No. 26816

DISTRICT OF COLUMBIA PAPER MANUFACTURING COMPANY v. NEW YORK CENTRAL RAILROAD COMPANY ET AL.

Submitted August 19, 1935. Decided October 18, 1935

Rate on talc, in carloads, from Hailesboro, N. Y., to Georgetown, D. C., found unreasonable. Reparation awarded

J. M. Smith for complainant.

Charles A. Halpin for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS PORTER, MAHAFFIE, AND SPLAWN

BY DIVISION 5:

The shortened procedure was followed. Complainant filed excep tions to the examiner's report.

Complainant corporation alleges by complaint filed January 3, 1935, that the rate charged on talc, in carloads, from Hailesboro, N. Y., to Georgetown, D. C., delivered between June 24, 1930, and October 18, 1933, inclusive, was unreasonable. Reparation is sought on 22 shipments. An informal complaint covering 13 shipments delivered between June 24, 1930, and April 2, 1932, inclusive, was filed on May 25, 1932, and closed on July 31, 1934. The formal complaint includes claims on three shipments delivered prior to January 3, 1933, and subsequent to the filing of the informal complaint. The informal complaint contained an allegation that the rate assailed "is now unreasonable and has been for the past two years ", but reparation only was sought therein. Complainant contends that by implication claims on shipments moving pendente lite are covered by this allegation, citing Louisville & N. R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U. S. 217. In that case it was held that when reparation on past shipments and a rate for the future are sought, claims on shipments moving pendente lite are within the scope of the proceedings. In the instant case, however, as reparation was sought only on specified past shipments, the informal complaint cannot be construed to cover a future period. See Capps v. Norfolk S. R. Co., 197 I. C. C. 364, 376. Claims on these three shipments are therefore barred. Rates are per 100 pounds and do not include emergency charges.

A description of the considered commodity and origin territory is contained in Missisquoi Pulp & Paper Co. v. New York Central R. Co., 185 I. C. C. 101. The shipments weighed 60,000 pounds each, except three which weighed 59,740, 60,200, and 61,400 pounds. They were routed by the shipper in connection with the Baltimore and Ohio Railroad Company and moved over the only available route, over lines of the New York Central Railroad Company to Newberry Junction, Pa., the Reading Company to Park Junction (Philadelphia), Pa., and the Baltimore & Ohio to destination, 675.9 miles. The short-line distance is 519.8 miles in connection with eight different carriers. The applicable joint commodity rate of 34 cents, minimum 40,000 pounds, was charged. The claimed basis is 22.5 percent of the corresponding contemporaneous first-class rates of $1.22 prior to December 3, 1931, and $1.13 thereafter, minimum 60,000 pounds, which, disposing of fractions, produces rates of 27 and 25 cents. The 25-cent rate was established on October 19, 1933.

In International Pulp Co. v. New York Central R. Co., 195 I. C. C. 185, decided July 7, 1933, division 3 prescribed rates for the future on talc from Hailesboro and Emeryville, N. Y., which are within 5 miles of each other, to official territory, including the District of Columbia, made 22.5 percent of the present first-class rates, minimum 60,000 pounds, and awarded reparation based on 22.5 percent of the corresponding contemporaneous first-class rates, minimum 60,000 pounds, applicable when the shipments moved.

In Standard Paper Mfg. Co., Inc., v. Baltimore & O. R. Co., 192 I. C. C. 532, as modified by the Commission in Missisquoi Pulp & Paper Co. v. New York Central R. Co., 196 I. C. C. 481, division 4, in the original report, prescribed a rate of 27.5 cents (21.5 percent of first class), minimum 60,000 pounds, on talc from Emeryville to Richmond, Va., and awarded reparation to that basis on shipments charged the applicable rate of 35 cents, minimum 40,000 pounds, delivered on and after May 19, 1930. The shipments therein considered were unrouted and moved distances of 774 to 895 miles, the shortline distance being 621 miles. The rate of 27.5 cents was established on August 4, 1933, over the same route as that over which the shipments herein moved, and thence over lines of the Richmond, Fredericksburg and Potomac Railroad Company, 777.6 miles. This rate, for a minimum carload, yielded 21.2 and 26.5 cents per car-mile for distances of 777.6 and 621 miles respectively. In the report on reconsideration, the Commission increased the rate prescribed for the future to 29 cents to conform to the findings in International Pulp Co. v. New York Central R. Co., supra. Rates on the basis prescribed in these cases generally became effective on October 19, 1933. Based on a loading of 60,000 pounds, rates of 34, 27, and 25 cents yield,

over the route of movement, 30.2, 24, and 22.2 cents per car-mile respectively, and for the short-line distance 39.2, 31.1, and 28.8 cents per car-mile respectively.

