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handling of freight requiring special cars under the powers of the Commission pursuant to the "car service" sections of the new act, may be a question. But see page 12.
Paragraph 4 of the amending act is a restatement of that part of section 1 of the old act which provided that all rates shall be just and reasonable, et cetera. The words "fares and charges" have been included and the carriers must now establish just and reasonable rates, fares and charges, whereas under the old act "rates" only were specified. No one, however, has very seriously questioned the duty of the carriers, even under the old act, to prescribe reasonable fares and charges as well as reasonable rates. The other change is that the carriers are required in the case of joint rates to establish equitable divisions thereof which will not unduly prefer or prejudice any of the participating carriers. Inasmuch as it is now made. the duty of the carriers to prescribe these divisions, it might be held, under the general enforcement provision of the act, that the Commission is now empowered to itself prescribe in the first instance the divisions of joint. rates which it may establish without being required to first permit the interested carriers to attempt to arrive at an amicable adjustment of divisions in the first instance. See also section 15, paragraphs 3 and 6, page 39.
Paragraphs 5, 6, 7, 8 and 9 carry forward into the new act a verbatim reproduction of parts of section 1 as they appear in the old act.
In connection with section 1, as it is now amended, it may be noted that there is still an interesting omission which was a defect of the old act and which has not been cured in the new act.
The carriers are required to establish just and reasonable rates, rules and practices. They are required to furnish transportation, and the term "transportation" is defined as including locomotives, cars, other vehicles and vessels, and all the instrumentalities and facilities of shipment or carriage, but there is no duty imposed upon the carriers under Section 1 or under any other section of the act before or as now amended requiring the carriers to receive and transport freight tendered in accordance with their tariffs. Section 15 of the old act and as amended, creates in the shippers the right to specify the routing their shipments shall follow where more than one route is available under the tariffs, and it is also made the duty of the carriers under this section to receive and transport such routed shipments in accordance with the routing specified. Section 6 of the the act provides how the carriers shall state their rates and publish their tariffs, and also provides that no other than the so-published rate shall be assessed. But section 6 does not provide that carriers shall receive and transport freight in accordance with their published tariffs. There is required of the carriers, however, under section 1, that upon reasonable request they furnish cars, locomotives, other vehicles or vessels or the instrumentalities and facilities of transportation. If a carrier refuses to
accept a carload of freight after it has been loaded by the shipper in a car which has been furnished in compliance with the act but is tendered unrouted, there is nothing in the act that requires the carrier to receive such car.
This consideration is important as bearing on the question of procedure in a case where the carrier so refuses to accept freight for carriage. Under the common law, that is still in effect, the carriers are required to receive and transport freight offered pursuant to their holding out to perform common carrier services, and where there is a refusal the only remedy is a suit in equity for a mandatory injunction, setting up in connection therewith any claim for damages suffered from the failure to discharge the common carrier duty. If this duty were imposed upon the carriers by the interstate commerce act, a failure on the part of the carriers to receive and transport unrouted freight could be penalized by way of reparation on complaint before the Commission. The immediate remedy to enforce the receipt of routed as well as unrouted shipments would still be a mandatory injunction. Inasmuch as such plenary powers seem to have been conferred upon the Commission with respect to car service and since Congress has required the carriers to furnish cars and facilities and instrumentalities of commerce, it would seem that it is almost an error to have failed to impose upon the carriers the duty under the act to receive and transport freight for which they are required to publish just and reasonable rates, and furnish equipment and facilities.
Paragraphs 10 to 17, inclusive, are the car service provisions of the new act. The Commission, under the old act, had a comprehensive jurisdiction over car service, but that jurisdiction was expressed in such broad and general terms that necessarily much uncertainty was encountered. These eight sections in the new act undertake to express specifically what the Commission's authority is.
Whereas, under the old act, only "cars" was mentioned, in the new act car service is defined as "the use, control, supply movement, distribution, exchange, interchange and return of locomotives, cars and other vehicles used in the transportation of property, including special types of equipment and the supply of trains." The fact that "locomotives" is now included is important. In times past, when a cry of car shortage has gone up in certain parts of the country, it has sometimes been met by the reply that there was no shortage of cars, but that the condition was due to a shortage of motive power. Since there was no specific provision for an interchange of locomotives, there seemed to be no way of relieving these situations in the past. There should be no barrier of this sort to the efficient movement of freight in the future.
It is also to be noted that "car service" includes the "supply of trains." This, in connection with paragraph 11, which makes it the duty of carriers
"to furnish safe and adequate car service," seems to impose upon the Commission jurisdiction over passenger train schedules and service not before expressly delegated. Alleged unsafe or inadequate passenger service might be a ground for complaint before the Commission under this section. This opens up the very interesting question, in a case where a carrier has failed to provide safe equipment and personal injuries are sustained, of whether or not the damages for such personal injuries, resulting, as they will, henceforth, from a violation of the interstate commerce act, may be recovered before the Commission by way of reparation. The idea at first may seem far-fetched, but when it is realized that under section 16 of the act, the Commission is empowered to make "an award of damages under the provisions of this act for a violation thereof," and that a failure to furnish safe passenger equipment is now a violation of the act, it seems very probable that there is now a jurisdiction in the Commission to award reparation for such damages which before were recoverable only in the courts in actions in tort. By analogy also, if there be a damage to freight because of the failure of the carrier to supply safe (fit) freight cars, might not such failure be now held to be a violation of the act and, if so, may not the damages sustained be recovered as reparation before the Commission? Is not the matter of whether or not the particular cars furnished, were safe (fit) and adequate, an administrative question now? If so, would it not seem, on the authority of Northern Pacific Ry. Co. vs. Solum (247 U. S. 447) and a number of previous decisions, that the Commission is the only tribunal that can determine whether or not a certain carrier's equipment furnished a particular shipper or passenger is safe and adequate? It would seem, therefore, in all cases now pending in the courts or hereafter filed where damages are sought because of a failure to furnish safe and adequate equipment, freight or passenger, that a motion to dismiss might be sustained on the ground that the cause of action rested on a violation of the interstate commerce act, upon which primary jurisdiction to pass is, under the Supreme Court authority cited, vested exclusively in the Commission? Such a view has the practical result to recommend it that if these matters must all be determined by the Commission in the first instance there will be one rule of safeness and adequacy, whereas if each case is to be passed on by a different court and jury, what is held to be safe and adequate in one jurisdiction might be held the reverse in another. Or what will be found by a jury in one term of court to be a safe car might be found by another jury in another term of the same court to be an unsafe car. It seems clear that, henceforth, the failure to furnish safe and adequate equipment is a violation of the act. If so, damages suffered because of any such failure may be recovered as reparation before the Commission, and it would seem that the Commission's jurisdiction to award reparation has been greatly extended.
