The record shows that the changes proposed are in accordance with modern signal practice and would conform to the rules, standards, and instructions prescribed by the Commission for the installation, inspection, maintenance, and repair of systems, devices, and appliances intended to promote the safety of railroad operation in accordance with section 26 of the act as amended.

We find that under the particular circumstances here shown, giving consideration to the traffic involved, the physical characteristics of the track, and the signals to be used, the changes as set forth in the application will not decrease safety. We further find that the petition should be granted. An appropriate order will be entered.

235 I. C. C.

No. 28094

MILLER WASTE MILLS, INCORPORATED, v. SOUTHERN RAILWAY COMPANY ET AL.

Submitted July 19, 1939. Decided January 5, 1940

1. Rate charged on cotton factory sweepings, in carloads, from Bessemer City, N. C., to Winona, Minn., found inapplicable, resulting in undercharges. 2. Shipments found misrouted. Rates applicable over route over which shipments should have moved not shown to have been unreasonable. Waiver of undercharges authorized to extent indicated.

B. H. Overton for complainant.

Luther M. Walter, John S. Burchmore, and Nuel D. Belnap for Inland Waterways Corporation.

A. J. Dixon for defendant railway.

REPORT OF THE COMMISSION 1

AITCHISON, Commissioner:

The shortened procedure was followed. The parties filed exceptions to the examiner's report.

Complainant corporation alleges by complaint filed August 25, 1938, that six carloads of cotton factory sweepings, shipped from Bessemer City, N. C., to Winona, Minn., and delivered or tendered for delivery between June 10 and November 9, 1935, both inclusive, were misrouted and that the applicable rates were unreasonable, unjustly discriminatory, unduly prejudicial, and in violation of the long-and-short-haul provision of section 4 of the Interstate Commerce Act. Waiver of undercharges is sought. An action was begun on June 12, 1938, for the collection of undercharges. The claim respecting the shipment delivered or tendered for delivery on June 10, 1935, is barred and cannot be considered.

The remaining shipments, aggregating 155,141 pounds, were tendered to the Southern Railway Company on bills of lading containing routing instructions: "Sou-Rail Federal Barge Line," and moved over the Southern to St. Louis, Mo., and the barge line beyond. Charges aggregating $837.75 were collected at a rate of 50 cents per 100 pounds, plus 3 cents emergency charge and 1.25 cents handling charge at Winona, except that on one shipment weighing 31,196

1 Under the authority of section 17 (6) of the Interstate Commerce Act, the aboveentitled matter was referred by the Commission to Commissioner Aitchison for consideration and disposition.

pounds no handling charge was collected. The applicable rate over the route of movement was 73 cents, plus 3 cents emergency charge, and the handling charge of 1.25 cents plus an emergency charge of 0.125 cent, which, applied to the five carloads, made a total charge of $1,200.40. The five shipments were undercharged in the difference between these sums, or a total of $362.65.

The Southern connects with the barge line at Memphis, Tenn., and St. Louis, but not at Cairo, Ill. Over the route through Memphis a rate of 63 cents applied prior to October 2, 1935, and a rate of 62 cents thereafter. Defendant Southern admits responsibility for misrouting the shipments in not sending them over this lower-rated route, by which the Southern would turn the traffic over directly to the barge line. The route through Cairo, however, requires an intermediate rail carrier to accomplish delivery to the barge line at that point. Over that route a rate of 53.5 cents applied, and complainant contends that under the routing instructions the shipments should have moved over that route, and that therefore the Southern is liable for misrouting. This defendant Southern denies. All of the foregoing rates were subject to the addition of an emergency charge of 3 cents and a handling charge at Winona of 1.25 cents plus an emergency charge of 10 percent.

The controversy rests on the conflicting interpretations of the routing instructions, "Sou-Rail Federal Barge Line". Complainant would have us read them as equivalent to "Southern Railway-Railroad-Federal Barge Line", requiring routing over the Southern and rail connections to the barge-line junction via which the lowest rate applied. There is some evidence indicating that this may have been the intention of the shipper in inserting the particular routing in the bills of lading. However, such intention is not readily discernible in the wording actually used, and even after close inspection it cannot be said that the routing instructions given were so patently ambiguous as to obligate the agent to ask for more specific instructions. Under all the circumstances the interpretation by the rail defendant of the words "Sou-Rail" as an abbreviation for "Southern Railway" cannot be considered unreasonable. As so interpreted the instruction designated a complete route, which ordinarily precludes movement over an unnamed intermediate carrier.

