Oregon-Washington Railroad & Navigation Co. v. Seattle Grain Co.

Holcomb, J.

(dissenting)-—The foregoing discussion is based upon the premise that, since the bill of lading is a contract, and a contract in writing, any action upon the contract, or upon a liability, express or implied, arising out of contract, is within the statute if commenced within six years from the time the cause of action accrued, unless

“the circumstance that the contract does not specifically name the sum to be charged for the carriage, but provides that the sum to be paid shall be the stat*13utory rate, changes the nature of the liability from one on contract, or one arising out of contract, to a liability created by law.”

It is argued that,

“A liability created by statute is one in which no element of agreement entered, but is an obligation which the law creates in the absence of agreement, but the present liability is not of that sort. The law but fixes the rate to be charged when a contract of carriage is made. In other words, the law does not create the liability; it but determines the amount of the liability created by the express contract of the parties. As such, it is not a liability created by statute. It is a liability arising out of the contract which the parties have by their writing expressed.”

The premise is correct, but the reasoning is unsound. At common law the bill of lading was a contract, even though the rate of carriage was not specified therein. Under that system the greatest freedom was enjoyed by “trade” in transportation. There was much discrimination, secrecy, subterfuge, rebating and other abuses. These abuses led to the enactment of acts by many states and by the national government to regulate commerce, and by those acts the rates to be charged were perforce removed from the field of private agreement and secret barter and became matters of legal regulation. The entire subject of rates is removed from the realm of private contract. The regulation thereof in this state is very similar to that of the Federal government, and the principles, applicable are identical. Under these statutory regulations the shipper obtains transportation by right of law equal with every other shipper of the same class,, and the rate charged is not the result of private contract, either written or oral, unless the carrier shall have failed to file and post a proper schedule, but is fixed and determined under recognized legal forms. *14These statutes, ours as well as the Federal government’s, ignore the bill of lading and make the published tariff rate binding, and subject both the carrier and the agent to severe penalties for the infraction thereof. Gulf, Colorado & S. F. R. v. Hefley, 158 U. S. 98.

“After the tariff rates have been duly established, as provided by law, the rate on any given shipment ceases to be a matter of negotiation between the parties. The carrier is then required by law to render a service for the public, and the established charges are enforceable, not by reason of any contract, but by virtue of the law that fixes the rates. ’ ’ Baltimore & Ohio S. W. R. Co. v. New Albany Box & Basket Co., 48 Ind. App. 647, 94 N. E. 906, 96 N. E. 28.

See, also, Fisher v. Great Northern R. Co., 49 Wash. 205, 95 Pac. 77.

If these principles do not establish a legal duty and, correlatively, a legal liability, regardless of any written contract, it would be difficult to understand where would lie the case which does. No voluntary contract can be made by parties when the obligation is fixed by law. The parties can in no way modify, enlarge or diminish the statutory obligation. Such being the case, the cause of action did not fall within our six-year statutory period of limitation, but rather under the two-year provision; certainly it would be barred by the three-year provision. And we have held in numerous like instances, such as in an action upon a county officer’s official bond for malfeasance in office, where the plaintiff, in answer to the statute of limitations, claimed that, since the bond was a written contract, the period of limitation was six years, that the obligation sued upon was one created by law, and hence not contractual; and the fact that it was a written contract, imposing the same but no other or different obligation, did not change the cause of action *15from one arising from operation of law to a written contract, and so come within the six-year period of limitations. Spokane County v. Prescott, 19 Wash. 418, 53 Pac. 661, 67 Am. St. 733.

See, also, Schreiner v. Emel, 26 Wash. 555, 67 Pac. 228; Johnson Service Co. v. Aetna Indemnity Co., 46 Wash. 434, 90 Pac. 590; Kepl v. Fidelity & Deposit Co., 81 Wash. 135, 142 Pac. 489.

Under the laws of this state, a bill of lading issued by a carrier to a shipper is nothing more than a receipt for the goods, and a contract to carry and deliver them, and has nothing to do with the rates or the liability arising under the charge for carriage.

The circuit court of appeals, eighth circuit, in Chicago & N. W. R. Co. v. Ziebarth, 245 Fed. 334, held that an action by a carrier against a shipper for an undercharge on an interstate shipment was an “action upon a liability created by statute, although the liability is in the nature of a specialty,” in so far as the statute of limitations is concerned, and that the state statute of limitations applied.

For the foregoing reasons, I am obliged to dissent.

Chadwick, C. J., concurs with Holcomb, J.