riers, these defendants had no lawful right or authority to take any action with respect to these shipments until they were tendered to them by the preceding carriers in accordance with the original bills cf lading. At most, their agents were guilty of oral misquotations of the applicable rates, for which it is well settled that carriers cannot be held responsible.

In Mid-Central Fish Co. v. Chicago, St. P., M. & O. Ry. Co., 183 I. C. C. 641, 642, under circumstances similar to those here presented, division 4 said:

There is no suggestion that the initial carrier routed the shipment other than as directed by the consignor. The issue is thus narrowed to one of whether advice and assurances as to what is the applicable rate over a particular route made by a carrier which has no part in determining the actual routing of the shipment involved, which advice and assurances leads to the routing of the shipment over a route other than the lowest rated route, constitutes misrouting on the part of that carrier. It is well settled that a carrier is not liable to a shipper for an erroneous quotation of a rate except when made in writing and that a shipper is charged with knowledge of the lawful rate. To accomplish a contrary result under the circumstances of this case on the theory of misrouting would not only circumvent a well-established principle, but would distort the ordinary concept of what constitutes a routing of a shipment.

See also Portland Bridge Co. v. Oregon-W. R. & Nav. Co., 198 I. C. C. 272.

The instant proceeding, and those just cited, are readily distinguished from J. H. O'Melia Lbr. Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 201 I. C. C. 269, cited by complainants, for there the misrouting was due to error of the initial carrier.

An examination of the governing tariffs shows that the applicable rate from Waterproof and Ferriday was 42 cents in each instance, so that from Ferriday the shipment was overcharged 1 cent, and from Waterproof one shipment was overcharged 2 cents, and the other undercharged 7 cents. Defendants should make refund of these overcharges promptly.

We find that the charges assailed were applicable, except that the applicable rate on shipments from Waterproof and Ferriday was 42 cents, that the shipments were not misrouted, and that the applicable rates were not unreasonable or otherwise unlawful. The complaints will be dismissed.

246 I. C. C.

No. 28554

KANSAS CITY STRUCTURAL STEEL COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, ET AL.

Submitted April 14, 1941. Decided July 3, 1941

Rates on structural steel, in carloads, from Minnequa, Colo., fabricated in transit at Kansas City, Kans., and forwarded to Brownwood, Tex., found to have been unreasonable. Reparation awarded.

George H. Kinney for complainant.

Toll Ware, Charles C. Huff, R. S. Outlaw, H. C. Barron, and V. W. McLeod for defendants.

REPORT OF THE COMMISSION 1

JOHNSON, Commissioner:

The shortened procedure was followed. Complainant filed exceptions to the examiner's report. The conclusions herein differ from those recommended by the examiner.

Complainant, a corporation with fabricating plant at Kansas City, Kans., alleges by complaint filed September 7, 1940, that the rates on structural steel, in carloads, shipped between September 16, 1937, and March 9, 1938, from Minnequa, Colo., to Kansas City, there fabricated, and the fabricated steel forwarded to Brownwood, Tex., were and are unreasonable. The shipments were delivered at Brownwood within 2 years prior to the date the complaint was filed. Complainant now seeks reparation only, defendants having satisfied its prayer for a reasonable rate for the future. Rates stated in this report are in amounts per 100 pounds and do not include a charge of 2 cents covering the service of fabrication at Kansas City, which charge is not assailed. Nine shipments weighing 448,440 pounds moved from Minnequa to Kansas City over the lines of the Colorado & Wyoming' and the

Under the authority of section 17 (2) of the Interstate Commerce Act, the aboveentitled proceeding was referred by the Commission to Commissioner Johnson for consideration and disposition.

The Colorado & Wyoming Railway Company. Other shortened forms used and referred to in this report are Denver & Rio Grande for The Denver and Rio Grande Western Railroad Company (Wilson McCarthy and Henry Swan, trustees); Missouri Pacific for Missouri Pacific Railroad Company (Guy A. Thompson, trustee); Missouri-Kansas-Texas for Missouri-Kansas-Texas Railroad Company: Missouri-Kansas-Texas of Texas for MissouriKansas-Texas Railroad Company of Texas; Gulf, Colorado & Santa Fe for Gulf, Colorado and Santa Fe Railway Company; and Santa Fe for The Atchison, Topeka and Santa Fe Railway Company. The two amliated carriers last mentioned are referred to collectively as the Santa Fe system.

Denver & Rio Grande to Pueblo, Colo., thence the Missouri Pacific. After fabrication, six shipments of the same aggregate weight were forwarded from Kansas City over the lines of the Missouri-KansasTexas and the Missouri-Kansas-Texas of Texas to Dublin, Tex., thence the Gulf, Colorado & Santa Fe to Brownwood. The distance from Minnequa to Brownwood over the route of movement is 1,384 miles; the short-line distance is 723 miles.

