rate with other rates on iron or steel ingots to show that the sought rate was the maximum reasonable basis for these movements. The Administrative Law Judge rejected comparisons with rates not in effect at the time of the movements, as well as comparisons with rates which contained minimum monthly volumes, or which were based on fewer miles than the subject movements. The remaining comparison rates reflected slightly higher percentages of class 100 than the sought rates. This led the Administrative Law Judge to conclude that complainant had not met its burden of proof. We find that the particular circumstances of this case warrant a conclusion different from that reached by the Administrative Law Judge. The subject movements were one-time emergency shipments confined to a short time period. Complainant made the subject shipments from Geneva, which is an unnatural origin for this traffic, because all its other sources of ingots had proved inadequate. When complainant became aware that it would have to make emergency shipments from Geneva, it promptly sought the lower rate, as evidenced by the docketing of the rate proposal with the Western Trunk Line Committee. However, the emergency situation required complainant to commence the shipments prior to the January 4, 1974, effective date of the lower rate. Finally, the widely scattered locations of steel mills made it impossible for complainant to submit an array of exactly similar rates for comparison with the sought rate. The submitted comparisons were the only ones available. Those rates that were concurrently effective reflect a generally comparable level and allow determination of the justness and reasonableness of the rates at issue. The compared rates show that the rate applied to the subject movements was out of line with the rates on similar movements. Considering all of the circumstances of this case, we find the assailed rate of $41.41 per gross ton unjust and unreasonable, and further find that a rate of $31.68 per gross ton should be applied to the movements at issue. Accordingly, complainant is entitled to reparation in the amount of $46,862.58, exclusive of interest, which is the difference between the higher rate charged and the lower rate sought for the subject movements. This proceeding is discontinued. COMMISSIONER HARDIN, did not participate. 355 I.C.C. No. 36047 INTERNATIONAL PROTEINS CORPORATION, ET AL. v. THE BALTIMORE AND OHIO RAILROAD COMPANY, ET AL. Rates and charges assessed for the line-haul transportation of water-soaked menhaden fish meal found to have been unjust and unreasonable and reasonable rates determined. Demurrage charges assessed for railcar detention found to have been applicable and just and reasonable. Complaint dismissed and proceeding discontinued. William J. Augello and Thomas R. Hirschman for complainants. John J. Paylor, Robert H. Stahlheber, and Robert Szwajkos for defendants. DECISION AND ORDER At a Session of the INTERSTATE COMMERCE COMMISSION, Review Board Number 4 (Members FitzPatrick, Shaw, and Fischer), held at its office in Washington, D.C., on the 8th day of April 1976. Upon consideration of the record in the above-captioned proceeding, including: the initial decision of the Administrative Law Judge served on November 25, 1975; as corrected by notice to the parties served on December 8, 1975; the exceptions filed by complainants on January 8, 1976, and by defendants' on January 5, 1976; and defendants reply to the exceptions of complainants filed on February 2, 1976; and, It appearing, That the Administrative Law Judge concluded that: (1) the rates assessed by defendants for the line-haul transportation of the considered shipments were applicable but unjust and unreasonable in violation of section 1 of the act, (2) the assailed rates should be reduced to a just and reasonable basis pursuant to a formula detailed in his report, (3) the demurrage charges as published in the governing tariff were applicable and not shown to be unjust and unreasonable, and (4) defendants be directed to waive the collection of outstanding line-haul transportation charges to the extent they exceed reasonable charges; and It further appearing, That the complainants' exceptions and replies do not show any material errors in the Administrative Law 'Defendants' exceptions deal with certain errors which are corrected in the first ordering paragraph herein. Judge's statement and evaluation of the facts, his conclusions of law, and findings; do not raise any material