Defendant barge line supports complainant's contention that the Southern should be required to protect the 53.5-cent rate by Cairo, but on different grounds from those advanced by complainant. While it does not question the rule requiring strict observance of complete routing when all of the carriers are rail lines, it maintains that a different rule should be applied when barge-line routing is specified.

Some distinction must be recognized, because a shipper who tenders a shipment to a rail line unrouted is entitled only to the lowest rate for all-rail movement. If rail-barge movement is desired some instruction to that effect must be inserted in the bill of lading. However, to accomplish that end it was unnecessary to insert what to all appearances was complete routing from point to origin to destination. In this situation, the words "rail-barge" or merely "Federal Barge Line" or "barge-line delivery" would have been sufficient to secure for the shipper the lowest barge-rail rate which gave the originating carrier a line haul. There appears to be no good reason why the usual rule requiring observance of complete routing instructions when shown in the bill of lading should not be applied where one of the carriers named is a barge line.

Since the rates over the Southern to Memphis and the barge line beyond were less than the applicable rate over the route of movement, the shipments were misrouted by the Southern, and that carrier is liable for the resulting damages amounting to $161.26, the difference between the applicable charges over the two routes.2 Complainant's allegation of a violation of the long-and-short-haul provision is based upon a rate of 50 cents, exclusive of emergency and handling charges, contemporaneously applicable on cotton factory sweepings, in carloads, from numerous North Carolina and South Carolina origins to St. Paul and Minneapolis, Minn. This rate also applied from the North Carolina origins by way of Cairo, and from the South Carolina points through Memphis, and the barge line beyond, and from Bessemer City by way of Cairo to St. Paul and Minneapolis. The maintenance of a higher rate to Winona constitutes a fourth-section departure, which was authorized by fourth-section order No. 10121, and has since been removed by the cancelation of the 50-cent rate from the North Carolina and South Carolina points to St. Paul and Minneapolis, effective May 16, 1937. A departure from the long-and-short-haul clause of section 4 does not in and of itself constitute a violation of section 1, but it raises a presumption that the higher rate to the intermediate point is unreasonable, at least to the extent it exceeds the rate to the more distant point. Such presumption, however, is rebuttable, and our grant of relief from the long-and-short-haul clause indicates that the rate to the more distant point is not a proper measure of the reason

The applicable charges through Memphis have been computed by applying a rate of 67.375 cents to weights of 32,140, 30,304, and 31,501 pounds on the cars delivered to the Southern from July 18, 1935, to September 14, 1935, inclusive, respectively, and a rate of 66.375 to the weights of the two cars moved in October 1935, 30,000 and 31,196 pounds, respectively-total, $1,039.14.

ableness of that to the intermediate point. French Lick Springs Hotel Co. v. Chicago, I. & L. Ry. Co., 148 I. C. C. 737.

The rates applicable in connection with the route over which these shipments should have moved compare favorably with the rates contemporaneously in effect over the same route from other North and South Carolina points to Winona for similar distances. The earnings under the assailed rates are 7.9 and 7.8 mills per ton-mile and, based on 30,889 pounds, the average weight of the six shipments covered by the complaint, 12.2 and 12 cents per car-mile, as compared with earnings ranging from 7.6 to 8.4 mills per ton-mile and from 11.7 to 12.9 cents per car-mile under the rates from the other points. The rate of 50 cents sought by complainant would have yielded ton-mile earnings of 7 mills and car-mile earnings of 10.8 cents over the route sought through Cairo.

The evidence does not afford support for the allegations of unjust discrimination or of undue prejudice.

It is found that the rate charged was inapplicable over the route of movement; that the shipments were misrouted by the Southern; that the applicable rate was 73 cents, plus 3 cents emergency charge and 1.25 cents handling charge plus 0.125 cent emergency charge at Winona, resulting in undercharges of $362.65; that, because of misrouting, the Southern alone should waive $161.26 of this amount, which represents the difference between the applicable charges over the route of movement and those by way of the route over which the shipments should have moved. It is further found that the rate over the route over which the shipments should have moved is not shown to have been unreasonable. An order authorizing the Southern to waive collection of $161.26 outstanding undercharges will be entered.

235 I. C. C.