§6(1). SCHEDULE OF RATES, FARE, AND CHARGES; FILING AND POSTING

Form and Effect of Publication

136. Plain and definite statement required.-Rules providing that line haul rates include the loading and unloading of the carrier's vehicle "when this service can be performed by one man" found to be vague and indefinite, since no provision was made as to who is to decide when a shipment can be loaded or unloaded by one man. Thus, it was not clear under what circumstances the line haul rates include this service. The indefiniteness of the phrase is even more pronounced when considered in light of the fact that respondents' rules also provided that shipments which, because of weight, dimensions, or physical characteristics, cannot be handled by one man are not entitled to loading and unloading service. The considered phrase is unnecessary and confusing, and this type of rule violates rule 10(a) of the Commission's Tariff Circular 20 and §6 of the act; ordered cancelled. -Detention of Vehicles & Loading & Unloading Provisions, 329 I.C.C. 220 (227).

The Commission found a rule providing that line-haul rates include loading and unloading to service "performed by one man" to be vague and indefinite, and that provisions for loading and unloading without restrictions are not lawful. Also, since proposed alternate rules would permit the use of two men at any time in loading and unloading service, but not necessarily in all instances, a shipper or consignee would be unable to determine when and under what circumstances this service would be furnished. Such rules are uncertain and indefinite, and are therefore in violation of Tariff Circular 20 and $6 of the act and are ordered cancelled.-Id., pp. 227-9.

§13(1).

COMPLAINT TO COMMISSION OF VIOLATION OF LAW BY CARRIER; REPARATION;
INVESTIGATION

130.

Evidence

Evidence, in general. -Complainant contended that assailed rates to two points are representative of the entire scope of the contested rates. The Commission determined that when rates to numerous points are at issue, it is unnecessary to present evidence relating to each point. There must, however, be evidence on a sufficient and varied number to establish that the data are in fact representative of all. In the instant proceeding, destinations in five states are at issue, but evidence of only two points was presented, and both of these are in Massachusetts and are within a short distance of each other. Massachusetts is the state farthest distant from the origin of traffic and to one of the points, and the assailed rate is compensatory when the traffic is moved on the car generally used. Thus the points cannot be considered representative of all destinations.-Sea-Land Service, Inc. v. New York Central R. Co., 329 I.C.C. 589 (595).

$13a.

DISCONTINUANCE OR CHANGE OF CERTAIN OPERATIONS OR SERVICES

2. Construction and interpretation.-See United States v. City of Chicago, n. 15, below.

15. Procedure; notice; hearing. --District court holding, in remanding Commission decision allowing Chicago & E.I. R. to discontinue two ("Georgi trains which it operated between Chicago and Evansville, Ind., and in conjunct with Louisville & N. R. trains between Evansville and Atlanta, Ga., that notic of proposed discontinuance was inadequate because the governors and people of Kentucky, Tennessee, and Georgia were not notified, reversed. While $13a (1) required C&EI to give notice in Illinois and Indiana, the only States in which the line operated, it made no provision for notice to States served by connect ing railroads which might be affected by a discontinuance. When the Commissio ruled that statutory notice requirements had been met, and permitted the discontinuance, it must have interpreted "such train" in $13a (1) to refer to a train operated by only one railroad; and only the Chicago-Evansville discontinuance was then before it. On this issue, the court accepts the definition of "train" given by the agency having supervision over the problem.--United States v. City of Chicago, 400 U.S. 8 (9-10)*.

While C&EI and L&N functioned in close harmony and, since the "Georgian" and L&N's "Hummingbird" trains connect at Nashville, Tenn. (and coaches and sleepers are transferred between them), discontinuance of service on one line might have substantial effect on the other, such relationship is not unique in railroading. Congress, being aware of the mutual interdependence of railroads, designed a federal regulatory system that displaced the state regulatory system when it could defeat a carrier's attempt to discontinu a passenger train; hence, it would distort §13a (1) to treat it so as to requir the giving of notice to States which had no regulatory power over the carrier. Accordingly, Commission decision permitting L&N to discontinue its "Hummingbir trains having also been remanded because of the close relationship to the "Georgian," the consolidated causes are remanded for district court review of any questions on the merits that may remain unsolved. Id., pp. 10-11.

35.

