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Federal Internet Law & Policy
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Common Carrier History Dont be a FOOL; The Law is Not DIY

- Common Carrier
- History
- Theory
- -Bailment
- - Market Power / Essential
- Duties
- - Non discrimination
- - Refusal to carry
- -Interconnection
-Liability
- Benefits
-Examples
-Telecom Carriers
-Telegraph
-Reference
- Telephone
- - AT&T
- ICC
- FCC


A common carrier has traditionally been defined as one which holds itself out as being ready, upon demand and without discrimination, to carry goods for the public at large, for hire or reward. [NY p. 40] Common carriers have the following characteristics:

History

Common law doctrines applicable to common carriers have two distinct sources. The first is an aspect of the law of bailments and is concerned with the responsibilities of carriers for goods in their possession. The second is an aspect of the law of franchises and is concerned with government control of enterprises exercising exclusive privileges. There are some freatures in common, but the underlying policy considerations are quite different. In determining the resppnsibililty of a carrier for goods in its possession, the critical question is the nature of the carrier's undertaking: did it hold itself out as a general carrier of such goods? In determining the proper scope of government regulation of a carrier, the important question is whether the carrier is in a position to control the flow of traffic because of special privileges or monopoly power. --[Jones A-10]

"Precursors to common carriage go back to the Roman Empire and the legal obligations of shipowners, innkeepers and stable keepers.5 In England early common law placed certain duties on businesses which were considered "public callings." Common or public occupations included those of bakers, brewers, cab drivers, ferrymen, innkeepers, millers, smiths, surgeons, tailors and wharfingers.6 "Common" in that context meant "open to serving the general public" or "general".

   "In 1701, an English Court found that "If a man takes upon him a public employment, he is bound to serve the public as far as the employment extends; and for refusal an action lies, as against a farrier refusing to shoe a horse...Against an innkeeper refusing a guest when he has room...Against a carrier refusing to carry goods when he has convenience, his wagon not being full."7 By 1814, with the coming of the industrial revolution and laissez-faire economics, common callings were generally limited to what we would today call infrastructure services in transportation and communications, together with associated facilities such as inns. Common carriage was applied to freight or carriage companies and inland and ocean water carriers. By common law, common carriers were 1) required to serve upon reasonable demand, any and all who sought out their services; 2) held to a high standard of care for the property entrusted to them; and 3) limited to incidental damages for breach of duty.     .  -- Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435, Sec. II (1994).

Antiquities

Precursors to common carriage may date back at least to the Roman Empire which developed law pertaining to the duties of shipowners, innkeepers and stable keepers. --[NY p. 40]

Medieval

Other precursors of the public utility concept included the medieval guilds, which held monopolies of specific crafts and in return, were closely regulated to assure that they provided service to all at reasonable rates; the French royal charters that granted monopolies to plantations and trading companies and in turn regulated their activities to assure that government goals were met; and the occupations under English common law that were referred to as "common callings" and, as such, were subject to special rights and duties - Sterling, Bernt, Weiss, Shaping American Telecommunications, p. 22 (2006)

Just Price Doctrine

One of the earliest efforts to regulate private industry was the early Catholic Church doctrine of justum pretium, or the just price doctrine. According to this notion, a seller should not be unjustly enrished through a transaction. Rather, the seller should receive a just priace for his goods, that is, a price that will cover the seller's costs and provide enough profit so the seller can have enough for his economic support. - Sterling, Bernt, Weiss, Shaping American Telecommunications, p. 22 (2006)

Links

Old English

The first common carrier case on record in English common law is of a ferryman in 1348. [Y.B. 22 Ass. 94, pl. 41 (1348).] Later cases discuss other common occupations such as innkeepers, [Y.B. 2 Hen. IV, 7, pl. 31, Y.B. 5 Ed. IV. 2, pl. 20.] marshalls, [Y.B. 19 Hen. VI. 49, pl. 5.] and surgeons. --[FCC 1981]

Common Callings

Other precursors of the public utility concept included the medieval guilds, which held monopolies of specific crafts and in return, were closely regulated to assure that they provided service to all at reasonable rates; the French royal charters that granted monopolies to plantations and trading companies and in turn regulated their activities to assure that government goals were met; and the occupations under English common law that were referred to as "common callings" and, as such, were subject to special rights and duties - Sterling, Bernt, Weiss, Shaping American Telecommunications, p. 22 (2006)

Modern Era

Common Carriage Reaches America

"In the Nineteenth Century, American courts began imposing certain obligations—conceptually derived from the traditional legal duties of innkeepers, ferrymen, and others who served the public—on companies in the transportation and communications industries. See Cellco, 700 F.3d at 545. As the Supreme Court explained in Interstate Commerce Commission v. Baltimore & Ohio Railroad Co., 145 U.S. 263, 275 (1892), “the principles of the common law applicable to common carriers . . . demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable.” Congress subsequently codified these duties, first in the 1887 Interstate Commerce Act, ch. 104, 24 Stat. 379, then the Manns-Elkins Act of 1910, ch. 309, 36 Stat. 539, and, most relevant here, the Communications Act of 1934, ch. 652, 48 Stat. 1064. See Cellco, 700 F.3d at 545–46." - Verizon v. FCC, Slip at. 47 (DC Cir. Jan. 14, 2014)

