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[ADMINISTRATIVE RULINGS AND OPINIONS.]

of tariff rates on interstate shipments, but it may lawfully and properly take advan. tage of legal tariff joint rates applying to a convenient junction or other point on its own line, provided such shipments are consigned through to such point from point of origin and are, in good faith, sent to such billed destination. In other words, one carrier shipping its fuel, material, or other supplies over the lines of another carrier must pay the legal tariff rates applicable to the same commodities shipped by an individual. There may be some instances, such as the movement of needed fuel, in which, in order to keep the trains or boats moving, such traffic could temporarily be given preference in movement without creating unjust or unwarranted discrimination.

Where stock in one carrier company is owned by another carrier company, but both maintain separate organizations and report separately to the Commission, they may not lawfully carry property free for each other.

74. Return of astray shipments (issued May 6, 1907).-Instances occur in which, through error or 'oversight on the part of some agent or employee, a shipment is billed to an erroneous destination or is unloaded short of destination or is carried by. The Commission is of the opinion that in bona fide instances of this kind carriers may return such astray shipments to their proper destination or course without the assessment of additional charges, and may arrange for such movement of such astray shipments for each other on mutually acceptable terms without the necessity of publish. ing, posting, and filing tariff under which it will be done.

Complete distinction must be observed between cases to which this rule applies and those provided for under Rule 70.

75. Transportation of Federal troops (issued May 27, 1907).-The Commission is of the opinion that carriers, either by contract or bid or other arrangement with the War Department, may lawfully make special rates or fares for the movement of Federal troops, when moved under orders and at the expense of the United States Government, and that the rates or fares so made need not be posted or filed with the Commission.

Published rates and fares are maximum for moving Federal troops.-The lawfully published rates or fares for the transportation of the general public, in the opinion of the Commission, are to be regarded, however, as the maximum rates and fares that may lawfully be charged the Government for the movement of Federal troops.

This ruling also governs similar transportation for the naval and marine services.

76. Classification of high explosives (issued May 29, 1907).-Some freight classifi. cations provide that high explosives will be taken only by special agreement. Carriers are prohibited from carrying any traffic except under tariffs provided in the manner prescribed by law. It follows, therefore, that no traffic or transportation can be the subject of special agreement between carrier and shipper except as provided in Rule 75 and in Section 22 of the Act. If it is impracticable to classify high explosives in the classification the statement must not be, “taken only by special agreement, but must be, ".subject to regulations and rates in tariffs of the individual carriers;" and each carrier must provide in its tariffs the rates and regulations applicable to such traffic.

77. Minimum carloadsCapacity of car furnished less than that of car ordered.Where a rate for carload shipment is relatively lower than less-than-carload rate the reasonableness of a minimum carload weight to which carload rate will apply is recognized, as is also the desirability of highest efficiency both in the movement and the loading of cars.

Carriers provide cars of varying dimensions and capacities, and they provide minimum weights for the several kinds of cars based upon those dimensions and capacities. At times when transportation facilities are inadequate to supply the demand upon them it is frequently difficult or impossible for the carrier to furnish a shipper with a car of the dimensions or capacity desired by him, although the carrier has in its tariffs provisions for the use of such car. Manifestly it is not equitable or proper to require the would-be shipper to pay additional transportation charges for the privilege of using a car of different dimensions or capacity from that which would suit his shipment or forego entirely his desire to ship.

Some carriers provide elastic rules which properly permit the use of cars of different dimensions or capacities when they are furnished by the carrier in lieu of those

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(ADMINISTRATIVE RULINGS AND OPINIONS.)

desired or ordered by the shipper. Other carriers do not so provide, and as a result many instances arise in which the initial carrier under such provision furnishes the shipper with cars at its convenience and connecting carriers that have not adopted similar provisions assess higher charges in accordance with their

tariffs, thus imposing upon the shipper a wholly unexpected, and, in the view of the Commission, unreasonable, charge.

The Corr mission believes it to be the duty of every carrier to incorporate in its tariff regulations a rule to the effect that when carrier cannot promptly furnish car of capacity or dimensions desired by the shipper, and for its own convenience does provide a car of greater capacity or dimensions than that ordered, such car may be used on the basis of the minimum carload fixed in the tariffs for cars of the dimensions or capacity ordered by the shipper; and that if a car of smaller capacity than that ordered by the shipper is furnished, it may be used on the basis of actual weight when loaded to its full visible capacity, or that that portion of the shipment which cannot be loaded into the smaller car will be taken in another car and the shipment treated as a whole on the basis of the minimum fixed for the car ordered by the shipper; and that if the carrier is unable to furnish a car of large dimensions, ordered by shipper, it may furnish two smaller cars which may be used on the basis of the minimum fixed for the car ordered; it being understood that shipper may not order a car of dimensions or capacity not provided for in the carrier's tariffs.

In all such cases the capacity of the car ordered, the date of such order, the number, initials, and capacity of the car furnished should be stated on the bill of lading and the carrier's waybill.

In case of controversy between shippers and carriers caused by absence of such rule from tariffs which provide graduated minima for cars of different sizes the Commission will regard such tariffs as prima facie unfair and unreasonable.

It is the duty of carriers to provide reasonable facilities for transportation, and if they cannot furnish equipment to move the carloads provided for in their regulations it is clearly their duty to provide some other method of transporting as one shipment, and at the rate named therefor, such carload weight when tendered by shipper.

