No. 21524 BLANCHARD LUMBER COMPANY ET AL. v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY ET AL. Submitted May 17, 1929. Decided October 9, 1929 Rates on lumber, ex-vessel from the Pacific coast, in carloads, from Boston, J. H. Sturtevant for complainants and certain interveners. Herbert Buckley for A. C. Dutton Lumber Corporation, intervener. DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3: Exceptions were filed by defendants to the report proposed by the examiner, to which complainant replied. Complainants, whose names, with those of interveners, and related data appear in Appendix A hereto, allege by complaint filed September 18, 1928, that the sixth-class rates charged by the New York, New Haven & Hartford and its system line, the Central New England, hereinafter collectively called the New Haven, on lumber, ex-vessel from the Pacific coast, in carloads, from Boston, Mass., and New London, Conn., to destinations on the New Haven in Massachusetts, Rhode Island, Connecticut, and New York, were and are unreasonable, unduly prejudicial to complainants, and unduly preferential of shippers at Providence, R. I., and Poughkeepsie, N. Y. Lawful rates for the future and reparation on shipments made within two years prior to the date the complaint was filed and during the pendency of the proceeding are sought. No damage is shown by reason of the undue prejudice and preference alleged and, in view of our findings herein, consideration of that allegation is unnecessary. Lumber from the Pacific coast previously transported by vessel through the Panama Canal moves in large volume, generally at the sixth-class rates, from the ports of Boston and New London to the destinations described. From Boston to certain competitive points and points intermediate thereto the New Haven maintains commodity rates lower than the sixth-class basis. The lumber-rate structures of other New England carriers consist of commodity rates substantially lower than the corresponding sixth-class rates. In Dutton Lumber Corp. v. New York, N. H. & H. R. Co., 151 I. C. C. 391, decided since the hearing herein, division 4 found upon a very comprehensive record that the sixth-class rates charged on similar traffic from the ports of Providence and Poughkeepsie to the destinations here considered were unreasonable, and prescribed for distances up to 220 miles the rates set forth in Appendix B hereto. Reparation was awarded. Transportation conditions between Boston or New London and these destinations do not differ in any material respect from those between Providence and the same points. Referring to the New Haven, we said in the Dutton case: Its defense rests principally upon the following grounds: (1) That the rates assailed are on a basis which is the same as or lower than that which applies to New Haven destinations from northern New England, some of which were approved in New England Lumber Rates, 43 I. C. C. 641, and that the local rates of the other New England lines, lower than those of New Haven, are not a proper measure of maximum reasonable rates on New Haven; (2) that, as compared with lumber rates in trunk-line territory, particularly rates which have been passed upon by us, the rates assailed are not unreasonable; (3) that the rates assailed produce revenue which is lower than rates on other commodities comparable with lumber; (4) that the present rates of defendant do not restrict the movement of lumber, but on the contrary, that the movement of Pacific coast lumber from Providence and Poughkeepsie has been increasing in volume from year to year; and (5) that if defendant is compelled to establish lower rates from Providence and Poughkeepsie on lumber ex-vessel, the same reductions will have to be made from Boston and other ports, which will result in a material reduction in defendant's revenue, and that defendant's financial condition is not such as to justify such revenue reduction. After discussing these defenses at length division 4 found them insufficient. Substantially the same grounds of defense are relied upon in the instant case. The record contains little, if any, evidence not fully considered in the Dutton case, and no sufficient reason appears why our findings herein should differ from those there made. Intervener A. C. Dutton Lumber Corporation contends that specific commodity rates alleged to be lower than the rates under the distance scale in Appendix B from Boston to certain of the destinations considered are unduly prejudicial to shippers at Providence. This question is not within the scope of the