Here, in this proceeding, the receivers testified that the price at which they sell the produce depends on the price which their competitors sell the same commodities. There is only a small margin of profit and the receivers on the LIRR line must absorb higher transportation costs than their competitors out of that small profit. The receivers believe that unless the rates are equalized they will either be forced to relocate or go out of business. The railroads have presented no evidence in this proceeding that transportation conditions have changed since 1964. Nor have they shown that the destinations on LIRR have dropped out of the New York-New Jersey market of which they were a part in 1964. There is no reason on the record for us to find that LIRR receivers would not be prejudiced by singling them out for higher freight rates than the remainder of the New York-New Jersey market. We therefore find it is a violation of section 3(1) to apply combination rates to LIRR destinations while incentive rates apply to the rest of the market. REPARATIONS Complainants request an award of reparations. However, an award of reparations does not automatically flow from a finding of prejudicial and preferential rates. Under section 8 of the act, complainants must prove they were injured as a consequence of the prejudicial rate and sustained damage as a result of the injury. ASG Industries, Inc. v. United States, 548 F. 2d 147 (1977). Complainant's burden of proof for reparations when a section 3(1) is shown or as explained fully in Interstate Commerce Commission v. U.S., ex rel. Campbell, 289 U.S. 385, 391, 392-393, 53 S.Ct. 607, 610, 77 L.Ed. 1273 (1933) in which the Supreme Court addressed the matter. The question is not how much better off the complainant would be today if it had paid a lower rate. The question is how much worse off it is because others have paid less. The rulings of the Commission are consistent to the effect that the absorption by a complainant of a discriminatory charge does not avail to establish damage, or to measure its extent, in the absence of a showing that prices were affected by the differential rate. There must be full disclosure of the conditions of the business, or of those affecting competition, including, in particular, the capacity of the preferred producers to fix the prices for the market. Only then will the ultimate fact of damage emerge from the evidentiary facts as an appropriate conclusion. Complainant must therefore not only show the fact and the amount of damages with the same degree of certainty as in a court of law (Pennsylvania R. R. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446 (1913)) it must also show that by reason of the prejudicial rates its competitors had the capacity to fix the price on the commodity. ASG Industries, Inc. v. United States, supra at 153. Complainants have not made the necessary showing. Although they have shown injury, they have not quantified the extent of damages. If complainant can meet the judicial standards for an award of reparations, it may file a petition for further hearing on this issue. If such a petition is filed, it should also address whether all or only some defendants are accountable for complainant's injury. Order: The railroads are to publish the incentive rates that were established to Group A (other than New England), to Group A stations on the LIRR based on those rates at the Ex Parte No. 295 general increase level plus subsequent increases applicable to LIRR stations. The railroads must publish these rates within 20 days of service of this decision, upon not less than 1 day's notice to this Commission and to the general public by filing and posting in the manner prescribed under section 6 of the Interstate Commerce Act, and thereafter to maintain and apply rates, charges, regulations, and practices which will prevent and avoid the undue prejudice and preference and unlawful practice which we find exists. The railroads are ordered to cease and desist from circumventing and avoiding all prior orders of this Commission. By the Commission, Division 1, Commissioners Brown, Gresham, and Christian, Commissioner Brown absent and not participating. 357 L.C.C. DECISION No. 36617 GULF TRANSNUCLEAR, INC. v. ILLINOIS CENTRAL RAILROAD COMPANY, LOUISVILLE & NASHVILLE RAILROAD COMPANY, NORFOLK & WESTERN RAILWAY COMPANY, AND SEABOARD COASTLINE RAILROAD COMPANY Decided June 16, 1978 Initial decision is modified in part. Finding in initial decision that cylinders were an intregral part of the marine containers on which they were transported is affirmed. DIVISION 1, COMMISSIONERS Brown, Gresham, BY THE DIVISION: The modified procedure was followed. An appeal to the initial decision of the Administrative Law Judge was filed by Norfolk and Western Railway Company (N&W), and a joint appeal was filed by Louisville and Nashville Railroad Company (L&N), Seaboard Coast Line Railroad Company (SCL), and Illinois Central Gulf Railroad Company (ICG). Complainant replied. Our analysis and conclusions differ in part from those of the Administrative Law Judge. By initial decision served November 23, 1977, the Administrative Law Judge, after fully reciting the evidence of the parties, found that complainant's cylinder is an "integral part" of the trailer or container unit and is an empty trailer on the return trip within the meaning of defendants' tariffs. Those tariffs provide for reduced charges on return movements of empty trailers and containers. He also found that Transnuclear should be awarded reparations as requested in its complaint, and that N&W's full plan III charge applicable on return movements of empty trailers was unjust and unreasonable and otherwise violative of the act and should be reduced. The Administrative Law Judge denied defendants' joint motion to strike. A copy of the initial decision is attached as an appendix. The Administrative Law Judge's statement of facts appears correct and is adopted by this division, except as inconsistent with this decision. The statement of facts have not been disputed by the parties on appeal. A discussion of the issues raised on appeal follows. In the joint appeal filed by L&N, SCL, and ICG, it is argued that procedural error occurred in that the Administrative Law Judge improperly denied the railroads' motion to strike a portion of the rebuttal verified statement of complainant's witness Mangusi. Defendants (except N&W) moved to strike certain evidence of containers turnaround time presented in complainant's reply statement because that evidence is allegedly not rebuttal of the defendants' statement, as required by rule 47(a) of the Commission's General Rules of Practice. In particular, defendants point out that their statement contained neither evidence nor argument concerning the length of time the cylinders were retained at the nuclear plants after their inbound movement and before their return movement in another container. This argument of defendants may be true, but we note that defendants' statement raises the general issue of the applicability of the assailed rates. The evidence submitted in complainant's reply statement concerning turnaround time is quite relevant to the applicability issue, and thus it does not violate rule 47(a). We find no error in the Administrative Law Judge's denying of the motion to strike. The primary issue raised on appeal concerns whether the Administrative Law Judge erred in finding that the cylinders were an integral part of the marine containers on which they were transported. The N&W argues that the Administrative Law Judge's conclusion is erroneous because it ignores the complainant's own evidence that the emptied cylinders were returned on containers different from those employed to transport them under load. Also it is argued that it is difficult to construe as "integral" a part of a container which does not always accompany that container. A similar argument is made by the other defendants. We find no error in the Administrative Law Judge's analysis and concur in his findings on the issue. We disagree with defendants' contention that the fact that a cylinder can be removed from a container and placed on a different container when returned dictates that the trailer unit is not a single unit for tariff purposes. In Definition of Tank Cars, 104 I.C.C. 196 (1925), the facts indicated that there was interchangeability of tanks and the Commission still found an integral unit. Therein, the Commission stated on page 107, that "the other method of unloading at destination is to remove the tanks from the car and substitute empty tanks from a reserve stock kept for that purpose." As further evidence of interchangeability the Commission specifically did not require that that tank be permanently attached but only securely attached. See also the opinion of the Superior Court of Pennsylvania, Eastern District in John F. Nash and Robert C. Haldeman, Trustees of the Lehigh Valley Railroad v. Chemetron Corp., No. 1166 (Judgment entered March 31, 1977), where the court recognizes the interchangeability of tanks in Definition of Tank Cars, supra. We agree with the Administrative Law Judge that the cylinder, cradle and flat container move as an integral unit from France, to ultimate destination and back to France. The cylinder is securely fastened to the container, which is the main thrust of the cases relied upon by the Administrative Law Judge. If the cylinder were welded to the container, there would be no question that the sought empty scale would apply. We can see no valid reason for treating the units differently because of the method of fastening the cylinder to the container. Nor do we find the interchangeability of cylinders a cause to treat such units as different. The N&W on appeal argues that the Administrative Law Judge erred in his conclusion that "both" plan II 1/2 and plan III TOFC rates were applicable to the N&W. We agree with defendant. The evidence shows that the containers were leased to Transnuclear by the Atlanta Container Line and that they were shipper furnished containers. Because of the leasing agreement, these containers are excluded from the findings of the Commission decision in docket No. 35831, Container Interchange Contracts-Petition for Investigation, decided December 13, 1976. Accordingly, we conclude that the shipments handled by the N&W, both before and after October 1, 1976, moved under plan III. Thus based on our above findings we conclude that the plan III TOFC rates applied to all defendants and the shipper furnished containers on flatcars constituted an empty unit on the return trip. 'In that proceeding the Commission found that a container owned by a water carrier should be considered the same as if it were owned by the rail carrier on mini-bridge traffic, when there was a valid interchange agreement between the rail and water carrier. |