No. 21775 CHARLES BOLDT PAPER MILLS COMPANY v. NEW IBERIA & NORTHERN RAILROAD COMPANY ET AL. Submitted August 2, 1929. Decided October 2, 1929 Demurrage charges assessed on shipments of scrap paper, in carloads, for detention at New Iberia, La., not shown to have been, as claimed by complainant, the unavoidable result of flood conditions at that point in 1927 or to have been unreasonable. Complaint dismissed. T. J. McLaughlin for complainant. Joseph Lallande and J. E. Bailey for defendants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEWIS, BRAINERD, AND FARRELL BY DIVISION 5: This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the examiner. Complainant, a corporation manufacturing pulpboard at New Iberia, La., alleges, by complaint filed November 27, 1928, that demurrage charges of $396 assessed on shipments of scrap paper, in carloads, "consigned to complainant at New Iberia, reaching the terminal during the period May 25 to the middle of June, 1927," were unreasonable. We are asked to authorize defendants to waive collection of the charges assailed. Complainant asserts that a flood in the Mississippi Valley was the cause of the delay in unloading for which these charges were assessed, and waiver thereof is sought upon the ground that it is unreasonable to penalize complainant for detention attributable solely to an act of God. The flood water reached New Iberia on May 25, 1927, and continued to rise until May 29, 1927, when complainant's plant was under water 3 to 5 feet in depth. The mill was partially surrounded by flood water until June 15, 1927, and was not entirely free from it until June 30 of that year. Although defendants' tracks are from 2 feet to 3 feet higher than the surrounding territory, in some sections of the city they were covered by about 6 inches of water during the flood period. This did not, however, interfere with the movement of trains. For a time conditions throughout New Iberia were such that complainant's shipments could not have been unloaded anywhere in the city without material damage to the freight, as no dry storage space was available. How long such condition prevailed is not shown. When the flood began three cars awaited unloading at the mill, apparently on a private siding, and others were in transit. No cars were placed for unloading during the flood period. Whether or not any were constructively placed does not appear. The details necessary to determine whether the demurrage charges were assessed in conformity with the governing tariffs are entirely lacking. Complainant does not question the measure of the charges and concedes that, if any demurrage was assessable under the circumstances, the amount charged is correct. Defendants presented no evidence. They concur in complainant's description of conditions at New Iberia during the flood period and agree to the relief sought. The record does not show when the assailed charges accrued, but it appears that they were assessed during July and August, 1927, after the flood had ended. The evidence concerning the time when the unloading of cars could have been resumed free from flood interference is conflicting. Complainant states that most of the cars came in," presumably into its siding, during the latter part of June and the early part of July, 1927, when water on the ground and flooded warehouses rendered unloading without serious injury to the paper stock impossible. If, as complainant also states, the plant was free from water after June 30, 1927, it is not clear how the detention after that date can be attributed to the flood. Obviously, the evidence is insufficient to support a finding of unreasonableness. We find that the charges assailed are not shown to have been unreasonable. The complaint will be dismissed. 157 I. C. C. No. 21385 WILLOW SPRINGS CREAMERY COMPANY, INCORPORATED, v. ILLINOIS CENTRAL RAILROAD COMPANY ET AL. Submitted June 17, 1929. Decided September 30, 1929 Rates on butter, in straight carloads, and on butter and eggs, in mixed carloads, from Springfield, Mo., to New Orleans, La., found not unreasonable. Complaint dismissed. J. H. Simpson for complainant. B. H. Stanage for defendants. