J. H. Hamlen & Sons Co. v. Illinois Cent. R.

TRIEBER, District Judge

(after stating the facts as above). [1, 2] As the defendant had never published or filed with the Interstate Commerce Commission a through rate to Buenos Aires, it was neither required nor could it make a through rate without violating the Interstate 'Commerce Law. Southern Railroad Co. v. Reid, 222 U. S. 424 , 441, 32 Sup. Ct. 140, 56 L. Ed. 257 . The bills of lading expressly provide that the carrier issuing the same only issued them on its own behalf *327 over its own lines, and- as agent for the connecting lines, without a joint, but several, liability, and as the Carmack amendment applies only to transportation between the states, and not to foreign countries, the defendant is clearly not liable under the bill of lading, even if it had been the initial carrier which had issued the bill of lading, which it was not, except for the car from Pennsylvania.

[3, 4] Is it liable on the contract made before the freight was delivered and the bills of lading issued? Ordinarily the written contract is held to merge all negotiations previously had, but the plaintiff claims that it is entitled to recover on the agreement and guaranty of the defendant, as without it the shipments would not have been made over its lines.

There are two reasons why this contention is untenable:

First. A railro'ad company has no power, unless expressly, or by necessary implication, authorized by its charter, to guarantee the performance of duties by another carrier, and there is no evidence that the defendant is so authorized. It is true that a carrier may, at common law, lawfully enter into a contract for the carriage of freight over connecting lines by issuing a bill of lading whereby it undertakes absolutely' to carry and deliver a shipment to a destination on another line, but there was no such contract here. All that can be claimed is that it is liable on its guaranty to secure the rate of $9.60 per long ton from New Orleans’to Buenos Aires. But it had no right to make such a guaranty. That it arranged for the transportation at-that rate is admitted, and that is the most it could lawfully agree to do.

The cases relied on by counsel for the plaintiff (Northern Pacific R. R. Co. v. American Trading Co., 195 U. S. 439 , 25 Sup. Ct. 84, 49 L. Ed. 269 , and Southern Pacific Co. v. Interstate Commerce Com., 200 U. S. 536 , 26 Sup. Ct. 330, 50 L. Ed. 585 ), may be distinguished on the facts, but that is unnecessary, as both of these cases arose and were determined by the court prior to the enactment of Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 , 586. Section 2 of that act amends section 6 of the former act so as to read 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 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.”

It then proceeds to prescribe how the schedules shall be prepared and filed.

As it is not contended that any through rate to Buenos Aires was ever filed by the defendant, it could not indirectly assume a liability which the law prohibits it from assuming directly. The ocean rates were not required to be published, and, for reasons stated in Re Export and Domestic Rates, 8 Interst. Com. Com’n R. 214, 276, Re Tariffs and Export and Import Traffic, 10 Interst. Com. Com’n R. *328 68, and Armour Packing Co. v. United States, 209 U. S. 78 , 28 Sup. Ct. 428, 52 L. Ed. 681 , could not properly be made.

Second. If such contracts were permitted, their effect would be to nullify the provisions of the Interstate Commerce Act prohibiting discrimination, for by guaranteeing a lower rate on the foreign line, the difference, if any, would have to be paid out of the earnings of its own line, resulting in a lower rate than that published and charged to other shippers for the carriage of freight over the lines of the railroads, and a lower rate than that specified in its schedules filed with the Commission. Armour Packing Co. v. United States, 209 U. S. 56, 78 , 28 Sup. Ct. 428, 52 L. Ed. 681 .

Any contract by which a carrier of interstate freight assumes a more burdensome liability than is specified in the published schedules is a violation of the Interstate Commerce Act and void. C. & A. R. R. Co. v. Kirby, 225 U. S. 155 , 32 Sup. Ct. 648, 56 L. Ed. 1033 ; Clegg v. St. L. & S. F. R. R. Co., 203 Fed. 971 , 122 C. C. A. 273 ; C., C., C. & St. L. R. R. Co. v. Hirsch, 204 Fed. 849 , 123 C. C. A. 145 . In the Kirby Case it was held that a carrier cannot legally contract with a particular shipper for an unusual service, unless it malees and publishes a rate for such' service equally open to all. To guarantee a certain rate from New Orleans to Buenos Aires to one shipper was certainly an unusual service, and not equally open to all, for it had never been published.

[5, 6] Nor is it an excuse that the plaintiff did not know what rates had been published by the railroad company, and that it relied upon the representations of the agent of the company. It has been authoritatively determined that a shipper is conclusively presumed to have that knowledge. K. C. S. Ry. Co. v. Carl, 227 U. S. 639, 653 , 33 Sup. Ct. 391, 57 L. Ed. 683 . Nor is the carrier liable for damages resulting from a mistake in quoting a rate less than the full published rate. Illinois Cent. R. R. Co. v. Henderson Elevator Co., 226 U. S. 441 , 33 Sup. Ct. 176, 57 L. Ed. 290 .

There can be no recovery for damages, but the plaintiff is entitled to a judgment for the money prepaid for the ocean freight, amounting to $247.67, with 6 per cent, interest from the time of payment.