exceeds 1,000 miles and the longer line or route is more than 33% per cent circuitous, except that where the distance over the rate-making line or route exceeds 1,000 miles and the distance over the longer line or route does not exceed 1,500 miles, relief will apply to such longer line or route even though it is more than 33 per cent

circuitous.

An appropriate order will be entered.

190 I. C. C.

INVESTIGATION AND SUSPENSION DOCKET No. 3738 FRUIT STORED IN TRANSIT IN THE SOUTHWEST

Submitted October 6, 1932. Decided December 3, 1932

Schedule proposing changes in the rates and rules on interstate carload shipments of apples, grapes, pears, persimmons, or prunes stored in transit at points in Arkansas, Oklahoma, Louisiana, and Texas found justified in part and not justified in part. Suspended schedule ordered canceled. Proceeding discontinued.

W. T. Hughes, F. L. Gordon, C. S. Burg, Lewis Jeffrey, F. L. Wallace, H. H. Larimore, A. H. Kiskaddon, M. G. Roberts, J. R. Bell, G. H. Muckley, Robert Thompson, J. A. Lynch, K. H. Schoppe, and C. S. Edmonds for respondents.

Ed. P. Byars for protestants.

REPORT OF THE COMMISSION

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

No exceptions were filed to the report proposed by the examiner. By schedule filed to become effective April 20, 1932, respondents proposed certain increases in the rates for the interstate transportation of apples, grapes, pears, persimmons, or prunes, in carloads, to and from and between points in the States of Arkansas, Oklahoma, Texas, and Louisiana.1 These increases are brought about by a change in the rule governing the storage in transit of these commodities. Upon protest filed by the Texas Wholesale Fruit & Vegetable Dealers Association, operation of the schedule was suspended until November 20, 1932. The Fort Worth Freight Bureau is also a protestant. Rates will be stated in cents per 100 pounds, and do not include the present authorized emergency charges. The item of the schedule under suspension reads as follows:

Item 100-A. (a) The minimum weight on the commodity from storage in transit station shall be the same as governs on the same commodity from point of origin to destinations, in effect on date of shipment from point of origin.

(b) When the actual weight of a shipment from storage in transit station is less than the minimum, the difference between the actual and minimum weight shall be charged for at the carload rate in effect on date of shipment from storage in transit station to destination on the commodity forwarded, and may be used to make up the carload minimum; (1) except that when the actual

1 The entire State of Louisiana is included, but only in so far as lines listed in item 15 of Agent Boyd's tariff I. C. C. No. A-2251 are concerned.

weight of a shipment into the transit station is less than the minimum weight and a like actual weight is forwarded from the transit station, charges at remainder of through rate from point of origin to destination subject to the minimum weight from point of origin to final destination will be applied.

(c) When two or more in-bound shipments are used to make up an out-bound storage in transit shipment, and the minimum weight from original points of shipments to destination are not the same, the highest minimum weight shall apply from the storage in transit station.

(d) When the out-bound shipment contains non-transit commodities on which the carload minimum weight is higher than storage in transit station to destination, than the minimum applicable to the transit portion, the minimum applying on the non-transit commodities shall be applied on the entire shipment, from the storage in transit station to the destination.

*Applies only in connection with lines and territory specified in Items Nos. 10 and 15 of Circular.

(1) Will not apply on Montana Intrastate Traffic.

*Reduction.

[Italics ours.]

The tariff in which the suspended item appears shows rules and regulations covering the storage in transit of the fruits herein before named at points in States which, speaking generally, embrace the territory west of the Mississippi River and east of the Rocky Mountains. The rules applicable in Arkansas, Oklahoma, Texas, and Louisiana are designated by reference to item 15 and differ in some respects from the rules applicable in the remainder of the territory, which are designated by reference to item 10. The protested item has been in effect in the territory covered by item 10 for some time. The change contemplated by the suspended item is to extend its application also to Arkansas, Oklahoma, Texas, and Louisiana, hereinafter termed the Southwest, subject to an exception in the case of Waco, Tex., noted below. There is no corresponding item now applicable in the Southwest. As a consequence there has been much controversy and uncertainty as to the minimum weights applicable in connection with fruits stored at and reshipped from southwestern storage points. The only minimum-weight provision applicable in the Southwest is found in item 160, where it is stated that these commodities when

stored in transit under these rules shall be subject to the published through rates and minimum weight applicable thereon, in effect at time shipments left point of origin, plus transit charges,

