Under the agreement the railroads would be liable for shipper losses resulting from a delay in delivery in excess of 24 hours. In return the Western Growers Association agreed not to oppose the rate increases in the railroad tariffs. From the language of the agreement
it appears that the railroads' guaranteed scheduling policy is designed to help the Western Growers Association whose members ship east to auction or wholesale markets rather than food market chains which buy directly from growers and ship east for immediate distribution to their retail outlets. In its answer the United States, the statutory defendant in this case,
concedes that the Commission erred in not rejecting the tariff schedules filed by the railroads as not conforming to the requirements of Section 6(1). We agree.
Section 6(1) requires railroads to file schedules "showing all the rates, fares, and charges for transportation * * * [which] shall * * * state separately * * * all privileges or facilities granted or allowed, and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the * * * shipper or consignee." Section 6(7) prohibits railroads from engaging in transportation of passengers or property unless Section 6(1) is complied with.
The fundamental safeguard against discrimination in transportation under the Act is public disclosure of charges for all services through the system of filed tariffs required by Section 6. To prevent circumvention Section 6(1) explicitly requires that the tariff separately state all privileges or facilities granted or allowed and any rule which affects any part of the rates or the value of the service rendered. We think that in the circumstances of this case
the guaranteed scheduling policy of the railroads was a privilege or facility granted shippers which affected the rate and the value of the service.
The guaranteed scheduling policy is the price the railroads paid to eliminate opposition from the Western Growers Association to the rate increases included in the tariff. On prior occasions the Association had successfully opposed rate increases before the Commission. Hence to obtain Commission approval of the increase here it was important that this opposition be at least neutralized. This was accomplished by the railroads' commitment to deliver produce within 24 hours of scheduled delivery. This commitment is a special transportation service not even referred to in the tariffs filed with the Commission. Then Commission Chairman Tucker advised the Western Growers Association that "agreement by carriers to dispatch for arrival and delivery at a specified date and time obviously constitutes agreement to render a special service, which to be lawful requires tariff support." HE-19, Ex. 4, pp. 3-4. And the Commission's own Bureau of Enforcement in these proceedings advised the Commission that the guaranteed scheduling in this case is a separate valuable service which requires tariff authorization.
See 335 ICC 791, 805. The Commission, however, was otherwise persuaded.
Since we are in agreement with the concession of the statutory defendant that Section 6(1) required that the railroads' guaranteed scheduling policy be separately stated in the tariffs, we remand this case to the Commission for further not inconsistent proceedings.