No. 24707 WOODLAWN LUMBER & TIE COMPANY v. BALTIMORE & OHIO RAILROAD COMPANY ET AL. Submitted July 5, 1932. Decided November 25, 1932 Demurrage and reconsignment charges on yellow-pine lumber, in carloads, from points in Alabama and Florida, originally consigned to Glendale, Ohio, held in Elmwood yard, Cincinnati, Ohio, and reconsigned to points in central territory, found applicable. Complaint dismissed. B. M. Angell for complainant. Herbert S. Harr for defendants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEWIS, FARRELL, AND MAHAFFIE BY DIVISION 5: This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the examiner, and defendants replied. Complainant, a corporation with principal office in Wheeling, W. Va., deals in lumber and other forest products. It alleges by complaint filed August 31, 1931, that the demurrage and reconsignment charges on 160 carloads of yellow-pine lumber forwarded between August 21, 1929, and February 7, 1931, inclusive, from points in Alabama and Florida to complainant at Glendale, Ohio, and reconsigned to points generally in central territory, were inapplicable. Reparation only is sought. Charges will be stated in amounts per car. Glendale is 15 miles north of the Cincinnati, Ohio, freight station on a line of the Baltimore and Ohio Railroad Company, hereinafter called defendant, and is 1.4 miles beyond the Cincinnati switching limits. The shipments were stopped at Elmwood yard, which is in the Cincinnati switching limits 8.5 miles north of the Cincinnati freight station and 6.5 miles south of Glendale, on the same line, and later were reconsigned from that point. Reconsignment charges of $6.30 and demurrage charges ranging from $2 to $68, depending upon the length of time the car was held, were collected. Prior to September 1, 1929, defendant's reconsignment tariff I. C. C. W. L.-9898, provided that on shipments received from connecting carriers at Cincinnati destined to Glendale, such shipments would be held at the junction point where received and would be reconsigned from there. On that date this provision was canceled leaving in effect the general provisions regarding reconsignment. The provision relating to shipments stopped short of the billed destination is as follows: The term "destination" as used in these rules means the billed destination, or if such destination is served by a terminal yard, then the terminal yard will be considered as the destination. The assailed reconsignment charge of $6.30 is applicable to cars reconsigned after arrival at destination, while a charge of $2.70 is applicable when the car is diverted in transit or before arrival at destination. Complainant contends that the shipments had not arrived at the billed destination. When the cars arrived at Elmwood yard, defendant mailed arrival notices containing information required by the demurrage tariff to complainant at Glendale; each one was returned unclaimed. Complainant had no office, factory, or agent at Glendale, and had no intention of accepting delivery there. Defendant knew this, but mailed the notices to comply with the tariff requirements. Defendant shows that over a period of six months, immediately preceding September 1, 1929, 306 cars were consigned to complainant at Glendale, and all were reconsigned to some point in central territory. In addition to the mailed notices of arrival, defendant immediately sent similar notices by telegraph to complainant at Wheeling. As to each shipment, complainant gave reconsignment instructions to defendant's agent in Wheeling. The time between the notices of arrival and complainant's reconsigning orders varied from one day to three weeks. Defendant after mailing arrival notices to the con signee at billed destination was under no legal obligation to send, in addition, 160 telegrams. These were sent, defendant states, as an accommodation because it knew that the cars were not intended for unloading at Glendale. Glendale is served by switching crews from Elmwood yard, and no road crews set off, pick up, or do switching at the former point. During the period covered by the complaint and for several years preceding that period, Elmwood yard was used as a break-up point for trains which passed through and contained shipments for Glendale. It was also employed as a hold yard for shipments of lumber billed to Glendale and subsequently reconsigned. Within the meaning of the governing tariff the shipments considered had arrived at billed destination. 190 I. C. C. Defendant's demurrage tariff, I. C. C. No. 2192 provided in item 40, rule 2, as follows: Section B. Twenty-four hours' (one-day) free time will be allowed: * 1. When cars are held for reconsignment, diversion or reshipment, or held in transit on order of consignor, consignee or owner * * the term "diversion" or "reconsignment" will be applied as defined in the reconsignment tariffs of this railroad, * The demurrage tariff, by reference to the reconsignment tariff, makes the terminal yard the destination for demurrage purposes also. A somewhat similar situation existed in Berwind-White Co. v. Chi. & Erie R. R., 235 U. S. 371. In that case the cars had been billed to Chicago, Ill., and without authority from the shipper they were held for reconsignment in Hammond, Ind., about 20 miles distant. The shipper in resisting the payment of any demurrage for the cars contended that the governing tariff only authorized demurrage at destination. In disposing of this contention, the court said: The storage tracks of the railroad for cars billed to Chicago for reconsignment were at Hammond, Indiana, a considerable distance from the terminals of the company nearer the center of the city, but were convenient to the belt line by which cars could be transferred to any desired new destination, and the holding on such tracks of cars consigned as were those in question was in accordance with a practice which had existed for more than twenty years. Under these circumstances the contention is so wholly wanting in foundation as in fact to be frivolous. We find that the demurrage and reconsignment charges assailed were applicable. The complaint will be dismissed. 