SECTION XI.

TERMINAL CHARGES.

We come to another common complaint against railway companies,--the

one which, next to that relating to differential and import rates,

has lately been most heard of. From time to time during the last

30 years, and especially of late, the right of railway companies

to make charges for what are known as terminal services beyond the

remuneration for actual conveyance has been challenged. On the part

of the railway companies there has been no change of practice.

No new kind of charges has been imposed; those in dispute have

been made from the very beginning of railways in this country.

Introduced by the common carriers upon the railways, they were

continued by the railway companies. On the strength of the right to

receive these charges, companies took upon themselves the carrying

business, constructed large goods stations, with vast siding and

other accommodation, and in providing land, premises and appliances,

expended an enormous amount of capital, not necessary for earning

the statutory mileage rates. The legality of such charges has been,

after full argument on appeal, upheld by the Court of Queen’s Bench

(_Hall v. London Brighton and South Coast Railway Company_, L. R.

15 Q. B. D. 505): their equitable character is not less clear,

and the contention to the contrary is, in the words of the joint

judgment of Mr. Justice Wills and Mr. Justice Mathew, “singularly

unreasonable.”[40]

“We have already mentioned the anticipation, in the early days,

that the railway companies would merely furnish the railway and

charge tolls for the use of it by carriers and others, who would

employ private locomotives, carriages and wagons. The notion was

borrowed from the experience as to canals and highways; and it has

been well said that ”no proper understanding of a good deal of our

railway legislation, and pre-eminently of clauses relating to tolls

or charges, can be arrived at, unless it (the theory) is firmly

grasped and steadily kept in view.”[41] On railways, as on canals,

there were three states of circumstances which it was considered

must be provided for: First a railway company, like a canal company,

might simply provide a highway, looking to the tolls alone for the

use of that highway for a revenue upon their capital; secondly,

without themselves being carriers, the railway company might provide

trucks and locomotive power, as the canal companies provided boats

and haulage power on the canal; or, thirdly, both the canal company

and the railway company might be carriers upon the highway which

they themselves had provided, and find the wharves, stations, other

necessary premises, accommodation and appliances, and the capital

for that purpose.

[40] Mr. Justice Manisty delivered a separate Judgment. See note at

foot of page 99.

[41] Wills, J., in Hall v. London Brighton and South Coast Railway

Company, p. 536. See also Field J. in Brown v. Great Western Railway

Company, L. R. 9 Q. B. D., p. 751.

The owners of lands along the banks of canals were entitled to

construct, in connection with them, wharves, basins and warehouses;

and we find in the earlier railway Acts, and in the Railways

Clauses Consolidation Act 1845 (subject to which all railways since

that date have been, constructed), similar powers with respect to

railways conferred upon adjoining owners. They were authorised

to construct sidings and junctions for the purpose of making

communications between their own lands and the railway. It was

intended that a trader should load his wagons on his own premises,

carry them over the railway and take them off the railway again at

another siding or communication, paying the railway company a mere

toll for the use of the length of line over which the traffic was in

fact worked. Nor was this a mere theory. For many years upon some

of the railways in this country the work of carrying merchandise

was, to a considerable extent, actually performed by large firms

of carriers, such as Pickfords, and others, who provided their

own siding accommodation with the railways, and built or rented

their own stations and warehouses. During this period the railway

companies, so far as this part of their traffic was concerned,

merely provided the highways, the wagons and the engine power, and

hauled the traffic from its place of origin to its destination; and

they undertook no responsibility as common carriers in respect of

the goods. The carriers provided the station accommodation, loaded

and unloaded the goods, checked and weighed them, and handed over

the loaded or unloaded trucks to the railway company in a convenient

position for the engine to be attached to them. Of course, the

carriers, who undertook all liability as such, charged the public

not only the tolls which they paid to the railway company, but also

a considerable additional sum to cover the risk of their Common

Law liabilities, the cost of providing station and warehouse

accommodation, clerkage and invoicing of goods, and other services

beyond the haulage of the trucks.[42] Upon some lines the state

of things which we have described existed for many years. But

gradually the railway companies began to undertake the duties and

responsibilities of carriers. They purchased or built, often at

enormous expense, the necessary terminal accommodation which, under

the previous system, had been provided by private carriers; and

they made to the public charges similar to those which the carriers

themselves had before made for corresponding accommodation and

services. The companies raised the large sums required to furnish

this accommodation and for their working capital as carriers, upon

the faith that they were entitled to stand in all respects, in the

place of the carriers or forwarding agents, and to make reasonable

charges for accommodation and services not covered by, and obviously

having no relation to, the mileage rates for simple haulage from

point to point.

