REPORT T R ANSPOR T AT ION COM M ITT EE OF THE ON " REFORMS IN RAILROAD BILLS OF LADING AND IN CLASSIFICATION OF FREIGHT." Head before the Association and Representatives of Railroads terminating in Boston, at a Regular Meeting of the Association, held in Boston, on the 17th of December, 1888. PRINTED BY SPECIAL REQUEST. B 0 S T 0 N : ALFRED MUDGE & SON, PRINTERS, No. 24 Franklin Street. 1889 . BOSTON EXECUTIVE BUSINESS ASSOCIATION. OFFICERS, 1888-89. HERSEY B. GOODWIN, 15 India Street, Boston, Representing Chamber of Commerce. LAMONT G. BTJRNHAM, 75 State Street, Boston, Representing Coal Trade Association W. ROWLAND NOROROSS, 14 Merchants Row, Boston^ Representing Earthen-ware and Glass Trade Ass'n. GEORGE H. LEONARD, 207 Purchase Street, Boston, Representing Oil Trade Association. pt vectors. JONATHAN A. LANE, 22(> Devonshire Street, Boston, Representing Merchants Association. THOMAS L. JENKS, 57 Court Street, Boston, Representing Druggists Association. WILLIAM IT. SAY WARD, 164 Devonshire Street, Boston, Representing the Master-Builders Association. c o pi REPORT Mr. President, and Gentlemen of the Boston Executive Business Association : Your committee take up the matters referred to them with extreme diffidence, as the) 7 touch not only the interest of every person in the United States who ships or receives a pound of merchandise, trans- ported by what are termed the " common carriers." but also the rela- tion of the common carriers and what responsibility they should bear, and that without putting the shipper or receiver to unnecessary and illegitimate trouble or expense. We state the following postulates : — First. All common carriers should be responsible for goods re- ceipted for by them in the bill of lading. Second. They should be responsible for the quantity expressed in the bill of lading. Third. Freight should be settled for where the goods are received, as per the terms of the bill of lading, whether the} 7 may be over- charged or not, by the lines over which the goods have been trans- ported, and which have been paid by the last company receiving and delivering the merchandise to the receiver. Fourth. The putting of "O. R." and "released" in railwa} 7 receipts and bills of lading is unwarranted by the law that governs O common carriers, and should be abandoned not only because it is illegal, but also a great annoyance to the public, and, we firmly believe, of doubtful utility to the "common carriers." As the matters which we propose to consider^at this time relate H entirely to " common carriers," of private carriers we will only say in general terms that " the general rules which regulate contracts and £ mutual obligations apply to the duties and rights of private carriers, with little or no qualification " ; but the common carrier has rights and assumes responsibilities not common to the private carrier. The rights and responsibilities of the common carrier may be briefly stated thus : He is bound to take the goods that are proper to be transported and in proper condition for transportation of all who offer, and take 2 due care and make due transport and delivery of them. " He has a lien on the goods which he carries " (which the private carrier has not) ; " he is liable for all loss or injury to the goods under his charge, although wholly free from negligence, unless the loss happens from the act of God or from the public enemy." The added responsibility probably arises from several causes : first, in the case of railroad corporations, they have received a charter from the States to enable them to do this business, and are given valuable rights and privileges, such as the right to demand prepayment of freight ; and second, a lien on the goods transported till paid for such transportation. " The common carrier is to a certain extent a public officer, and the recognized confidence that is reposed in them, the power they have over the goods intrusted to them, and the opportu- nity to defraud the owner of them, and }^et make it appear that he was not in fault, which fault might be difficult of proof by the owner of the goods, and the rule is intended to hold common carriers responsible wherever it was possible that they caused the loss either by negligence or design." "The general principles of agency extend to 'common carriers' and make them liable for the acts of their agents done while in the discharge of their agency or employment ; so the knowledge of their agents is the knowledge of the carriers, if the agent be authorized expressly, or by the nature of this employment, to receive this notice or knowledge." The carriers are not only liable on their own lines, but where they unite to form a long line, extending over different lines and States on through rates, which are to be divided as may have been agreed, "they are all liable for a loss on any part of the lines." Again, " if they are not so united, but say they are so or say what indicates they are so " (as by giving or recognizing through bills of lading over such road), " they justify the shipper and receiver in sup- posing they are united, and thus they are equally liable." If the foregoing propositions, as