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND WOODLOCK BY DIVISION 4: This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the examiner. Complainant, a corporation, alleges by complaint filed August 13, 1928, as amended, that the rates charged on butter, in straight carloads, and on butter and eggs, in mixed carloads, shipped on and after June 27, 1927, from Springfield Mo., to New Orleans, La., were and are unreasonable. Reasonable rates and reparation are sought. Rates will be stated in amounts per 100 pounds. The shipments moved southeast over the St. Louis-San Francisco to Memphis, Tenn., 282 miles, thence 395 miles over Illinois Central, a total distance of 677 miles. Approximately 54 carloads of butter and 4 mixed carloads of butter and eggs moved prior to July 14, 1928. On those shipments the applicable commodity rate of $1.37, minimum 20,000 pounds, on butter was collected, and according to complainant, the applicable less-than-carload rate of $1.905 was collected on the eggs. The record, however, indicates that a rate of $1.37 instead of $1.905 was collected for the transportation of the eggs. The shipments apparently were undercharged. On and after July 14, 1928, the applicable rate of $1.30 on butter and eggs, in straight or mixed carloads, was collected. Complainant seeks a rate of $1.20. Of the total distance, 58.4 per cent is through the lower rated Mississippi Valley territory where the southern class-rate scale applies. In the southwestern revision we prescribed rates on butter and eggs, straight or mixed carloads, minimum 20,000 pounds, which were 60 per cent of the corresponding first-class rates prescribed therein. Complainant computes a rate of $1.18 based on 60 per cent of the first-class distance rate prescribed for 677 miles in the southwestern revision, with what it regards as an appropriate reduction on account of the fact that part of the haul was in the Southeast. The route via Memphis was used, but defendants point out that there are other available routes between Springfield and New Orleans lying wholly within southwestern territory. Moreover, under the southwestern revision the carriers were authorized to establish group rates for hauls comparable to that under consideration, and necessarily such group rates were not in all instances the same as the distance scale for actual distances over particular routes between particular points in the groups. Complainant refers to a rate of $1.28 applicable from Springfield to Chef Menteur, La., a point on the Louisville & Nashville 18 miles northeast of New Orleans, and to Gulfport, Miss., 653 miles, and Mobile, Ala., 665 miles. This rate does not apply via New Orleans. In the following table, compiled from exhibits of record, the rate assailed is compared with rates from other points to New Orleans before and after July 14, 1928: 1 Effective date of rates established in compliance with the southwestern revision. In Willow Springs Creamery Co. v. Illinois C. R. Co., 152 I. C. C. 284, division 2 found a rate of $1.37 from Willow Springs, Mo., to New Orleans, 586 miles, unreasonable to the extent it exceeded $1.15, and awarded reparation. Willow Springs is on the St. Louis-San Francisco 91 miles southeast of Springfield and 49 miles northwest of Mammoth Springs, Ark. A rate of $1.15 was prescribed in the southwestern revision from Group 307 including Mammoth Springs to New Orleans, 537 miles, a rate of $1.30 from Group 308 including Cotter, Fayetteville, and Rogers, Ark., and a rate of $1.43 from Group 309. Stated generally Group 307 includes points in Arkansas approximately 475 to 600 miles from New Orleans, Group 308 points in Arkansas approximately 600 to 750 miles therefrom, and Group 309 points in Texas and Oklahoma approximately 750 to 900 miles. The rate of $1.30 established July 14, 1928, from Springfield is in harmony with the rate on butter and eggs prescribed from Group 308 and does not appear excessive. As has been previously shown, the $1.37 rate applied for distances ranging from 586 to 817 miles. The rate of $1.30 prescribed in the southwestern revision applies for distances ranging from 600 to 750 miles. In the adjustment following the southwestern revision the rate of $1.37 from Springfield was reduced on July 14, 1928, and the rates from the other points shown in the above table were increased. The mere fact that, in order to maintain a proper relationship between rates from and to points not under consideration in that revision and rates from and to points considered in that revision, the carriers have voluntarily reduced certain rates does not in and of itself establish that the prior rates were unreasonable to the extent that they exceeded those subsequently established. We find that the rates assailed were not, and are not, unreasonable. The complaint will be dismissed. EASTMAN, Commissioner, dissenting in part: All things considered, I think that complainant is entitled to rep aration to the extent that the rates charged on its shipments exceeded $1.30. 89905-30VOL 157———32 |