Where a car out of the transit point contains commodities subject to different minimum weights or where the inbound expense bills surrendered for transit purposes represent points of origin from which different minimum weights apply, there is no definite provision in the storage rules applicable in the Southwest to determine what minimum weight is to be applied. It appears that some carriers have attempted to apply minimum weights to outbound ship

ments whereas others have not. Respondents say that their purpose in proposing to extend the application of item 100 to the Southwest is to clear up the uncertainty which has existed with respect to minimum weights in that territory and to make the minimum. weights uniform with those now applicable in the remainder of the territory.

No one has objected to the provisions of paragraphs (a), (c) and (d). Paragraphs (a) and (c) merely specify the minimum weight to be used from the transit station under certain circumstances. Paragraph (d) is intended to specify the minimum weight to be applied when non-transit commodities are loaded with transit commodities at the storage point. However, the wording of this paragraph is ambiguous and should be clarified. As paragraphs (a), (c) and (d) appear to result in no unjustifiable increases, we find them justified subject to the proviso that the wording of paragraph (d) shall be clarified.

The objections of protestants lie to the increases which will result from the provisions of paragraph (b). The transit charge is generally 6 cents per 100 pounds, but this charge as such is not here in issue. Generally speaking, the rates on fruits from the Pacific northwest at the destination end are made on a blanket basis, the rates applying to large groups. To illustrate, the rate to Fort Worth is the same as to most points beyond in the State of Texas. In such cases under the present tariff the only charge collected at the time of outbound movement is the transit charge, computed on the minimum weight applicable in connection with the inbound shipment, or the actual weight of the outbound shipment, whichever is higher. The examples next below illustrate the charges accruing under the existing and proposed rules, upon a minimum carload of apples weighing 31,000 pounds originating at Yakima, Wash., stored in transit at Fort Worth, of which 19,800 pounds are subsequently reshipped to Longview, Tex. The through rate on apples, in carloads, from Yakima to both Fort Worth and Longview is 150 cents.

Under the present tariff, the charges applicable to an outbound shipment weighing 30,000 pounds would be the same as shown in the above table, but under the suspended tariff the total charge would be $486.20, $2.60 in excess of the present charge. Where only 10,000 pounds are shipped out of the transit point, the total charge under the proposed rule would be $538.20. However, if the proposed rule becomes effective it is probable that no cars containing as little as 10,000 pounds would be shipped from the transit point because it would be less expensive to forward such a small quantity as a lessthan-carload shipment either by rail or by truck.

Protestants say that the storage business has been developed largely through the storage-in-transit privileges, and assert that if the proposed rule is established it will not only be detrimental to protestants but also to the railroads. Large storage warehouses have recently been constructed and are maintained by the Texas and Pacific Railway Company at Fort Worth. Two and one-half million dollars are invested in cold-storage warehouses at that point. Protestants express the view that the adoption of the proposed rule would force the outbound movement to trucks. This clearly would not be true where a car loaded to the minimum is forwarded from the transit point because in such case the only charge would be for 31,000 pounds at the transit charge, 6 cents per 100 pounds. Even where an outbound car to Longview contains only 20,000 pounds, the total charge collected for the outbound movement, including the transit charge, would be only $47.20, or 23.6 cents per 100 pounds for the actual weight shipped outbound. The distance from Fort Worth to Longview is about 160 miles. To a point 50 miles beyond Fort Worth, the local rate is 20 cents and the charges out of the transit point on a car containing 20,000 pounds would be $34, equivalent to 17 cents per 100 pounds for the actual weight. It seems reasonable to assume that there would be no substantial diversion of outbound traffic to the trucks, except perhaps where the outbound weight is less than 20,000 pounds.

Paragraph (b) provides that the flat rate from the transit point to destination will not be assessed if the weight of the inbound shipment represented by the freight bill surrendered is the same as the weight of the outbound shipment. The rule will therefore result in different charges when the car into the transit station is loaded full and when it is only partially loaded. Respondents claim that under the present rule they receive no compensation for the transportation outbound from the transit point, but receive thereon only the storagein-transit charge, which they say is designed solely to cover the terminal expenses at the transit point. Further, they claim that where