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ordinarily measured by the difference between the rate paid. by him and a lower and unlawfully preferential rate paid by his competitor. In such cases, the shipper must be able to show just wherein and to what extent he has been damaged, that is to say, he must prove the fact as well as the amount of the damage. There are many cases in the reports of the Commission in which reparation has been disallowed under the authority of the International Coal case, supra, solely because the complainant failed to offer the necessary proof, even in cases where the proof existed. It may be said that the business against or on which there is published an unlawful rate in violation of Sections 2 or 3 of the Interstate Commerce Act may be seriously injured without any shipment having moved under such unlawful rate. To prove this and other injuries, and to measure the amount necessary to repair the injury, the same principles that the courts are constantly applying to suits for injuries to business, must be brought into action.121

§ 257. Damages Under the Fourth Section.-Under Section 4 of the Act, as has been shown in Sections 163, 164 and

121 Graustein v. B. & M. R. R. Co., 45 I. C. C. 393. Recent cases discussing the general principles are: Manufacturers & Merchants Asso. v. A. & A. R. R. Co., 37 I. C. C. 350, 351; California Corrugated Culvert Co. v. A. G. S. R. R. Co., 38 I. C. C. 568; Greenbaum v. Sou. Ry. Co., 38 I. C. C. 715; Brooks Coal Co. v. Wabash Ry. Co., 39 I. C. C. 426; Wilkes & Company v. A. G. S. R. R. Co., 39 I. C. C. 447; Union Lumber Co. v. G. C. & S. F. Ry. Co., 41 I. C. C. 411; Omaha Alfalfa Milling Co. v. U. P. R. R. Co., 43 I. C. C. 264; and Delaware, L. & W. Coal Co. v. R. R. Co., 46 I. C. C. 506, where the Commission did what was designated as "substantial" and "essential" justice. That it is possible to make proof sufficient to obtain an order for damages for charging a discriminatory rate appears from the following cases: Pittsburgh Steel Co.

v. P. & L. E. R. R. Co., 39 I. C. C.
312; McGowan-Foshee Lumber Co. v.
F. A. & G. R. R. Co., 43 I. C. C. 581;
Valley Smokeless Coal Co. v. P. R. R.
Co., 43 I. C. C. 654; Buffalo Union
Furnace Co. v. L. S. & M. S. Ry. Co.,
44 I. C. C. 267; Penn. R. Co. v. Minds,
250 U. S. 368, 63 L. Ed. 665, 39 Sup.
Ct. 531; Penn. R. Co. v. Stineman
Coal Min. Co., 242 U. S. 298, 61 L.
Ed. 316, 37 Sup. Ct. 118; Penn. R. Co.
v. Jacoby & Co., 242 U. S. 89, 61 L.
Ed. 165, 37 Sup. Ct. 49.
R. R. Co. v. Patterson, 269 U. S. 1,
70 L. Ed. 131, 46 Sup. Ct. 8, the Su-
preme Court held that damages under
Sec. 4 of the Act could not be claimed
if the carrier had made timely appli-
cation for relief thereunder, but that
this did not preclude the awarding
of damages under Secs. 1 and 3 of
the Act.

In L. & N.

165, ante, relief may be granted from the long-and-short-haul provision, and the Commission has granted relief from the provision requiring that the rate for the through routes shall not exceed the aggregate of the intermediate rates.

Under these circumstances, where the carrier has followed the statute and applied for relief, the existing rate for the shorter haul is the legal rate until adjudged otherwise by the Commission after hearing. Until such adjudication, the carrier has not "done any act, matter or thing

prohibited or declared to be unlawful," nor has there been an omission to "do any act, matter or thing" required to be done. Discussing the question and the applications filed for relief under this section, the Commission said:

"Under this provision over 11,000 applications were filed before the date fixed, and these two applications were among that number. Now, we think that it plainly appears, from the action of Congress in providing that no carrier should be proceeded against for a violation of the fourth section until its application had been acted upon, that it was the intent of Congress to say that matters should be left in statu quo until that time. It would be inconsistent to grant reparation for a disregard of the rule of the fourth section during that period within which the law-making authority had expressly sanctioned existence of such disregard.

"Without undertaking, therefore, to lay down any rule as to the granting of reparation for violations of the fourth section, we hold that no damages can be given up to the time when the Commission passes upon these fourth section applications, unless, possibly, a case is made out under the third section, which might carry with it an award of damages, or unless under the first section the rate to the intermediate point has been found unreasonable.''122

The Commission has, with practical unanimity and in hundreds of cases, awarded reparation where through rates have

122 Appalachian Lumber Co. V. Co. v. Chicago & N. W. Ry. Co., 26 Louisville & N. R. Co., 25 I. C. C. 193, I. C. C. 628, 630.

197, followed in Jonesville Clothing

exceeded the aggregate of the intermediate clause of the fourth section.123

In the Portland Seed Co. case,124 the Supreme Court held that proof of financial loss is necessary to enable a shipper to recover damages for a violation of the long-and-short-haul clause of the fourth section of the Act. The question of a violation of the aggregate-of-intermediates clause of this section was not before the court in that case. In the Patterson case125 this particular question was not decided. It seems clear, however, that on submission of proper proof of financial loss damages can be recovered for a violation of the aggregate-of-intermediates clause of Section 4 of the Act if the carrier is not protected by an application for relief.