The concept of common carriage crossed the Atlantic and became part of the American legal system. In the United States in the 19th Century, common carriage was broadly applied to railroads and later other transportation and distribution mediums. [NY p. 42]

The New York state legislature began setting railroad rates as early as 1855. [NY p. 43]

The Interstate Commcerce Act, in 1887, in addition to creating a broad scheme of public utility regulation of railroads, also codified the duties of rail common carriers recognizing particularly the liability and non discrimination components. Private rail carriers which were controlled by and haul for a single entity were not considered common carriers. LAter, barge, trucking and intercity bus companies were brought under the act. [NY p. 44]

Examples of Common Carriers

Airplanes

Smith v. O'Donnell, 12 P.2d 933 (Cal. 1932)

Amusement Park Ride

Neubauer v. Disneyland Inc., 875 F.Supp. 672 (CD Cal 1995)

Blacksmiths

Lane v. Cotton, 88 Eng. Rep. 1458 (K.B. 1701).

Buses

Lopez v. Southern Calif. Rapid Transit Dist., 710 P.2d 907 (Cal. 1985)

Elevators

Munn v. Illinois, 94 U.S.113, 126 (1876).

EMail

In re Request for declaratory ruling and investigation by Graphnet Systems, Inc., concerning the proposed E-COM service, FCC Docket No. 79-6 (Sept 4, 1979) (concluding that USPS E-COM service would be a common carrier service, and noting that if the electronic messaging service were offered by private parties, it would likewise be common carriage). But see Implications of Email p 76 (noting that subsequent Computer II proceeding would classify Email as an "enhanced service," not basic common carriage).

Ferries

RCW 47.60.220 Department as common carrier - Rights and liabilities.

T. CHITTY & L. TEMPLE, A PRACTICAL TREATISE ON THE LAW OF CARRIERS OF GOODS AND PASSENGERS BY LAND, INLAND NAVI GATION, AND IN SHIPS *2, *8 (1857)

Horse Drawn Vehicle

Operator of horse drawn hay ride providing entertainment at company sponsored outing is not a common carrier.  Gunther v. Smith, 78 Md. App. 508, 553 A.2d 1314 (1989),

Stagecoach: Fairchild v. Stage Co., 13 Cal. 599 (1859)

Mule Train: McIntyre v. Smoth Tree Ranch Stables, 23 Cal. Rptr 339 (Ct. App. 1962)

Inkeeper / Hotels

Lane v. Cotton, 88 Eng. Rep. 1458 (K.B. 1701)

N. COURNOYER & A. MARSHALL, HOTEL, RESTAURANT AND TRAVEL LAW 4-7 (2d ed. 1983) (discussing the history of hotel common law).

Escalator Elevator

Operator of escalator or evavator not a common carrier.  ONeil & Co. v. Crummit, 172 Md. 53, 190 A. 763 (1937)

Hendershott v. Macy's, 322 P.2d 596 (Cal. Ct. App. 1958) (Escalator)

Parker v. Manchester Hotel Co., 85 P.2d 152 (Cal. Ct. App. 1938) (Elevators)

Ski Lift: Squaw Valley Ski Corp. v. Superior Court, 3 Cal Rptr 2d 897 (Ct. App. 1992).

Oceanic

Ocean Shipping carriers, which are regulated by the Federal Maritime Commission pursuant to the Shipping Act of 1984.

Ocean Passenger Liners

Relying on the Shipping Act's definition of a common carrer, particularly the "transportation" and point-to-point aspects of the Act, the district court determined that Cunard Line was a common carrier.  ... Disregarding the district court's distinction between point-to-point and round-trip cruises, the Court of Appeals for the District of Columbia held that a cruise liner is a common carrier if it calls between the Inited States and foreign ports, and therefore would be subject to the exclusive jurisdiction of the FMC.  However, cruse ships that call only at foreign ports would be subject to the exclusive jurisdiction of the federal district court... The FMC, the regulatory agency responsible for administering the Shipping Act, has held that cruise ships are common carriers under the terms of the 1984 Shipping Act for United States-to-foreign cruises  -- Daniel Eldredge, Classifying Cruise Ships as Common Carriers under the Shipping Act, a Jurisdictional Struggle: American Association of Cruse Passenters v. Carnival Cruise Lines, 15 Tul Mar. L.J. 397, 399-400 (1991).

Ports

Hale, A Treatise in Three Pars,in 1COLLECTION OF TRACTS RELATIVE TO THE LAW OF ENGLAND 1, 72 (F. Hargrave ed. 1787) (describing ports as common carriers)

Post Office

Turnpike Co. v. Sandford, 164 U.S. 578 (1896)

Railways

Kerigan v. Southern Pac. R. Co., 22 P. 677 (Cal. 1889); Cowden v. Pacific Coast S.S. Co., 29 P. 873 (Cal. 1892)

Steamboats

Metz v. California South R. Co., 24 P. 610 (Cal. 1890)

Taxis

Taxis are common carriers.  St. Michelle v Catania, 252 Md 647, 250 A.2d 874 (1969); Jacobson v. Julian, 246 Md. 549, 229 A.2d 108 (1967); Jacobson v. Julian, 246 Md. 549, 229 A.2d 108 (1967).

Larson v. Blue & White Cab Co., 75 P.2d 612 (Cal. Ct. App. 1938)

Telecommunications Carriers

Telegraph.