Although the complaint was filed within 90 days after the commencement of suit, as provided in paragraph 3 (d) of section 16 of the interstate commerce act, defendants question our jurisdiction to consider the allegation of unreasonableness under section 1, as the action at law was not brought until more than two years after the shipment had moved. In Brookhaven Lumber & Mfg. Co. v. M. C. R. R. Co., 132 I. C. C. 241, we had occasion to consider a similar situation and found that the complaint was not barred.

Complainant contends that the applicable rate between the points under consideration through St. Louis was $1.285, or, in the alternative, that any rate through St. Louis in excess of the rate of $1.285 applicable through Memphis, Tenn., was unreasonable. They further stress that diversion instructions were given the carriers in ample time to route the shipment through Memphis so that complainant could avail itself of the lower rate through the latter point. The record does not disclose the date on which the diversion instructions were given nor the location of the car at that time. As quarantine regulations of the Federal Government were in effect at the time, with the nearest inspector located at St. Louis, defendants can not be charged with misrouting in sending the car through St. Louis in accordance with the original routing instructions.

Defendants contend that the commodity rate of $1.285 from Key West to Tulsa was only applicable to traffic moving over the Southern from Jacksonville to Memphis. They state that import rates on fruits and vegetables from Key West to all points in Oklahoma and Arkansas are restricted to routes through Memphis when movement is in connection with the Southern, and explain that this restriction is for the purpose of avoiding circuity and transportation waste.

The governing tariffs show that over the route of movement of this shipment the applicable rate on either import or domestic shipments of grapefruit from Key West to Tulsa was $1.59 per standard box or crate, minimum 300 standard boxes or crates. Complainant's showing that a rate lower than that in effect over the route of movement was contemporaneously applicable over another route, and that the rate over the route of movement was subsequently reduced, is insufficient to support a finding that the rate assailed was unreasonable.

We find that the applicable rate on this shipment was $1.59 per crate and that charges based thereon have not been shown to be unreasonable. The complaint will be dismissed.

157 I. C. C.

No. 21646

M. N. CARTIER & SONS COMPANY v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY ET AL.

Submitted July 29, 1929. Decided October 9, 1929

Rates on roofing slag, in carloads, from Reading, Hokendauqua, Bethlehem, and Swedeland, Pa., to Providence, Auburn, Esmond, and Cranston, R. I., and Attleboro, Mass., found unreasonable for the past, and rates from Reading and Swedeland found unreasonable for the future. Reasonable rates prescribed and reparation awarded.

George W. Collier for complainant.
Bronson Jewell for defendants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS CAMPBELL, MCMANAMY, AND BRAINERD BY DIVISION 2:

This case was presented under the shortened procedure. Exceptions were filed by both complainant and defendants to the report proposed by the examiner. Our conclusions differ in part from those recommended by him.

Complainant, a corporation dealing in roofing materials at Providence, R. I., alleges by complaint filed October 24, 1928, that the rates charged on 50 carloads of roofing slag from Reading, Hokendauqua, Bethlehem, and Swedeland, Pa., to Providence, Auburn, Esmond, and Cranston, R. I., and Attleboro, Mass., delivered between April 12, 1926, and October 13, 1928, inclusive, were unreasonable. Reasonable rates for the future and reparation are sought. Informal complaints were filed March 22 and 31, and April 2, 4, 5, and 23, 1928, and closed between May 7, and September 13, 1928. The shipments covered by the informal complaint filed April 23, 1928, were delivered on January 7, March 23, and April 14, 1928. Rates will be stated in amounts per net ton.

Slag is a product of blast furnaces which was formerly wasted but is now crushed for use in highway and roof construction and for other building purposes. Its price at the furnaces when the shipments moved was from $1.25 to $1.50 per ton and subsequently ranged from $1.15 to $2.50 per ton. Transportation characteristics of the various kinds of slag are not materially different. The shipments moved from the various designated points of origin to the

destinations mentioned over the lines of defendants. The distances from and to each point of origin and destination are not shown except that the distance from Reading to Providence is stated to be approximately 330 miles. Charges were collected at a rate of $3.80 except that a rate of $4.50 was collected on a carload weighing 88,100 pounds shipped March 17, 1927, from Reading to Esmond. Reparation is sought to the basis of a rate of $2.50 subsequently established from Bethlehem and Hokendauqua to Providence under a scale prescribed in Buckland v. B. & A. R. R., 139 I. C. C. 88, hereafter referred to as the Buckland case.