to the acknowledged and proper lia- bility of the common carriers are correct, the next question arises, How far this liability can be, and how far it should be, limited. Our first proposition was, that common carriers should be liable for the goods receipted for and stated in the bill of lading. Of course the bill of lading must be signed by an authorized agent or it is not a bill of lading but a forgery, and of no binding force on any one or party but the forger. But it has occurred in the past that 3 a genuine bill of lading has come forward accompanied with drafts for the value of the goods, and the drafts have been paid, when in the end it has been found that the goods had never been shipped. We are aware that the courts in England have decided that ves- sels are liable only for the goods actually received, even though the bill of lading be signed by the captain, who only is authorized to sign such bill of lading; the justice stating the following: " We think that when a captain has signed bills of lading for a cargo that it is actually on board his vessel, his power is exhausted ; he has no right or power by signing other bills of lading for goods that are not on board to charge his owners." But later, in 1868, an English court, the judges all concurring, de- cided " that delivery to the agent of the ship for the purpose of loading is sufficient to create liability on the owners' part," and the final settle- ment of the celebrated Green & Co. cotton case in this country seems to have settled the principle that a genuine bill of lading is good for the merchandise or its value. It seems to us the foregoing acknowledged principles of law, that the common carriers are responsible for the acts of their agents, should be strictly enforced, else it is quite possible, we may say prob- able, that a captain or agent who would be guilty of the issuing of a bill of lading for goods not received would be much more likely to make other disposition of a part of the goods for his own personal benefit. The common carriers should have honest agents ; if not, they and not the holder of the bill of lading should be the sufferer. As to the quantity shipped, common carriers attempt to transfer a part of the risk upon the shipper or receiver, as the ownership may rest, by various insertions in the bill of lading, thereby limiting as far as possible all responsibility beyond that of the private carrier, beyond which they well know they cannot go. The common carrier occupies a position of trust for the shipper of the goods and the receiver. We think they are bound to know the quantity of the article received, and not to issue a bill of lading till they have such knowledge, and when the bill of lading has been signed they are equitably bound to deliver all they received to transport. It may be here said that for the con • venience of shippers cars are sent to elevators and warehouses where they have not agents or scales, and in such cases some such words as "shipper's count" or " shipper's weight" are inserted in the bill of lading ; but we claim that no bill of lading should be issued till the common carriers have satisfied themselves as to what the bill of lad- 4 ing should cover, then the}' can sign a bill of lading that shall insure the delivery of the goods or pay for them. As to settlement at point of delivery, we, as merchants, can see no legitimate reason why we should pay anything beyond that demanded by the bill of lading, as the delivering company can, if it shall so determine, retain in its hands all the freight specified in the bill of lading till any irregularity in previous billing is adjusted. It prob- ably will be replied that such is not the custom of connecting railroad companies, but the usual course is for each to pay the connecting road all back charges, and they are left to collect the amount paid by them, with their charge for the distance carried by them. In reply we say, do not pay more than should be the aggregate proportion of the preceding companies ; but if you have or shall do so, as a part of the line, it is your duty to adjust the matter between your different parties in the transaction. It may be also added by the common earner, that they receive merchandise from roads with which they have no agreed rates, and that legitimately they have no right to issue a through bill of lading that should bind the line, or any road in the line, and the delivery road should not be bound to adjust any over-charges back of the line of which they are an acknowledged part. To this we reply, the first link in the connecting line should require, in the manifest that accom- panies the shipment, a statement of the through rate at which the merchandise has been billed through, and this first road of the regu- lar line should see that the amount asked of them by the road deliv- ering to them is only such part of the rate expressed in the bill of lading as shall leave the line their agreed rates to carry the merchan- dise to the consignee at the point designated in the bill of lading. This course being adopted, there is no chance or place for over, charges, except by clerical