iolation of findings in American Barge Line [316 I.C.C. 759], and would vioate $2 and $3 (4).--Grain, To, From and Within Southern Territory, 340 I.C.C. 146 (853). ¡4 (1). CHARGES FOR LONG AND SHORT HAULS AND ON THROUGH ROUTES FIRST PRIVISO Relief from Long-and-Short-Haul Provisions 176. "Special cases" construed.--Although a special case was found o exist for the establishment of proposed compensatory rates, the purpose of which was to afford origin millers an improved opportunity to compete with lestination millers in the sale of flour, the application was denied since the proposal would have resulted in violations of §2, §3(4), and §3(1).-Grain, To, From and Within Southern Territory, 340 I.C.C. 846 (854). $6 (1). SCHEDULE OF RATES, FARES, AND CHARGES; FILING AND POSTING Charges (Other than Rates and Fares) 66. Protective service.--From the discussion at 281 I.C.C. 604-06, and the Commission's holding in Increased Freight Rates, 276 I.C.C. 9, it became apparent that increases in protective service charges would not be permitted in the absence of an elaborate cost presentation. Such a presentation is not susceptible to use in general increase cases which are primarily revenue need cases.--Mechanical Protective Serv. of Perishables--Nationwide, 340 I.C.C. 470 (499). The lack of underlying papers to the study submitted by respondents and the insufficiency of the testimony precluded a finding that the study had been properly conducted or that the results thereof were representative of mechanical protective service traffic. And despite the fact that respondents averred that the proceeding was not a revenue-need proposal, the failure to introduce any revenue-expense comparison prevented a determination of whether mechanical protective service was currently a deficit operation. increases denied. See also, $15 (7), n. 50.--Id., pp. 499. Proposed $6 (7). TRANSPORTATION WITHOUT FILING AND PUBLISHING TARIFFS FORBIDDEN; REBATES; PRIVILEGES INTERPRETATION AND GOVERNING DATE Principles Governing Tariff Interpretation 10. In general.--A tariff must be construed to avoid unjust, absurd, or improbable results; and all the pertinent provisions must be considered together, giving effect so far as possible to every word, clause, and sentence therein. The Commission misinterpreted tariff publishing rates from El Centro, Calif., to Philadelphia, Pa., as permitting application of those rates on shipments from central California, under the intermediate rule, While although the shipments did not originate at or pass through El Centro. paragraph (3) of tariff routing instructions provided that rates would apply via all routes made by lines of carriers parties thereto, it expressly did not supersede the provisions of paragraph (1) that the rates applied only to directly eastbound traffic through Western Gateways in Arizona, thus, precluding routing through central California. Therefore, the El Centro rate cannot be applicable over hypothetically constructed westward route through the central California origins; rate published from actual origins to Philadelphia was properly charged by the railroads.--Samuel P. Mandell Co. v. Pennsylvania R. Co., 336 F. Supp. 565 (569, 574-75)*. 12. Ambiguities construed against maker.--Railroad's export tariff, as applied to plaintiff's shipments that were billed "For Export to South Vietnam" and (as customary) were delivered by defendant carrier to naval facilities at California ports where rail carriers were not permitted to operate, found to be ambiguous. Two tariff items providing that export rates apply on (1) freight which railroad delivers to water carriers at Pacific Coast ports of interchange and (2) freight moved on bills of lading showing destination beyond Pacific Coast ports, and not diverted or held en route by shipper, create a substantial ambiguity when applied to considered situation, since the first item appears to exclude from coverage that which the second item appears to include. Such substantial ambiguity must be resolved against the rail carrier. Moreover, construing the tariff ambiguity against defendant carrier also has the effect of avoiding an unjust and improbable result with respect to rates charged on exports moved through a Government depot and on other exports via the same port.-Caterpillar Tractor Co. v. Atchison, T. & S.F. Ry. Co., 333 F. Supp. 885 (886-87). Commodity Rates 49. Commodity description; determination by analogy.--In railroad's suit against shipper which seeks application of the class 35 rate of $2.08 on radio and television towers contained in governing class rate tariff, instead of the $1.33 rate charged, on defendant's shipment of used television tower material, the important question is what commodity was in fact transported by the railroad. Equipment shipped was not a tower per se, but rather dismantled tower material; and fact that defendant intended to later use that loose salvaged steel to redesign and reconstruct a television tower is immaterial, since nature of the shipment when tendered determines its status for rate purposes. Plaintiff railroad transported loose salvaged steel, and protected it as nothing more than that; it cannot now charge a higher tariff rate on equipment of a technical nature which would have required proper packing and protection and, in fact, was not shipped. Evidence is convincing that the applicable rate is the $1.33 that was charged and that defendant paid. Judgment for defendant, with recovery of its reasonable attorney's fees and costs.