Presumptions, Evidence, and Admissions as to Reasonableness

322. Admissions by carrier. Any party which claims an inherent cost advantage is required to develop costs in an intermodal competitive situation if it wishes to be successful in its claim. Here, complainant seeks to use, and indeed restate to its own purposes, cost data prepared, yet not introduced into evidence by defendants, to support its claim. This is tantamount to compelling de fendants to make out a case against themselves.-Sea-Land Service, Inc. v. New York Central R. Co., 329 I.C.C. 589 (592).

The evidence in question is not an admission against interest on the part of the defendants. On its face it is favorable to defendants, but owing to complainant's failure to make out a case, it was not necessary for defendants to introduce it. Viewed differently, admissions are the prior assertions of a party, which, being inconsistent with its present claim, may be used to discredit it because of a discrepancy. But here, the evidence is in no way inconsistent with any other evidence or statements of defendant. Additionally, it seems clear that complainant is in no position procedurally to "sponsor" such data in an attempt to correct defects in its own case. The evidence should not have been received by the examiner, and is not to be considered here.-Id., p. 592.

Commodity Description; Economic Trends; Sources and Destinations

350. Rates prescribed or approved. -Coal: It has been the Commission's general policy since the decision in 69 ICC 11 to determine the reasonableness and nonprejudicial character of rates on coal on the basis of the distance over short tariff routes. This policy is especially appropriate where the nontariff route would short-haul the originating carrier which would be the case in the instant proceeding. -Coal, Ky., Tenn. and Va. to North Carolina, 329 I.C.C. 572 (578)*.

Equalization of Ports of Markets

503. North Atlantic ports adjustments.--Proposed reduction of carload rates on paper and paper articles, for export, from origins in central freight association territory to Baltimore, Md., is lawful although representing a departure from formerly equalized rates from central territory to the North Atlantic ports. Evidence shows that not only are proposed rates reasonably compensatory but also that there is a need for the proposed rates; Baltimore carriers have a competitive disadvantage, and there is a need for reasonable and lawful carrier competition. But, similar rates applying from same origins to other North Atlantic ports are not shown just and reasonable since cost evidence pertaining to rates proposed to ports other than Baltimore lack a relationship of unit cost to export traffic; costs based on territorial service units are not representative of handling of export traffic.-Paper, Central Territory to North Atlantic Ports, 329 I.C.C. 281 (289-90).

Line-haul, Terminal, and Switching Services Included

521. Line-haul rates and terminal services.-Present line-haul rates which include the loading and unloading of the carrier's vehicle "when this service can be performed by one man" are vague and indefinite since no provision is made as to who is to decide when a shipment can be loaded or unloaded by one man; indefiniteness is even more pronounced in that respondents' rules also provide that shipments which cannot be handled by one man because of weight,

dimensions, or physical characteristics are not entitled to loading and unloading service. The lack of certainty is not cured by respondents' proposed alter nate rule whereby an additional man would be provided only at the carrier's option, since the shipper or consignee would be unable to determine when and under what circumstances this service would be furnished. However, rules providing that the line-haul rate includes loading and unloading service unrestricted as to the number of laborers, or which provide for one man per vehicle or those which make provision for additional labor at an extra charge are clear and definite.-Detention of Vehicles & Loading and Unloading Provisions-Investigation, 329 I.C.C. 220 (227-30).

Rates for Special Classes of Service

663. Trailer-on-flatcar service.-Proposed reduced plan II TOFC per-flatcar rate on canned goods, 2 trailers per flat car, maximum 40,000 pounds per trailer, from Florida origins to New York City and New York and New Jersey points taking New York City rates, found just and reasonable and not otherwise unlawful when it improves railroads' overall revenue position by attracting more traffic than had previously moved by rail and, based on respondents' cost studies adjusted after prior hearing to correct difficiencies and incorporate up-to-date data, charges under proposed rate are clearly compensative on an out-of-pocket basis. Also, proposed rate does not constitute a destructive competitive practice, as argued by protestant water carrier, when protestant failed to show that motor-water-motor is the low-cost transportation mode and, as such, is entitled to protection. --Canned or Preserved Foodstuffs from Fla. to N. Y. & N. J., 326 I.C.C. 776 (777, 780-1, 783)*.