[42] Mr. William Pierssene, Manager to Messrs. Pickford & Co.,

stated in his evidence before the Railway Commissioners in the case

of Kempson v. The G. W. R. (4 N & M 426), that in addition to the

amount of the railway companies’ tolls, a sum varying from twelve to

_eighteen shillings_ a ton was paid by the customer for the services

which now form the subject of terminal and cartage charges.

This view has been sanctioned by the Legislature in almost all

Railway Acts passed since 1845. The charges which a company are

authorised to make are of three kinds--first, tolls for the use of

the railway as a highway; secondly, charges, in addition to the

tolls, for the use of carriages, wagons, and for locomotive power

where such of them are provided by the company--in other words, for

conveyance along the railway. A third class of charges becomes due

when the company not merely convey the goods, as they would for the

carriers who had their own station accommodation and staff, but

are themselves the carriers; cases where, in addition to providing

the highway, vehicles, and locomotive power, they perform “such

services as are incidental to the duty or business of a carrier.”

These services include the providing of stations, warehouses and

sheds, where goods are received, sorted, loaded, covered, checked,

weighed, and labelled, and trucks marshalled for convenient removal

to their various places of destination, and the maintenance of a

large staff of clerks, book-keepers, porters, workmen, engines and

horses necessary for these operations. In this last case the company

are entitled to make, in addition to the charges proper to highway,

rolling stock, and locomotive power, a reasonable charge for the

services, often costly and onerous, rendered in their totally

different capacity of carriers.

It is undisputed that if the railway companies were not carriers

and acted as toll takers only, they would be entitled to claim

their full tolls. But what would be the result if they put in force

such a right? The carriers or forwarding agents who would replace

them, naturally would, as they formerly did, levy such payments as

would cover the cost of station accommodation, and all the services

performed in respect of the carriage of goods beyond the mere

conveyance along the railway. Can it have been in the contemplation

of the Legislature that railway companies were not to be entitled to

make the same charges?

Suppose a Bill were before Parliament for the construction of a

railway, and a clause requiring that the mileage rates should cover

the cost of terminal accommodation were inserted, and the promoters

accepted the Bill with such a restriction. The construction of a

station at the terminus of the railway in a large town is very

costly, and it would be to the interest of the company to make the

station outside the town where land and works would be cheap. They

would thus save capital upon which they would obtain no return,

and, at the same time, they would be entitled to charge the public

the full cost of cartage, whatever the amount might be. The Great

Western Company, for instance, might have constructed their terminus

at Wormwood Scrubs--from which place the cost of cartage to the City

would probably be 7s. 6d. per ton, which the public would have to

pay. With the view of affording better accommodation and of reducing

the expense of cartage, they have erected a station under Smithfield

Market, at a cost, in interest on outlay, maintenance, and other

terminal expenses of an average of 3s. 8d. per ton. According to the

opponents of terminal charges the Great Western Company are only

entitled to be paid a mileage rate proportional to the distance from

Wormwood Scrubs to Smithfield, that is, as for seven miles, to cover

the use of the railway and the station. To take other illustrations,

could it be supposed that the London and North Western Railway

Company would have spent several millions of capital in providing

expensive station accommodation in the immediate vicinity of the

Docks in Liverpool, instead of receiving and delivering the traffic

at Edge Hill, or that companies would have constructed vast stations

in London, Manchester, Leeds, and many other important places,

unless the cost was to be covered by payments in addition to the

mileage rates? So inequitable and opposed to the real interests of

traders is this contention that it is difficult to understand how it

could ever be put forward.

