No. 20964

BAIRD MACHINE COMPANY ET AL. v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY

Submitted February 28, 1929. Decided August 15, 1929

Rates on fire, sea, and core sand, in carloads, moving interstate from certain points in Rhode Island and Massachusetts to destinations in Connecticut, Rhode Island, and Massachusetts found unreasonable. Reparation awarded. Samuel H. Blank and William F. Kavanah for complainants. Bronson Jewell and W. W. Meyer for defendant.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3:

Exceptions were filed by complainants and defendant to the report proposed by the examiner.

Complainants, except John M. Deely and John F. Deely, are corporations operating foundries. The excepted complainants formerly were copartners doing business under the trade name of the White Marble & Terrazzo Company. They are no longer in business. By complaint filed April 21, 1928, it is alleged that the rates charged on fire, sea, and core sand, in carloads, moving within the statutory period, from Pontiac, Davisville, Harbor Junction Wharf, Fox Point, and Bellefonte, R. I., and Provincetown, Wareham, and Onset, Mass., to destinations in Connecticut, Rhode Island, Massachusetts, and New York were and are unreasonable. Reparation is sought. Several informal complaints were received on and after March 26, 1925, and formal complaint was duly filed after termination of the informal proceedings.

Claims covering shipments of the White Marble & Terrazzo Company delivered or tendered for delivery prior to March 27, 1923, are barred. The record fails to disclose any shipments to points in New York and rates to such destinations will not be considered. Except as noted, rates will be stated in cents per 100 pounds.

The shipments, except those from Bellefonte, originated on the New York, New Haven & Hartford, hereinafter called the New

1 Complainants are the Baird Machine Company, Barstow Stove Company, Bradley & Hubbard Manufacturing Company, Bridgeport Deoxidized Bronze & Metal Company, Connecticut Foundry Company, John M. Deely, John F. Deely, Foster Merriam Company, Charles Parker Company, Peck Brothers & Company, Plainville Casting Company, I. S. Spencer's Sons, and United Metal Manufacturing Company, Incorporated.

Haven. Those from Bellefonte moved over the United Electric and New Haven to points on the latter road. Sand is not produced at Harbor Junction Wharf and the sand which moved from there originated elsewhere. Provincetown is at the extreme end of Cape Cod. Pontiac and Davisville are 7 and 16.8 miles, respectively, south of Providence, R. I. Wareham and Onset are 49.3 and 51.3 miles, respectively, south of Boston, Mass.

In the appendix, the rates assailed and sought, together with the distances from and to the points under consideration, are shown. The rates sought now apply except from Pontiac and Bellefonte. In view of this and the fact that the deposits at Pontiac and Bellefonte have been exhausted, we shall consider only the reasonableness of the rates in the past. The reduced rates were established by defendant on April 2, 1927, and on later dates.

Between points on the New Haven for distances from 101 to 300 miles, the rates per ton on amesite, granite or stone chips, screened gravel, granite or stone grout, and broken or crushed stone range from $1.30 to $1.65; on brick from $1.90 to $2.50; on ice from $1.20 to $1.80; on building sand from $1.20 to $1.80; and on stone or granite curbing or paving from $2 to $2.60. Values, volume of traffic, length of hauls, minimum weights, average loadings, and earnings are not given. These comparisons therefore are of little probative value.

It is contended, although the freight bills described the commodity under consideration as fire sand, sand, sea sand, or core sand, that it was run-of-bank sand taken from the pit and not processed in any way. It was loaded mainly in open-top cars. The average value per ton of Provincetown sand in 1923 was 60 cents; in 1924, 75 cents; and thereafter to the present time, 80 cents to $1; and that from Bellefonte, Pontiac, Davisville, and Harbor Junction Wharf has been $2.25 per ton since 1923. Wareham and Onset sands are worth $1.50 per ton. Silica sand from the Ottawa, Ill., district is said to range in value from $1 to $1.25 per ton. The prices of Ottawa sand vary with the grade and the amount purchased.

There is no contention that the rate on common or building runof-bank sand should be applied. However, in Richmond Radiator Co. v. N. Y., N. H. & H. R. R. Co., 109 I. C. C. 497; Smith Co. v. N. Y., N. H. & H. R. R. Co., 120 I. C. C. 43, and Manufacturers Foundry Co. v. N. Y., N. H. & H. R. R. Co., 139 I. C. C. 35, we considered rates on core sand, fire sand, and sea sand between various points in this territory. The character, use, and transportation characteristics of the commodity were there set forth. The shipments moved generally in open-top equipment. Complainants there

sought reparation to the common-sand basis. Rates considerably in excess of those on common sand were found reasonable.

Defendant urges that the use of box cars instead of open-top cars for many of complainants' shipments indicates that the sand was of a higher quality than that considered in the above cases. It points out that the sand is a valuable commodity of high silica content, used for various foundry purposes and so unusual in quality that it is hauled for distances of 291 miles, although sand of less value is available near at hand. It is asserted that Provincetown sand is comparable with that produced at Ottawa and that the sand shipped from Pontiac, Davisville, and Bellefonte was molding sand, as is evidenced by its price and the fact that all sand from these points was shipped in box cars at the shippers' request. Rates on molding sand, it is stated, are generally about 15 per cent higher than on core sand. Defendant is conducting an investigation of the characteristics of the various grades of sand but is unable, as yet, to produce the results of such a study.

