No. 21795 HARDAWAY CONTRACTING COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY ET AL. Submitted June 3, 1929. Decided August 15, 1929 Rate charged on one carload of cast-iron pipe from Albany, Ga., to Norfleet, Fla., found to have been unreasonable. C. H. Gunter for complainant. W. S. Robinson for defendants. Reparation awarded. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3: This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Complainant, a corporation constructing bridges, with headquarters at Columbus, Ga., by complaint filed December 20, 1928, alleges that the rate charged on one carload of cast-iron pipe shipped December 22, 1926, from Albany, Ga., to Norfleet, Fla., was unreasonable and in violation of the aggregate-of-intermediates clause of section 4 of the interstate commerce act. Reparation is sought. Rates will be stated in cents per 100 pounds. The shipment weighed 39,800 pounds. It was tendered to the Atlantic Coast Line, hereinafter called Coast Line, without routing instructions. It moved over the Coast Line to River Junction, Fla., thence over the Seaboard Air Line, hereinafter called the Seaboard, to Norfleet, 153 miles. Norfleet is a local point on the Seaboard 6 miles west of Tallahassee, Fla., and 36 miles east of River Junction. Cast-iron pipe, hereinafter called pipe, is rated sixth class in southern classification, in both carloads and less than carloads. By exceptions to the classification, pipe, in carloads, between certain points in Georgia and Florida on defendants' lines takes two-thirds of sixthclass rates. Charges amounting to $195.02 were prepaid at the applicable rate of 49 cents, based on two-thirds of the published joint sixth-class rate of 72.5 cents from and to the points concerned. The latter rate is based on the mileage via River Junction. The short-line distance between Albany and Norfleet is 109 miles, computed 89 miles over the Coast Line to Capitola, Fla., and 20 miles over the Seaboard beyond. There were in effect over this route at the time of movement rates of 19 cents to Capitola and 26.5 cents beyond, making a combination through rate of 45.5 cents. Complainant contends that the rate charged was in violation of the aggregate-of-intermediates provision of section 4 because in excess of the combination named, but as this shipment did not move via Capitola there is no merit in that contention. The applicable rate via Capitola was 49 cents, the same in amount as the rate over the route of movement. The shipment, therefore, was not misrouted. Effective January 1, 1927, a general readjustment of carload rates on pipe and other iron and steel articles was made throughout southern territory, resulting in both increases and decreases. Under that revision the rate for a joint-line haul of 109 miles in the territory here considered is 25 cents. Defendants admit that the rate charged was unreasonable to the extent it exceeded 45.5 cents and are willing to make refund on that basis. Complainant contends that 30 cents would have been a reasonable rate over the route of movement. This rate is arrived at by adding to the rate of 19 cents to Capitola a rate of 11 cents beyond, the latter factor being two-thirds of the Coast Line's sixth-class mileage rate for 20 miles. Complainant urges that the mileage scale of class rates applied over the Coast Line from Albany and other Georgia points to Capitola and near-by Florida points more nearly approximates a reasonable basis and is better graded than the scale of proportional class rates contemporaneously applied by the Seaboard between points on its Jacksonville-River Junction line. Its exhibits tend to support this contention. The evidence indicates that transportation conditions over the lines of these two carriers in the territory concerned are substantially similar. Ordinarily proportional rates are somewhat lower than local rates. Complainant points out that the proportional sixth-class rates of the Seaboard in effect prior to January 15, 1928, were substantially higher than either the sixth-class rates applied by that carrier on State and interstate traffic in Georgia, or the GeorgiaFlorida scale of sixth-class rates applied by the Coast Line. For illustration, the proportional sixth-class rate of the Seaboard, which is in the nature of a group rate for distances from 1 to 36 miles, was 39.5 cents. Two-thirds of this amount produces the rate of 26.5 cents, which was applicable under the Capitola combination for the 20mile haul from the latter point to Norfleet. For a haul of 20 miles the Seaboard's local sixth-class scale above referred to provides a rate of 19 cents, and the Coast Line scale a rate of 17 cents. Twothirds of the latter rate produces the rate of 11 cents, which complainant regards as adequate compensation for the haul over the Seaboard. Two-thirds of the