The movement of slag appears to be steady but generally for hauls not to exceed 150 miles. The rates for greater distances are as much or more than the cost of the slag. Rates from Pottstown, Chester, Birdsboro, and Rambo, Pa., and Sparrow's Point, Md., to various destinations, generally speaking, are equal to or higher than the rates under the scale prescribed for crushed stone in State of Maryland v. B., C. & A. Ry. Co., 49 I. C. C. 681, and the scale subsequently derived therefrom and known as the Birdsboro scale. In the Buckland case, reasonable rates on slag were sought from Bethlehem and Hokendauqua to points in New Jersey, New York, and New England. The Birdsboro scale, which had been approved in Duquesne Slag Products Co. v. P. R. R. Co., 92 I. C. C. 554, for crushed slag, was rejected and a new distance scale, hereinafter referred to as the Buckland scale, was prescribed.

The following table shows present rates on slag over the Pennsylvania from eastern Pennsylvania points to typical destinations in territory involved in the Buckland case with comparisons of rates under the Buckland and Birdsboro scales:

Including 70 cents per ton, car-float or lighterage allowance in New York Harbor.

Defendants stress the fact that roofing slag is of greater value than ordinary slag and contend that it should bear a correspondingly larger share of the cost of transportation than the slag considered in the Buckland case. Roofing slag differs from slag used for other purposes principally in the size to which it is crushed, which is, 0.5

inch for roofing, as compared with 1.25 to 2.5 inches for concreting and road-building purposes. The evidence as a whole does not establish such a substantially higher value for slag for roofing purposes as to require a different consideration than was given to slag averaging 85 cents per ton in the Buckland case. In that case it was commented that slag was used to some extent for roofing and other building purposes.

Defendants cite Boldt Glass Co. v. C., B. & Q. R. R. Co., 98 I. C. C. 481, and Frohman Chemical Co. v. B. & O. R. R. Co., 115 I. C. C. 322, in which rates on silica sand in central territory higher than on slag in the Buckland case were approved. The rates approved in those cases were materially reduced in Procter & Gamble Co. v. Baltimore & O. R. Co., 153 I. C. C. 469, and River Raisin Paper Co. v. Chicago, B. & Q. R. Co., 153 I. C. C. 721, in which a distance scale just slightly higher than the Buckland scale was applied on washed or processed silica sand.

The cases involving rates on sea sand in New England, cited by defendants, have been fully considered. The findings in those cases do not appear to present sufficient considerations to disturb the rate structure established in the Buckland case.

Inasmuch as the rates from Bethlehem and Hokendauqua are now on the basis sought by complainant, they need not be considered for the future, but it is apparent that all of the rates assailed were unreasonable in the past and that in the future rates from Reading and Swedeland should be determined on the basis of the Buckland scale, subject to the grouping privilege described in the Buckland

case.

Defendants contend that an award of reparation would not be justified even if the rates assailed should be found unreasonable, and cite State of Maryland v. B., C. & A. Ry. Co., supra, in which reparation was denied following a general revision of rates downward. It also appears therein that the denial was based upon the additional ground that the complainants were not properly shown to have borne the charges. Reparation was not sought or awarded in the Buckland case. The result of that case was a reduction in the general level of rates for distances over 60 miles while leaving practically undisturbed the rates for less distances.

We find that the rates assailed from Bethlehem and Hokendauqua were, and that the rates assailed from Reading and Swedeland were, are, and for the future will be, unreasonable to the extent that they, respectively, exceeded, exceed, or may exceed the rates shown in the following table, subject to the addition of 70 cents per ton to the rate for hauls involving car-float or lighterage service in New York Harbor, and subject to the other conditions set out after the scale:

Distances shall be computed over the routes composed of not more than three line-haul carriers, via existing conections for the interchange of carload traffic, which will result in the lowest rates, taking into consideration the arbitrary for float service. In computing the rates for hauls involving car-float or lighterage service in New York Harbor, only the actual rail distance shall be used, the 70-cent arbitrary being intended to cover the entire water service. The prescribed rates will be required to be established only over the cheapest available routes under the foregoing requirements. Rates based upon the foregoing scale and the average or representative distances from groups agreed upon by the carriers and interested shippers will be considered a substantial compliance with our findings.

We further find that the complainant received the shipments as described and paid and bore the charges thereon; that it was damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable; and that it is entitled to reparation, with interest. Complainant should comply with Rule V of the Rules of Practice. An order for the future will be entered.

157 L. C. C.