There is nothing in the present record to show that the sand here shipped differed from the commodity considered in the above-mentioned cases, wherein rates ranging from 39 to 58 per cent higher than the common-sand rates were found reasonable. The rates charged on the instant shipments were from 75 to 143 per cent in excess of the contemporaneous common-sand rates, whereas the rates sought are from 33 to 44 per cent in excess thereof.

Defendant compares the rate of $2.90 per ton on sand from Ottawa to Richmond, Ind., 262 miles, referred to in Boldt Glass Co. v. C., B. & Q. R. R. Co., 98 I. C. C. 481, with rates of $3.20 paid and $2.60 sought from Provincetown to Lee, Mass., 291 miles. In Silica Sand Producers' Asso. v. C., B. & Q. R. R. Co., 73 I. C. C. 588, a rate of $2.39 was prescribed from Ottawa to Indiana points for distances ranging from 165 to 257 miles. This rate is compared with the rates of $2.90 paid and $2.40 sought from Provincetown to Rocky Hill, Conn., 215 miles; Meriden, Conn., 220 miles; and Plainville, Conn., 223 miles.

In Boldt Glass Co. v. C., B. & Q. R. R. Co., supra, the rate of $2.90 from Ottawa to Cincinnati, Ohio, 356 miles, was found not unreasonable. This rate was 60.4 per cent of sixth class and conformed to the approximate average of 61 per cent of sixth class to other destinations in Ohio and Indiana on shipments from Ottawa. We recently prescribed a somewhat lower basis of rates from the Ottawa district to destinations in Ohio, Indiana, and Michigan. Ill. Silica Sand Traff. Bureau v. Atchison, T. & S. F. Ry. Co., 152 I. C. C. 749; 155 I. C. C. 687; Procter & Gamble Co. v. Baltimore & O. R. Co., 153 I. C. C. 469; River Raisin Paper Co. v. Chicago, B. & Q.

R. Co., 153 I. C. C. 721. Defendant points out that sand rates were originally on the basis of two-thirds of sixth class, and rates from New Jersey to points on the New Haven are now on that basis. It is contended that rates in New England territory should be on a higher level than in central territory and that this was recognized in Proposed Increases in New England, 49 I. C. C. 421, 449. The rates prescribed in New England territory in the cases heretofore cited are approximately 55 per cent of sixth class. The present rates are in line with those prescribed therein.

It is urged that sand is desirable traffic, not subject to loss or damage; that it is a low-grade heavy-loading commodity, and that there is a steady movement throughout the year, mostly in opentop cars. The average loading of complainants' shipments was 39.6 tons per car. The sand movement from Provincetown amounts to about 800 cars per year or 70 cars per month. The majority of the shipments here considered originated at Provincetown and were destined to Meriden, Lee, and Plainville.

Using the distances shown in the appendix, the rates charged yielded earnings ranging from 10.9 to 49.1 mills per ton-mile, and from 46.2 to 160.1 cents per car-mile, based on the average loading of 39.6 tons. Under the rates sought, the earnings would have ranged from 8.9 to 28 mills per ton-mile and from 37.7 to 109.4 cents per car-mile. Based on an average haul of 110 miles, the average earnings of the New Haven in 1925 on all freight handled were 21.8 mills per ton-mile and 42.7 cents per car-mile, using the average loading of 19.2 tons. Defendant asserts that weighted-average earnings are a better indication of the measure of reasonableness. They are shown to be 13.7 mills per ton-mile, and 54.3 cents per car-mile under the assailed rates, and 11.3 mills per ton-mile and 44.75 cents per car-mile under the rates sought.

Defendant does not agree with previous decisions that no operating difficulties are encountered over the route of movement from Provincetown to Norwich. It asserts that the New Haven must handle an appreciable part of its business in lightly loaded short-haul trains and that shipments must move through several classification yards. The assembling of cars from the various branch and intersecting lines, together with the light volume of traffic on the branches makes it impossible, with certain exceptions, to forward cars from the point of origin to destination in one train. In the movement from Provincetown to Lee there are five separate train movements and in addition to the initial and final yard handling there are four separate intermediate yard handlings. The movements between other points necessitate from one to five train movements and require handling through from one to four intermediate yards. The grades on the

Provincetown branch range up to 1.5 per cent and the limiting grade approaching Lee is slightly over 1 per cent. Cars for the sand movement are concentrated at Brockton, Mass., and move empty to Provincetown, 110 miles. Complainants bought the sand f. o. b. shipping points. The shipments were forwarded collect and the charges thereon were paid by complainants.

We find that the rates assailed from points of origin other than Pontiac and Bellefonte were unreasonable to the extent that they exceeded the present rates; that the rates from Pontiac were unreasonable to the extent they exceeded 9.5 cents to Meriden and Bridgeport, Conn., and 9 cents to New Haven and Portland, Conn.; that the rates from Bellefonte were unreasonable to the extent they exceeded 9 cents to New Haven and 9.5 cents to Bridgeport; that complainants made the shipments as described and paid the charges thereon; and that they have been damaged thereby and are entitled to reparation, with interest, in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable. Complainants should comply with Rule V of the Rules of Practice.