Defendants compare the rate assailed and the earnings thereunder, based on the short-line distance, with rates of 29 to 33 cents on niter cake, salt cake, ground gypsum, blackstrap molasses, broken or crushed soapstone, and sulphur or brimstone from Baltimore, Md., and New York, N. Y., to points in Ohio for short-line distances of 517 to 560 miles, yielding from 41.1 to 54.1 cents per car-mile. on shipments averaging from 69,827 to 90,000 pounds. Defendants also urge that as the shipments were routed and moved over a route more than 15 percent circuitous, reparation, if awarded, should be based on the distance over the route of movement. However, in instances where shipments have been routed over the shortest available route, as here, reparation is based on the short-line distance. Industrial Sand Cases, 1930, 188 I. C. C. 99, 113, 114.

The rate assailed applied from and to points, and within the period, considered in International Pulp Co. v. New York Central R. Co., supra, and the present record does not warrant a different conclusion from that reached therein.

We find that the rate assailed was unreasonable to the extent that it exceeded 22.5 percent of the first-class rates, minimum 60,000 pounds, applicable from and to the same points when the shipments moved; that complainant received the shipments as described and paid and bore the charges thereon; that it was damaged thereby and is entitled to reparation, with interest. Complainant should comply with rule V of the Rules of Practice.

211 I. C. C.

No. 26887

WICKES BOILER COMPANY v. GREAT NORTHERN RAILWAY COMPANY ET AL.

Submitted August 26, 1935. Decided October 19, 1935

Rate on steel power boilers, in carloads, from Saginaw, Mich., to Tacoma, Wash., found not unreasonable. Complaint dismissed.

R. W. Schapanski for complainant.

W. E. Prendergast for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS PORTER, MAHAFFIE, AND SPLAWN

BY DIVISION 5:

The shortened procedure was followed. Exceptions were filed by complainant to the examiner's report.

Complainant alleges by complaint filed February 25, 1935, that the rate charged on two carloads of steel power boilers, shipped January 19, 1934, from Saginaw, Mich., to Tacoma, Wash., was unreasonable. Reparation is sought. Rates will be stated in amounts per 100 pounds.

When the shipments moved, the governing western classification provided a rating of class A on boilers, iron or steel, heating or power, wrought, or wrought and cast combined, in carloads, minimum 24,000 pounds, subject to rule 34. This rating applied whether or not the article was shipped knocked down. The considered shipments were tendered on bills of lading describing the boilers as "knocked down." They weighed 81,500 and 85,900 pounds respectively, and moved over defendants' lines. Charges were collected at the applicable commodity rate of $1.33, minimum 40,000 pounds, which was published to apply on "boilers, power, wrought iron or wrought iron and cast iron combined."

Contemporaneously a rate of $1.15, minimum 60,000 pounds, applied on the considered commodity "completely knocked down." Complainant admits that these boilers were not shipped completely knocked down, but asserts that they were nevertheless "knocked down" and urges that it was unreasonable to require them to be completely knocked down. Effective February 15, 1934, the $1.15 rate item was amended by striking therefrom the word "completely."

Defendants deny that these boilers were shipped knocked down. It is necessary, therefore, to observe the details of construction and manner of shipment. These boilers were placed horizontally on two flat cars, 40 feet 1.5 inches and 45 feet long respectively. Complainant describes the manner of preparation for shipment thus:

The boilers which we shipped to Tacoma were not completely knocked down, as we are of the opinion that a boiler to be completely knocked down must be shipped with the tubes unattached. Our shipments were made in the form with tubes attached to drums, all other parts, such as bolts, rods, beams, plates, dampers, doors and necessary fixtures being removed. These boilers were of the vertical type. The upper drum consisted of the head and sides riveted together, being eight feet long. The lower drums consisted of the head or end and side riveted together, being five feet long. The diameter of both drums was nine feet. The tubes were 4 inches in diameter and twentytwo feet long. Each boiler contained 176 tubes. As shipped the tubes were permanently attached to the drum sections in our shop ready for erection on arrival at destination.

In Payne Furnace & Supply Co. v. Atchison, T. & S. F. Ry. Co., 188 I. C. C. 207, 208, division 3 considered whether certain furnaces were entitled to a rate provided for articles knocked down and said:

The expression "knocked down is defined in the classification as the taking apart of the article shipped in such a manner as to reduce materially the space occupied; the mere separation of the article into parts without reducing the bulk not constituting a knocking down such as would entitle the shipper to the benefit of the lower rating. No specification is made respecting what constitutes a material reduction in space, but defendants in practice treat as material a reduction of one-third or more in the space occupied by the completely assembled article and the taking apart of that article which effects such a reduction in space as a knocking down of the article within the meaning of the rule. * * these furnaces as prepared for shipment occupy materially less space than when completely assembled, as contemplated by the classification rule and the practice followed by defendants in applying that

rule.

Complainant claims that these boilers as shipped occupied less car space than would be used if they were completely knocked down. It does not necessarily follow, however, that the shipments were entitled to a rate lower than a reasonable rate on boilers shipped completely assembled. The justification for a lower rate on an article shipped knocked down is the material reduction in the car space necessary for shipment of the same article completely assembled. As complainant failed to show the reduction in car space, if any, resulting from the method of shipment, we are unable to determine whether these shipments fall within the term "knocked down." In the absence of such showing, comparisons of the rate assailed with rates on the same or other articles shipped knocked down are of little value.