SOUTHERN COTTON OIL CO. v. CENTRAL OF GEORGIA RY. CO., 228 F. 335

WALKER, Circuit Judge. Neither the petition in this case nor the agreed statement of facts, which was adopted as the defendant’s answer, shows that-y the plaintiff was not the owner o.r shipper of the goods for services-of the plaintiff in the wharfage and handling of which at Savannah recovery was sought. The contrary not appearing, it may be presumed that the plaintiff was the shipper of the goods. The carrier was not entitled to pay the shipper for such services unless the charges therefor were specified in a duly published

schedule or tariff. U. S. Comp. St. 1913, § 8569. It appears from the statement of facts that the only

schedule ever filed by tire defendant which specified this charge for wharfage and handling was one which, in a proceeding instituted by the defendant before the Interstate Commerce Commission, and before this suit was brought, was directed by that body to be canceled. The effect of that decision, which, so far as appears, has not been directly attacked, was to. eliminate. such allowances from the filed tariff. American Sugar Refinery Co. v. Delaware, L. & W. Ry. Co. (D. C.) 200 Fed. 652.

The case, then, is that of a shipper seeking to recover of a carrier for services in connection with a shipment for which no allowance is specified in a filed tariff. The plaintiff was not entitled to a judgment of the court requiring the defendant to pay for services, the payment for which voluntarily by it would be a violation of a statute. As the averments of the petition and the agreed statement of facts did not show that the plaintiff was entitled to recover any part of the amount sued for, it could not have been legally prejudiced by the action of the court in dismissing the petition.

It follows that the judgment should be affirmed. PARDEE, Circuit Judge, not concurring.