HOLLISTER, District Judge
(after stating the facts as above). The claim of the plaintiff for an overcharge in freight was heretofore submitted to the Interstate Commerce Commission, and all the *878points raised on these demurrers were considered and passed upon by that tribunal. Dickerson v. L. & N. R. R. Co., 15 Interst. Com. R. 170.
[1] Defendant complains that the plaintiff’s letter to the Interstate Commerce Commission of September 4, 1907, is not such a “petition” as the statute contemplates shall be filed with the commission by a claimant presenting wrongs within the jurisdiction of the commission to redress. There are no formal pleadings prescribed in matters pending before the commission. Act Reb. 4, 1887, c. 104, §§ 13, 17, 24 Stat. 383, 385 (U. S. Comp. St. 1901, pp. 3164, 3168). ' The letter sets forth in substance all that a formal complaint would contain; and, while it does not ask for a judgment for the $154.81 and interest claimed to be due the plaintiff, yet it does contain a substantial prayer for relief against the defendant by way of damages for the wrongdoing alleged in it. This letter was sufficient to call -thfi commission’s attention to all they needed to know as a basis for issuing notice to the defendant to meet the charges, and in fact a notice was regularly issued upon it. This was a sufficient petition.
[2] The defendant claims that the interpretation of the statute of limitations by the commission is not correct as applied to the case before them and now here. Section 16 of the act approved June 29, 1906, provides:
"All complaints for the recovery of damages shall be filed with the eonir mission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court within one year from the date of the order, and not after: Provided, that claims accrued prior to the passage of this act may be presented within one year.”
Under the contention of the defendant, the first part of the section contemplates future causes of action accruing after the passage of the act, and the proviso has in mind all cases which accrued prior to the passage of the act. Hence the plaintiff’s case is barred. Plaintiff’s case comes within the literal language of the first part of the section, but is barred if the language of the proviso is applied literally.
Under the proviso the length of time elapsing after the accrual of the claim is immaterial. The claim might be more than two years old at the time of the passage of the act, and yet be saved. The sweeping requirement of two years in the first part of the section is limited so as not to include claims two years or more old at the time of the passage of the act. The purpose of the proviso was to save claims which had existed more than two years prior to the passage of the act, but which were not covered by the first clause. When Congress established these new rights and remedies, some limitation, of course, had to be fixed within which causes might be brought, and it was highly proper that at the start all causes should be provided for. This is done if plaintiff’s contention as sustained by the commission prevails,, but is not effected if defendant is right. Under defendant’s construction, a cláim accruing one dayr before the passage of the act must be presented within one year after that event, but a claim accruing one day after the passage of the act would be given two years within which it might be filed. Such a result would not seem to have been *879within the purpose of Congress in making this enactment. _ Either interpretation does violence to the language of the act, but this court concurs in the view of the commission as expressed in Nicola, etc., Co. v. L. & N. R. R. Co., 14 Interst. Com. R. 199, 206, as applied by the commission to the facts in this case.
[3] The bill of lading issued to the plaintiff contained the clause:
“Every carrier shall have llie right, in case of necessity, to forward said property by any carrier between the point of shipment and the point to which the rate is given. All additional risks and increased expenses incurred by reason of change of route in cases of necessity shall be borne by the owner of the goods and be a lien thereon.”
It was the opinion of the commission that the right of the shipper was to have his property transported upon the lines and at the rate specified in the rate schedules, that it was not a matter to he dealt with under the ordinary rules affecting contract obligations, but that the carrier was required under the law to carry complainant’s property at the published rates, and was not authorized to make any kind of contract with the shipper by which the rates^could be increased or decreased. This court concurs in that view. .
j4] But, assuming that defendant might take advantage in this particular case of the agreement in the bill of lading, yet it would not seem that such “necessity” as defendant claims existed in this case for diverting the shipment from the prescribed route to another was of a kind which may fairly be said to have been within the contemplation of the parties; and that, even if it were, the defendant is in position to take advantage of it. One may be said to be compelled by necessity when he cannot control a situation himself. Such necessity often arises in railroad traffic, usually by act of God, or vis major, hut it could hardly be claimed that a necessity binding on a shipper could arise growing out of the fault of the railroad company itself, as, for instance, if a shipment on another route were made necessary because of an accident on defendant’s railroad for which the defendant was to blame. In such a case it would not be proper for the company to plead “necessity”, as a reason for charging a greater freight rate than published and agreed upon. Inasriiuch as this shipment was to be made on connecting lines of road as a unit expressly by the agreement of the parties and fixed by operation of law, the schedules and the lines being designated and published, it may with as much reason be said that an accident on one of the other lines in the unit growing out of circumstances within control of such line would present such a “necessity” as would permit the charge of a greater sum for transportation than had been agreed upon, and the schedule of which had been published according to law.
The necessity which defendant claims as an excuse for diversion of the shipment to another route and the consequent increase of cost in transportation is twofold in that the P. C. C. & St. L. R. R. Co., by reason of a congestion of traffic had laid an embargo upon receiving at Cincinnati any more freight and would not, and could not, receive from defendant, plaintiff's two cars of merchandise; and that there was an extraordinary volume of traffic at that time, and the two cars if held by defendant would have brought about a congestion *880and blockade of its own line and facilities. Whatever reasons, other than vis major, the Pittsburg, Cincinnati, Chicago & St. Louis Railroad might have had for declining to receive cars from the defendant would not create such a “necessity” as would justify the defendant in diverting the shipment to another road. Surely, if the reasons were merely arbitrary, the shipper ought not to be required to pay any more than he had agreed to pay, and the tariff schedules required him to pay, because the defendant was not able' to carry out its agreement with him. And, if the reason for refusing was because of a congestion in the traffic of the Pittsburg, Cincinnati, Chicago & St. Louis, that was a circumstance which the railroad men might always have in contemplation if they did not have cars enough to transact the business offered them, and against which they might always provide by having a sufficient number of cars. Surely, if the railroads had not sufficient cars to move their traffic, a shipper presumably without knowledge of the condition should not be required to pay greater freight when the difficult)* claimed to be the necessity which would justify it is one of the defendant’s or its connection’s own creation. Further, while it does not clearly appear that defendant knew at the time it accepted this freight that it would not be received by the Pittsburg, Cincinnati, Chicago & St. Louis at Cincinnati, yet that is probably the situation. They did know, however, that their own volume of traffic was very great and to hold these cars would tend to embarrass their own operations. The inquiries naturally suggest themselves why defendant took this shipment', and was it not its duty to advise the shipper that to get the shipment through within a reasonable time other routes must be employed than the one agreed upon, so that he, and not it, could then determine whether he would pay an additional sum for his shipment? The court is of opinion that no necessity existed such as was within the contemplation of the parties when the bill of lading was issued, and that under the circumstances the defendant is estopped from claiming the existence of any such necessity.
Orders on the demurrers may be taken in accordance with these conclusions.
For Oilier oases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes