paid and bore the charges thereon; that it was damaged in an amount equal to the difference between the charges paid and those which would have accrued at the rate herein found reasonable; and that complainant, Swift & Company, as successor in interest, is entitled to reparation, with interest. Complainants should comply with rule V of the Rules of Practice. No. 27704 TRI-STATE PIPE COMPANY v. ABILENE & SOUTHERN RAILWAY COMPANY ET AL. Submitted May 31, 1939. Decided July 17, 1939 Rates on used iron or steel pipe-thread protecting rings, in carloads, from Eunice and Hobbs, N. Mex., and Kermit, Tex., to Bellaire, Ohio, not shown to have been unreasonable. Complaint dismissed. D. L. Bennett for complainant. Frank H. Cole, Jr., for defendants. REPORT OF COMMISSION DIVISION 3, COMMISSIONERS MAHAFFIE, MILLER, AND ALLDREDGE BY DIVISION 3: Exceptions were filed by complainant to the examiner's proposed report. Complainant corporation alleges by complaint filed April 14, 1937, as amended orally at the hearing, that the rates charged on four carloads of used iron or steel pipe-thread protecting rings to Bellaire, Ohio, from Eunice, N. Mex., October 7, 1935, from Hobbs, N. Mex., February 11 and 29, 1936, and from Kermit, Tex., March 2, 1936, were unreasonable. Complainant asks us to award it reparation. Rates are per 100 pounds and do not include the authorized emergency charges, which are not assailed. The Pittsburgh Screw & Bolt Corporation, Pittsburgh, Pa., was permitted to intervene, but it was not represented at the hearing. Iron or steel pipe-thread protecting rings are described in Crancer and Fleischman v. Abilene & S. Ry. Co., 223 I. C. C. 375, 225 I. C. C. 319. Complainant bought the rings here considered at or near the places where the pipe, the threads of which they protected, was used, and shipped them to its plant at Bellaire. Those rings which were susceptible of reconditioning as thread protectors were made fit and sold by complainant to pipe manufacturers. Some of the used rings were valuable for remelting purposes only and were sold by complainant as scrap iron or steel. The shipments averaged 61,000 pounds, and the rates charged were 141.5, 143.5, and 135.5 cents from Eunice, Hobbs, and Kermit, respectively. The distances the shipments moved, or the short-line distances from these points to Bellaire, are not shown. Iron or steel pipethread protecting rings, under the heading of pipe fittings, were rated fifth class in the governing western classification. The rates charged were combinations consisting of fifth-class rates of 46, 48, and 40 cents from Eunice, Hobbs, and Kermit to Big Springs, Tex., respectively, plus a commodity rate of 61 cents from Big Springs to East St. Louis, Ill., and a commodity rate of 34.5 cents from East St. Louis to Bellaire. The joint fifth-class rates to Bellaire were 138 cents from Kermit and 144 cents from the other origins. The tariff containing the joint rates made reference to rule 56 of our Tariff Circular 20 whereby defendants agreed to protect the lowest combination over routes of movement. Defendants question the applicability of the 34.5-cent rate from East St. Louis to Bellaire, which was restricted to "rings for protecting thread of iron pipe, iron or steel, second-hand, returned to manufacturers." They contend that a commodity rate of 37 cents on iron and steel articles in effect beyond East St. Louis applied, the use of which would have produced combination rates totaling 144, 146, and 138 cents from Eunice, Hobbs, and Kermit, respectively, and that, those combinations being greater in amount than the aforementioned joint rates, rule 56 could not be used. Complainant, a manufacturer of iron and steel pipe, discontinued the manufacture of pipe-thread protecting rings several years prior to these four shipments. Its witness did not know whether or not these rings had been shipped by complainant. These rings were discarded at the destinations of the pipe, the threads of which they protected, and they could not be identified as having come from any certain manufacturer. They were removed from the pipe, thrown in a heap without regard to size or origin, and bought "as is" by complaint. That part of the restrictive clause in the tariff, "returned to manufacturers," is indefinite. According to defendants' witness it was intended to apply to pipe manufacturers, which at the time were the only shippers of thread-protecting rings. The intention of the maker of a tariff, of course, is not controlling, and in the circumstances we conclude that the 34.5-cent rate beyond East St. Louis applied. Complainant argues that the discarded rings were junk, that many of them were unfit for any purpose other than remelting, and that therefore it was entitled to the lower rates on scrap iron and steel having value for remelting purposes only. In Crancer and Fleischman v. Abilene & S. Ry. Co., supra, a like contention was made, and division 3 said: Although a portion of each shipment had a value for remelting purposes only and would came within the tariff definition of scrap iron, the mixed carload rule of the consolidated classification provided, subject to certain exceptions not here pertinent, that such shipments will be charged at the carload rate applicable on the highest-rated article in the carload. In respect to the applicability of the rate to be charged, therefore, the fact that the shipments contained same protecting rings valuable only for remelting purposes had no controlling effect. The shipments were subject to the rates applicable to the highest-rated article contained in the mixture. That proceeding dealt with shipments of used iron or steel pipethread protecting rings from points in the Southwest, including Hobbs, to St. Louis, Mo., and East St. Louis. The division found that the scrap-iron rates collected were inapplicable, and at the applicable rates, which were the class or commodity rates on pipe fittings, were not shown to have been unreasonable. Those findings are apposite here. It may be emphasized that the four shipments here considered were described in the bills of lading as used pipe-thread protectors, not as scrap iron for remelting purposes only. Complainant contends that when these shipments moved there was a combination of rates of 128 cents in effect from each of the three origins, made up of a proportional fifth-class rate of 8 cents to Monahans, Tex., plus a commodity rate of 85.5 cents to St. Louis, applicable to pipe fittings, and the hereinbefore-instanced commodity rate of 34.5 cents to Bellaire. The tariff named rates between Monahans and eight New Mexico points, including Eunice and Hobbs, and restricted the fifth-class rate of 8 cents to "iron and steel pipe fittings or connections, originating at or destined to Texas points." Three of the shipments did not originate at a Texas point, and none was destined to a Texas point. The one shipment which originated at a Texas point did not move between a named New Mexico point and Monahans. In Crancer and Fleishman v. Abilene & S. Ry. Co., supra, division 3 found that the 10-percent penalty charge provided in rule 5 of the classification, for shipments not in conformity with the packing requirements, was applicable on shipments of pipe-thread protecting rings loaded loose or at random. As a result of that decision defendants herein billed complainant for alleged undercharges based on the provisions of classification rule 5, it being contended that the rings were shipped loose or at random in gondola cars. Upon refusal of complainant to pay the additional 10-percent freight charges, defendants began an action at law on February 16, 1939. An unsuccessful effort was made at the hearing herein to determine whether or not these rings had been shipped loose or in packages. Apparently the parties agree that the packing regulations of the classification govern where the class rates applied, and that no penalty charge was to be added to the 34.5-cent rate beyond East St. Louis, as it was not subject to those regulations. They disagree, however, as to the additional charge in connection. with the 61-cent commodity rate from Big Springs to East St. Louis. The tariff provided that pipe fittings under 3 inches in diameter must be packed in boxes, barrels, kegs, casks, or bags, or strung on wire. The tariff also provided that where the form of shipment or the kind of container was not specified, or where reference was made to the current western classification for packing regulations, the 61-cent rate applied only when articles were tendered for shipment in the shipping form or in the kind of container prescribed in the description of such articles in the current western classification, subject to the provisions of rule 5 of that classification. The classification provided for shipment of this commodity in packages. As to any shipments that may have been loaded loose or at random the penalty charge applied in connection with the 61-cent rate. In view of the lack of evidence with respect to the form of shipment or kind of container used, the findings hereinafter made will be limited to the lawfulness of the line-haul rates and will not include any penalty charges that may have accrued. We find that the line-haul rates assailed of 141.5, 143.5, and 135.5 cents from Eunice, Hobbs, and Kermit, respectively, were applicable and are not shown to have been unreasonable. The complaint will be dismissed. 234 I. C. C. FOURTH SECTION APPLICATION No. 162541 Submitted February 10, 1939. Decided July 18, 1939 1. Relief authorized in the prior report herein, 218 I. C. C. 427, respecting rates on tin cans from Port Arthur, Tex., and intermediate points to Mobile, Ala., Jacksonville, Fla., and Charleston, S. C., continued. 2. Authority granted, on conditions, to establish and maintain rates on tin cans, in carloads, from Port Arthur, Tex., and intermediate points to Norfolk and Newport News, Va., without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. Additional appearances: F. A. Leland, E. A. Rouse, and W. J. Boewer for applicants; and E. B. McKinney for intervener. SUPPLEMENTAL REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND CASKIE BY DIVISION 2: In the original report herein, 218 I. C. C. 427, carriers were authorized to establish and maintain, until December 31, 1936, rates on tin cans, extra can keys, and can tops, in carloads, minimum 14,000 pounds, subject to rule 34 of the governing classification, from Port Arthur, Tex., and intermediate points from which rates were to be provided by an intermediate rule similar to rule 27 of Tariff Circular 20, to Mobile, Ala., Jacksonville, Fla., and Charleston, S. C., without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. The rates authorized therein were 67 cents to Mobile, 96 cents to Jacksonville, and $1.04 to Charleston. As subsequently modified, that relief applies to rates not lower than those named, and continues until the further order to be entered herein. In No. 17096, as amended, carriers parties thereto apply for similar authority in rates on tin cans as described in the preceding paragraph, from Port Arthur and intermediate points to Norfolk and Newport News, Va. Relief was authorized for a definite period by order No. 12969, and later continued until the effective date of the order to be entered after a hearing on the application. The hearing has been held, and no opposition to the relief prayed was presented. No exceptions were filed to the report proposed by the examiner. 1 This report also embraces fourth-section application No. 17096. |