Opinion
Opinion filed October 3, 1939.
Interstate Commerce Act — 1. Payment of Legal Rate Required — 2. No Reduction by Contract or Estoppel of Carrier — 3. Conflict between Rate and Route in Bill of Lading Prepared by Shipper — 4. Delivery to Competitor at Point of Origin Not Required — 5. Consignee Held Liable for Amount of Under charge.
1. The Interstate Commerce Act requires the carrier to collect, and the party legally responsible therefor to pay, the lawful rate existing at the time of shipment, without deviation through mistake, ignorance or otherwise, and the party liable for such charges is conclusively presumed to know the lawful rate.
2. Under the Interstate Commerce Act no contract of the carrier can reduce the amount legally payable for carriage of a shipment, nor can any act or omission of the carrier (except the running of the statute of limitations) estop or preclude it from enforcing payment of the full amount by a person liable therefor.
3. Where a shipper prepares his own bill of lading, with specific instructions as to the route over which the shipment is to be moved, and inserts therein a rate which is inapplicable to that route, it is the duty under the Interstate Commerce Act of the agent of the carrier to whom the shipment is delivered to call attention to the conflict between rate and route and obtain from the shipper full and definite instructions, and if this duty is not performed, the carrier is required to protect the rate over the cheapest route affording it a line haul.
4. Under the rule applicable where there is a conflict between route and rate in a bill of lading prepared by the shipper and the agent of the carrier to whom the shipment is delivered fails to call attention to the conflict, the initial carrier is not required to deliver the shipment to a competitor at the point of origin, even though that competitor participates in a cheaper rate to destination of a particular shipment, as the originating carrier is entitled to a line haul.
5. When the route specified in a bill of lading prepared by a shipper was not alone the cheapest but the only route that afforded the initial carrier a line haul, but the rate specified in the bill was a cheaper rate applicable over another route in which the initial carrier named in the bill did not participate, the failure of the agent of the initial carrier to inform the shipper that a cheaper rate could be obtained elsewhere could not prevent the exaction of the lawful and established rate for the route taken, and the consignee, who had paid the charges based on the rate specified in the bill, was liable to the terminal carrier for the difference between the charges paid and those based on the rate applicable to the route specified.
ACTION OF CONTRACT to recover balance of freight charges claimed to be due on shipment in interstate commerce. Pleas, the general issue and payment. Trial by court on an agreed statement of facts in Montpelier municipal court, Arthur C. Theriault, Municipal Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the case. Reversed and judgment for the plaintiff.
H.C. Shurtleff for the plaintiff.
Porter, Witters Longmoore for the defendant.
Present: MOULTON, C.J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This cause was tried below upon an agreed statement of facts, and judgment was rendered for the defendant, to which the plaintiff excepted.
The defendant was the consignee of a shipment of metal roofing, ordered by it from the Sheet Metal Manufacturing Company of Youngstown, Ohio, hereinafter referred to as the consignor. The consignor prepared the bill of lading, by which the shipment was routed via the Baltimore and Ohio Railroad to Toledo, Ohio; Pere Marquette Railroad to Detroit, Michigan; Canadian Pacific Railway to Wells River, Vermont; and Montpelier and Wells River Railroad (the plaintiff) to destination at Barre, Vermont; with stopover privilege at St. Johnsbury, Vermont, for partial unloading. The shipment moved over this route and was duly delivered to the defendant, who paid to the plaintiff the charges according to the rate given in the bill of lading. This rate was stated to be 42 cents per one hundred pounds, but the legal rate covering the specified route was 66.5 cents. There was a competing route between Youngstown and St. Johnsbury and Barre via the New York Central Railroad over which the rate was 42 cents, but the agent of the Baltimore and Ohio, who accepted the shipment for carriage, did not call the attention of the consignor to this fact. The Baltimore and Ohio did not participate in the cheaper route, and there was no route by which it had a line haul wherein the rate was less than 66.5 cents. The bill of lading contained the uniform condition: "The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery."
The question is whether, upon the facts, the plaintiff is entitled to recover from the defendant the difference between the 42 cent rate and the 66.5 cent rate, which amounts to $156.63.
"The Interstate Commerce Act requires the carrier to collect, and the party legally responsible therefor to pay, the lawful rate existing at the time of shipment, without deviation through mistake, ignorance or otherwise, * * * and the party liable for such charges is conclusively presumed to know the lawful rate." Montpelier Wells River R.R. v. Bianchi Sons, 95 Vt. 81, 83, 84, and cas. cit. No contract of the carrier can reduce the amount legally payable, nor can any act or omission of the carrier (except the running of the statute of limitations) estop or preclude it from enforcing payment of the full amount by a person liable therefor. Louisville Nashville R.R. Co. v. Central Iron Coal Co., 265 U.S. 59, 65, 44 Sup. Ct. 441, 442, 68 L. ed. 900.
It has been ruled by the Interstate Commerce Commission that where a shipper prepares his own bill of lading, with specific instructions as to the route over which the shipment is to be moved, and inserts therein a rate which is inapplicable to that route, it is the duty of the agent of the carrier to whom the shipment is delivered to call attention to the conflict between rate and route and obtain from the shipper full and definite instructions; and that, if this duty is not performed, the carrier is required to protect the rate in effect over the cheapest route affording it a line haul. St. Louis Cooperage Co. v. Baltimore Ohio R.R. Co., 161 I.C.C. 258, 260; Washington Building Lime Co. v. Baltimore Ohio R.R. Co., 173 I.C.C. 370, 371; American Cast Iron Pipe Co. v. Louisville Nashville R.R. Co., 185 I.C.C. 222; Tilghman Lumber Corp. v. Atlantic Coast Line R.R. Co., 200 I.C.C. 353, 354. This rule, however, does not require an initial carrier to deliver the shipment to a competitor at the point of origin, even though that competitor participates in a cheaper rate to the destination of a particular shipment, as the originating carrier is entitled to a line haul. St. Louis Cooperage Co. v. Baltimore Ohio R.R. Co., supra, 259; Metamora Elevator Co. v. C., H. D. Ry. Co., 160 I.C.C. 491, 492; McLean Lumber Company v. Louisville Nashville R.R. Co., 22 I.C.C. 349, 342.
In the present case it appears that the route specified in the bill of lading was not alone the cheapest but the only route that afforded the initial carrier a line haul — that is, participation in the transportation of the shipment from Youngstown to St. Johnsbury and Barre. Cummings Sand Gravel Co. v. M. St. L. Ry. Co., 182 Iowa, 955, 166 N.W. 354, 356, L.R.A. 1918C, 797. The failure of the agent of the initial carrier to inform the consignor that a cheaper rate could be elsewhere obtained cannot, under these circumstances, prevent the exaction of the lawful and established rate for the route taken. Wheeling L.E. Ry. Co. v. Standard Envelope Mfg. Co., 2 Fed. Supp. 637.
Judgment reversed and judgment for the plaintiff to recover the sum of $156.63, with interest from the date of delivery to the defendant, August 3, 1933, and costs.