Another vexing question that may arise in connection with the matter of an adequate supply of cars, locomotives, or trains is: Can the Commission, in the event it finds that an adequate supply has not been furnished, order the carrier to provide itself with additional equipment? If so, and the particular carrier is already bankrupt, is the Commission, under the financing sections of the transportation act, required or authorized to finance the purchase of additional equipment? Or is it intended that the term "adequate" will be viewed from the standpoint of only such equipment as the carrier has available rather than from the standpoint of what equipment it should have available? And if the carrier has not enough equipment available, is it not the more reasonable construction to hold that it was the intention of Congress that, instead of ordering the line inadequately equipped to buy equipment which its resources might not warrant, the Commission should, under the car service sections, obtain equipment from some other line over-equipped, perhaps, for the temporary use of the line inadequately supplied?
The duty of the carriers under paragraph 21 to provide themselves with safe and adequate equipment to perform their common carrier obligations will be discussed later.
Paragraph 12 seems to remove any doubt concerning the duty of carriers to make a just and reasonable distribution of coal cars and the Commission's authority to enforce that duty.
Under paragraph 13, the Commission in its discretion can require the carriers to publish their car service rules and regulations in their tariffs, and may require the rules to be filed with it from time to time.
Paragraph 14 gives the Commission power to prescribe the car service charges, rules, regulations and practices. Before any such charges, rules, regulations or practices are established by the Commission it will very probably institute an investigation into the matter of the cost of owning and operating different types of cars and locomotives and the different conditions and circumstances surrounding such ownership and operation, and on the facts developed by such investigation fix the proper per diem and such other charges, rules and regulations as seem to it necessary fully to cover the situation.
It was suggested at page 9 in another connection, that the Commission, under the car service sections, might have some jurisdiction over the use and distribution of privately owned cars. It should be pointed out that the car service sections seem to apply only to "carrier by railroad subject to this act." If the shipper who owns private cars which he uses to transport his own freight, or if the private car company which owns special types of cars which it leases to certain shippers or to railroads, are not “carriers by railroad subject to this act," then it would seem that their equipment is not subject to the car service sections. When the shipper furnishes
his own car he receives from the railroads certain refunds in the form of car mileage or per diem. The receipt of the car mileage or per diem by the shipper or the private car company directly, might be held to be a consideration paid by the railroad for the leasing of the car. Since there is no definite period usually for which this "lease" shall continue, the car might be kept indefinitely in the possession of the railroad under "lease." If the equipment is under "lease" to the railroads, this special equipment is as much equipment of the railroad as other special equipment which it owns outright or which it leases for a certain period, perhaps, from a private car company, direct. If it is equipment of a "railroad subject to this act," does it not become subject to all the car service regulations while it is in the possession of such railroad to the same extent as any other equipment of such railroad? How long the particular equipment is to remain in the possession of the railroad is to be determined by the contract of "lease." What the terms of the contract of lease are may or may not be within the jurisdiction of the Commission to prescribe, but the compensation paid, if to or for a shipper must not be great enough to in any measure amount to a concession or rebate. The Commission might under such an interpretation exercise quite a jurisdiction over private cars, although not having any specific jurisdiction over private car companies as such, or over privately-owned cars out of railroad service.
These car service sections seem to have been drawn with the idea of conferring on the Commission the authority to require railroads to furnish all types of cars and equipment which the Supreme Court in U. S. vs. Pennsylvania R. R. Co. (242 U. S. 208), held it did not have under the broad provisions of the old act. But has this been accomplished by the new provisions?
In that case the Pennsylvania Railroad published rates for the movement of oil in tank cars, but provided in connection with such rates that it would not undertake to furnish tank cars. The shipper filed a complaint seeking to require the railroad to furnish tank cars under what was thought to be a duty so to do under section 1. Section 1 then defined "transportation" as including "cars" and made it the duty of carriers subject to the act to furnish “transportation” on reasonable request. Or, in other words, the act as then amended made it the duty of carriers subject thereto to furnish cars on reasonable request. The Commission so construed the act and entered an order requiring the Pennsylvania to furnish tank cars. The court held that there was no such duty under this act, but that the duty to furnish cars was a duty only sanctioned by the common law and enforcible only in the courts; that the amendment of 1906, which included "cars and other vehicles and all instrumentalities and facilities of shipment or carriage" in the definition of the word "transportation," in law added nothing to the duties of the carriers under the act to furnish equipment, as those