The charges in-bound to Kansas City were based on column 32.5 rates of 64 cents on one shipment that originated on September 16, 1937, and 65 cents on the others. Complainant tendered the shipments of fabricated steel to the agents of the Missouri Pacific and the Santa Fe at Kansas City and requested that they be forwarded over Santa Fe system lines at the balance of a joint commodity rate of 74 cents, minimum 36,000 pounds, in effect over specified routes from Minnequa to Brownwood and contemporaneously applicable from an extensive group of points in Colorado, New Mexico, and Wyoming to a large group of Texas points. The group rate was not applicable from Minnequa to Brownwood over the route traversed to Kansas City in connection with any line or route beyond Kansas City. Accordingly, defendants refused to forward the shipments from Kansas City over Santa Fe system lines at the remainder of the joint rate, and complainant then consented to their being forwarded over the route shown. Charges were collected based on the applicable combination rate of 95 cents, composed of the joint commodity rate of 74 cents to Dublin, and the local column 32.5 rate of 21 cents beyond, except that on the shipment of September 16, 1937, the applicable combination rate was 93 cents. Although complainant had no choice of routing beyond Kansas City, and only of necessity consented to the use of a route taking a rate higher than that sought, the facts do not establish that the shipments were misrouted.

Complainant contends that the failure of defendants to publish and apply the joint commodity rate of 74 cents over the route of movement to the fabricating point, thence the lines of the Santa Fe system to destination, resulted in charges on the shipments which were unreasonable. It asks for reparation to that basis. As stated, the rate of 74 cents was applicable over numerous through routes from origins in Colorado, New Mexico, and Wyoming to a large group of Texas points. For example, it applied from Denver, Colo., and Cheyenne, Wyo., to Brownwood, and from Minnequa to Abilene, Austin, Fort Worth, Freestone, Greenville, and Wichita Falls, Tex., over routes ranging up to 1,448 miles, some of them through Kansas City. Based on the average weight of the shipments out of Kansas City, 74,740 pounds, the 95-cent rate yielded earnings of 13.7 mills per ton-mile

and 51.3 cents per car-mile. On the same basis, the 74-cent rate would earn 10.7 mills per ton-mile and 40 cents per car-mile for the distance traversed and 11.47 mills per ton-mile and 43 cents per car-mile for the distance by way of Kansas City over Santa Fe system lines beyond Pueblo, 1,290 miles.

Prior to December 30, 1937, the 74-cent rate was not applicable over any route from Minnequa to Brownwood by way of Kansas City composed of Santa Fe lines beyond Pueblo. On that date, among other routes not necessary to mention, the joint rate was made available on shipments from Minnequa to Brownwood over the lines of the Santa Fe system from Pueblo through either Purcell or Gulf Junction, Okla. Complainant's shipments moved over the Missouri Pacific from Pueblo to Kansas City. Under the rules published by the Santa Fe governing fabrication in transit at points requiring out-of-line or back hauls, however, the rate over the routes in connection with the Santa Fe lines beyond Pueblo would have been $1.045, composed of the 74-cent rate and a charge of 1 cent per ton per mile for the necessary out-ofline haul through the transit point. Over the route traversed to Kansas City, thence Santa Fe system lines, a combination rate of $1.35, 65 cents to Kansas City and 70 cents beyond, would have applied. Effective July 1, 1939, the Santa Fe provided for fabrication at any point on its lines, without additional charge for back or out-of-line hauls, where there is in effect a through rate from origin to destination appli. cable through the transit point "via any route."

Effective on December 1, 1940, defendants established routing from Minnequa to Brownwood over lines of the Colorado & Wyoming and the Denver & Rio Grande to Pueblo, the Missouri Pacific to Kansas City, and thence the Santa Fe through Purcell or Gulf Junction. Thus, shipments may be made from Minnequa to Brownwood by way of Kansas City at the present joint rate of 80 cents, which is the former group rate increased as authorized by the Commission on March 8, 1938, without any extra charge for the out-of-line haul. As complainant now has available a joint rate and route in connection with the Santa Fe through Kansas City, it is no longer interested in securing a joint rate over the route of movement. In the circumstances, the complaint will be considered as satisfied insofar as future relief is concerned, and no finding for the future will be made.

The route over which complainant's shipments moved is not unreasonably long as compared with other tariff routes over which the 74cent rate applied from an extensive origin group, including Minnequa, to an extensive destination group, including Brownwood. One of the best tests of the reasonableness of a rate is by comparison with rates on like traffic between points similarly situated. The general appli

430790-42—vol. 246–

cation of the 74-cent rate from and to the points under consideration, among numerous others similarly situated, over many routes, including routes by way of Kansas City more circuitous than that traversed, establishes as unreasonable the contemporaneous maintenance of a higher rate over the route traversed.

It is found that the rates assailed were unreasonable to the extent that they exceeded 74 cents; that complainant made the shipments as described and paid and bore the charges thereon; that it was damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rate herein found reasonable; and that it is entitled to reparation, with interest. Complainant should comply with rule V of the Rules of Practice.

246 I. C. C.