No. 24948

GILINSKY FRUIT COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY ET AL.

Submitted October 24, 1932. Decided November 23, 1932

Rate sought to be collected on two carloads of grapefruit and tangerines from Haines City, Fla., to Boston, Mass., found unreasonable. Waiver of undercharges authorized. Complaint dismissed.

O. H. Koch and Ralph S. Fowler for complainant.

Frank W. Gwathmey and Charles P. Reynolds for defendants. REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEWIS, FARRELL, AND TATE

BY DIVISION 5:

Exceptions were filed by defendants to the report proposed by the examiner and the case was orally argued. Our conclusions differ somewhat from those recommended by the examiner.

By complaint filed December 21, 1931, considered under shortened procedure, it is alleged that the rate sought to be collected on two carloads of grapefruit and tangerines shipped January 3, 1931, from Haines City, Fla., to Boston, Mass., is unreasonable. Complainant seeks waiver of undercharges.

The shipments moved over defendants' lines via Jacksonville, Fla., Waycross, Ga., and Chattanooga, Tenn., to destination, 1,791.7 miles. Charges were collected at a rate of $1.18 per 100 pounds. The applicable rate over the route of movement was the second-class rate of $2.15. There are outstanding undercharges.

The cars were originally consigned to Omaha, Nebr., but on January 4, 1931, complainant telegraphed the Atlantic Coast Line Railroad Company at Jacksonville to divert them to Boston, Mass. The telegram was received at the office of the Western Union Telegraph Company at Jacksonville at 4.18 p. m., Sunday, January 4, 1931, but the carrier's office was closed. An agent of the carrier, however, received the telegram between 6 and 6.30 p. m., and telephoned to the agent at Waycross, where the cars then were in a train scheduled to leave for Albany, Ga., at 7 p. m. The diversion was not effected at Waycross or Albany but was effected at Chattanooga. The rate of $1.18 applied from and to the considered points over

certain routes via Waycross but it did not apply over any route via Albany.

The diversion and reconsignment tariffs of the Atlantic Coast Line provided in substance that upon request it would make diligent effort to locate a shipment and effect diversion, but that it would not be responsible for failure to effect diversion unless such failure was due to negligence of its employees; and that when request was received too late to effect the change desired, such request would be transmitted to the carrier to which it delivered the shipment and its responsibility would then end.

Complainant contends that the Atlantic Coast Line was negligent in not having its office at Jacksonville open on Sunday, and in not diverting the cars at Waycross. Alternatively, it contends that the cars should have been diverted at Albany and back hauled to Waycross and then moved over a route over which charges are alleged to apply based on a rate of $1.18, plus a charge of $23 per car for the back haul.

Waycross is a diversion point for perishable traffic which must be moved expeditiously. The train in which the considered cars were located consisted of 27 cars and was scheduled to leave Waycross at 7 p. m. Complainant's witness testified that the cars could have been removed from the train and the train recoupled in 15 minutes, but defendants' witness testified that it would reasonably require two and one-half hours. Considering the fact that Sunday is a legal holiday and the other facts above stated, it does not appear that the Atlantic Coast Line was negligent in not diverting the cars at Waycross; nor could the cars be diverted at Albany, back hauled, and moved over a route at the charges above stated, because the reconsignment and diversion rules authorized such diversion only in the event Albany was the original destination.

In Florida R. R. Commissioners v. A. & R. R. R. Co., 144 I. C. C. 603, rates were prescribed on citrus fruit from origins in Florida to destinations in New England territory based on 40 per cent of the corresponding first-class rates constructed in accordance with findings 17-b, 17-d, and 17-f in the third supplemental report in Southern Class Rate Investigation, 128 I. C. C. 567, 599. Under this basis the rate from and to the considered points would be $1.18.

Defendants contend that where, as here, they have established through routes and reasonable rates over those routes, they are not required to maintain the same rates over other routes over which no joint through rates apply. It is, however, unlawful for carriers to charge more than a reasonable rate for the services rendered over the route of movement. Better icing and other facilities are maintained over the routes over which the $1.18 rate applies than over other

routes, but compensation for such services is received in charges. other than the line-haul rate. Transportation conditions, other than distance, are not shown to be more difficult over the route of movement than over routes over which the $1.18 rate applies. Based on the distance over the route of movement and the rates prescribed in Florida R. R. Commissioners v. A. & R. R. Co., supra, the rate from and to the considered points would be $1.38.

