of it is over one line, and part over another, while the long haul is exclusively on one of the lines, the clause does not apply. Thus it would not apply to a short haul originating on a branch road, while the long haul is altogether on its main line.14

Sec. 600. Special contracts with shippers not impossibilities under long and short haul clause.-A state statute which does not punish the giving of the lower rate, but forbids the charging

Neb.

101 N. W. Rep. 1019; Railroad Co. v. Commonwealth, 23 Ky. L. R. 1159, 64 S. W. Rep. 975; Cohn v. Railway Co., 181 Mo. 30, 79 S. W. Rep. 961.

tion, when it furnished sufficient 503, 22 Sup. Ct. R. 95; Railway transportation at competing Co. v. Anderson, points, in a year when the shipments of cotton were unexpectedly heavy, is not such an unjust discrimination as will subject the company to a statutory penalty. Railway Co. v. Oppenheimer, 64 Ark. 271, 43 S. W. Rep. 150, 44 L. R. A. 353.

12. Railroad Co. v. Common wealth of Kentucky, 183 U. S.

13. Railroad Co. v. Eubank, 184 U. S. 27, 22 Sup. Ct. R. 277.

14. Railroad Co. v. Walker, 23 Ky. L. Rep. 453, 63 S. W. Rep. 20.

of a greater compensation in the aggregate for the transportation of passengers or property of like kind under substantially similar circumstances and conditions for the shorter than for the longer haul does not make the performance of a contract with a shipper to give him a certain low rate a legal impossibility. It is true that its performance is rendered more burdensome and expensive to the railroad company by being compelled to give the same rate to other shippers under similar conditions, but that does not result from any failure on the part of the shipper to perform his part of the agreement. The railroad company is therefore not relieved of its obligation to the shipper to give him the contract rate.15

Sec. 601. Competition not a factor in construction of Kentucky long and short haul clause.-As has been seen, the highest court of Kentucky has refused to judicially construe the long and short haul clause of its state constitution out of existence. In that state, at least, the fact that competition exists at the longer, and not at the shorter distance point, does not constitute such a dissimilarity of conditions as will authorize the carrier to charge more for the short than for the long haul.16

Duty as to Stowage, Mode of Carriage, etc.

Sec. 602. (§ 303c.) General duty as to stowage on vessels. -When the carriage is by a sea-going vessel, the liability of the carrier will sometimes depend upon the manner in which the goods have been stowed. "The owner of the goods," it is said in one case,17 "has no control over such matters. Under the law that imposes on the ship, as carrier, the duty of safe delivery, the ship takes all such risks, unless she can show the use

15. Newport News & Miss. Valley Co. v. McDonald Brick Co.'s Assignee, 22 Ky. L. R. 934, 59 S. W. Rep. 332.

16. Louisville & N. R. Co. v. Commonwealth, 21 Ky. L. R. 232, 106 Ky. 633, 51 S. W. Rep. 164, 90 Am. St. Rep. 236; Louisville & N. R. Co. v. Commonwealth, 20 Ky. L. Rep. 1380, 104 Ky. 226, 46

S. W. Rep. 707, 47 S. W. Rep. 598, 43 L. R. A. 541.

17. Hills . Mackill, 36 Fed. 702. In law, the mere fact that the shipper knew how the goods were being stowed does not alone excuse the shipowner from negli gence. Steamship Co. v. Pilkington, (Can.) 28 S. C. R. 146.

of all reasonable skill and good judgment, or compliance with so definite a usage in the stowage and protection of the goods against injury, and such use of the well known and best means to that end as legally import an assent of the shipper to transportation in this manner." The vessel, therefore, will be liable for losses caused by defective stowage within the limits of this rule.18

Sec. 603. (§ 304.) Same subject-Stowage under deck.-It is the implied duty of the master to stow the goods in the hold of the vessel, even when the bill of lading is silent upon the subject, unless there be a well established usage to stow goods of the particular character on deck, or unless in the bill of lading, if there be one, the shipper has agreed that they may be so stowed. A bill of lading which is silent upon the subject of the manner of the stowage of the goods is called a "clean" bill of lading, and undoubtedly binds the carrier to stow the goods under deck; and, as we have seen,19 parol evidence cannot be re

18. Hills v. Mackill, supra; The Thos. Melville, 31 Fed. Rep. 486, 36 id. 708; The Marinin S., 28 id. 664, 32 id. 918; The Maggie M., 30 id. 692; Baxter v. Leland, 1 Blatchf. 526; The Sabioncello, 7 Bene. 357; The Nith, 36 Fed. Rep. 383; The Geiser, 19 Fed. Rep. 877; The John P. Best, 14 Phila. 527; Astrup v. Lewy, 19 Fed. Rep. 536; The St. Patrick, 14 Phila. 596; The Excellent, 16 Fed. Rep. 148; The Tommy, 16 Fed. Rep. 601.

In The Johanne, 48 Fed. 733, it was held negligence to stow cases of household goods in the lower

hold of an old brig where they could easily be damaged by water.

The failure to provide dunnage for a cargo of sugar, in consequence of which the bags in the lower tier are allowed to rest on the floor and are damaged by the natural drainage from above and

by soaking from sea water, is such negligence in stowage as will render the vessel liable for the consequent loss. The Earnwood, 83 Fed. 315.

The fact that a portion of the cargo got "adrift" and was damaged while the ship was laboring and straining during a heavy gale is not sufficient to show improper stowage as against the positive testimony of a competent witness that the cargo was stowed with reasonable or customary care. The Isaac Reed, 82 Fed. 566.

19. Ante, § 167.

A clean bill of lading binds the carrier to stowage under deck, and it is clearly within the master's right to refuse to give a bill of lading, except "at shipper's risk," if it is impossible to store all the cargo under deck, so that an innocent holder would be ad