ing September and October, 1924, was $1.49 per ton, which tends to indicate that defendant's average cost figure is too large. Defendant instances rates from shipping points in New Hampshire, Massachusetts, Maryland, New York, New Brunswick, Connecticut, Ontario, and West Virginia to Forest Castle, ranging from 21.5 to 55.5 cents for 161 to 787 miles and yielding ton-mile and carmile earnings ranging from 11.3 mills and 28.2 cents to 31.1 mills and 77.6 cents. It contends that if the rate to Forest Castle were made with relation to the rates in effect to other consuming points in New Jersey and Pennsylvania on a mileage basis it would range from 20.5 to 24.5 cents. Rates from New York to Forest Castle on other commodities of lower value than wood pulp range from 15.8 to 25.5 cents and yield from 20 to 29 mills per ton-mile. Many of the rates referred to are on the sixth-class basis. Under certain circumstances we have approved the application of the sixth-class rates on wood pulp between points in trunk-line territory, but where there is regularity and volume of movement the general bases throughout trunkline and New England territories are commodity rates lower than the sixth-class rates between the same points. In Bulkley, Dunton & Co. v. P. R. R. Co., 102 I. C. C. 347, division 3 found that the applicable commodity rate of 31 cents on imported wood pulp, in carloads, from New York, N. Y., to Big Island, Va., 455 miles, was unreasonable to the extent that it exceeded 27 cents, which yielded earnings of 11.9 mills per ton-mile and 39.3 cents per car-mile. Giving due consideration to the element of distance, the rate prescribed in that case is on a much lower basis than the rates here in issue. We find that the rates assailed were, are, and for the future will be, unreasonable to the extent that they exceeded, exceed, or may exceed 19 cents. We further find that complainant made the shipments as described and paid and bore the charges thereon at the rates herein found unreasonable; and that it has been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rate herein found reasonable; and that it is entitled to reparation, with interest. Complainant should comply with Rule V of the Rules of Practice, and furnish proof by affidavit that it paid and bore the charges on any shipments which may have moved since the date of hearing. If defendant objects to proof of that character, complainant may apply for further hearing. An order for the future will be entered. 157 I. C. C. No. 20979 UNITED STATES GRAPHITE COMPANY v. GRAND TRUNK WESTERN RAILWAY COMPANY ET AL. Submitted June 20, 1929. Decided September 16, 1929 Rate charged on ground mica, in bags, in carloads, from Valparaiso, Ind., to Saginaw, Mich., not found unreasonable. Complaint dismissed. Earl W. Cox for complainant. Frederick V. Slocum for defendants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEWIS, BRAINERD, AND FARRELL BY DIVISION 5: This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Complainant, a corporation manufacturing foundry facings at Saginaw, Mich., by complaint filed January 6, 1928, alleges that the rate charged on six carloads of ground mica, in bags, from Valparaiso, Ind., to Saginaw, shipped between March 27, 1926, and August 16, 1927, was and is unreasonable and unjustly discriminatory. As the evidence was confined to the issue of unreasonableness, that allegation alone will be considered. A rate for the future and reparation are sought. Rates will be stated in amounts per 100 pounds. Ground mica, which was and is used by complainant in the making of foundry facings, is a powder made by wet-process grinding scrap mica, which is that portion of mineral mica unsuitable for use in the sheet form. See Richmond Mica Corp. v. Baltimore & O. R. Co., 152 I. C. C. 221. The value of ground mica is not given. In the official classification it is rated fifth class, in bags, or barrels, in carloads, minimum 30,000 pounds. It can load as heavily as 80,000 pounds. The shipments, which averaged 30,347 pounds, moved over the Grand Trunk Western and Cincinnati, Saginaw & Mackinaw, 236.8 miles. The applicable fifth-class rate of 27.5 cents was collected. A rate of 22 cents, equivalent to the contemporaneous sixthclass rate, a minimum of 30,000 pounds, and reparation to the said basis, are sought. Complainant compares the rate assailed with rates contemporaneously applying on unnamed commodities from the Chicago, Ill., district to points in central territory, which in some instances are as low as 80 per cent of sixth class. As the minimum in connection with the said commodity rates is 40,000 pounds, and as the circumstances and