Fourth-class rates and commodity rates lower than fourth class are applicable on cold-pack strawberries, frozen or not frozen, from certain points in Wisconsin to Duluth, Minn., from Seattle, Wash., to Chicago, Ill., and from certain points in Colorado to various destinations on and east of the Mississippi River. Since February 10, 1925, in western classification, and since August 15, 1926, in southern classification, cold-pack fruits, frozen or not frozen, have been rated fourth class. In Baron & Co. v. Pennsylvania R. Co., 152 I. C. C. 109, the third-class rate of 58.5 cents charged on two carloads of frozen crushed strawberries, from Port Norfolk, Va., to New York, N. Y., 362 miles, was found not to have been unreasonable. Based on a minimum of 30,000 pounds, that rate earned 48.4 cents per car-mile. Subsequent to the movement the carriers established a fourth-class rate of 47 cents which rate we found not unreasonable for the future. The car-mile earnings under the 47-cent rate would be 38.9 cents. Based on the carload minimum, the assailed rate from Georgetown yielded 37.6 cents per car-mile. Computed on the average weight of complainant's shipments the corresponding revenue yielded by this rate was 45.3 cents. We find that the assailed rate was not unreasonable. plaint will be dismissed. McMANAMY, Commissioner, dissenting: The com Complainant's shipments came within the definition of cold-pack berries as prescribed by the Food and Drug Administration of the Department of Agriculture. The official classification rates such berries, in carloads, third class, and frozen berries fourth class. Considered from a transportation standpoint there is no material difference in cold-pack berries and frozen berries. They are packed in similar containers, have the same value, and load approximately the same. In the southern and western classifications cold-pack berries as well as frozen berries are rated fourth class. In these circumstances the third-class rates charged should be found unreasonable to the extent that they exceeded the fourth-class rates. 190 I. C. C. No. 24797 GARSON IRON & STEEL COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY ET AL. Submitted September 6, 1932. Decided January 14, 1933 Rates on used steel rails, in carloads, from Cairo, Boydville, Cyrene, and Sessoms, Ga., to Jacksonville, Fla., for export, not shown to have been inapplicable or unreasonable. Complaint dismissed. G. L. Moore for complainant. Charles P. Reynolds and R. B. Gwathmey for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, LEE, AND TATE TATE, Commissioner: Exceptions were filed by complainant to the report proposed by the examiner. Complainants are H. J. Garson and J. A. Garson, copartners dealing in secondhand and scrap iron and scrap steel rails under the name of Garson Iron & Steel Company, with principal office at Houston, Tex. By complaint filed October 19, 1931, they allege that the rates on scrap steel rails, in carloads, shipped during November, 1929, from Cairo, Boydville, Cyrene, and Sessoms, Ga., to Jacksonville, Fla., for export were unreasonable. Reparation only is sought. The conclusion in this case rests primarily upon the question whether the rails shipped were scrap rails or re-lay rails, i. e., those having value only as scrap for remelting as distinguished from those fit for re-laying for future use as rails. If it be found that they were scrap rail it will be necessary to determine the reasonableness of the rates charged, but if it be found that they were re-lay rail the complaint must be dismissed, since there is no allegation that the rates on re-lay rail were unreasonable and no evidence was offered by complainants in respect to rates other than those on scrap iron. The evidence is conflicting. There are certain facts, however, which are undisputed. The rails were of light weight, ranging from 35 to 50 pounds a yard, and were used in the tramroads of lumber companies. These roads had been abandoned because of depletion of the timber supply. The rails were purchased after they had been removed from the ground and had been stacked in piles with the angle bars and fish plates attached. They were sold to Mitsui & Company, Limited, of Japan, under a contract which provided that a certain portion of the rails should weigh 35 pounds and the remainder 50 pounds a yard; that all the rails should be of good quality, tee rails not longer than 33 feet or shorter than 5 feet, reasonably straight, and free from bends, twists, and concrete or other foreign attachments; that the accessories should consist only of angle bars, bolts, nuts, and spikes; and that the rails and attachments should be free from heavy rust. J. A. Garson testified that from an experience of 17 years, during which time he had handled from 75,000 to 100,000 tons of rail a year, it was his opinion after an examination of the rails so stacked that they were scrap rails and unfit for any use other than remelting. He supported this opinion with a reference to the fact that the cost of these rails was only $8.50 per gross ton whereas the average cost of re-lay rail was approximately $15 per gross ton. He also stated that if the rails had been cut into small pieces, in which case there would have been no dispute as to their classification as scrap rail, they would not have been accepted by the