« AnteriorContinuar »
a. m., free car service time is counted from seven a. m. Fortyeight hours from that time the car must be loaded or unloaded, as the case may be, or a penalty of one dollar per day for every day or fraction thereof is added, that the cars remain unloaded. It is shown by the proof that frequently quite a number of nours elapse from seven a. m., the time when free service begins, until the shipper knows of the placement of the car. The railroads have conceded that forty-eight hours is a reasovable time in which to unload freight; but they begin to count that time in a large number of cases before the shipper is made aware of the fact that the car is at his disposal. Except where the shipper has his own siding, he rarely ever knows it before nine o'clock; that is, two hours after his free car service time has begun to run, and in many instances four, five, or even six hours have elapsed before any notice is given by the railroad. This is certainly a very unusual privilege given by the railroads, as the reasonable time, which they have agreed to give, is forty-eight hours, for unloading freight. The shipper in Louisville, or those represented in this complaint, contend that free car service time shall not begin until after they have had notice of the placement of the car in the yards or on public tracks. They assert that it is only fair or law. ful to have reasonable time allowed to them by the railroads for the unloading of cars begin after they have had knowledge of the placing of the car, and not to allow one-sixth, one-fifth, or one-fourth of the free time to expire before they have received notice that the car has been put in such position where they may unload it. They claim that under the rules governing the Tennessee Car Service Association, which covers a part of Kentucky immediately adjacent to the Jellico district, the free car service time does not begin to run until notice is given to the shipper of the placement of the car and that it is at his disposal for unloading. They claim that the same thing is true under the Cincinnati Car Service rule, which operates in the portion of Kentucky opposite Cincinnati. They further contend that under the rules and regulations of car service in Mississippi, Virginia, Michigan, Texas, New York, Chicago, and other cities and States, some provision is made for notice before free time begins. They also contend that in those cities and States the railroads have found it convenient, and not a hindrance to business, to give notice of the arrival or placement of cars, and that the statutes of some States not only require notice, but instead of forty-eight hours, seventy-two hours is considered a reasonable time for the unloading of car loads of freight.
The railroads contend with much earnestness that they invariably give the shippers notice of the arrival or placement of cars; that as soon as the car has been placed, notice is given either by telephone or postal card. But, as said before, this notice is not always given until after the free time has begun.
The enforcement of car service rules is only allowed upon the ground of the public benefit which is derived from the speedy loading or unloading of cars, and that such speedy loading or unloading is necessary to enable the railroads to transport the freight of the country. In every matter where a man's property is taken, or a charge assessed against his property, except in car service rules, the party whose money is taken, or upon whose property the charge is made, has an opportunity to be heard, or at least has notice; but, as the railroads claim this extraordinary privilege of collecting money for car service from shippers without opportunity for defense or investigation, and without notice, the rules which regulate the exercise of this extraordinary power ought to be beyond all question reasonable and fair, and give to the shipper a reasonable time in which to load and unload freight. The question therefore arises : Is any time reasonable which begins before the shipper has notice of the placing of the car and of his duty to unload the freight within a reasonable time?
It is conceded by all parties interested in this matter, as shown by the proof, that forty-eight hours is regarded by all railroads as a reasonable time; but the whole matter which now comes before the Commission is not whether forty-eight hours is a reasonable time, but whether that time should begin to run until the shipper has had notice of the placement of the car and of the commencement of his obligation to the railroad, which requires a speedy removal of the freight. It is shown in this case that a large part of the freight concerning which complaints are made comes from points south of Louisville, where the routing is controlled by the railroads themselves, and that the shipper has no means of ascertaining or determining by what route this freight will arrive, nor the time when it will arrive. This routing is done for the convenience of the railroads and for the protection of the railroads in the matter of rates, so they claim. The time at which freight arrives varies some time as much as ten or fifteen days. With such differences as to the time of transporting between two points, and by the freight route over a road against which even the shipper may have protested, it should be required, in the judgment of the Commission, that ample and reasonable notice should be given by the railroad to the shipper upon the arrival of the freight, and that the shipper should be held under no obligations in regard to the removal of the freight until such notice has been given within the proper time.
The question of notice upon these conditions has been passed upon by many courts of this country.