--Chicago, B. & Q. R. Co. v. Duhamel Broadcasting Co., 337 F. Supp. 481 (482-83). 51. Use to which article is put.--In railroad's suit to recover additional freight charges on shipment of used television tower material, the fact that defendant shipper intended to subsequently use such loose salvaged steel to redesign and reconstruct a television tower is immaterial; ature of the shipment at the time tendered determines its status for rate purposes.--Chicago, B. & Q. R. Co. v. Duhamel Broadcasting Co., 337 F. Supp. 181 (483). Intermediate Provisions 109. In general.-The Commission's interpretation of considered tariff intermediate-point rule, which permitted application of lower rate from El Centro, Calif., on plaintiff's produce shipments from central California points to Philadelphia, Pa., clearly contravenes prevailing decisional law. Because the tariff provided for "specific routing," the Commission held that shippers were free to tack together any lines of the carriers parties thereto; but, as the court held in 212 F. 2d 812, a route constructed for application of an intermediate rule must be reasonable in light of the extent and direction of circuity and the commercial usage of the route. Furthermore, on review of recent apposite cases, the court holds in instant case that the choice of lines shippers have in constructing such a route is limited by a rule of reasonableness, whether tariff routing is designated as "open" or "specific." The Commission should not have adopted the strained interpretation of the intermediate rule that it did in its decision awarding reparations against defendant railroads; and in shipper's suit for enforcement, the reparations order will not be enforced.-Samuel P. Mandell Co. v. Pennsylvania R. Co., 336 F. Supp. 565 (573-74, 575)*. 116. Reasonable and practical routes.--As held in 212 F. 2d 812, a "route" for "intermediate point" rate purposes must not be unreasonable, and its unreasonableness depends on (1) the extent and direction of circuity, and (2) commercial usage of such "route;" also, two recent apposite court decisions establish that directional backhaul is not a prerequisite to a finding of unreasonableness, but is merely a variety of circuity, and that the degree of circuity is not determinative of unreasonableness. On the basis of those principles, and on stipulated facts of instant case, the hypothetically constructed route from El Centro, Calif., to Philadelphia, Pa., which the Commission sanctioned in its decision awarding reparations against defendant railroads because, under tariff intermediate-point rule, lower rate from El Centro was applicable on plaintiff's shipments of produce from central California points to Philadelphia, is found to be arbitrary, unreasonable, and contrary to law. Therefore, the court will not enforce the Commission's order awarding reparations to shipper; judgment in favor of defendants.--Samuel P. Mandell Co. v. Pennsylvania R. Co., 336 F. Supp. 565 (571-73, 575)*. Conflicting Rates 160. Export and domestic rates.--Railroad's export, rather than domestic, rates are found applicable on plaintiff's shipments which were billed "For Export to South Vietnam" and consigned to purchaser in care of naval facilities at two California ports, even though defendant carrier did not deliver them to water carriers at the ports but, as was customery, to tracks just outside government facilities where rail carriers were not permitted to operate. One item in the tariff provides that export rates apply only to freight delivered by the railroad to water carriers at Pacific Coast ports of interchange, while another item provides that export rates apply to freight moved on bills of lading showing destination beyond Pacific Coast ports, and not diverted or held en route by shipper; as applied to instant situation, th two items create a substantial tariff ambiguity which must be resolved agains the rail carrier. Therefore, in suit by shipper seeking a refund of the difference between lower export rates and higher domestic rates charged, the cou holds that export rates published in defendant's tariff apply on considered shipments. Judgment for plaintiff.--Caterpillar Tractor Co. v. Atchison, T. & S.F. Ry. Co., 333 F. Supp. 885 (886-88). Routing 181. Unrestricted rates apply over any route made up of lines of participating carriers.