$1 (6). CLASSIFICATION OF PROPERTY FOR TRANSPORTATION; REGULATIONS AND PRACTICES

Weights and Weighing

Weight as a Factor in Measurement of Transportation Charges

24. Minimum weight as factor. -Refusal of the defendants to participate in reduced rates conditioned on the use of 70-ton cars was found not justified on the record. Such a refusal to supply the facilities necessary

to provide service to complainant restricts the free movement of coal and access to the market at reasonable rates on a related competitive basis and has in effect, closed the routes in a commercial sense in contravention of the provisions of $1(4) and the basic purpose of $15 (3) of the act. This refusal of defendants constitutes an unjust and unreasonable practice in violation of §1(6) of the act and must be condemned in order to provide the complainant, and their shippers, with free, open, and adequate transportation service.Coal, Ky., Tenn. and Va. to North Carolina, 329 I.C.C. 572 (587)*.

Carrier's Duty as to Routing

574. Forwarding by cheapest reasonable available route.-Carrier is not in violation of §1 of the act if, all things considered, it would be

unreasonable to ship by the cheaper route. Since shipper requested expeditious service and accepted bills of lading without protest, resort to the more expensive short route was justified. It is the duty of the carrier to deal justly with the shipper and ordinarily this requires that shipments be routed over the cheapest route. But when, as in this case, the reasonable interpretation of the shipper's instructions indicates desire for expedition, the use of the higher-rated route may be justified. -Peter Kiewit Sons' Co. v. Chicago, B. & Q. R. Co., 329 I.C.C. 239 (242).

576. Reasonable and unreasonable routes.-Defendants could reasonably interpret that routing over the shorter, more expensive route was desired in view of the general instructions of complainant for expeditious service. The route of movement was substantially less circuitous than the lower rated route claimed by the complainant. Furthermore, only triweekly local service is available over the claimed route, and the additional miles and handling would entail at least 4 more days in transit and additional switching charges. All defendant's agents have standing instructions to send any unrouted traffic over the route which would give defendant its longest haul. In this instance, it would have been the claimed route; therefore, in routing the shipments the defendant, in effect, short-hauled itself. The applicable rate was charged. - Peter Kiewit Sons' Co. v. Chicago, B. & Q. R. Co., 329 I.C.C. 239 (242-3).

$3(1). UNDUE PREFERENCES OR PREJUDICES PROHIBITED

Character of Preferences Prohibited

37. Competitive relationship between preferred and prejudiced. Participation in through routes and joint rates by respondent on lake cargo tonnage to Toledo while contemporaneously refusing to continue to participate in like tonnage to Ashtabula Harbor unduly prefers Toledo and subjects Ashtabula Harbor to unlawful prejudice in violation of section 3(1); proposed cancellation of through routes and joint rates found not shown to be just and reasonable.—Lake Cargo Coal, Ky., Va. and W. Va. to Ashtabula Harbor, 326 I.C.C. 63 (72)*.

Competing localities: Had the proposed rates to Baltimore been applied to New York, they would have been noncompensatory for the Baltimore carriers. The differences in transportation conditions clearly warrant differing rate levels for these points. And, even if it be assumed that preference and prejudice be established, there is on this record, considering the dominant position of New York, no showing that such preference and prejudice would be undue, which is what the act condemns. It is well settled that a mere difference in rates does not constitute undue preference and prejudice and that inferences or assumptions are of no value.-Paper, Central Territory to North Atlantic Ports, 329 I.C.C. 281 (291).

Determination of Undue Prejudice

95. Nature and extent of competition.-Complainant shipper of silica sand from Guion, Ark., to southeastern destinations has proven that assailed rates create a disadvantage in marketing such product by evidence of a marked decline in business and consumer witness testimony. Coupled with proven disparity in rates between complainant and competing shippers, this evidence constitutes a prima facie showing that assailed rates are unduly prejudicial, preferential, and unlawful.-Silica Products Co., Inc. v. Gulf, M. & O. R. Co., 329 I.C.C. 181 (188-9).

UNIFICATIONS, MERGERS, AND ACQUISITIONS OF CONTROL

$5 (2).

7.

Competition.-Protestants have not shown in any significant degree the manner in which they would be adversely affected by approval of this transaction but have evinced only an apprehension of injury or of traffic diversion which is entitled to little consideration. See 90 M.C.C. 636.-Matlack, Inc. Control--Southern & T. I. McCormack, 109 M.C.C. 861 (867-8).

Commission found that not all of operations under vendor's general commodity authority are dormant. Evidence of past operations, public need, and an absence of adverse effect on protestants warrants continued delivery by vendee of construction materials, feed, salt, and liquid fertilizer, except liquid bulk commodities, but not of household goods as no evidence of transportation of such goods has been shown nor has a future need for such transportation been established. -Universal Transport, Inc. -Purchase-Muck, 109 M.C.C. 871 (879-80)*.