consignee because of the extra handling cost at both ship side and destination and, furthermore, that the mills required original pieces so that they could cut them in exact sizes. In further support of the contention that these were scrap rails, complainants offered letters from interested and other parties which were received in evidence over the objection of defendants. Such letters are of no value, since the writers were not subject to crossexamination. No good reason appears why the writers could not have been present. Complainants urge that their contention that the letters should be given the weight of evidence finds support in Syson Timber Co. v. Mobile & O. R. Co., 161 I. C. C. 789, wherein we found that the rails there in controversy were scrap rails. Our decision was based on letters signed by the parties interested in the materials. One thing, among others, which distinguishes that case from this is the procedure under which the two cases were tried. The Syson case was submitted under the shortened procedure, wherein all evidence is documentary by agreement of the parties, while this case was orally hard and all witnesses were subject to cross-examination. Defendant in that case offered no objection to consideration of the letters in question. Defendants produced two witnesses to describe these rails. One was an inspector of the Southern Weighing & Inspection Bureau and the other a district manager of the same bureau. Both have been employed by that bureau for approximately 20 years, during which time it has been their duty to inspect many commodities, including steel rail, for the purpose of determining the proper rates to be applied from the standpoint of weight, transit, packaging, marking, loading, and classification. Each testified that in his opinion, formed after personal inspection, the rails here considered, except those from Sessoms, which were not examined, were not scrap rails but were capable of being re-laid and used for the purpose for which originally intended. It must be borne in mind that when inspected by complainants and representatives of defendants the rails were stacked in much the same manner as lumber is stacked, so that the actual condition of the rails, except those on top of the stack, could not be determined. Witness Garson testified that very careful inspection of each rail is necessary to determine whether it is fit for re-laying. The testimony indicates that excessive wear and wheel burn is the ultimate test, while length of rail is also a factor to be considered. So far as appears, none of these rails was removed from the line because no longer serviceable. Considering the specifications under which the rails were sold by complainants, the casual inspections by the interested parties, and the conflict of opinion of experts, the record does not establish satisfactorily that these shipments were of scrap rail. In addition to the Syson case, supra, complainants cite Ship Supply Co. v. L. & N. R. R. Co., 139 I. C. C. 110, for the purpose of supporting the contention that the rails were scrap rails. In both of these cases, however, the record established beyond doubt that the rails under consideration were scrap rails. We find that the rates assailed have not been shown to have been inapplicable or unreasonable. The complaint will be dismissed. 190 I. C. C. FOURTH SECTION APPLICATION NO. 14824 Submitted August 4, 1932. Decided January 14, 1933 Authority granted, on conditions, to establish and maintain rates on bituminous coal, in carloads, ex-river, from Colona, Pa., to Canton and Massillon, Ohio, without observing the long-and-short-haul provision of section 4. T. R. Fitzpatrick for applicants. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, PORTER, AND TATE BY DIVISION 2: The Pittsburgh and Lake Erie Railroad Company and the Baltimore and Ohio Railroad Company, apply for authority to establish and maintain over routes formed of their lines, a proportional rate of $1.02 on bituminous coal, in carloads, ex-river, from Colona, Pa., to Canton and Massillon, Ohio, without observing the long-and-shorthaul provision of section 4 of the interstate commerce act. Rates are stated in amounts per net ton. This basis is lower than the local rates now applicable and is designed to enable applicants to compete with ex-river rates maintained by the Pennsylvania Railroad Company, hereinafter called the Pennsylvania, from Conway, Pa., to the same destinations. Colona and Conway are on opposite banks of the Ohio River. Distances from Conway to Canton and Massillon over the Pennsylvania are 78 and 86 miles, respectively, and from Colona over applicant lines by way of Youngstown, Ohio, 119 and 125.8 miles, respectively, and, by way of New Castle Junction, Pa., 115.2 and 122 miles, respectively. It is not proposed to publish ex-river rates on coal from Colona to intermediate points on applicants' lines. However, rates to those points will not exceed $1.27. The earnings under the proposed rate of $1.02 to Canton for 119 miles will be 8.9 mills per ton-mile, 44.3 cents per car-mile and $51 per car based on a 50-ton car. To Massillon, 126 miles, the earnings will be 8.4 mills per ton-mile and 41.8 cents per car-mile. The proposed route from Colona by way of New Castle Junction to Canton will be approximately 52 per cent longer than the route of the |