matters of fact or law not adequately considered and properly disposed of by the Administrative Law Judge in his initial decision, as corrected; and are not of such a nature as to require the issuance of a report by Review Board Number 4 discussing the evidence and the arguments advanced in the light of the exceptions; Wherefore, and good cause appearing therefor: We find, That the evidence does not warrant a result different from that reached by the Administrative Law Judge; and that his statement of facts, conclusions, and findings, as modified below, being proper and correct in all material respects,, should be, and they are hereby, affirmed and adopted as our own. It is ordered, That, in adopting the initial decision (as modified by the correction notice), as our own, the following changes be, and they are hereby, made in the initial decision: (1) On page 7, paragraph 7, line 2, change "applicable charges" to "reasonable charges." (2) On page 7, last sentence, delete “$76,132.41," and insert “$101,468.81." (3) On page 9, paragraph 1, line 5, delete "$76,132.41," and insert "$101,468.81." It is further ordered, That defendants herein be, and they are hereby, authorized and directed to waive the collection of the outstanding line-haul transportation charges involved to the extent that they exceed charges of $101,468.81. It is further ordered, That, in all other respects, the complaint filed in this proceeding be, and it is hereby, dismissed. The statement of facts, conclusions, and finding of Administrative Law Judge David H. Allard follows: By complaint filed on July 29, 1974, International Proteins Corp. (IP), Atlantic Shippers of Baltimore, Inc., and Petrou Fisheries, Inc. (Petrou Fisheries), allege that the rates' charged by defendants3 for the transportation of 52 carloads of water-soaked, 'Rates are stated in amounts per 100 pounds unless otherwise stated. The Baltimore and Ohio Railroad Co., Canton Railroad Co., East St. Louis Junction Railroad Co., Missouri Pacific Railroad Co., New Orleans and Lower Coast Railroad Co., and Penn Central Transportation Co., George P. Baker, Robert W. Blanchilli, Richard C. Bond, trustees. 355 1.C.C. damaged menhaden fish meal from Canton, Md., to Empire, La., are unjust and unreasonable in violation of section 1 and inapplicable in violation of section 6 of the Interstate Commerce Act to the extent that such charges exceed those resulting from application of the fish meal column-commodity rate of $19.57 NT, published in SW/E2000 5-1, I.C.C. 4785, item 10725, plus Ex Parte No. 281 increases of 2.5 percent as applied to the dry weight of the fish meal and are unreasonable to the extent that the charges exceed those resulting from the out-of-pocket costs of transporting approximately 2,549,120 pounds of excess water, or approximately $11.50 per net ton. Complainant further alleges that the assessed demurrage charges which are based on charges published in Agent B. B. Maurer's Freight Tariff 4-1 and subsequent issues are unjust to the extent that they exceed the applicable car per diem rates plus the reasonable costs of administration. By order of the Commission, the proceeding was handled under the modified procedure in which the parties submitted their evidence in the form of verified statements of fact. The matter was assigned to the Administrative Law Judge for an initial decision by order of the Commission. Defendants apply item 37270 of Uniform Freight Classification 10, I.C.C. 6. The class 32 1/2 carload rating used in conjunction with Tariff SW/E-10005-A, I.C.C. 4687, results in a rate of $2.49, plus the Ex Parte No. 281 surcharge of 2.5 percent for total freight charges of $145,378.87. Complainant IP paid and bore freight charges in the sum of $41,836.02. Complainant seeks waiver of freight charges totaling $103,542.85 and waiver of demurrage charges to the extent they exceed the applicable car per diem charges plus the reasonable costs of administration. Preliminary motions.-Defendants move to strike the verified statement of Philip E. Corbin which was submitted by complainants as part of their rebuttal statement. Witness Corbin's statement contains evidence of transportation costs which, defendants argue, is new material barred by rule 49 of the Commission's General Rules of Practice. Complainants reply that the costs evidence was submitted to show the reasonableness of its sought rates which defendants attacked as "speculative." As such, the Corbin statement clearly is responsive to matters raised by defendants and will be received solely as an indicia of the reasonableness of complainants' proposed formulas. Complainants' evidence.