it is not and should not be considered as a controlling element. While a carrier may gain some slight benefit by adopting a policy that will centralize the business of shipping when equipment is scarce, the interests both of carriers and of the general public, broadly speaking, lie in an opposite direction; and the general practice of carriers whereby no difference in rate is made because of difference in cost between different methods of loading or between local and through train service is, therefore, entirely justifiable.

For similar reasons, we think differences in rates because of differences in tonnage shipped should be confined, ordinarily, to such distinctions as are made between carload and less than carload shipments. In the case of Paine Brothers & Company v. Lehigh Valley Railroad Company et al., 7 I. C. C. Rep. 218, the complaint was that the defendants charged higher rates for transporting grain when only a single carload was shipped than when a cargo consisting of several carloads was shipped and in passing upon this question we said: "But conceding that lower rates on export than on domestic grain may be properly allowed, we perceive no sufficient reason for different rates on carload than on cargo or train load shipments, whether grain is carried for export or for domestic use. The principle involved in such a distinction violates the rule of equality and tends to defeat its just and wholesome purpose. That purpose is not fully accomplished if one scale of charges is applied to cargo shipments and a higher rate is imposed for single carloads, even though all cargo shippers pay the same and all carload shippers are charged alike.” And again, in Carr v. Northern Pacific Railway Company, 9 I. C. C. Rep. 1, language used in the opinion of the Commission was as follows: "A carload rate lower than the less than carload rate, where the difference is not too great, would ordinarily be lawful; but a still lower rate for shipments of a hundred or a thousand carloads, though duly published and impartially applied, would be wholly indefensible. If a low rate is granted on conditions with which only a few can comply that rate is presumably unfair and may be extremely prejudicial to all other shippers of like traffic, be

cause they are practically unable to meet the terms upon which it is offered."

In the case before us the record shows that under normal conditions and with equal rates of transportation those who load coal from wagons or sleds cannot compete successfully with those who load from tipples. It is therefore evident that shipments cannot be made from any of the large number of farm banks in the Meyersdale district, except when prices in market are extremely high, if the additional charge of 50 cents per ton provided for in the amendment of January 26 is exacted.

We have said that the distinction defendant seeks to make through the amendment in question is in the nature of an innovation and one that has not been made heretofore by carriers, and that the principle involved applies to many kinds of traffic besides coal. Upon the facts appearing in this case we are not prepared to sanction such a departure from general and longestablished custom.

A large tonnage of hay is shipped annually from producing points in the West to consuming points in the South and East, and while the hay is loaded into cars from wagons and sleds by producers on the one hand and from storehouses by larger dealers on the other, and while the average time consumed in loading is greater in the former instance than the latter, the transportation charges are not for that reason made greater. A reasonable time for loading is allowed in each instance, and when this is exceeded a demurrage charge, presumably commensurate with the additional time the car is detained, is exacted. The same thing is true of grain, which is loaded from wagons and sleds. and from elevators, and many similar illustrations pertaining to traffic shipped in carloads might be made.

It will thus be seen that the distinction in question, if carried to its logical conclusion, would result in a great change of present conditions. If carriers are allowed to make differences in rates to equalize differences in the cost of transportation, and see fit to do so regardless of the effect upon shippers and localities, the ultimate result must be that the bulk of the traffic will be handled by comparatively few shippers and from and to large centers. We cannot believe such a result was

either intended or desired by the framers of the regulating statute and are disposed to hold that in the transportation of this coal the difference in cost to the carrier between coal loaded from tipples and coal loaded from wagons or sleds does not justify defendant in making a difference in rate.

Even if it were conceded that because of less cost of service lower carload rates might be applied when the number of carloads shipped is greater, the amendment referred to is still open to objection, because under it the lower rate is applied if only one carload a day is shipped from a mine where the loading is by tipple, while the higher rate is exacted when the loading is from wagons or sleds, although in the latter case a number of cars might be shipped each day from the same point. It is also to be observed that the former shipments are often hauled in the same trains with the latter.

It is undoubtedly true that if a shipper detains a car for loading purposes longer than is reasonable he should be required to compensate the carrier for such detention, and if one dollar a day is not sufficient a larger sum may be exacted; but charges of this kind should always be based upon the fact of detention; otherwise, unjust discrimination is liable to result.

It should be noted that we do not decide whether or not defendant might lawfully provide that shipments of coal in carloads should not be made except where the loading is by tipple, or prohibit altogether the loading of coal from wagons or sleds on its team tracks, for those questions are not presented by the record in this proceeding. Without further discussion we sum

marize our conclusions as follows:

Refusing to furnish cars to complainants between February 25 and March 26, 1903, on the Deal side-track at Meyersdale and the side-track of the Savage Fire Brick Company at Keystone Junction, while furnishing and offering to furnish cars to complainants' competitors at other points, under the circumstances disclosed by the evidence and described in the findings of fact, was an undue and unlawful discrimination against complainants for which they are entitled to reparation in the amount above stated.

Making certain charges for the transportation of coal shipped

in carloads when the coal is loaded by tipple and exacting a higher charge when it is loaded in some other way, and for that reason, is not justified by difference in cost to the carrier between different methods of loading, or by the other facts appearing in this case, and renders the higher rates thus made unreasonable and unduly discriminatory, first, as against complainants, and second, as against all other shippers of coal except those who load by tipple, and constitutes a violation of sections 1 and 3 of said Act.

An order in accordance with the views herein expressed will be made.

10 I. C. C. REP.

No. 691.

THE GEORGIA PEACH GROWERS' ASSOCIATION

v.

THE ATLANTIC COAST LINE RAILROAD COMPANY

et al.

Decided June 4, 1904.

1. If fruit is damaged through negligence of the carrier while in transit there is no reason why the carrier cannot be required to respond in damages to the full amount of the injury sustained without regard to the valuation placed upon it, and defendants' regulation whereby the freight rate on peaches and other fruit from Georgia points is increased in proportion to the carload valuation fixed by the shipper is unreasonable and unjust.

2.

An arbitrary charge of $80 per car imposed by the defendant, the N. Y., N. H. & H. R. R. Co., for the transportation from New York to Boston of peaches and other fruit shipped from Georgia points to Boston, its haul being part of the through service between the points of shipment and destination, is unreasonable and unjust and $50 per car would be a just and reasonable charge for such transportation. 3. Upon all of the facts and circumstances, including on the one hand the difficulties and liability to loss attending the production and shipment of peaches, and on the other hand the large percentage of cars loaded above the prescribed minimum weights for carloads for which excess no charge is made by the carriers, the exceptional character of the service which involves fast time and prompt delivery at destination, the carriage of a large amount of non-paying freight, return of cars without loads, and many other conditions relating to the highly perishable nature of the traffic, Held, That neither the minimum carload weight nor the transportation charge established by the defendants engaged in the carriage of peaches in refrigerator cars from Georgia points to New York, based upon a rate of 81 cents from Atlanta to New York, is unreasonable or unjust.

William H. Fleming and C. P. Steed for complainants.

P. Frank Hennigan for Boston Fruit and Produce Exchange. Ed Baxter for defendants.