78. Movement of shipments refused by consignees or damaged in transit (issued June 3, 1907).-In one form or another many carriers provide for the return free or at reduced rates, or the reconsignment under through rate from point of origin, of shipments that are damaged in transit or are refused by consignees. In answer to request for ruling the Commission expresses the opinion that in a nondiscriminatory way and within reasonable limits such rule is not unlawful or improper. Care should be taken to preserve the distinction between shipments in which the carrier has no interest except the collection of the transportation charges and which are reconsigned or returned purely out of consideration for the interests of the owner of the shipment and shipments which, because of injury or damage in transit, are left on the carrier's hands and in which it has an interest to the extent of the transportation charges and the value of the shipment.

Shipments refused by consignee.-A rule providing that shipments which are re. fused by consignee may be reconsigned and forwarded, under application of through rate from point of origin to final destination, either with or without the exaction of a reconsignment charge, is permissible. Such rule should provide that if reconsigned to a point beyond which takes a lower rate from point of origin the rate to first destination will be charged, and should also require satisfactory showing of actual refusal by consignee and of a genuine transaction in good faith.

Shipments damaged in transit.—A rule providing for the reconsignment or return free or at reduced rate of articles damaged in transit is not deemed improper if it is so framed and applied as to prevent abuse or improper practices under it. As to shipments that are not in closed packages, and thus are open to immediate inspection, the rule should provide that in order to claim return under this rule the goods shall not have left the possession of the carrier before such claim is made. As to goods that are in closed packages it is believed that the rule should provide that they must be returned to the carrier within ten days.

Rules must be published and applied only via route over which shipment moved. Such rules must be in tariffs and must be applied without discrimination and should [ADMINISTRATIVE RULINGS AND OPINIONS.]

provide that rule for return of shipments applies only via the route and line over which the shipment moved. Uniformity among carriers in rules and practices in such matters as these is desirable and contributes to thorough understandings and harmony between carriers and shippers.

Damaged in transit shipments left on hands of carrier must be hauled over its lines as its own property would be.—Where a shipment is refused and is left on the hands of the carrier it is believed that the carrier, when it recognizes its responsibility for the value of the shipment and the transportation charges on same, may haul it for itself to such point on its own lines as offers the best opportunities or facilities for disposing of it to advantage, just as it may haul property of its own.

79. Correspondence with Commission on freight and passenger matters (issued November 16, 1906).—It is believed that the best results and understandings will be reached if the conducting of ordinary correspondence between carriers and the Commission is confined to as few persons as possible. Request is therefore made that the traffic manager or the general passenger and general freight agents of each road designate not more than two officials or other representatives to respectively conduct the correspondence with the Commission on freight and passenger matters, and promptly advise the Commission of such appointments.

80. Distribution of official circulars and rulings (issued November 16, 1906).-It is obviously impracticable for the Commission to place copies of its official circulars and rulings in the hands of all the officers of carriers or to furnish copies for distribution among them. The officers at the head of traffic departments, or in charge of the passenger and freight departments, respectively, will please designate for each road one official in the passenger department and one in the freight department (unless both are under one head officer and one appointment is considered sufficient), to whom such circulars and rulings are to be sent; and arrange for such designated officials to disseminate the information among other interested officers and agents. Please report these appointments to the Commission as early as possible.

Mailing list.-With the view of giving prompt information to those who may be interested, the Commission will upon application place upon its mailing list regularly organized boards of trade, chambers of commerce, commercial clubs, and shippers' associations, for the purpose of mailing to them copies of official circulars containing rulings and orders of the Commission.

81. Special reparation on informal complaints (issued June 7, 1907).--To assist in the settlement of certain claims of shippers against carriers, and as a practical means of disposing with promptness of informal complaints that might otherwise develop into formal complaints, and in connection with which the unreasonableness of the rate or regulation is admitted by the interested carrier or carriers, the Commission on full information will authorize adjustment by special order if all of the facts and condi. tions warrant such action. The connections in which the Commission has authority to modify the provisions of the law are specified in the Act. The Commission will not assume to modify it in any other connections or features.

Must present plain case.—The instances in which the Commission will authorize refund or reparation on informal complaint and in an informal way will be confined to those in which the informal showing develops plainly a case in which the Commission would award reparation on formal hearing and in which an adjustment agreeable to complainant and carrier or carriers and in conformity with the provisions of the law is reached.

Must admit unreasonable charge.-Reparation involving refund of alleged overcharges in instances in which the lawful tariff rates have been applied will be authorized under informal proceedings, only when the carrier admits the unreason. ableness of the rate charged and it is shown that within a reasonable time, not exceeding six months, after the shipment moved it has incorporated in its own tariffs, or in tariffs in which it has concurred, the rate upon basis of which adjustment is sought, and has thus made that rate lawfully applicable via the route over which shipment in question moved. Adjustment of a claim of this character that is filed with the Commission within six months after the shipment moved may, however, be author. ized even if more than six months have elapsed between the movement of the shipment and the effective date of tariff rate or regulation that forms the basis of such adjustment. Authority for refund on account of a reduced rate or changed

[ ADMINISTRATIVE RULINGS AND OP ONS.]

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 nermit the use of any rate or fare except that contained in a lawful tariff that is appiicable 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 statate 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, [ADMINISTRATIVE RULINGS AND OPINIONS.]

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 cordition 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 responsi. bilities 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 affirm. ative 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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