One of the allegations before the Railway Rates Committee in 1881-2,

was, that the companies carried some traffic at too low rates,

and, to compensate themselves, imposed higher rates than otherwise

would be necessary on other traffic. Now, if railway companies were

not allowed to charge for terminal accommodation and services, one

effect would be that in consequence of the cost of the construction

and the expenses of stations, short distance traffic would be

actually carried at a loss.

In recent years terminal charges have been recognised in every Act

for the construction of new railways, by the introduction of a

clause of which the following is a copy:--

“No station shall be considered a terminal station in regard

to any goods conveyed on the Railway, unless such goods have

been received thereat direct from the consignor, or are

directed to be delivered thereat to the consignee.”

If the railway companies were not entitled to charge terminals for

the use of the stations, the insertion of such a clause in Acts

of Parliament would be meaningless; the intention of the clause

evidently was that the companies may not charge terminals in respect

of any intermediate station or junction, and the fair inference is

that they may do so at the sending or receiving station.[43]

[43] Hall v. L. B. & S. C. Railway. Manisty, J., L. R., 15 Q. B. D.

p. 544.

The equitable mature of the claim of the railway companies to make

terminal charges has been admitted on several occasions by some, if

not by all, of the railway commissioners. Their refusal to consider

terminal charges as legally justifiable has arisen only from the

doubt which existed in their minds as to the strict construction of

the words of the clauses; and that question has now been decided by

the Queen’s Bench Division in “_Hall_ v. _The London Brighton and

South Coast Railway Company_.” Some portions of the judgment of the

Court in that case deal only with the construction of the sections

of the particular Private Acts of the defendant company; but the

remarks of the Judges upon the general principles which govern

the railway companies, claim to make terminal charges, explain so

clearly their natural equity as well as their legality, that they

may not improperly be quoted:--

“This notion of the railway being a highway for the common use of the

public, in the same sense that an ordinary highway is so, was the

starting point of English railway legislation. It is deeply engrained

in it. In the early days of railways it was acted upon at least

occasionally, and in respect of goods traffic, and although it enters

but slightly into modern railway practice, _no proper understanding

of a good deal of our railway legislation, and pre-eminently of

clauses relating to tolls or charges, can be arrived at, unless it

is firmly grasped and steadily kept in view_. Those states of things

were from this point of view to be expected and to be provided for

by legislation. The company might be merely the owners of a highway

and toll takers for the use of it by other people with their own

carriages and locomotives. That state of things would be worked out

by the railway company possessing the mere line of railway from

end to end, and by the persons making use of it, buying or renting

contiguous land whereon to keep their rolling stock, and have their

offices, availing themselves of the powers of Section 76 of the Act

of 1845, and getting on to the railway by means of sidings connected

with the railway.

“A second state of things, as we know from the evidence in this case

to which by the consent of the parties we are at liberty to refer,

prevailed extensively for many years after the railway system was in

full operation, and for some years at least after the passing of the

Act of 1845. The railway company provided the line and provided the

engines and trucks, but they were not carriers. The large warehouses

and sheds wherein goods were received, sorted, loaded, covered,

checked, weighed and labelled, and trucks or carriages marshalled

and prepared for convenient removal to their various places of

destination--a corresponding work was done in respect of goods

arriving from a distance--the staff of clerks, book-keepers, porters,

workmen, and horses necessary for these operations were all provided

and maintained at the expense of the carrier, and no portion of them

fell upon the company. The company, on the other hand, as owners

of the rolling stock, for the use of which, as well as of their

railways, they received payment, provided whatever accommodation they

needed in order to keep in convenient proximity to the places where

the carrier had his depôts the necessary supply of rolling stock.

“The third state of things which might exist simultaneously with the

second, or might be the one prevailing exclusively on a particular

line, existed when the company were themselves the carriers of the

goods, and when as carriers they provided the accommodation and

performed the services above described.

