Southern Pac. Co. v. Lothrop

• Decision Date: 01 November 1926
• Docket Number: No. 4870-4872.,4870-4872.
• Citation: 15 F.2d 486
• Parties: SOUTHERN PAC. CO. v. LOTHROP. SPOKANE, P. & S. RY. CO. v. SAME. OREGON-WASHINGTON R. & NAV. CO. v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

15 F.2d 486 (1926)

SOUTHERN PAC. CO. v. LOTHROP.

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

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

Nos. 4870-4872.

Circuit Court of Appeals, Ninth Circuit.

November 1, 1926.

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

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

Arthur C. Spencer, Arthur A. Murphy, and Thomas H. Maguire, all of Portland, Or., for plaintiff in error Oregon-Washington R. & Nav. Co.

James G. Wilson and John F. Reilly, both of Portland, Or., for defendant in error.

Before RUDKIN, Circuit Judge, and DIETRICH and KERRIGAN, District Judges.

DIETRICH, District Judge.

Each of the three actions was brought to recover alleged overcharges for freight on shipments of automobiles from Detroit and neighboring points to Portland, Or., and other Western cities. In each there was judgment for the shipper, and the carrier brings error. The cases involve the same state of facts and have been submitted together.

All the shipments were of domestic character — that is, none was consigned or destined beyond the Pacific Coast seaboard — and all were made during the period from July 1, 1922, to November 1, 1923. The charges complained of were computed pursuant to section 2 of the established tariffs, and the shippers contend that they should have been based upon the lower rates of section 4. That is the controlling, and indeed the only, issue. Admittedly it is to be resolved by a reference to the tariffs alone, and, if they are ambiguous, they must be construed favorably to the shippers. Sutherland Flour Mills Co. v. Director General, 81 Interst. Com. Com'n R. 365; N. W. Steel Co. v. Director General, 68 Interst. Com. Com'n R. 195; Pacific Rice Mills Co. v. Director General, 78 Interst. Com. Com'n R. 459. Furthermore, the intention of the carrier is competent only in so far as it is fairly expressed in the language of the printed rates. Caddo Central Oil, etc., Co. v. Director General, 92 Interst. Com. Com'n R. 627. It will therefore be seen that the real controversy is in narrow compass, and we turn to the tariffs for its precise definition.

Prior to June 1, 1922, under West-Bound Tariff Q-4, there were three sections; section 1 prescribing class rates, section 2 commodity rates, and section 3 special commodity rates. Each of these sections carried what is called an alternative application clause, preceding the specific rates prescribed, to the effect that, if it should appear that the rate for the same service in either of the other two sections was lower, such lower rate should be applied. The purpose of these alternative clauses is manifest: Where a given shipment would come within the terms and meet the conditions of more than one rate, as prescribed, the shipper was to have the benefit of the lowest applicable rate.

By Supplement No. 34, effective June 1, 1922, there was added section 4, denominated "Export Rates to Pacific Coast Ports, Applying Only on Traffic Destined to and Consigned through to the Hawaiian Islands." It listed a number of commodities, among them being automobiles, and generally the rates specified therein were lower than those prescribed in section 2. By an alternative clause, adopted at the same time, it was provided that, if the rate in sections 1, 2, and 3 was lower than the rate prescribed by section 4, the lowest rate should apply. As will be observed, this clause was not broad enough to be material to the present controversy. But later "West-Bound Tariff No. 4-R" was adopted, effective July 1, 1922, with the caption in respect to section 4, "Export Rates to Pacific Coast Ports on Traffic Destined to and Consigned through to the Hawaiian Islands," and with an alternative clause substantially like the one last above noted. The alternative application clauses of sections 1, 2, and 3 were also amended to include section 4, the one coupled with section 2 being made to read 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."

By virtue of this clause plaintiff contends the rates of section 4 were made applicable to all shipments of commodities therein named, whether destined for the Hawaiian Islands or not. In this view we cannot concur. Under it there would be left no substantial reason for the existence of section 4, for in effect it would nullify the restrictive language of the caption and would simply operate to...