—As noted above, the complaint arises from the movement of 52 carloads of water-soaked menhaden fish meal which IP shipped from Canton, Md.. to Empire. La. The excess moisture in the fish meal resulted from the use of water to extinguish a fire in the warehouse of Atlantic Shippers of Baltimore, Inc., an IP subsidiary. As no east coast facilities were available to process the damaged fish meal it was shipped to Petrou Fisheries, another IP subsidiary. Wet fish meal is highly combustible and a special permit from the Department of Transportation was required for the movement. The packaging prescribed in the permit was open-top gondola and hopper cars. While IP fish meal normally contains a maximum of 10 percent moisture, the commodity is described in the permit as containing approximately 35-40 percent moisture. On or about August 17, 1972, 29 gondola and 23 hopper cars of fish meal were moved out of the Canton area. The first four cars were placed at Empire on or about August 21, 1972. Petrou Fisheries was able to process these immediately. The remainder of the cars arrived August 24, 25, and 26, 1972, except for two which arrived September 5, 1972. Due to the noxious stench of the decaying fish meal, a restriction against further unloading was delivered to Petrou Fisheries on August 27, 1972, by the Plaquemines Parish Health Department, Belle Chase, La. As of that date however, all but 2 of the remaining 48 cars already had been received and placed for Petrou Fisheries by the New Orleans and Lower Coast Railroad (NOLC). The fish meal was then loaded onto barges for removal and ultimate destruction. When the cars were weighed on track scales at origin, it was determined that the weight of the contents was 5,684,780 pounds. Reweighing of 50 cars at destination disclosed an aggregate loss in transit of 425,830 pounds. In addition to the loss of water through drainage and evaporation, there was some loss of fish meal. Complainants submitted laboratory reports which purport to show the moisture content of the commodity. Samples taken from the first four cars revealed an average moisture content of 59.7 percent or excess moisture of 49.7 percent. Samples from three additional cars showed that they contained 31.0 percent moisture. These 3 carloads were combined with the remaining 45 and loaded into 2 bargeholds. Analysis of samples taken from the holds show that the 48 carloads of fish meal had an average moisture content of 57.8 percent or excess moisture of 47.8 percent. When these percentage figures are applied to the origin scale weights (475,000 pounds in the first four cars and 5,209,780 pounds in the remaining cars), 235,457 and 2,490,275 pounds, respectively. are obtained. The aggregate excess moisture as ascertained by complainants is. therefore, 2.725,732 pounds. Shipments were originally billed at the column-commodity rate of $19.57 NT plus the Ex Parte No. 281 surcharge of 2.5 percent in effect on fish meal moving in closed cars pursuant to item 10725 of Southwestern Lines Tariff SW/E 20005-I, I.C.C. 4785. As the column-commodity rate is not applicable in open-top equipment, the defendant carriers subsequently rebilled the shipment on or about September 28, 1972. pursuant to item 37270 of U.F.C. 10 at a rate of $2.49, subject to the ex parte surcharge of 2.5 percent. Complainants argue that the applicable class rate is unjust and unreasonable in light of the distressed nature of the commodity, the emergency situation that existed at the time of the movement and the safety hazard that wet fish meal would have caused in closed cars. Complainants suggest various methods for determining a reasonable amount to which the applicable charges should be adjusted. The primary sought basis and the alternatives are summarized as follows: PRIMARY SOUGHT BASIS For the 2.533,218 pounds of meal---- Applying to such weight the column-commodity rate of $19.57 For the 2.725,732 pounds of excess moisture $25,408.17 15,741.10 Applying to such weight the constructed "reasonable" rate of $11.55.|' No charge 41,149.27 For the 425,830 pounds lost in transit Total 'Complainants refer to the decision in Millhurst Milling & Drying Co., Inc. v. Boston & M. R.. 299 I.C.C. 674 (1957), and use what they call a "Millhurst Ratio" of 0.5760 in their computation. Eleven dollars and 55 cents is 57.60 percent of $20.06. |