“The company might thus be: 1, toll-takers and neither conveyers

nor carriers; 2, conveyers but not carriers; 3, carriers. It would

naturally be expected that in the first case they would have powers

to take tolls, and tolls only, and that in the second, they would

have power to make charges, which should include tolls and charges

for the use of rolling stock, and it would seem reasonable enough

that (inasmuch as they would probably have much greater facilities

for keeping and using their rolling stock to advantage and with

economy than any other person could have) where they provided both

trucks and locomotives as well as took tolls, the maximum charge

should be lower than the aggregate of the three separate charges

which they might make for, 1, use of railways; 2, use of carriages;

3, locomotive power.

“It would seem natural also to expect that where the company were

carriers, inasmuch as they performed the identical services which

they perform under the second head, and others besides, they should

be allowed to charge the same sums as they might charge when falling

under the second category, _plus_ those which are appropriate to

the extra services and liabilities which fall upon them when they

undertake the duties and business of a carrier.

“The contention of the applicants appears to us singularly

unreasonable. It was proved before the Railway Commissioners,

and is not disputed, that the actual cost to the company of the

accommodation and services, which, for many years after the railway

system was very largely developed, and all the principal lines in the

kingdom were at work, were on some of the most important railways

in England provided by independent carriers, and did not fall upon

the railway company, amounted to 1s. 5d. per ton; and it is admitted

that, even with the help of the six-mile clause, the company, if

the contention of the applicants is correct, would, in the case of

traffic carried not more than six miles, have to carry goods coming

under class 5, at a dead loss, which may be approximately stated as

8d. per ton for station services alone, besides getting nothing for

the use of railway and trucks and for providing power.

“The charges of and incidental to ‘conveyance,’ as we have explained

that phrase, are properly measured by the mile of distance travelled

over. The terminal services of station accommodation, loading,

watching, checking, and the like, have no common measure with the

distance run, and are the same, whether that distance be two or two

hundred miles....

“Our answer, therefore, is that the providing of station

accommodation, and work of the general nature indicated to us by the

Railway Commissioners, appear to us to be capable of falling under

the definition of ‘services incidental to the duty or business of a

carrier,’ and _prima facie_ to do so. Whether in any particular case

they do so, or to what extent they do so, must be a question of fact

for the Commissioners, the line we should draw being, that whatever

is necessary for ‘conveyance’ in the sense in which we have defined

it--being all capable of being measured by reference to the distance

travelled--is covered by the mileage rate. Whatever is properly

incidental, not to conveyance, but to the performance of the duty and

business of a carrier ... that is to say, is actually performed and

is done at a terminal station, may be made the subject of a separate

reasonable charge.

“How could the Legislature ever provide for every single station on

this line, for every terminal station, what was a proper charge? It

could only be done by limiting it, as it has done, by ‘a reasonable

sum,’ and it is for the Railway Commissioners to say what is a

reasonable sum, under the circumstances at each terminal station. ‘No

station is to be considered as a terminal station in regard to any

goods conveyed on the railways of the company unless such goods have

been received thereat direct from the consignor of such traffic, or

are directed to be delivered thereat.’ Therefore terminal stations

are recognised, and terminal charges are recognised distinctly.”

Sir Bernhard Samuelson observes that terminal charges are a

necessary corollary of the Foreign mileage rates,[44] the scientific

basis of which he so much approves; the equity of, and right to make

terminal charges is equally a corollary to the system upon which

the rates in this country have been fixed. The maximum charges for

the user of the road, the user of the truck, and the provision of

the engine are capable of being fairly measured by reference to the

distance travelled. They are, therefore, properly the subject of a

mileage rate. But the providing of station accommodation, and work

which the Railway Companies perform as carriers--as distinguished

from mere conveyance--have no relation to mileage. They must

reasonably be--as it has been held in the case of “_Hall_ v. _The

London Brighton and South Coast Railway Company_,” they legally

are--the subject of an additional charge.

We may here correct a common error. The opponents of terminal

charges are in the habit of speaking and writing of them as if the

companies claimed that they might at their own discretion demand

such payments as they thought fit.[45] The railway companies have

never contended that they were entitled to make arbitrary terminal

charges. Indeed, such a contention would be a legal absurdity.

