Lothrop v. Spokane, P. & S. Ry. Co.

• Citation: 10 F.2d 225
• Decision Date: 04 January 1926
• Docket Number: No. 9413,9414,9444.,9413
• Parties: LOTHROP v. SPOKANE, P. & S. RY. CO. SAME v. OREGON-WASHINGTON R. & NAV. CO. SAME v. SOUTHERN PAC. CO.
• Court: U.S. District Court — District of Oregon

10 F.2d 225 (1926)

LOTHROP v. SPOKANE, P. & S. RY. CO.

SAME v. OREGON-WASHINGTON R. & NAV. CO.

SAME v. SOUTHERN PAC. CO.

Nos. 9413, 9414, 9444.

District Court, D. Oregon.

January 4, 1926.

Wilson & Reilly, of Portland, Or., for plaintiff.

Carey & Kerr and Charles A. Hart, all of Portland, Or., for defendant Spokane, P. & S. Ry. Co.

A. C. Spencer, Arthur A. Murphy, and Thos. H. Maguire, all of Portland, Or., for defendant Oregon-Washington R. & Nav. Co.

Ben C. Dey and Alfred A. Hampson, both of Portland, Or., for defendant Southern Pac. Co.

WOLVERTON, District Judge.

These are actions instituted for recovery of certain alleged overcharges on freight shipments, from Detroit and other allied points of shipment in the Middle West, under the westbound tariff, generally to Portland and East Portland, Or., but in some instances to other western termini, such as Bend, La Grande and Marshfield, Or., and Seattle and Walla Walla, Wash. The shipments consisted of automobiles, and were domestic in character, that is, from inland to inland and seaboard points; nor were any of them destined to or consigned through to Hawaiian Islands. The carriers made their charges under section 2 of the tariff, and they were paid by the shippers. Section 4 of the tariff provides a lower rate, which the shippers claim is the lawful rate. The purpose of these actions is to recover back the difference between the charges under sections 2 and 4. The three causes were submitted to the court, without the intervention of a jury, and were tried together. Being of such close analogy, one opinion will suffice to dispose of all of them.

The crucial question involved here is one of law, and relates to an interpretation of the tariff as respects the rates applicable to the shipments concerning which it is alleged the carriers collected overcharges on freight transportation. The inquiry is really one confined to very narrow limits. The simple question is whether defendants were justified in making their charges in pursuance of the alternative application clause of section 2 of the tariff, or should they have made such charges in pursuance of the allied clause of section 4? A brief reference to the adoption of the alternative application clause pertaining to each of the four basic sections of the tariff will aid materially in arriving at the proper construction of the two alternative application clauses involved here, namely, those pertaining to the basis classifications 2 and 4.

Under West-Bound Tariff 4-Q rates are classified as class rates, commodity rates, and special commodity rates, and are denoted in the tariff as sections 1, 2, and 3. Each of these sections carries an alternative application clause, which precedes the specific rates prescribed. For clarity, I give them here. The clause pertaining to section 1 is as follows:

"If the rate in section 2 or section 3 of this tariff, makes a lower charge on any shipment than the rate in section 1 of this tariff, the rate in section 2 or section 3, whichever is lowest, will be applied. (See notes 1 and 2 below.)"

That pertaining to section 2:

"If the rate in section 1 or section 3 of this tariff makes a lower charge on any shipment than the rate in section 2, of this tariff, the rate in section 1 (see note 1, page 129), or section 3, whichever is lowest, will be applied)."

And that to section 3:

"If the rate in section 1 or section 2 of this tariff makes a lower charge on any shipment than the rate in section 3 of this tariff, the rate in section 1 (see note 1, page 129) or section 2, whichever is lowest, will be applied)."

The purpose of these alternative application clauses is obvious. It is to afford the shipper the lowest freight charge where the shipment is essentially the same as respects distance of carriage and transportation or from and to points in same zones, recognized by the tariff.

By supplement No. 34 to West-Bound Tariff No. 4-Q, effective June 1, 1922, there was constituted by the Transcontinental Freight Bureau an additional section 4, denominated "Export Rates to Pacific Coast Ports, Applying Only on Traffic Destined to and Consigned through to Hawaiian Islands." There was adopted at the same time the following alternative clause:

"If the rate in section 1, section 2, or section 3 of this tariff makes a lower charge on any shipment than the rate in section 4 of this tariff, the rate in section 1 (see note 1, page 129, of tariff, and as amended), section 2, or section 3, whichever is lowest, will be applied."

