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If the destination station is NOT LOCATED BETWEEN TWO STATIONS to which specific rates are named, the rates to the next more distant station beyond located on the same railroad as the intermediate station will apply.

Complainant cites Curtis Leather Co. v. Atchison, T. & S. F. Ry. Co., 151 I. C. C. 610, wherein division 3 found that a rate made by use of an intermediate rule published in connection with a commodity rate took precedence over a specific class rate published for application from and to the same points. It will be noted that in that case the specific rate was a class rate, and the rate made by use of the intermediate rule was a commodity rate, whereas in the instant case the specific rate and the rate made by use of the intermediate rule are of equal grade, both being class rates. In Standard Oil Co. v. A., T. & S. F. Ry. Co., 113 I. C. C. 597, 139 I. C. C. 297, we found that specific commodity rates took precedence over commodity rates from and to the same points made by use of intermediate rules.

Complainant contends that the assailed rate was not a specific rate to Olean, since it was made applicable thereto in the tariff publishing the rate by reference to a basing tariff. In Clark & Co. Division v. Cleveland, C., C. & St. L. Ry. Co., 155 I. C. C. 727, wherein the charges applicable on a shipment from Indianapolis, Ind., to Harvey, Ill., were under consideration, it was found that a commodity rate, specifically published in a tariff for application from Indianapolis to Chicago and made applicable to Harvey by reference therein to a switching tariff, took precedence over a rate from Indianapolis to Harvey made by use of an intermediate rule in connection with a commodity rate published in another tariff. The rate herein assailed was a specific rate and took precedence over the rate sought, made by use of the intermediate rule.

We find that the rate assailed was applicable. The complaint will be dismissed.

190 I. C. C.

No. 25012

EDGERTON MANUFACTURING COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY ET AL.

Submitted October 10, 1932. Decided November 29, 1932

1. Rates charged on wooden fruit and vegetable shipping baskets and crate material, in mixed carloads, from Plymouth and Paoli, Ind., to certain points in Florida found inapplicable. Reparation awarded.

2. Defendants required to change the publication of rates on this traffic from amounts per car to equivalent amounts per 100 pounds.

Richard W. Burg for complainant.

F. W. Gwathmey, R. B. Gwathmey, and W. S. Robinson for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEWIS, FARRELL, AND TATE BY DIVISION 5:

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

Complainant, a corporation manufacturing wooden fruit and vegetable shipping packages and crate material at Plymouth and Paoli, Ind., alleges by complaint filed January 27, 1932, that the rates charged on those articles, in 16 mixed carloads, shipped between February 24, 1930, and February 18, 1932, inclusive, from Plymouth and Paoli to certain destinations in Florida, hereinafter named, were and are inapplicable and unreasonable. Emergency charges collected on three shipments are also alleged to be inapplicable. Complainant seeks reparation and an order requiring defendants to publish rates for the transportation beyond Pensacola, Fla., reflecting the present lumber rates, expressed in cents per 100 pounds in lieu of the present rates in amounts per car. Rates herein are in cents per 100 pounds

unless otherwise stated.

Plymouth is in northern and Paoli in southern Indiana. The destinations are mostly in central Florida. The shipments, averaging 24,400 pounds, moved as routed by complainant over defendants' lines in 40-foot cars, as ordered, with the exception of two, which were 50-foot cars furnished for defendants' convenience. Charges on all shipments should be computed for 40-foot cars. There were no joint rates applicable, and charges were collected in most instances

at combination commodity rates (lumber rates) based on Pensacola. Through rates on a few shipments were based on Jacksonville, Fla. The rates charged for the movement from Plymouth and Paoli to Pensacola, were 37.5 and 29 cents, respectively, minimum 30,000 pounds, subject to rule 34, governed by southern classification. These factors are not assailed, nor is complainant assailing the factors beyond Pensacola as being unreasonable, but only the manner in which they are published.

The rates beyond Pensacola over interstate routes are stated in amounts per car of 24,000 pounds, excess in proportion. They are the same as the intrastate rates prescribed by the Florida Railroad Commission. Defendants explain that these rates inadvertently were not restricted so as to prevent their use in constructing combinations, and that when an attempt was made to correct this situation the tariffs were suspended and the restriction found not justified. Lumber from or to Florida Points, 112 I. C. C. 133. The rates to and from Pensacola were subject to the combination rule. This rule provides that where the separate factors are subject to different minimum carload weights, the through rate obtained will be subject to the higher of the two minima, unless the aggregate charge obtained by the use of separate untreated factors, subject to their respective carload minima would make a lower charge. Under this rule, the correct rates, after disposing of fractions and adding and subtracting factors as provided in the combination rules, are as follows: From Plymouth to Geneva 57, Orlando 54.5, Avon Park 55, Florence Villa, Lakeland, and Eagle Lake 54.5, and Wauchula 55.5; from Paoli to Arcadia and Avon Park 46.5, Frost Proof 47, and Florence Villa 46, all subject to minimum of 33,600 pounds, the minimum under rule 34 for 40-foot cars.