190 I. C. C. No. 24054 GENERAL PLASTICS, INCORPORATED v. NEW YORK CENTRAL RAILROAD COMPANY ET AL. Submitted April 4, 1932. Decided November 5, 1932 Classification ratings on synthetic resin or gum compounds and synthetic resin or gum, found not unreasonable. Complaint dismissed. W. C. Clayton, jr., and H. B. Garlick for complainant. Alfred S. Knowlton for defendants. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND MAHAFFIE BY DIVISION 4: Exceptions were filed by defendants and intervener to the report proposed by the examiner. Our conclusions differ from those proposed by him. General Plastics, Incorporated, a corporation manufacturing synthetic resin or gum and synthetic resin or gum compounds at North Tonawanda, N. Y., by complaint filed November 15, 1930, alleged that the carload and less-than-carload ratings applicable on these articles from North Tonawanda to all points in the United States, are unreasonable. At the hearing complainant withdrew the allegation as to the ratings on synthetic resin or gums. Reasonable ratings on the compounds for the future are sought. The Bakelite Corporation, a corporation manufacturing synthetic resin or gum and synthetic resin or gum compounds at Bloomfield and Perth Amboy, N. J., and Chicago, Ill., was permitted to intervene prior to the hearing. It is interested only in the ratings on synthetic resin or gum in the official classification. Complainant's sales of resin move in small lots by parcel post. Resin and compounds shipped by freight are packed in fiber barrels and metal containers. Intervener uses 50 and 100 gallon drums weighing, empty, about 100 and 200 pounds, respectively. These drums are returned and reused. The 50-gallon containers, when filled, weigh about 375 pounds, or 39 pounds per cubic foot. Intervener gives the weight of its compounds in fiber barrels as 325 pounds and 36 pounds per cubic foot. The resin is used in paints and varnishes, as a constituent of insulating varnish used in the electrical industry, in making panel boards and other laminated-paper articles, and in the manufacture of the compounds here under consideration. The compounds are mixtures of ground resin and fillers of many varieties. The percentage of fillers in the mixtures varies from 10 to 70 per cent. All compounds are shipped in powdered form. Numerous articles are made from the compounds by heating and molding under pressure. The compounds are rated second class in less than carloads, and fourth class in carloads, minimum 36,000 pounds, in the official, southern, and western classifications, and the resin or gum is rated first class in less than carloads in the three classifications, and in carloads, minimum 30,000 pounds, it is rated rule 26 in the official, and third class in the southern and western, classifications. Seven years ago complainant sold about 1,000,000 pounds of compound per year at prices ranging from 40 to 45 cents a pound. Its sales have increased steadily each year, except in 1930, and its prices have been reduced the first of each year, with an additional reduction in July, 1931. It sells approximately 12,000,000 pounds per year. The prices now range from 15 to 30 cents a pound. Complainant sells on special orders at prices ranging from 45 to 50 cents a pound, small quantities of certain compounds made in an experimental plant. These, however, have not moved by freight. About 90 per cent of complainant's output sells for from 15 to 21 cents a pound. About 80 per cent sells for 17 cents a pound and less. About 5 per cent is worth over 21 cents a pound, and moves almost entirely by express or motor truck. Complainant's less-than-carload shipments move almost entirely by express or motor truck. Complainant's carload shipments for the eight months subsequent to January 1, 1931, averaged 40,550 pounds per car. Intervener's traffic manager testified that he had been informed that the average value of the resin shipped by his company is 21 cents. Defendants maintain that copies of invoice show that the values of the resin made by the intervener range from 27 to 70 cents a pound. Intervener makes two kinds of resin, one used in the paint and varnish trade and in making compounds, and a much more expensive, transparent, amber-like substance used in the manufacture of pipe stems, fountain-pen barrels, parasol handles, necklaces, and other similar articles which are machined from rods or roughly cast blocks. The range of values of the resin manufactured by complainant is given as from 21 to 39 cents a pound, but it is stated that complainant made no investigation to determine the fair average value thereof. |