This gave the shippers under the added section 4 the advantage of the lowest charge to be found in sections 1, 2, and 3; but shippers under none of these last sections were accorded the alternative privilege of the charge under section 4, if that should be the lowest.

Later West-Bound Tariff No. 4-R was adopted, effective July 1, 1922, with the caption, as it respects section 4, "Export Rates to Pacific Coast Ports on Traffic Destined to and Consigned through to Hawaiian Islands." The same alternative clause in effect was also adopted. The wording is slightly different, but the meaning is the same in so far as it relates to the present controversy. By the same tariff, the alternative application clauses of sections 1, 2, and 3 were also amended, so as to include section 4 therein; the amendment as respects section 2 reading as follows:

"If the rate in section 1, section 3, or section 4 of this tariff makes a lower charge on any shipment than the rate in section 2 of this tariff, the rate in section 1 (see note 1, page 153), section 3, or section 4, whichever is lowest, will be applied."

Thus by the amendment of these alternative application clauses appertaining to sections 1 to 3, inclusive, the alternative application clauses of all four sections were made to harmonize, which apparently gave the shipper the advantage of the lowest charge under any section. This, of course, applies to shipments where the transportation is over lines extending from and to points designated in the tariff, as, for instance, those shown on page 47 of Supplement No. 34 and page 454 of West-Bound Tariff No. 4-R.

Later there was published Supplement No. 20 to Tariff No. 4-S, effective October 1, 1923. This tariff added a new section 5, "Import Commodity Rates," with an alternative application clause making such section alternate with the four preceding sections, and the alternative application clause of each of the preceding sections was so amended as to make section 5 alternate therewith. By Supplement No. 24, Supplemental to Tariff 4-S, effective November 1, 1923, the alternative application clauses appertaining to sections 1, 2, and 3 were amended by eliminating therefrom sections 4 and 5.

Thus stands the record. All the matters forming the bases of these actions had their origin subsequent to the date when Tariff 4-R became effective, namely, July 1, 1922, and prior to and exclusive of November 1, 1923, when Supplement No. 24 to Tariff 4-S became operative. It may be noted that, as to the rates or charges on automobiles, as respects the transportation complained of, by comparison of section 2 with section 4, having in view the alternative application clause appertaining to each, those of section 4 are the lower, and this denotes the grievance of which complaint is made.

We come, now, to a construction of the alternative application clauses pertaining to sections 2 and 4, for determining whether plaintiff is entitled to the application of the rate basis of section 4. It may be premised, in so far as the shipments in litigation are concerned, that the points of origin and of destination are practically the same, whether section 2 or section 4 be considered. In other words, like and similar routes of traffic, with analogous originating and terminal points, are embraced by sections 2 and 4. Neither section comprises terminal points beyond the Pacific seaboard of the United States, or within the Hawaiian Islands. In fact, the Interstate Commerce Commission does not assume to regulate rates of traffic extending to the Hawaiian Islands. So that all rates of traffic under the West-Bound Tariff extending to the Pacific Coast terminate there, and do not extend beyond.

It is a canon of interpretation applicable that the tariff must be strictly construed in accordance with the printed language. Caddo Central Oil & Ref. Corp. v. Director General, 92 Interst. Com. Com'n R. 627, 632. It is another canon of construction that, in determining the rate to be charged by a carrier, all parts of the tariff filed should be considered, and, if a plain meaning can be gathered therefrom, effect should be given to it, and, further, the tariff must be construed in its entirety, considering both the limitations on its title page and the rules contained therein. Portland Cattle Loan Co. v. Oregon Short Line R. Co., 251 F. 33, 163 C. C. A. 283; United Shoe Machinery Corp. v. Director General, 55 Interst. Com. Com'n R. 253.

We have the fact that under Tariff No. 4-R the alternative application clauses, as heretofore indicated, attend respectively sections 2 and 4. Section 2 is made to alternate with section 4, and, conversely, to be applied, depending upon which is the lower. Without else, depending upon the mere reading of these clauses, the meaning is plain and unambiguous, and, if the charge in section 4 were the lower, it would very naturally be applied. But there is the title of section 4, and explanatory headnotes designed apparently to indicate the particular traffic upon which the rates and charges shall be applied, which should be considered along with the reading of the alternative application clauses. When adopted, section 4 was entitled "Export Rates to Pacific Coast Ports," with an explanatory paragraph, "Applying only on traffic destined to and consigned through to Hawaiian Islands." When the section was carried into West-Bound Tariff No. 4-R, effective July 1, 1922, the title was...