"What duty does a common carrier owe under the Federal Transportation Act to a shipper with reference to cars and loading facilities ?
The watermelons which the plaintiff shipped were transported from Wade, North Carolina, to Philadelphia, Pa. Such shipment constituted interstate commerce. The melons which plaintiff proposed to ship were also intended to be transported to the same point. The Federal Transportation Act, paragraph 1, subsection 2, U. S. C. A., page 52, imposes upon every common carrier “engaged in the transportation ... of property to provide and furnish such transportation upon reasonable request therefor.” The words “transportation” as used in the act includes not only cars and other vehicles, but “all instrumentalities and facilities of shipment or carriage . . . and all services in connection with the receipt, delivery, elevation, and handling of property transported.”
The record discloses that the defendant had filed with the Interstate Commerce Commission certain tariffs applicable to shipments in interstate commerce moving on the lines of defendant in July and August, 1928. Rule No. 35-D was offered in evidence and is as follows: “Orders for cars desired for loading must be filed, with reasonable advance notice, by shippers with the originating carrier’s agent and must be given in writing (or if given orally or by telephone must be confirmed in writing) and must specify the type of car (refrigerator, ventilator, box, etc.), and character of carrier’s service desired. (See Rules Nos. 80-H and 87-B.)” Rule 27, section 1, was also offered in evidence and provides that “owners are required to load into or on cars freight for forwarding by rail carriers, and to unload from cars freight received by rail carriers, carried at carload ratings.”
The r-ule requiring notice in writing is a part of the tariff and cannot be waived. James C. Davis v. Geo. D. Henderson, 266 U. S., 92, 69 L. Ed., 182; Falmouth Coöp. Marketing Assn. v. Penn R. R. Co., 212 N. W., 84.
The plaintiff bases his cause of action upon three theories: First, that the letter of 20 April, 1928, to Superintendent McClellan and the reply *268thereto constituted a valid contract for increasing shipping facilities at Wade, N. C. Second, that sufficient cars were not available for moving the property of plaintiff. Third, conceding that a sufficient number of cars were furnished, the cars so furnished were inaccessible by reason of soft, miry and defective approaches thereto.
The first theory is untenable. The letter of 20 April, 1928, contemplated “favorable weather conditions for growing crops this season,” and was written before the crop was planted. The experience of mankind through centuries of fair weather and foul has amply demonstrated that the hope of the planting is not always .the fact of the harvesting. Hence the letter and reply thereto do not measure up to the dignity of a valid and enforceable contract. Moreover any contract, tending to create a special advantage for a particular shipper, when not within the published tariff, is invalid. Davis v. Cornwell, 264 U. S., 563, 68 L. Ed., 848; Chicago & Alton R. R. Co. v. Kirby, 225 U. S., 155, 56 L. Ed., 1033.
Neither can the plaintiff recover upon the second theory for the reason that no request in writing was duly filed as required by Rule 35-D. Davis v. Henderson, supra.
Nor can the plaintiff recover upon the third theory. Undoubtedly it is the duty of the carrier to furnish reasonable transportation facilities, and this must include reasonable facilities for loading cars for shipment. The furnishing of cars at an inaccessible place or at a place where a shipper could not reasonably have access to them would not comply either with reason or the requirements of the law. Certainly, reasonable accessibility to cars furnished, is contemplated within the term “transportation” as defined by the Federal Transportation Act. However, the machinery of the transportation act is put into operation by the “reasonable requests therefor.” Manifestly the carrier is entitled to know the specific demands of the shipper and the time when the need for equipment arises in order that a reasonable opportunity be afforded to promptly supply the need without crippling the service or creating special advantages or discriminations. Beyond the letter of 20 April, 1928, there is no notice whatever to the defendant as to the needs of plaintiff or others, and no indication whatever to defendant as to the type and extent of service required at Wade, North Carolina; nor is there any notice in writing that the cars furnished were inaccessible by reason of defective approaches thereto.
We therefore hold upon the record as presented that the motion for nonsuit should have been allowed.
Reversed.