Orders of the Commission. -District court decision remanding for consolidation and further hearings (1) Commission report and order allowin Chicago & E.I. R. to discontinue two trains ("Georgian") between Chicago and Evansville, Ind., operated in conjunction with Louisville & N. R. trains betwe Evansville and Atlanta, Ga., because notice of the discontinuance was not give to the governors and people of Kentucky, Tennessee, and Georgia, and (2) Commission decision approving L&N's discontinuance of its "Hummingbird" trains (which connect with the "Georgian" at Nashville, Tenn.) because of its close relationship with the C&EI case, reversed and remanded. The dissent argues

that "such train" in §13a (1) could be interpreted as either the C&EI's Chicago-Evansville train or the "Georgian" between Chicago and Atlanta; but only the Chicago-Evansville discontinuance was before the Commission when it ruled that statutory notice requirements had been met. On that issue, the court defers to the interpretation of the administrative agency having supervision over the problem. Consolidated causes remanded for district court review of any unsolved questions on the merits.-United States v. City of Chicago, 400 U.S. 8 (9-11)*.

$15 (1).

COMMISSION EMPOWERED TO DETERMINE AND PRESCRIBE RATES, CLASSIFICATIONS,
ETC.

Basis for Determination by Commission

67. Powers exercisable only when act violated. -The maintenance of reduced joint rates with the use of less than 70-ton cars could be accomplished only at the expense of revenue losses to the carriers concerned. The primary consideration is how to achieve a balance in rail transportation costs between competing shippers under similar transportation conditions without unduly sacrificing the revenues of the carriers. Since the evidence establishes substantial savings from the use of the larger cars and their is nothing in the record to establish any extra cost in providing such cars, these savings to be accomplished through innovations in equipment, service and technological efficiencies should be promoted under the national transportation policy, rather than discouraged, and passed on to all shippers in competing origins. However, the refusal of respondent to enter into reduced joint rates tied to use of less than 70-ton cars does not constitute a violation of the act and prescription of such a basis of use, under §15(1), is not justified.—Coal, Ky., Tenn. and Va. to North Carolina, 329 I.C.C. 572 (586)*.

§15 (3).

ESTABLISHMENT OF THROUGH ROUTES, JOINT CLASSIFICATIONS, JOINT RATES,
FARES, ETC.

22. Joint rates, fares and charges. - Refusal of 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 basic purpose of $15 (3) of the act. This refusal also violates $1 (6) of the act and must be condemned in order to provide the complainant, and its shippers, with free, open, and adequate transportation service.-Coal, Ky., Tenn. and Va. to North Carolina, 329 I.C.C. 572 (587)*.

50. Cancellation of through routes; joint rates.-Following the standard definition of "consistent with public interest," i.e., the interest of the general public as manifested by the traffic moved and capable of being moved over the routes which would be closed, as well as the interest of the other carriers which may participate in the [specified] rates [302 ICC 637, 653, 303 I.C.C. 103, 106], the Commission held that proposed through routes and joint rates cancellation would contravene the provisions of $15 (3). --Lake Cargo Coal, Ky., Va., and W. Va. to Ashtabula Harbor, 327 I.C.C. 63 (71)*. $15 (7).

COMMISSION TO DETERMINE LAWFULNESS OF NEW RATES; SUSPENSION; REFUNDS

In General

2. Breadth of investigation and suspension powers of Commission.The Commission has power to suspend any "new rate, fare or charge," any "new classification" or any "new regulation or practice affecting any rate, fare or charge" when "filed" and before it becomes effective. The suspension power is

sufficiently broad as to include a situation where a new application of a "dormant" or inoperative rate is involved. -Lake Cargo Coal, Ky., Va., and W. Va. to Ashtabula Harbor, 329 I.C.C. 549 (551-552)*.

5. New rates, fares, and charges.-Expiration dates in a published tariff are not a rate as that term is used in $15 (7), but they are within the meaning of the language of that section as it pertains to a regulation affecti any rate. The fact that expiration provisions in tariffs become effective sub sequent to rate schedules does not preclude suspension of such provisions just prior to the time they would otherwise have become operative. Instead, it is this very feature of expiration provisions in tariffs which establishes their newness for purposes of the exercise of the suspension power under section 15( and makes them a "new regulation" which will affect the "rate, fare, or charge. Lake Cargo Coal, Ky., Va., and W. Va. to Ashtabula Harbor, 329 I.C.C. 549 (552

Procedure

35. Burden of proof upon the hearing; in general.-Respondent sought to justify proposed changes on the ground that considered joint, single, and multiple-car rates were established with expiration dates and with the understanding of shippers and connecting railroads that the rates would be permitted to expire if and when approval was given by the Commission of a pending railroa purchase proceeding. However, much more is required in proceedings arising und $15 (7); respondents are not free of their responsibilities and burdens merely b cause the proposed changes in rates are the result of expiration dates in tarif and shippers' understanding as to duration of particular rates is not controlli in $15(7) proceedings. See also 206 ICC 127 and 258 ICC 63. Accordingly, respondent has the burden of establishing that the proposed elimination of the co sidered joint rate is just and reasonable and it must show, where the issues ar properly presented, that such action does not result in rates that contravene other sections of the act.-Lake Cargo Coal, Ky., Va., and W. Va. to Ashtabula Harbor, 326 I.C.C. 63 (68-9)*.