On the contrary, they have always submitted that, while their

right to make those charges was undoubted, the amount must not

only be reasonable, but also be subject to review by the Railway

Commissioners under the 15th Section of the Regulation of Railways

Act, 1873. Sir Bernhard Samuelson is inaccurate in stating that

the railway companies proposed by their Bills of last Session to

make those charges subject only to their own discretion. While

strongly relying both upon their legal right and the justice of

their claim, the railway companies were willing to submit proposals

to the consideration of Parliament for a re-settlement of their

powers in this respect. But they expressly provided that the

Railway Commissioners should have power to hear and determine any

question or dispute which might arise with respect to the amount

or reasonableness of any terminal charge made by the company, and

that any decision of the Commissioners as to terminal charges should

be binding and conclusive on all Courts and in all proceedings

whatsoever;” words borrowed from s. 15 of the Regulation of Railways

Act, 1873.

[44] Report to Associated Chambers of Commerce.

[45] “The claim of railways to charge terminals would have to

be considered if mileage rates are adopted in principle. That

charge could in no wise be left to the discretion of the railways

themselves, as was proposed in the Bills of last Session.”--Sir B.

SAMUELSON.

A few details as to the law and practice on this subject in

Continental countries may be useful. And, first, as to Germany. When

the question of the introduction of a new tariff for the German

railways was under consideration, it was agreed that in previously

fixing the railway rates, sufficient consideration had not been

given to the expense incurred at the sending and receiving stations,

irrespective of the distance the traffic was carried. The result

of the calculations which were made was that those expenses should

be estimated at 12 marks per truck load of ten tons. This was

accordingly adopted as the standard figure for all goods carried

in wagon loads, while for small consignments the charge was fixed

at 20 marks. The addition of those normal allowances to the rates

on traffic to be carried short distances would have considerably

increased the charges previously made. It was accordingly agreed,

as a compromise, to graduate the terminal charges for short

distances; the graduation being simply the means of avoiding what

might have been considered a large increase in the railway rates,

in consequence of the adoption of the “reform tariff system.” These

terminals represent the working expenses at the forwarding and

receiving stations, the labour of receiving the goods from sender,

marshalling or shunting the trucks to the sidings set apart for the

delivery of the goods, and also the expense incurred by railway

companies for stationery and clerkage; but they do not include the

expense of loading and unloading, except in the case of _Grande

Vitesse_ and “_Piece Goods_,” They vary from 10d. per ton in full

truck loads of 10 tons, to 2s. per ton of general goods, and in the

special tariff classes, which include minerals, from 7¼d. in full

trucks of 10 tons to 1s. 2½d. per ton.

In Belgium there is a fixed charge of 1 fr. per ton of 1,000

kilogrammes for the use of station and for clerkage; but it does

not include loading and unloading, or booking, counting, or advice

of arrival of goods, for all of which services extra charges are

authorised and, in fact, made. This is practically a terminal charge.

In Holland the terminal charges vary from 1s. 2d. to 1s. 6d. per

ton in the truck load classes, and 2s. 6d. per ton in respect of

ordinary or “_piece_” goods in quantities of less than 5 tons. In

the latter case the cost of loading and unloading is included in the

terminal charge, but not in the truck load classes. In neither case

are weighing, counting, stamping freight note, labelling or advice

of arrival included. For all of these services extra charges are

made.

In France only small charges varying from 20 cents. per ton for

goods in full truck loads, to 35 cents. per ton for goods in less

quantities, are made for the use of stations, though there are

various charges for loading and unloading, booking, advice of

arrival, and other services. Either, therefore, the traffic for

short distances is carried at a loss, or no adequate return to cover

the use of station and conveyance is obtained--a course, which,

assuming the outlay upon a railway is entitled to a fair return, is

opposed to sound commercial principles.[46]

[46] NOTE.--The terminals authorised and charged in these countries

will be found fully set out in a tabular form in the Appendix III.

Railway Rates: English and Foreign · 第 11 / 17 章