10. Corporate and operating status of vendor. -Test of substantiality stated in 75 MCC 659 has been further refined and interpreted with respect to specialized bulk carriers, such as vendor, by the findings in 104 MCC 686. As the nature of a commodity or service becomes more narrowly confined or speciali greater leniency can be shown in determining whether vendor has conducted substantial service throughout its authorized territory. In determining whether operating authority had been actively utilized, shipments moving over the considered rights in interline service and/or pursuant to tacking operations are properly entitled to consideration. See 101 MCC 649. Commission considered vendor's entire service and found that certain certificates should be cancelled for dormancy but not others (as specified herein). -Matlack, Inc.-ControlSouthern & T. I. McCormack, 109 M.C.C. 861 (865-6).

Commission has consistently held that an irregular-route carrier must show that it has rendered substantial service to a representative number of points throughout its authorized territory to successfully meet the test of substantiality set forth in 75 MCC 659. Record herein is barren of such evidence as regards vendor's operations. Vendor's use of interline service to or from authorized points does not show active and continuous service. See 109 MCC 27. Objection to a proposed transaction based upon dormancy may be overcome by a showing that such transaction serves a public need. Testimony of supporting shippers is indicative of a preference only and demonstrates that vendee would not meet any demand for service not presently being satisfactorily met by existing carriers. -Arkansas-Best-Purchase-Indianhead, 109 M.C.C. 885 (889).

15. Routes, rights, transferred, retained, combined.

Commercial zones: Commission held that hearing examiner erred in finding that vendor, under its retained authority, could serve Moline, Ill., as a point within commercial zone of Davenport or Bettendorf, Iowa. Examiner ignored destinction made in 54 MCC 21 (92) between authority to serve a particu lar municipality and territorial authority. Hence, authority to serve "points in Iowa" is not authority to serve Illinois points.-Arkansas-Best-PurchaseIndianhead, 109 M.C.C. 885 (887-8).

Duplicate operating rights: See East Tex. Motor Frt. LinesPurchase-Lee at $5 (2), n. 110 temporary.

Evidence

45. Control.-Operating rights sought to be controlled are not dormant as protestants contend. Carrier sought to be controlled was ordered to cease its complete heavy-hauling service until its authority was redescribed and it cannot be held responsible for the resulting commodity hiatus. shows that involved carrier operated extensive heavy-hauling operations both before and after issuance of a revised certificate. Absent a showing that protestants would be adversely affected by applicant's acquisition of the revised certificate, it must be presumed that service authorized thereby can be rendered without endangering or impairing protestants' operation contrary to the public interest. Application approved. -Aetna Freight Lines, Inc.Control-Ray Carter, 109 M.C.C. 13 (24-26)*.

Control of a motor carrier by a rail carrier approved despite violation of the act inasmuch as rail carrier vendee has shown that it can effect substantial savings and also render faster service on less-than-carload traffic through use of motor carrier service. Advantages to the public warrant continuation of the service, and means are available to restrict the considered authority so as to overcome the reason for the prior denial of authority to control.-Canadian Ntl. Transp.-Investigation of Control, 109 M.C.C. 392

Conditions imposed: Commission approved transaction herein as the question of vendee's financial fitness has been satisfactorily answered by its increased profitability and decreased deficits. Use of revenues from sale of vendor's equipment will eliminate major portion of indebtness arising from this transaction but the Commission conditioned consummation of this transaction against vendee's declaration or payment of dividends unless the Commission finds that vendee is no longer overcapitalized.—Universal Transport, Inc.-Purchase— Muck, 109 M.C.C. 871 (879)*.

Discontinued operations: Although most of involved traffic was in one direction, 91 percent interchanged at Milwaukee, and 54 percent of singleline shipments were less than 10,000 pounds each, vendor found to have rendered service consistent with its abilities and resources and its rights may not be considered dormant. Substantial support of shippers, freight forwarders and motor carriers for continuation of vendor's services a factor in considerations. Transfer of such rights approved. -Schneider Transport & Storage, Inc.-Pur.Lavery, 109 M.C.C. 479 (483-4).

Where vendor is shown to be serving the supporting shipper under recently granted specialized authority, the test of substantiality should not be applied too stringently. -Northern Motor Carriers, Inc. -Purchase-Bonded, 109 M.C.C. 61 (66)*.

Protestant's allegation, that vendor's authority had long been dormant, and that his service had been reinstituted as a result of the influence and domination of the vendee, found to be without merit. Applicants have shown