This has reference to our recent telephone conversation concerning the rates applicable on lumber moving from the West Coast to the Norcross Supply Company whose mailing address is Norcross, Georgia. As you will recall, the Norcross Supply Company is protesting the fact that it has to pay some $20 to $30 per car more for the transportation of lumber from the West Coast than its nearby competitors who are considered to be in Doraville and thus in the Atlanta Group so far as concerns the applicable lumber rates.

It is understood from our conversation that the Southern Railway secured approval from the Southern lines of a proposal to place Norcross in the Atlanta Group for application of these transcontinental lumber rates but that such proposal had been turned down by the transcontinental railroads which, as originating lines, control the rates on this traffic. I agree with your conclusion that it would not be practicable to seek reconsideration of that decision since the ground for denial was the opposition of the transcontinental lines to expansion of destination territories in any area because it would lead to a multitude of demands for such expansions.

We have investigated the physical Layout involved and find that the Norcross Supply Company is halfway between what is apparently the switching limits of Doraville and the city limits of Norcross being .4 miles northeast of the L. B. Foster plant on your line and .4 miles southwest of the city limits of Norcross. The Norcross Supply Company is 1.2 miles past one of its principal competitors (Wickes Lumber & Building Supplies Center) which is considered in the switching limits of Doraville and thus in the Atlanta Group. A spur track springs off the Southern Railway's main line at this latter point from which in turn are sidings serving Lowe's Co's, Inc. (1.4 miles from switch), Southern Railway Warehouse (2.3 miles from switch) and Western Electric (2.5 miles from switch). All of these three locations are understood to be in the switching limits of Doraville and, as you will note, all are further from Doraville than the Norcross Supply Company.

So far as we could determine, there are only two sidetrack locations between L. B. Foster and the Norcross Supply Company. One of these, Wyandotte Paint Products Company, has not received a rail shipment on its siding in two years and the other company identified to us as "Lamex" is now closed.

In light of the fact that the transcontinental railroads have refused to include Norcross in the Atlanta Group, it appears that the only other manner in which the Norcross Supply Company could be accorded the same rates as its two nearby competitors would be to place it in the switching limits of Doraville. Such an action would not require adjustment of other industry locations since there are only the two listed above which are intermediate, neither of which now receives any rail traffic at all. Norcross Supply Company, as also pointed out above, is located closer by rail to Doraville than one of its principal competitors, Lowe's Co's, Inc., and considerably closer than the Western Electric plant which also is considered as being in Doraville. In the light of the circumstances outlined above, it is requrested that the Southern Railway give consideration to placing the Norcross Supply Company in the switching limits of Doraville so that it might be accorded the Atlanta Group rates on eastbound transcontinental lumber.

Very truly yours,

DOB:am

cc: Mr. Robert S. Eldridge Norcross Supply Company 5000 South Peachtree Norcross, Georgia 30071

357 I.C.C.

David O. Benson, Director
Transportation Division

DECISION

No. 36655

H. J. BAKER & BROS., INC.-PETITION FOR DECLARATORY ORDER-STATUTE OF LIMITATIONS FOR CHARGES ON U.S. CANADIAN TRAFFIC

Decided June 23, 1978

On appeal, the entire Commission affirms an interpretative order by division 2 which found that claims of shippers for repayment of charges published by carriers in excess of those authorized in Ex Parte No. 267 were in the nature of overcharges and subject to the 3-year period of limitations of section 16(3)(c) of the act and not the 2-year period of section 16(3)(b) as the carriers urged. Proceeding discontinued.

BY THE COMMISSION:

PROCEDURAL HISTORY

Pursuant to petitions filed in 1970 and 1971 by most of the railroads in the United States, this Commission instituted an investigation concerning the adequacy of all freight rates and charges of all common carriers by railroads in the United States. On March 4, 1971, the Commission issued a report and order, Ex Parte No. 267, Increased Freight Rates, 1970 and 1971, 339 I.C.C. 125 (1971), authorizing general freight rate increases. Among the increases authorized, the Commission allowed an increase on import and export traffic of not more than 12 percent.

Subsequently the Canadian National Railway Company, Canadian Pacific Limited (Canadian railroads), and 32 eastern railroads published tariffs increasing the rates by 14 percent on export-import traffic moving by all-rail or water-rail between points in Canada and the eastern territory of the United States, in direct contravention of the Commission's order.

The Commission clarified and interpreted Ex Parte No. 267 by orders dated August 6, 1973, and October 5, 1973 stating that all traffic moving between Canada and the United States is export

import traffic and ordered the railroads to cease and desist from charging rates on this traffic in excess of the authorization.

The railroads appealed. On November 30, 1976, the United States District Court for the District of Columbia held in Canadian Nat. Ry. Co. v. United States, 425 F. Supp. 290 affirmed 430 U.S. 961 (1977), that the railroads had violated Commission orders. The court ordered the railroads to cease and desist from charging rates on export-import traffic in excess of those authorized; to correct their tariffs accordingly; and held that shippers and receivers were entitled to judgment on their claims as a matter of law.

On January 24, 1977 the Commission issued a notice in the Federal Register (F.R. Doc. 77-2891) entitled "U.S./Canada Railroad Freight Rates, Request for Special Docket Applications and Complaints."

H. J. Baker & Bros., Inc. (petitioner or H. J. Baker), filed a petition for declaratory order on August 10, 1977 to determine whether the 2-year statute of limitations, 49 U.S.C. 16(3)(b) or whether the 3-year statute of limitations, 49 U.S.C. 16(3)(c), governs the settlement of claims arising from the publication of freight rates in excess of those authorized.2

'The notice specifically stated:

In view of the order of the Court shippers and/or receivers of import or export traffic moving between points in Canada, on the one hand, and points in the United States on the other, should request rail carriers subject to the jurisdiction of the Interstate Commerce Commission to file special docket applications with this Commission seeking reparation or in the alternative shippers and/or receivers should file informal complaints-such complaints should conform with the Commission's General Rules of Practice-with the Commission's Bureau of Traffic, Section of Rates and Informal Cases for the purpose of tolling the Statute set forth in Section 16(3) of the Interstate Commerce Act.

"Section 16(3)(b) states:

All complaints against carriers subject to this part for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues ***

Section 16(3)(c) states:

For recovery of overcharges action at law shall be begun or complaint filed with the Commission against carriers subject to this part within three years from the time the cause of action accrues ***

In addition, section 16(3)(g), 49 U.S.C. 16(3)(g), states:

The term "overcharges" as used in this section shall be deemed to mean charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the Commission.