We find that the rate sought to be collected is unreasonable to the extent that it exceeds $1.38. Defendants are authorized to waive outstanding undercharges in the amount of the difference between the charges which would have accrued at a rate of $2.15 and those which would accrue at a rate of $1.38. The complaint will be dismissed.

190 I. C. C.

No. 24776

LYNN ATKINSON ET AL. v. SOUTHERN PACIFIC

COMPANY

Submitted October 3, 1932. Decided November 28, 1932

Carload rates charged on shipments of used cr secondhand contractors' outfit from San Carlos, Ariz., to Valley Spring, Calif., found applicable. Complaint dismissed.

Gwyn H. Baker for complainants.

J. R. Bell, G. H. Muckley, James E. Lyon, and A. L. Whittle for defendant.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3:

Exceptions were filed by complainants to the report proposed by the examiner.

Complainants, Lynn Atkinson, Guy Atkinson, and W. A. Kettlewell, copartners doing business under the firm name of Atkinson Construction Company, allege by complaint filed October 5, 1931, as amended,1 that the rates charged on three carloads of secondhand machinery shipped on September 17, and October 27 and 29, 1928, from San Carlos, Ariz., to Valley Spring, Calif., were illegal. Reparation is sought. Rates will be stated in amounts per 100 pounds. Informal complaint, alleging unreasonableness of the rates charged on this traffic, was filed August 26, 1930, and closed May 20, 1931. Defendant's contention, that the claim covering the shipment of September 17, 1928, is barred because the informal complaint did not allege an overcharge, is without merit. West Coast Lumbermen's Assn. v. Boston & A. R. Co., 172 I. C. C. 503, 505.

These shipments consisted of secondhand equipment which, in the aggregate and with other equipment shipped from and to the same points and not here involved, had been used near San Carlos in the construction of the Coolidge Dam, and was purchased by complainants for use in the construction of the Pardee Dam, near Valley Spring. They represented part of a very large steel structure consisting of towers, elevator shafts, hoppers, buckets, derricks, skips,

1 On brief complainants withdrew claim covering shipment from Cutter, Ariz., to Valley Spring on December 19, 1928.

booms, counterbalances, cables, movable and flexible chutes, etc., used in the distribution of concrete at the dams. More specifically, one shipment consisted of ordinary steel cables, cable clips, pendants, various wooden and steel blocks, turnbuckles, thimbles, clamps, and chute and sheave counterweight mulies. Another shipment consisted of buckets and frames, hoppers, booms complete with blocks, sheaves, etc., sliding frame, complete boom chute lines, and base and top sheaves. It was stated that the remaining shipment consisted of 450 feet of Lakewood chute line. However, in the informal complaint, copy of which was introduced by defendant, the shipment was described as also containing two concrete buckets and a boom. Complainants do not explain this discrepancy.

Class A rates as provided in the governing western classification for contractors' outfits were applied. A contractor's outfit is defined in that classification as comprising mixed carloads of secondhand (used) implements, machinery, or tools which are an essential part of working outfits required in connection with construction work, including coal, coke, implements, machines, vehicles other than motor vehicles, pulley or tackle blocks, tools, chain, rope, ladders, scaffolds, tents and tent fixtures, knocked-down portable houses, scows, dump cars, narrow-gage locomotives, rails, or track, and other secondhand (used) construction equipment.

The rates assailed were $2.04 to Lodi, Calif., and 13 cents beyond. Contemporaneously there was in effect from San Carlos to Stockton, Calif., a commodity rate of $1.12 on old secondhand machinery, machines, and parts thereof rated either class A or fifth class under the heading of machinery in western classification. This rate coupled with a class A rate of 18.5 cents beyond Stockton, made a combination of $1.305, which complainants seek.

When this traffic originated western classification provided class A rating under the general heading of machinery and machines on iron or steel power-conveying, dredging, dumping, or hoisting buckets, dippers, or skips, iron or steel gravity chute conveyors and machinery and machines and parts thereof, not otherwise indexed by name. The classification also provided, but not under the heading of machinery and machines, fourth class on iron or steel concrete distributing chutes. This specific provision raises doubt as to the applicability of the broader and less specific description of iron or steel gravity chute conveyors. However that may be, and granting that some of the articles were rated under the heading of machinery in the classification, it seems reasonably clear that no shipment consisted in its entirety of articles so rated. For example, pulley and tackle blocks and sheaves, among other articles enumerated, are not classified under that heading. Manifestly these shipments