errors, which should, and doubtlesss would, always be promptly corrected by the road making the final delivery. The official classification issued by the joint committee of the rail- way companies to the Interstate Commissioners, and adopted largely by the railway companies east of the Mississippi River, assumes, ami tries to put in force, a practice which we deem unfair to the public, in that it attempts to absolve the railway companies from responsi- bilities in case the property is injured in transit, which responsibility manifestly and legitimately belongs to them as common carriers. It will be found in this joint classification that almost all freight 5 which is liable to injury by the usual causes of rough handling, derailment, collision, and violent stopping, starting, or switching, are forced into the " O. R " (owners' risk) class, which is written upon the railroad receipt or bill of lading, leaving the owner of the injured goods the remedy of a suit at law ; and while the liability of the com- mon carrier, as before stated, is that they shall deliver the property in like good condition, acts of God and the nation's enemies only excepted, yet having accepted such a receipt or bill of lading (in many cases not aware of its purport and intended force) , with owners' risk of leakage, breakage, chafing, or use of hooks, the owners are at great disadvantage to secure their rights. The right, yea more, the duty of the officers of the railway com- pany to protect itself, as to extra-hazardous freight and rascalit}^ of either shipper or receiver, is not questioned ; but if the business com- munity shall acquiesce in the present classifications, its rules, restric- tions, and evasions of responsibility, while the railwa} r managers do not deny that injuries caused by derailment, collisions, etc., are faults for which they are responsible, yet by these new terms inserted in the bill of lading, the burden of proof is on the owner of the goods ; and from the nature of the case, unless the damage shall occur in an accident of such magnitude as to become of public notoriety, or the property is delivered in such a condition that it is perfectly apparent that the damage must have occurred while in their hands and by their acts, the owner may be unable to procure adequate proof to est-iblish his claim. It is therefore claimed that we ought to protest against these new conditions imposed by the railway companies, and the practice that has been in vogue from time immemorial until recent date be re- sumed, that the carrier shall deliver his goods in like apparent good order and condition. If, in making this classification, the pre-existing rates or classes have been lowered a class, so that the shipper has the option of a lower rate than before by accepting a new contract that transfers a part of the responsibility for which he is paid in the lower rate, and the shipper chooses the new rate and consequent contract, this is entirely legitimate ; against which there lies yet this objection, that while the proposed option might by strictly equitable, in practice it would be nearly an impossibility to carry out such rules and provis- ions without subjecting . the shipper and the railway company to an amount of labor, in constantly making these contracts, that their 6 literal enforcement is not attempted by many, if any, of the common carriers of the country. When the matter was proposed in 1878, it aroused such indignation that public meetings were at once held in this city by the Boston Board of Trade, and in New York, and it was soon made manifest to the railway companies that they had gone too far, and the proposed change was dropped temporarily ; but soon some of the railway com- panies commenced to insert O. R.'s in their local receipts, and in 1881, we find one of the largest railways in New England had seventy different articles in their tariff, against which the}' inserted " O. R." ; in 1885, a much larger number ; but no tariff' of any rail- way, either East, West, North, or South, have we found that ap- proached the tariff of the Joint Committee, wherein they put O. R. in some form against some 900 different items of some 3,300 items which are inserted in their book of classification ; and we venture the opinion that the cutting up the classification into so many items is unnecessarily burdensome to both the railways and the public. Should it be said that the railways have the option to make just as many items of billing as they choose, we reply, yes, if not too great an inconvenience to the public ; and the following are the facts as to other associations which have considered this matter : — The Transcontinental Association in their classification put some 1,800 items, of which 120 are O. R., 47 P. P. The Southern Rail- way and Steamship Association some 1,300 items, of which 400 are O. R., and 46 P. P. But this last association, in each of the " O. R." items gives the option of carriers' risk at a higher rate. The Classification Committee of the New England railways, at their meeting in March, 1887, appointed at a previous meeting of thirty-three of the presidents of New England railwa} T