conditions surrounding the establishment of such rates, and the volume of movement thereunder, are not given, the comparisons are of little value. Complainant refers to the fact that ground mica is used in the manufacture of foundry facings on which the rating in the official classification is sixth class, and contends that there is no justification for a higher rating on a raw product than on the finished one. Ground mica, however, has other uses than in the making of foundry facings, its chief use being in the manufacture of such higher-rated commodities as wall paper and rubber tires. Richmond Mica Corp. case, supra. Moreover, the official classification provides a minimum of 36,000 pounds on foundry facings, and as they load to an average weight of 44,300 pounds, foundry facings yield greater earnings than ground mica, even with a lower rate. On graphite, which is used interchangeably with ground mica in the manufacture of foundry facings, division 3 recently prescribed a minimum of 50,000 pounds. Obermeyer & Co. v. Ann A. R. Co., 147 I. C. C. 646. We find that the rate assailed has not been shown either to have been or to be unreasonable. The complaint will be dismissed. 157 I. C. C. No. 21523 FLORIDA DAIRIES, INCORPORATED, Submitted April 29, 1929. Decided September 14, 1929 Rate charged on one carload of glass milk bottles from Elmira, N. Y., to Miami, Fla., found not unreasonable. Complaint dismissed. H. J. Flack for complainant. Frank W. Gwathmey for defendants. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS CAMPBELL, McMANAMY, AND BRAINERD BY DIVISION 2: This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Complainant, a corporation in the dairy business at Miami, Fla., alleges by complaint filed September 17, 1928, that the rate charged on one carload of glass milk bottles shipped March 19, 1927, from Elmira, N. Y., to Miami was unreasonable. Reparation is sought. Rates will be stated in amounts per 100 pounds. The shipment consisted of 277 crates of milk bottles of various sizes, and weighed 37,934 pounds. It moved by rail over the Delaware, Lackawanna & Western, and Reading Company, to Philadelphia, Pa., and by water over the Merchants & Miners Transportation Company beyond. Charges were collected at the applicable combination rate of 80.5 cents, composed of a local rate of 22.5 cents to Philadelphia, which is not assailed, and a proportional commodity rate of 58 cents beyond. Complainant seeks a rate beyond Philadelphia of 49.5 cents, or a through rate of 72 cents. From December 7, 1926 to March 18, 1927, one day prior to the date of shipment, the rate sought was in effect. From March 18 to May 24, 1927, the applicable rate was 58 cents. Subsequently rate changes have been made as follows: May 24, 1927 to January 15, 1928. November 19, 1928 to the present time____ Cents 49.5 50 40 35 To support its allegation that the rate assailed was unreasonable complainant relies solely upon the fact that the rate sought was formerly in effect and subsequently reestablished. Defendants state that the fluctuation in the rate has been caused solely by competitive conditions; that for the past several years they have been confronted with competition of steamer lines along the Atlantic coast which do not file some of their rates with this commission, and apparently make such rates more with regard to attracting traffic from established lines which do file their rates here than with regard to maintaining them on a permanent and reasonable basis which will afford proper compensation for the service performed; and that, although recognizing the demoralizing effect of such an unstable rate structure, defendants have been forced to meet these rates, whenever possible, in order to receive any of the available traffic. Defendants take the position that regardless of the various changes, the rate assailed was not unreasonable. They instance allrail rates on the commodity concerned from Elmira to Miami in excess of the combination rail-and-water rate charged. Complainant refers to McFarland Lumber Co. v. B. C. R. R. Co., 47 I. C. C. 471, wherein we found that the rate of 15 cents charged on lumber in carloads, from Platamis, Mo., to Cairo, Ill., was unreasonable to the extent that it exceeded a rate of 10 cents which was in effect prior and subsequent to the period of 21 days when the increased rate was applicable. We have frequently found that the voluntary reduction of a rate is not of itself a sufficient basis for an award of reparation on shipments moving prior to the reduction. We find that the rate charged has not been shown to have been unreasonable. The complaint will be dismissed. 157 I. C. C. |