In Hutchinson on Carriers, section 374, second edition, the author says:
“The courts of several of the States in which the question has been well considered have accordingly declined to adopt the reasoning of the preceding cases, and have refused to concede to railroad companies the right to dispense with notice to consignees of the arrival of the goods which they have undertaken to transport as common carriers, but held them to the same duty in that regard as carriers by water. In New York the law upon this subject is stated to be that if the consignee is present, upon the arrival of the goods he must take them without unreasonable delay; if he is not present, but lives at or in the immediate vicinity of the place of delivery, the car. rier must notify him of the arrival of the goods, and then he must have reasonable time to remove the goods; if he is absent, unknown or can not be found, the carrier may store them, and if, after notice of the arrival of the goods, the consignee has had a reasonable opportunity to remove them, and does not, he can not hoid the carrier longer as an insurer. This view of the subject has also been taken by the courts of Michigan and Minnesota. Such also is the English law. No trace is there to be found of the distinction which has been made in this country in favor of railway companies as common carriers which converts them into mere warehousemen without notice to the consignee. Notice, it is there held, to be necessary to effect this change of character and liability; and, after such notice, if the consignee fails to call for the goods within a reasonable time, the carrier becomes, as to them, a warehouseman merely. And it is to be gathered from the cases that it is the universal course of business there, with this class of carriers, either to deliver personally, or to send to consignees what are their denominated advice notes, informing them of the arrival of the goods; and that until this is done, the company remains subject to the liability of a common carrier.”
See also notes by same author under same chapter:
“I am unable to discover any ground, which to me is satisfactory, on which a common carrier of goods can excuse himself from personal delivery to the consignee, except by that which usage has made a substitute. To require him to give notice when the goods are received, so that the consignee may know when to call for them, imposes upon him no unreasonable burden. If, by understanding with the consignee, the goods were to remain in store for a definite period, or until he should give directions concerning them, the rule would be different because the relation of warehousemen would then be established by consent. In the absence of such understanding, sound policy, I think, requires the carrier to be held liable as such until he has notified the consignee that the goods are received. If the nature of the bailment then becomes changed through the neglect of the consignee to remove the goods, it will be by his implied assent. Such a rule is just to both parties and burdensome to neither, and it will tend to promptness on the part of the carriers in giving the notices, which, whether compulsory or not, are generally expected from them.” And see Tanner v. Railroad, 53 Penn. St., 411, in which the learned judge who delivered the opinion of the court declares that the correct rule is to require notice by railroad companies of the arrival of the goods.
It therefore appears to the Commission that the decisions of the courts of this country are now to the effect that the railroad company can not discharge itself of liability as a com
moncarrier until after reasonable notice has been given to the shipper of the arrival of the freight. As the old rule is changed, where freight is not warehoused, but the shipper is required to unload the freight from the car himself, it seems to us a logical, reasonable and necessary result that the shipper must have reasonable notice of the arrival of the freight before the company can impose on him any obligations other than the freight charge itself; and as forty-eight hours has been considered and proven in this case to be recognized as reasonable notice, it therefore follows, that the shipper should have notice of the placement of the cars, and thus be informed of his duty as to the removal of freight within a reasonable time; and it would be unreasonable to allow this time to begin to run until the shipper has had notice of the placement of a car and of his duty to remove the freight within the time which everybody now concedes to be reasonable. Any rule, therefore, which allows or permits time to be counted against the shipper until he is notified of placement of the car is unreasonable, and any charge based upon such rule or regulation, where time begins before the shipper is notified in the manner hereinafter directed is not only unreasonable, but any charge made based on time running against a shipper without notice is extortionate. It seems to us that it is an improper exaction to cut off a part of the reasonable free time allowed to the shipper, when he has had no notice that the car has been placed for unloading by him.
The Commission is therefore of the opinion and it is so ordered that,
A charge of one dollar per day, or fraction of a day, shall be made on all cars for unloading, after the expiration of forty-eight (48) hours, from 7 a. m., or 12 o'clock noon, next following notice of arrival, placement or offer to place (not including Sundays or legal holidays), i. e.:
(a) Cars that arrive without disposition having been furnished receiving agent by the consignee, shall be allowed forty