§ 258. Damages for Misrouting. The law prior to 1920 stating the shippers' rights provided that "subject to such reasonable exceptions and regulations as the Interstate Commerce Commission shall from time to time prescribe, the shipper shall have the right to designate in writing by which of such through routes such property shall be transported to destination, and it shall thereupon be the duty of the initial carrier to route said property and issue a through bill of lading therefor as so directed, and to transport said property over its own line or lines and deliver the same to a connecting line or lines according to such through route, and it shall be the duty of each of said connecting carriers to receive said property and transport it over the said line or lines and deliver the same to the next succeeding carrier or consignee according to the routing instructions in said bill of lading: Provided, however, that the shipper shall in all instances have the right to determine, where competing lines of rail

123 Section 163, ante. Lindsay Bros. v. B. & O. S. W. R. Co., 16 I. C. C. 6, 8; Windsor Turned Goods Co. v. C. & O. Ry. Co., 18 I. C. C. 162, 164; Alabama Packing Co. v. L. & N. R. Co., 47 I. C. C. 524, 529; Lust's Digest, Vol. 1, p. 864, et seq., for several hundred cases. If the long-andshort haul provision were absolute, reparation should be awarded for its

violation, Sou. Pac. Co. v. California Adjustment Co., 237 Fed. 954, 150 C. C. A. 604, 248 U. S. 595, 63 L. Ed. 226, 39 Sup. Ct. 182.

124 Portland Seed Co. v. Davis, 214 U. S. 403, 68 L. Ed. 762, 44 Sup. Ct. 380.

125 L. & N. R. R. Co. v. Patterson, 269 U. S. 1, 70 L. Ed. 131, 46 Sup. Ct. 8.

road constitute portions of a through line or route, over which of said competing lines so constituting a portion of said through line or route his freight shall be transported. ''126

Under the authority granted by the statute, the Commission passed certain conference rulings in which it is stated that it has exclusive jurisdiction over claims for damages arising from the misrouting of freight.127 Carriers could not disregard instructions of shippers as to intermediate routing, except when the tariff of the initial line reserved the right to the carrier to dictate intermediate routing. When such reservation was made in the tariff: (1) where all-rail rates and rail-and-water rates are available the agent of the carrier must have had the shipper designate which of the two he wished to use; and (2) the agent could not route shipment via a route which will be more expensive to the shipper than the one desired by him, or which did not furnish substantially as good and expeditious service.

In the absence of specific routing which the carrier is willing to observe, the routing was via the cheapest reasonable route of the class designated by the shipper. The initial carrier had the duty to protect the routing.1

128

When a bill of lading was presented by a shipper showing both routing and rate, and the rate was not available by the prescribed routing, a routing applicable to the rate had to be adopted.129

When a carrier routed by a higher interstate rate and there was available a lower reasonable intrastate rate, damages for the difference between the lower and higher rate may be allowed, unless the route over the interstate line was prescribed by the shipper.130

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The routing instructions were not absolutely binding and the obligation of the carrier was to deal justly with the shipper.131 While the Transportation Act, 1920,132 gives the Commission power to make orders affecting the routing of freight, unless and until such orders are made carriers are obligated to observe instructions and rules relating to routing as heretofore.

§ 259. Damages-General Statement.-Carriers may voluntarily make rates lower than they could be compelled to make them, but the Commission will not award reparation on the basis of a rate lower than that which it would prescribe, even though the shipper and carrier may agree thereto.133

Where complainant operates an industrial road which is a plant facility, originating shipments and receiving an allowance from the carrier therefor or participating in the joint rate under which shipments moved, reparation has been denied by the Commission.134 If, however, the industrial railroad was legally entitled to an allowance and some may be, and,135 if the allowance did not exceed a reasonable compensation, it would seem that where the rate, other than the portion allowed the industrial railroad, is unreasonable, reparation should be awarded.

§ 260. Damages for Misquoting a Rate. Prior to the Amendment of 1910, it was held that should a carrier's agent make a mistake and quote a wrong rate, the shipper receiving such quotation of a rate must nevertheless pay the

Co., 14 F. C. C. 527; Gus Momsen & Co. v. Gila Valley G. & N. Ry. Co., 14 I. C. C. 614; Goodman Mfg. Co. v. Penn. R. Co., 26 I. C. C. 423; Newman Lumber Co. v. Mississippi C. R. Co., 26 I. C. C. 97; Sec. 15 of Act; Sec. 498, post.

131 Northern P. R. Co. v. Solum, 247 U. S. 477, 62 L. Ed. 1221, 38 Sup. Ct. 550.

132 Int. Com. Act, Sec. 1, Par. (15), (16); Secs. 413 to 418, post; Sec. 15, Par. (4), (5), (9) and (10); Secs. 491, 492, 497, 498, post.

133 Pacific Elevator Co. v. Chicago, M. & St. P. R. Co., 17 I. C. C. 373, 374.

134 Kaul Lumber Co. v. Central of Ga. Ry. Co., 20 I. C. C. 450; Tap Line Case, 23 I. C. C. 277, 549; Commercial Club of Omaha v. Anderson & Saline River Ry. Co., 27 I. C. C. 302, 324. The Kaul Case is hardly sustained by the Tap Line Cases; United States v. Louisiana & Pac. Ry. Co., 234 U. S. 1, 58 L. Ed. 1185, 34 Sup. Ct. 741. 135 Sec. 181, ante.

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