In an embraced proceeding, the record indicated some misunderstanding concerning the burden of proof. The rules under investigation in No. 34585 and many of those in the subnumbered proceedings were in effect when the investigations were instituted and, while reissued, were not subsequently changed. The burden of proof in those instances is not upon the respondents. However, in connection with the proposed rules in I. & S. No. 8218 and the rules proposed and those changed during the pendency of the subnumber proceedings, the burden is on the respondents. - Detention of Vehicles & Loading & Unloading Provisions, 329 I.C.C. 220 (222).

The burden of proof is on the respondents to prove that proposed rates are just and reasonable, and a minimum requirement in sustaining this burden is a convincing showing that the proposed rates will be reasonably compensatory for the service to be performed, such showing being necessary even if there is competitive justification for the proposed. -Paper, Central Territory to North Atlantic Ports, 329 I.C.C. 281 (289).

$15 (8). SHIPPER'S

CHOICE OF ROUTE TO BE OBSERVED

n. 576.

Right of Shipper to Route

25. Definite instructions.-See Peter Kiewit Sons' case, at $1 (6),

Duty of Carrier to Comply with Shipper's Routing

62. Forwarding by cheapest reasonable available route consistent

with instructions.—Carrier is justified in using the route which is substantially less circuitous than the lower rated route when shipper's instructions call for expeditious service. 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 the reasonable interpretation of the shipper's instructions indicates desire for expedition, resort to the more expensive short route is justified.-Peter Kiewit Sons' Co. v. Chicago, B. & Q. R. Co., 329 I.C.C. 239 (242).

$15a (3). COMPETITIVE RATEMAKING

2. Construction and interpretation. Any rate reduction will have competitive ramifications and alter previously existing relationships. This fact is insufficient to condemn an adjustment. Those protesting the proposed Baltimore rates have shown only that the proposed rates would be inimical to their interests. Without more, and bearing in mind the large amount of paper traffic moving through New York, the Commission views this adjustment rather as a step in restoring healthy carrier competition. Changes in rates are not unlawful because of possible, or even probable, additional rate changes.-Paper, Central Territory to North Atlantic Ports, 329 I.C.C. 281 (290).

Complainant Sea-Land urged that it is the low-cost carrier, that its rate is below the fully distributed costs of the "Sea-Land route," and that it has been forced to publish a less-than-profitable rate in order to compete. However, even if the Commission were to determine that complainant is the low cost carrier on a fully distributed basis (which is impossible since the underlying data are not of record), its rate of 75 cents per 100 pounds is not below its fully distributed costs but rather exceeds those costs. Complainant's present rate, inasmuch as it exceeds fully distributed costs, is not "unprofitable" in any sense of the word and the evidence shows Sea-Land has successfully participated in the traffic at this rate. Therefore, complainant has not shown any violation of section 15a (3) in this proceeding.-Sea-Land Service, Inc., v. New York Central R. Co., 329 I.C.C. 589 (597).

In a case involving intermodal competition, the more particularized mandates of the national transportation policy or the clear congressional intent embodied in §15a(3) should govern lawfulness of proposed rates. And, as stated in 372 US 744, those factors should not be overridden except under extraordinary circumstances; to justify such a result, it must be shown that the proposed rates in themselves genuinely threaten the continued existence of a transportation service that is uniquely capable of filling a transcendent national defense or other public need. Protestant water carrier made no such showing with respect to proposed rail TOFC rate.-Canned or Preserved Foodstuffs from Fla. to N. Y. & N. J., 326 I.C.C. 776 (782)*.

$25. SAFETY APPLIANCES, METHODS, AND SYSTEMS

14. Particular installations of devices required; tests; approval.Application seeking individual relief from the requirements of §136.21 of the Commission's Rules, Standards and Instructions, approved to the extent that applicant was permitted to install signals to the left, instead of over or to