The evidence presented by the parties respecting the rates charged is conflicting. No freight bills were submitted. There are numerous outstanding bills for undercharges. It is apparent that some shipments were overcharged and that others, waiving consideration of outstanding undercharge bills, were undercharged. The overcharges exceed the undercharges.

Three shipments instanced of record moved after January 4, 1932, upon which emergency charges were collected. Upon the first, emergency charges were collected apparently based on a rate of 12 cents per ton of 2,000 pounds. On the other two, charges of $10 per car were collected. Determination of the applicable emergency charges is sought. The governing tariff provides a charge of 12 cents per ton of 2,000 pounds on crate material, n.o.i.b.n., and a charge of 2 cents per 100 pounds on all commodities, in carloads, not otherwise specified in the tariff. Since no specific charge was pro

vided for baskets, the applicable charge was 2 cents. Item 25, of the governing tariff, provides in substance, as here applicable, that charges on the crate material and baskets, in mixed carloads, will be computed upon their respective weights. No evidence pertaining to the respective weights was submitted.

Complainant requests that defendants be required to alter their tariffs applicable to this traffic beyond Pensacola from rates per car to rates per 100 pounds because it is difficult if not impossible under the present tariffs to verify the charges applied. It states that the practices of defendants clearly indicate that they are unable to interpret their own tariffs due to the manner in which the charges shown therein are now published. The evidence herein and the various outstanding undercharge bills, as well as various overcharges, fully sustain this assertion. The confusion existing is illustrated by the fact that defendants show the overcharges as $541.29, whereas complainant only seeks approximately $200.

In West Florida Lumber Co. v. G., F. & A. Ry. Co., 129 I. C. C. 62, division 4, in considering per car rates, said:

Defendants should reissue these and any similar tariffs they may have on file with us, and state the rates in units of cents per 100 pounds rather than dollars per carload. At the present time when all classifications and tariff rules are framed with a view to their use in connection with rates per 100 pounds or per ton, the continuance of these obsolete rates per car places on shippers an unreasonable and unnecessary burden in attempting to verify the correctness of the charges they are called upon to pay.

Defendants contend that the above is not pertinent since flat rates per car were there considered, whereas we are here dealing with rates per car, excess in proportion. While this distinction is correct in fact, it is not of sufficient merit to overrule the finding that the carriers should amend the tariffs there considered, and any similar tariffs.

Defendants concede that the present tariffs are difficult to apply and explain that negotiations with shippers have been progressing for some time with the view of reaching a satisfactory adjustment. Their objection to the publication in the manner sought is based on the fact that in converting rates to cents per 100 pounds, the disposition of fractions will result in rates which will, in the majority of instances, be different from the intrastate rates which they were originally designed to duplicate, and in certain instances will result in a slight decrease in per car revenue. However, increases in per car revenue will also result from disposition of major fractions, which will undoubtedly offset any decreases.

We find that the rates charged were inapplicable, and that the applicable rates were those as shown herein; that complainant made

the shipments as described, and paid and bore the charges thereon; that it was damaged in the amount of the difference between the charges paid and those which would have accrued at the rates and minimum weights herein found applicable, and that it is entitled to reparation, with interest. Complainant should comply with Rule V of the Rules of Practice. In such statement it should also give the respective weights of the baskets and crate material comprising the shipments upon which emergency charges were collected.

We further find that the manner of publication of the rates assailed applicable to the considered traffic beyond Pensacola is, and for the future will be, unreasonable. Defendants should amend their tariffs applicable to this traffic beyond Pensacola, now expressed in amounts per car, excess in proportion, to read in amounts per 100 pounds. In so amending, they should dispose of fractions of cents in accordance with the general rule in Jones's I. C. C. U. S. 1, i. e., less than one-quarter cent be dropped; one-quarter cent to, but not including three quarters, to be stated as one-half cent; and three quarters or over to be increased to the next whole cent. No order will be entered at this time but defendants will be expected to comply with our finding within 90 days after service of this report. If that is not done, complainant may bring the matter to our attention by appropriate petition.

190 I. C .C.

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