complaint and no finding can be made with respect to it in this case. We find that the rates assailed in so far as they are applied or apply on shipments in interstate commerce, were, are, and for the future will be unreasonable to the extent that they exceeded, exceed or may exceed rates under the distance scale set forth in Appendix B hereto; that complainants Blanchard Lumber Company, Godfrey Lumber Company, The Guernsey-Westbrook Company, Perry and Whitney Company, The Woodstock Lumber Company, and J. F. Gerrity Company, and interveners Davenport-Evans Company and W. F. Lamb & Company made interstate shipments as described and paid and bore the charges thereon at the rates herein found unreasonable; that they were damaged thereby in the amounts by which the charges paid exceeded those that would have accrued at the rates herein found reasonable; and that they are entitled to reparation, with interest, complainants on shipments delivered or tendered for delivery since September 18, 1926, and the interveners named on shipments delivered or tendered for delivery since November 12, 1926, and December 7, 1926, respectively. These parties should comply with Rule V of the Rules of Practice. Complainants Babcock-Angell Lumber Company and Krauss Brothers Lumber Company introduced no evidence. If these parties made interstate shipments as described within the statutory period they should comply with Rule V of the Rules of Practice, supporting their statements by proof in affidavit form that they paid and bore charges thereon at the rates herein found unreasonable. With respect to any such shipments made by the parties above named since the date of the hearing the statements should be supported by similar proof. If defendants object to this method of proof a further hearing may be requested. An appropriate order for the future will be entered. APPENDIX A Complainants, corporations dealing in lumber, are Blanchard Lumber Company, Boston; Babcock-Angell Lumber Company, Pittsburgh, Pa.; Godfrey Lumber Company, Boston; The Guernsey-Westbrook Company, Hartford, Conn.; Krauss Brothers Lumber Company, Seattle, Wash.; Perry and Whitney Company, Boston; The Woodstock Lumber Company, Boston; and J. F. Gerrity Company, Boston. Davenport-Evans Company, a corporation, dealing in lumber at Boston, intervened upon petition filed November 12, 1928, and W. F. Lamb & Company, a copartnership of which William F. Lamb is the only active partner, dealing in lumber at Boston, intervened upon petition filed December 7, 1928, at the hearing. Both seek the same relief requested by complainants. A. C. Dutton Lumber Corporation, dealing in lumber at Providence, intervened at the hearing. It does not seek reparation. No. 21587 DAWSON PRODUCE COMPANY v. FLORIDA EAST COAST RAILWAY COMPANY ET AL. Submitted July 27, 1929. Decided October 12, 1929 Applicable rate on a carload of grapefruit from Key West, Fla., to St. Louis, Mo., reconsigned to Tulsa, Okla., determined and said rate not shown to be unreasonable. Complaint dismissed. E. N. Adams for complainant. G. M. Nolen 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 complainant to the report proposed by the examiner. Complainant, a corporation dealing in fruits, alleges by complaint filed October 6, 1928, that the rate of $1.59 per crate sought to be collected on one carload of grapefruit imported from Cuba and shipped from Key West, Fla., originally consigned to St. Louis, Mo., but reconsigned to Tulsa, Okla., where it was delivered September 23, 1925, is inapplicable and unreasonable to the extent that it exceeded $1.285 per 100 pounds. We are asked to require defendants to cancel outstanding undercharges. Except as noted, rates will be stated in amounts per 100 pounds. The shipment, which consisted of 360 crates of grapefruit, weighing 28,800 pounds, was originally consigned to St. Louis and was routed by the shipper and moved over the Florida East Coast to Jacksonville, Fla., Southern to Chattanooga, Tenn., Nashville, Chattanooga & St. Louis to Martin, Tenn., and Illinois Central to destination. En route the shipment was diverted to Tulsa, Okla. It moved from St. Louis over the Missouri Pacific to Fort Smith, Ark., and Midland Valley beyond, a total distance of 2,194 miles. Charges were collected based on a commodity rate of $1.285. Subsequently an undercharge freight bill was presented for $204.20, based on a rate of $1.59 per box. Payment of additional charges was refused by complainant and on September 8, 1928, suit was instituted in court for collection of the undercharge. |