Hillsborough Mills v. Boston & M.R.R.

• Decision Date: 03 January 1921
• Docket Number: 753.
• Citation: 269 F. 816
• Parties: HILLSBOROUGH MILLS v. BOSTON & M.R.R.
• Court: U.S. District Court — District of Massachusetts

269 F. 816

HILLSBOROUGH MILLS v. BOSTON & M.R.R.

No. 753.

United States District Court, D. Massachusetts.

January 3, 1921

Hill Barlow & Homans, of Boston, Mass., for plaintiff.

George L. Mayberry and Archibald R. Tisdale, both of Boston, Mass for defendant.

MORTON District Judge.

The facts are not in dispute and are as follows: The Commonwealth Pier is connected with the defendant's line by tracks of the Union Freight Railway and the New York, New Haven &amp Hartford Railroad; the National Dock, by the tracks of the New York Central & Hudson River Railroad. Under a contract to which the defendant and the commonwealth of Massachusetts were parties, the defendant paid to the railroads connecting its line with the Commonwealth Dock their charges for delivering cars from that dock to the defendant and 'absorbed' this payment in its own charges; i.e., it charged no additional rate because of such payment, and made the same rate on freight from the Commonwealth Pier as from its own pier. But the defendant did not absorb the corresponding charges of the connecting road for delivering cars to it from the National Dock, such charges being added to the regular tariff.

Before the present action was begun the National Dock Company made a complaint to the Interstate Commerce Commission against the Boston & Maine Railroad, charging discrimination by reason of the defendant's absorption of the connecting line charges to the Commonwealth Pier and its nonabsorption of them to the complainant's pier. After a full hearing the Commission decided that the charges complained of were--

'unduly prejudicial to the complainant and to shippers and receivers of freight moving in interstate or foreign commerce using its docks, from which undue prejudice the defendant, by an appropriate order, will be required to cease and desist. ' McChord, Commissioner, 38 Interst.Com.Com'n.R. 650.

There is no finding that the total charges by the Boston & Maine for transportation from the National Dock, including the switching charge, were unreasonable; and the action of the Commission, in directing a discontinuance of the absorption, but not a reduction in the rate, amounts, I think, to a finding that the rate per se was reasonable. No order for reparation was made. The decision determines finally that there was discrimination against the National Dock and shippers and receivers using it, directs that the discriminatory absorption should cease, and leaves the matter there. The result was to increase the rate from the Commonwealth Pier and leave it unchanged from the National Dock.

The decision of the Commission is challenged by the defendant, and questions as to the conclusiveness and correctness of it were argued; but they have been disposed of by Spiller v. Atchison, Topeka & Santa Fe Railway Co. et al. 253 U.S. 117, 40 Sup.Ct. 466, 64 L.Ed. 810 (May 17, 1920) , and Seaboard Air Line Rwy. Co. v. U.S., 254 U.S. 57, 41 Sup.Ct. 24, 65 L.Ed. . . . (Nov. 8, 1920). In the light of those cases the decision seems to me to have been clearly right.

The present plaintiff imported merchandise through the National Dock to its mills at Wilton, N.H., over the defendant's railroad; and it paid the charge for moving cars from the dock to the defendant's line. There is no question but what the amounts are as stated in the declaration. The plaintiff never made any complaint to the Interstate Commerce Commission; it proceeded directly against the defendant in this court after the decision by the Commission in the National Dock Case. The plaintiff has offered no evidence of damages, except the fact of the discrimination and the amounts of the switching charges which it paid.

The remaining questions are (1) whether the plaintiff has a right to proceed in this court without first complaining to the Interstate Commerce Commission; (2) whether there is sufficient proof of damages; and (3) whether the plaintiff's claim, if otherwise established, is barred by the special statute of limitations found in the act.

As to (1): Discrimination against the plaintiff having been established, all that remains, aside from the statute of limitations, is the determination of the amount of damages, if any, which the plaintiff sustained. Must they be assessed in the first instance by the Commission? In Robinson v.B. & O.R.R., 222 U.S. 506, 32 Sup.Ct. 114, 56 L.Ed. 288, the rate in question, which made a distinction between coal loaded from wagons and coal loaded from tipples, had been held by the Commission to be unjustly discriminatory; and the railroad had been directed to desist from its enforcement. A shipper who had not been a party to the rate proceeding sued to recover his damages caused by the discrimination. It was held that he was not entitled to recover, because the record of the Commission--

'did not contain any finding...