latter carrier's local sixth-class rate for this distance would result in a rate of 13 cents. The latter rate used in combination with the 19-cent rate to Capitola would produce a through rate of 32 cents. Applied to the distance over the route of movement this rate would yield earnings of $127.30 per car, 83 cents per car-mile, and 41 mills per ton-mile. While, as contended by defendants and admitted by complainant, this was an unusual and isolated movement of pipe between the points concerned, nevertheless complainant is entitled to a reasonable rate on this shipment and in our opinion the basis in effect at the time of movement was unduly high. Defendants instance rates contemporaneously in effect on pipe between various points in Georgia, Alabama, and Florida for comparable distances, which are generally as high as or higher than the rate charged, or the rate of 45.5 cents which they are willing to have applied. Most of the compared rates, however, are full sixth class and there is no evidence as to the volume of movement thereunder. We find that the rate assailed was unreasonable to the extent that it exceeded 32 cents; that complainant made the shipment as described and paid and bore the charges thereon; 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 in the sum of $67.66, with interest. An order awarding reparation will be entered. 157 I. C. C. No. 21760 FISHER LUMBER CORPORATION v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY ET AL. Submitted July 3, 1929. Decided August 15, 1929 Rates charged on six carloads of elm lumber from Myrtlewood, Ala., to Cleveland, Ohio, found inapplicable. Reparation awarded. C. A. Sullivan for complainant. W. A. Northcutt and C. A. Waggener for defendants. Report of thE COMMISSION DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3: This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Complainant is a corporation engaged in the lumber business. By complaint filed December 5, 1928, which was within six months after notice of disallowance by defendants of overcharge claims presented to them within the 3-year period of limitation provided by subdivision (c), paragraph 3, section 16 of the interstate commerce act, it is alleged that the charges collected on six carloads of rough elm lumber shipped between October 27 and November 4, 1925, from Myrtlewood, Ala., to Cleveland, Ohio, were in excess of those applicable. Reparation is sought. Rates will be stated in cents per 100 pounds. The shipments weighed 349,200 pounds, and were routed and moved over the Louisville & Nashville, hereinafter called defendant, to Louisville, Ky., thence over the Cleveland, Cincinnati, Chicago & St. Louis, hereinafter called the Big Four, to destination, with New York Central delivery. There was no joint rate in effect over the route of movement and charges were collected at a combination rate. of 50 cents, composed of 27 cents to Louisville and 23 cents beyond. At the time of movement there was in effect a joint rate of 44.5 cents from and to the points concerned over the line of defendant to Cincinnati, Ohio, and the Big Four beyond. Complainant contends that both factors of the combination rate were subject to the rule for constructing combination rates, as published in Agent Jones's tariff I. C. C. U. S. 1; that the application of this rule to these factors produces a through rate of 46 cents over the route of movement; and that, therefore, the shipments were overcharged. Defendant contends that the full combination on Louisville was applicable because the tariff publishing the combination rule provides that it will apply only where no published through rate is in effect from point of origin to destination. As above pointed out, there was in effect at the time a joint rate via Cincinnati. It is defendant's position that the combination rule did not apply where the initial carrier published a joint rate from point of origin to destination over any route. We have uniformly found in cases where tariff situations similar to this were presented that the combination rule was applicable. See Wausau Southern Lumber Co. v. A. G. S. R. R. Co., 142 I. C. C. 521, and cases therein cited. We find that the rate charged was inapplicable; that the applicable rate over the route of movement was 46 cents; that complainant made the shipments as described and paid and bore the charges thereon; that it was damaged in the amount of the difference between the charges paid and those which would have accrued at the rate herein found applicable; and that it is entitled to reparation in the amount of $143.68 with interest. An order awarding reparation will be entered. TAYLOR, Commissioner, dissenting: For reasons indicated in my dissent in Wausau Southern Lumber Co. v. A. G. S. R. R. Co., 142 I. C. C. 521, I disagree with the conclusions here reached. 157 I. C. C. |