--In its decision awarding plaintiff reparations again defendant railroads, due to alleged overcharges, the Commission held that because the tariff provided for routing via all routes made by lines of any carriers parties thereto, shippers were free to tack together any lines of the participating carriers for intermediate rule purposes; however, its inter pretation of the intermediate-point rule clearly contravenes prevailing decisional law. The Court of Appeals held in the West Petroleum Co. case, 212 F. 2d 812, that a "route" for intermediate-point rate purposes must be reasonable in light of the extent and direction of circuity and the commercia usage of such route; and on review of recent apposite cases, the court in suit to enforce the reparations order holds, further, that the choice of lines shippers have in constructing such a route is limited by a rule of reasonable ness, whether tariff routing is designated as "open" or "specific." The Com mission's reparations award, not enforced.--Samuel P. Mandell Co. v. Pennsylvania R. Co., 336 F. Supp. 565 (573-74, 575)*. 225. Observance of Published Tariff Refund of overcharges.--See Caterpillar Tractor Co. v. Atchison, T. & S.F. Ry. Co., n. 160, above. 260. Actions Before the Courts and Commission Construction and interpretation of tariffs by Commission.-Complainants submitted little or no evidence relating to the comparative values of the subject commodities, except for the mill list prices as of July 1970, for 11 prefinished hardwood plywoods and one unfinished softwood plywood manufactured by one of the shippers. There was little or no effort made by complainants to show that the costs, the transportation characteristi the average loading, the average value, the competitive circumstances, or any other relevant factor affecting the higher-rated commodities were the same or similar to the commodities moving under the lower "incentive" rates. Assaile rates found applicable, and not shown to have been or to be unjust or unreaso able.--Plywood, Hardboard & Particleboard v. Aberdeen, 340 I.C.C. 836 (844-45) §12 (1). AUTHORITY, DUTIES AND PROCEEDINGS OF COMMISSION, WITNESSES Inquiry Into Business Management of Carriers 36. Scope of inquiry.--The Commission will not consider the questi of whether carriers have updated their master tariffs so that current rates This nclude the applicable general increases. We have instituted appropriate onitoring procedures relative to special permission applications which are equired in connection with the publication of master increase tariffs. ngoing activity does not require separate and what would be duplicating onsideration of the update problem as an ingredient of this proceeding. lowever, the Commission will continue close scrutiny of carriers' progress n this area.--Investigation of Railroad Freight Rate Structure, 340 I.C.C. 368 (872-73). Labor-management relations regarding wages, rules, and working conditions, among others, have been the subject of recurrent consideration y Congress and the Executive during the past decade. In light of the constant efforts of Congress, the Executive, and the courts to resolve problems rising from labor-management relations over the recent past, and our lack of jurisdiction to effect changes, the inclusion of this subject as a phase of his investigation would not be beneficial, we believe, and, therefore, is not warranted at this time.--Investigation of Railroad Freight Rate Structure, 340 I.C.C. 868 (873-74). 13 (2). COMPLAINTS BY STATE COMMISSION; INQUIRY ON COMMISSION'S OWN MOTION; 2. Inquiry on Commission's own motion. --In this proceeding, the Commission initiated an investigation into the national railroad rate structure. The investigation will primarily focus on these issues: the value of general freight rate increases as opposed to a more selective pattern of such increases; intercommodity rate relationships; intracommodity rate relationships; and the relationship of service characteristics to rates and costs. Commission also issued procedural and evidentiary guidelines for all parties to ensure that a comprehensive record will be developed in the series of conferences which will be scheduled between Commission staff members and representatives of interested parties. Commission also declared its intention to obtain necessary funding to allow the appointment of a "special counsel" and a supporting staff to implement the decisional process.--Investigation of Railroad Freight Rate Structure, 340 I.C.C. 868 (876-84). $13(4). DUTY OF COMMISSION WHERE STATE REGULATIONS RESULT IN DISCRIMINATION Undue, Unreasonable, or Unjust Discrimination 50. Revenue discriminations.--Evidence established that the commodities shipped, the wages and hours of crew members, the train performance factors, and respondents' car usages are substantially same for intrastate and interstate traffic, and generally the same service is provided to Mississippi shippers whether their freight moves in intrastate or interstate commerce. Respondents are entitled to earn revenue from Mississippi intrastate freight proportionate to that earned by such freight prior to increases on interstate freight authorized in Ex Parte No. 259. Present Mississippi intrastate rates, with specified exceptions, are unduly low and cause unjust discrimination against, and undue burden on, interstate traffic. --Mississippi Intrastate Rail Frt. Rates & Charges, 1969, 341 I.C.C. 69 (73-74). |