Mellon v. ERB

RUDKIN, Circuit Judge (after stating the facts as above). An award of reparation is authorized whenever rates, fares, charges, classifications, regulations, or practices are found to be unjust, unreasonable, unjustly discriminatory, unduly or unreasonably prejudicial, or otherwise in violation of the Interstate Commerce Commission Act (section 206 [e], Transportation Act, supra), and, if the Commission has found that the rates in question wore unjust, unreasonable, unjustly discriminatory, unduly or unreasonably prejudicial, or otherwise in violation of tho Interstate Commerce Commission Act, and the finding is supported by competent testimony, the inquiry of the courts is at an end. If, on the other hand, no such finding was made, or if the finding is not supported by any competent testimony, or if the award of reparation was based on an erroneous view of the law, the judgment should be reversed. There was no complaint before the Commission concerning the domestic rate, or the export rate, as such. The complaint was directed solely against the regulation providing that the export rate through San Francisco applied only to freight originally consigned through, with rail, port, and ocean charges fully prepaid or guaranteed from the point of origin to a specific destination beyond the port of exit, such destination being shown in the bill of lading issued at tho time of shipment, and for which a through bill of lading was issued before the arrival of the freight at the port of exit, and, in tho case of shipments through Seattle, that the export rale applied only to freight for whieh a through export bill of lading was issued in exchange for the original shipping receipt or domestic bill of lading within 15 days from the date thereof. The object of the regulations in question was to prevent congestion of freight at ports during the war period, and there was no finding that such regulations were unreasonable. On the contrary, the general necessity for and propriety of the regulations was conceded; but the Commission was of opinion that the application of the published tariffs to those particular shipments was unreasonable, in view of the fact that they did not contribute to congestion at the port of exit, any moro than they would have done if handled in strict conformity with the regulations. In other words, the Commission assumed jurisdiction to award reparation in the face of reasonable regulations, whenever in the opinion of the Commission the application of the regulations to a particular shipment would work an injustice. That this was the view of the Commission is made plain by the' decision in Dill-Crossett v. Director General, 104 Interest Com. Com’n R. 48, where the decision in Anderson & Co. v. Director General, supra, was disapproved. The Commission there said: “Since our decision in Anderson & Co. v. Director General, supra, the Supreme Court has said that a rule relating to the performance of a 'transportation service under published tariffs was part of the tariff and could not be waived. Davis v. Henderson, 266 U. S. 92 [45 S. Ct. 24, 69 L. Ed. 182], We followed that decision in Campbell Construction Co. v. L. C. & S. E. Ry. Co., 95 Interst. Com. Com’n R. 603. There demurrage charges assessed on certain carload shipments of various commodities were found inapplicable because of lack of written notice to complainant of arrival of the cars, although oral notice was given and no objection was offered to this method of notification. In the instant case the complainant seeks to have the charges assessed under the domestic rate declared unreasonable to the extent that they exceeded those applicable under tho export rate which would have applied if complainant had complied with all the provisions in the tariff. Complainant does not assail the reasonableness of the domestic rate and the record does not warrant that the rule relating to export shipments was unreasonable. The finding sought would be equivalent to a waiving of the tariff rule and contrary to the doctrine of Davis v. Henderson, supra.” We think the latter decision was clearly right. While the case of Davis v. Henderson, did not involve the power of the Interstate Commerce Commission, it was there held that tho published tariff was binding on the shipper, the carrier, and the courts, and the published tariff is equally binding upon the Commission, unless found to be unreasonable. In view of the fact that there was no finding that the regulations were unreasonable, we deem it unnecessary to determine whether there was any testimony to support [754] such a finding, if made; but we are inclined to agree with the conclusion of the Commission in Dill-Crossett v. Director General, where it was held that such a finding was unwarranted. For these reasons, tve are of opinion that the award upon which the action was brought is invalid, and the judgment of the' court below is therefore reversed.