49 Wash. 205 | Wash. | 1908
Lead Opinion
This is an action in replevin, and involves a controversy concerning shipping rates, based upon a dispute
“The rates named herein will be protected only when freight is routed as ordered by a representative of the railroad companies parties hereto and when the ocean rate procurable is such as to allow rail carriers from Atlantic seaboard ports a minimum proportion of seventy-five ($.75) cents per hundred lbs. If the difference between the through rate published herein and the rail line’s minimum proportion of seventy-five ($.75) cents per hundred lbs. is less than the ocean proportion, the through rate will be the ocean proportion plus seventy-five ($.75) cents per hundred lbs.”
On or about the 20th day of August, 1906, and while said freight tariffs on canned goods and cheese' were in existence and applicable to all shipments of canned goods and cheese from said Stavanger, Norway, to Seattle, the plaintiff applied to the defendant’s authorized agent at Seattle for quotations
About the 6th day of December, 1906, the goods arrived at Seattle, with freight and customs charges due and unpaid thereon. The earners of the shipment, other than the defendant, delivei’ed the same to the defendant with freight charges unpaid thereon, and authorized the defendant to collect all freight charges legally due thereon. Upon the arrival of the goods in Seattle, the plaintiff tendered to the defendant at its office in Seattle the sum of $336.69, which was refused. At the time said tender was made, the defendant
That the shipment in question, although made from a foreign country to a place in the United States, is subject to the interstate commerce law, is evident from the terms of the law. Section 1 of the act, 84 Stat. at Large, p. 584, provides, among other things, as follows:
“That the provisions of this act shall apply ... to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water when both are under a common control, management, or arrangement for a continuous carriage or shipment) . . . and also to the transportation, in like manner, of property . . . shipped from a foreign country to any place in the United States, and carried to such place from a port of entry either in the United States or any adjacent foreign country.”
The shipment being subject to the operation of the law, it follows that the provisions in relation to the posting and publishing schedules of rates on such shipments must also apply. Section 2 of the act provides as follows:
“That every common carrier subject to the provisions of this act shall file with the commission created by this act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate*210 have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspection as aforesaid, the separately established rates, fares and charges applied to the.through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger? shipper, or consignee. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected. The provisions of this section shall apply to all traffic, transportation, and facilities defined in this act.”
When a rate has been fixed and properly posted and published, within the meaning of the above provisions, it must prevail without regard to any agreement fixing a different rate. In Southern R. Co. v. Harrison, 119 Ala. 539, 24 South. 552, 72 Am. St. 936, 43 L. R. A. 385, the court said:
“Whatever may be the rate agreed upon, the carrier’s lien on the goods is, by force of the act of Congress, for the amount fixed by the published schedule of rates and charges, and this lien can be discharged, and the consignee can become entitled to the goods, only by the payment, or tender of payment of, such amount. Such is now the supreme law, and by it this and the courts of all other states are bound.”
The above language was adopted by the supreme court of the United States as expressing its own view of the law, in Texas & Pac. R. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628. See, also, Gulf etc. R. Co. v. Hefley, 158 U. S. 98, 15
It is conceded that private contracts for transportation of interstate shipments are ineffective unless a carrier shall have faded to file and post a proper schedule. It is contended by appellant, however, that the schedule must in all respects comply with the provisions of the law before the public is bound by it; that the burden of proving such compliance is upon the carrier; that in the absence of proof of full compliance and of evidence demonstrating that a contract rate is unlawful, the contract is assumed to be valid. In the case of Southern Pac. R. Co. v. Redding, 17 Tex. Civ. App. 440, 43 S. W. 1061, a contract in essential respects like, the one before us was involved. It related to a shipment from a foreign port to an inland point, and, as in this case, the proportion of the through contract rate, allowed for the carriage from the port of entry to the destination, was less than the rates scheduled for freight originating at such port and carried to such destination. The Texas court said of the company making that contract as follows:
“By making the contract it necessarily affirmed the right to do so, and certainly, if it can release itself from its undertaking by proving that the contract was illegal, the burden is upon it to furnish such proof and to show, not simply that the contract may have been unlawful, but that it was necessarily so. In other words, it must exclude the existence of any circumstances or conditions which would have made the contract legitimate.”
It was held that circumstances and conditions might exist which would make the contract legitimate, even under the application of the intei'state commerce law; and for want of evidence showing that such circumstances did not exist, the contract rate was enforced. That decision by the state court of Texas was based upon the decision of the supreme court of the United States in Texas & Pac. R. Co. v. Interstate Com
The judgment is therefore reversed, and the cause is remanded with instructions to enter judgment in appellant’s favor for the possession of the property, and awarding to respondent the amount tendered into court by the appellant.
Fullerton, Mount, Crow, and Root, JJ., concur.
Dissenting Opinion
(dissenting) — It seems to me that the conclusion reached by the majority of the court is neither warranted by the provisions of the act to regulate commerce nor supported by the authorities cited. Section 1 of that act expressly declares that its provisions shall apply to the transportation of property shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country. It is needless to say that the traffic here involved falls directly within this provision. Indeed, the appellant does not contend otherwise. Nor in my opinion does the court hold in the case of Texas A Pac. R. Co. v. Interstate
“It would be difficult to use language more unmistakably signifying that Congress had in view the whole field of commerce [excepting commerce wholly within a state] as well that between the states and territories as that going to or coming from foreign countries.”
In Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, the court said:
“That the act to regulate commerce was intended to afford an effective means for redressing the wrongs resulting from unjust discrimination and undue preference is undoubted. Indeed, it is not open to controversy that to provide for these subjects ivas among the principal purposes of the act And it is apparent that the means by which these great purposes were to be accomplished was the placing upon all carriers the positive duty to establish schedules of reasonable rates which should have a uniform application to all, and which should not be departed from so long as the established schedule remained unaltered in the manner provided by law.”
If the act covers the whole field of commerce, as well that between the states and territories as that going to or coming from foreign countries, and its chief aim is to prevent unjust discrimination and undue preference by placing on the carrier the positive duty to establish schedules of reasonable rates which shall have a uniform application to all and which cannot be departed from so long as the established schedules remain unaltered in the manner provided by law, how can the
If there is any merit in the appeal before us, in my opinion it lies in the fact that the schedules posted and filed were not sufficiently definite and explicit to comply with the requirements of the law. But inasmuch as this question is not touched upon in the majority opinion, I will refrain from discussing it.