CHESAPEAKE & OHIO RAILWAY COMPANY

v.

WESTINGHOUSE, CHURCH, KERR & CO., INC.; MELLON, DIRECTOR GENERAL OF RAILROADS, V. WESTINGHOUSE, CHURCH, KERR & CO., INC.

U.S. | 1926-03-01

Nos. 170 and 171

270 U.S. 260 Supreme Court of the United States (1926) Positive Treatment

Also reported at: 70 L. Ed. 576 · 46 S. Ct. 220 · SCDB 1925-178 · 1926 U.S. LEXIS 890

Cited by 16 cases

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Synopsis

The Chesapeake & Ohio Railway Company and the Director General of Railroads sued Westinghouse, Church, Kerr & Co., Inc. in Virginia state court to recover charges for providing a dedicated engine and crew during 1917-1918 under a contract made to address wartime traffic congestion at Newport News. The Supreme Court affirmed the lower courts' judgment for the defendant, holding that the contract was void because it sought compensation in excess of the tariff rate for spotting service that was already covered under the Interstate Commerce Act's published tariffs, and because providing such assurance of performance constituted an unlawful preference to the shipper in violation of the Act.

Opinion of the Court

Mr. Justice Brandéis

Mr. Justice Brandéis delivered the opinion of the Court.

These actions were brought in a state court of Virginia to recover amounts alleged to be due for the use of an engine and crew rented or assigned by the Chesapeake & Ohio Railway Company to Westinghouse, Church, Kerr & Co., Inc., under a contract made in September, 1917. The latter corporation was engaged in construction work for the Government on. premises at Newport News connected by industrial tracks with the Railway’s main line. Owing to war conditions, there was then serious congestion of traffic at Newport News, and the Railway failed duly to perform spotting service for the company. To remedy this condition the engine and crew were assigned to the exclusive use of its traffic, payment to be made therefor as prescribed in the contract. The use continued from that date until April, 1918. The Railway sued for the-period prior to December 28, 1917; the Director General for that later. The defences were want of consideration and that the contract was void because it violated the Interstate Commerce Act and a similar law of the State. A judgment for the defendant, entered in each case by the trial court, was affirmed by the Supreme Court of Appeals on the ground of want of consideration. 138 Va.

647. This.Court granted writs of certiorari. 266 U. S.

598. No question under the state law is before us.

The service of spotting cars was included in the line haul charge under both interstate and state tariffs. The Railway contends that under the tariffs no obligation rested upon the carrier either to furnish spotting service solely for the convenience of a shipper or to furnish -him special facilities to meet abnormal and unprecedented conditions; that the contract was, therefore, not without consideration; and' that, being for rental of equipment, it was not for a common carrier service and,whence, a contract therefor was legal under the Interstate Commerce Act, although no tariff provided for the' charges. The service by special engine and crew contracted for and given was not spotting solely for the convenience of the shipper. It was the spotting-service covered by the tariff. Compare Car Spotting Charges, 34 I.

C. C. 609; Downey Shipbuilding Corp. v. Staten Island Rapid Transit Ry. Co., 60 I.

C. C.

543. It is true that abnormal conditions may relieve a carrier from liability for failure to perform the usual transportation services, but they do not justify an extra charge for performing them. The carrier is here seeking compensation in excess of the tariff rate for having performed a service covered by the tariff. This is expressly prohibited by the Interstate Commerce Act, Act of February 4, 1887, ,c. 104, § 6(7), 24 Stat. 379, 381, as amended. A contract to pay this additional amount is both without consideration and illegal. It is no answer that by virtue of the contract the shipper secured the assurance of due performance of a transportation service which otherwise might not have been.promptly rendered; that ordinarily rental of engine and crew is' not a common carrier service; and that such rental may be charged without filing a tariff providing therefor. Compare Chicago, Rode Island & Pacific Ry. Co. v. Maucher, 248 U. S.

359. To so assure performance to a shipper was an undue preference.

Hence the contract would be equally void for illegality on this ground. Davis v. Cornwell, 264 U. S. 560.

Affirmed.

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Citator

Cited By

Am. Tel. & Tel. Co. v. Cent. Off. Tel., Inc., 524 U.S. 214 (U.S. 1998)

…riff FCC No. 1, § 6.2.4. Any assurance by petitioner that it would allocate usage and charges and take responsibility for the task would have been in flat contradiction of the tariff. See Chesapeake & Ohio R. Co. v. Westinghouse, Church, Kerr & Co., 270 U. S. 260, 266 (1926). [*226] The Ninth Circuit distinguished respondent’s claims from those in our filed-rate cases involving special services in one other respect: according to respondent, the “special services” that it sought were provided by petitioner, w…
Ill. Cent. Gulf R.R. Co. v. Golden Triangle Wholesale GAS Co., 586 F.2d 588 (5th Cir. 1978)

…applicable to the shipments in question in this case, then Golden Triangle has an action to recover any excess over the charges provided in the tariffs. See 49 U.S.C.A. § 6(7); Chesapeake & Ohio Railway Co. v. Westinghouse, Church, Kerr & Co., 1926, 270 U.S. 260, 46 S.Ct. 220, 70 L.Ed. 576. Because the issues were neither raised by the appeal nor briefed we do not discuss some of the questions that might ensue. Indeed, considering the amount involved and the fact that the issue appears to have no future ap…
Am. Ry. Express Co. v. Am. Tr. Co., 47 F.2d 16 (7th Cir. 1931)

…-strictly adhered to, so that shippers may receive equal treatment, presents an insuperable obstacle to recovery.” The judgment is reversed, and the cause remanded, with direction to dismiss the action. Chesapeake & O. Ry. Co. v. Westinghouse Co., 270 U. S. 260, 46 S. Ct. 220, 70 L. Ed. 576; Davis v. Henderson, 266 U. 8. 92, 45 S. Ct. 24, 69 L. Ed. 182; Davis v. Cornwell, 264 U. S. 560, 44 S. Ct. 410, 68 L. Ed. 848; Baltimore & Ohio Southwestern Railroad Co. v. Settle, 260 U. S. 166, 43 S. Ct. 28, 67 L. Ed…

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Authorities Cited (17 total)

Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (U.S. 1907)
Louisville & Nashville R.R. Co. v. Maxwell, 237 U.S. 94 (U.S. 1915)
Louisville & Nashville R.R. Co. v. Mottley, 219 U.S. 467 (U.S. 1911)
New York v. Interstate Commerce Comm'n, 200 U.S. 361 (U.S. 1906)
Santa Fe v. Grant Bros. Constr. Co., 228 U.S. 177 (U.S. 1913)
S. Ry. Co. v. Prescott, 240 U.S. 632 (U.S. 1916)
Pa. R.R. Co. v. Puritan Coal Mining Co., 237 U.S. 121 (U.S. 1915)
United States v. Union Stock Yard & Transit Co. of Chicago, 226 U.S. 286 (U.S. 1912)
Davis v. Cornwell, 264 U.S. 560 (U.S. 1924)
The Los Angeles Switching Case, 234 U.S. 294 (U.S. 1914)

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CHESAPEAKE & OHIO RAILWAY COMPANY v. WESTINGHOUSE, CHURCH, KERR & CO., INC.; MELLON, DIRECTOR GENERAL OF RAILROADS, V. WESTINGHOUSE, CHURCH, KERR & CO., INC.