s, after full discussion and consideration for three da} T s decided to entirely elim- inate O. R. from their classification, with the following exceptions : Fruit, fresh meat, vegetables, and furniture ; and they there limited the O. R. in relation to all but furniture, to what might result from causes from which the common law releases them, viz., the acts of God, in heat and cold and effects of the weather. As to furniture: first a rate is given without the O. R., then a lower classification and rate, if the shipper chooses to accept the alter- native, and only some one thousand four hundred items, as against some three thousand three hundred of the Joint Committee. We fully and heartily commend the action of the New England Classification 7 Committee, and urge its adoption by all the common carriers of the country, so that we may not be brought to the necessity to ask of Congress the enactment of a law substantially what was asked by the people of England, and put into force by the enactment by Parliament of the following law in 1854 : — " That every railway and canal company shall be liable for the loss of or any injury done to any horses, cattle, or other animals, or to any articles, goods, or things in the receiving, .forwarding, or delivery thereof, occasioned by the neglect or default of such company, or its servants, notwithstanding any notice/ condition, or declaration made or given by such company contrary thereto, or in any way limiting such liability, every such notice, condition, or declaration being hereby declared to be null and void. " Provided alwa}^s that nothing herein'contained shall be construed to prevent the said companies from making such conditions with re- spect to the receiving, forwarding, and delivering such animals and goods as shall be adjudged b}' court or judge before whom any ques- tion relating thereto shall be heard, to be just and reasonable." In conclusion, we make the following suggestions : — First. We think the principle of the first proposition is so well set- tled by the courts of this country and England that no action is rec- ommended by your committee. Second. On the other propositions we offer the following resolu- tions, viz. : — Resolved, That in the opinion of this association it is the duty of common carriers to issue bills of lading for the goods received for transportation, and to deliver the t goods and quantity receipted for, or pay for the deficiency without subjecting the receiver to expense of litigation. Resolved, That we believe and insist that all merchandise should be delivered to the receiver on payment of the freight specified in the bill of lading. Resolved, That we heartily approve of the action of the Classifica- tion Committee of the New England railways in eliminating from their classification and tariff, " owner's risk," and we strenuously urge the adoption of the same by all common carriers. ALDEN SPEARK. WILLIAM O. BLANEY. JEROME JONES. JONA. A. LANE. Si>. Q. Si>. ll i\ V . I L< ) \\ Hi. JOII.N L. ISA 1 (- H r.LDhilf. 7^ 1 4 Y4 r 4 1 > 1 4 1 ^ T 4 A 1 1/ 4J »/Al_/ A . DA 1 Mi r PTIY"41Vf AQ I. f 1,' \' 1 - ^ EXAxuvlS O. iil'iA.N . 1/4 XT A TIT A TVT \ T 4 XT1* 1 . } KJ 1\ A 1 1 1 A A . V . 1 j A JN Fj • \\ r r r i i i a i f ^ Li r ixr^v V> llil.l A.M l». 1)1 A.N hi . ( )l»M l V r V T.IAVII ( i EO RG L H • Tj KON V R D lilt 1 1 A 1 > 1 > 1 J 1 1 1 » i ( i r> . l*T A I * V XT I 1 li 1 A Ttt/ 1 1 1 1/ r I V I 1 A 1 v 1 . A 4 l'i 1). ill 1 1 \ 1 1 1 1 j 1 j 1 1 1 •iM^i-.rii ii u kin k. i i . 1/ HI\T Tl \T/Al>'r/ 4XT T A \T/ l\TT i^l "li rTTi\Tfj 4 T4T LAMON1 vjr. ISURNHAM. W. BoWLAND NORCROSS. T Ti^TTAl 4 XT' 1 ^T/ 1 !.' I/T^l 1 l^rilllil A JN 1 J C |\ IU 1 I . \\ r irr|»TT ^ 1 r * I,' r T V r W 1LLI AM I I. A V IiIiN . TT Q'P t DT IT* 42 T^i VI"!' 1 ' I ► ( 1 1 '.' >rge A. Clark. r l 1 l I All t O IV* T* 1 >/ 41 "l'/"\ 1 » J H.OMAS Hi. I R()( FOR. J. H. L OM r DO.N . A T I? X 4 X T T"4I,' I. TT T?T*~1T^ ATiJiiJVAiNJJhli LI. TvlCL. Frank A. Davidson. t t 4 a r T^ T * t 1 1 t-i WILLIAM IS. I\ICE. Ciiari.es A. Dean. El)^'IN l^OBINSON. Freeman J. Doe. Oscar II. Sampson. Samuel Farquhar. William H. Sayward. Eustace C. Fitz. L. P. S.oule. James B. Forsyth. Alden Spear. Hersey B. Goodwin. HOW AIM) W. Spurr. Levi S. Gould. Cyrus Thaciier. D. S. GiiiiENOUGH. Charles I. Thayer. James M. W. Hall. Adams K. Tolman. George s. Harrington. Daniel G. Tyler. S. J. Harrison. M. Everett Ware. George W. Herrick. B. B. Whittemorb. J. Edward Hollis. George M. Win slow. BOSTON Ex^eutiu^ Busir^ss /tesoeiatiop. LIST OF ASSOCIATIONS REPRESENTED. ^_ BAY STATE LUMBER TRADE ASSOCIATION; BOSTON BOARD OF FIRE UNDERW R ITERS. BOSTON CHAMBER OF COMMERCE. BOSTON COAL TRADE ASSOCIATION. BOSTON DRUGGISTS ASSOC IATION. BOSTON FISH BUREAU. §|j BOSTON FRUIT AND PRODUCE EXCHANGE/* BOSTON GROCERS ASSOCIATION. BOSTON MERCHANTS ASSOCIATION. EARTHEN-WARE AND GLASS TRADE ASSOCIATION. - BOSTON PAPER TRADE ASSOCIATION. DRYSALTERY CLUB OF NEW ENGLAND NEW ENGLAND SHOE AND LEATHER ASSOCIATION. NEW ENGLAND FURNITURE EXCHANGE. NEW ENGLAND METAL ASSOCIATION. OIL TRADE ASSOCIATION OF BOSTON. PAINT AND OIL CLUB OF NEW ENGLAND. THE MASTER-BUILDERS ASSOCIATION.