No. 1068.

PATRICK BANNON

v.

SOUTHERN EXPRESS COMPANY.

Submitted April 9, 1908. Decided May 4, 1908.

Defendant's regulations as to contents of packages shipped under estimated weights have, in the past, been disregarded by complainant and laxly enforced by defendant, resulting in charges less than provided in tariff for actual weight shipped. Upon correction of those irregularities complaint was made that rate was unreasonable and reparation was demanded; Held, That the rate is not unreasonable and that where a shipper has in effect received a reduced rate on account of his own and carrier's irregularities, correction of those irregularities can not be made the basis for an award of reparation. Complaint dismissed.

Patrick Bannon for complainant in person.

R. C. Alston and W. E. Kay for defendant.

REPORT OF THE COMMISSION.

CLARK, Commissioner:

The complaint in this proceeding alleges that the defendant's rate on fish in sugar barrels, flour barrels, and tubs from Haines City, Fla., to St. Louis, Mo., is unjust and unreasonable in that about September 20, 1906, it was raised to 3 cents per pound, when for the ten years previous thereto the rate had been $6 per sugar barrel, $4.50 per flour barrel, and $3.50 per tub. Reparation is asked in the sum of $46.19 on account of alleged increase.

It is charged that giving shippers of ten or more packages of fish a less rate than shippers of single packages is an unjust discrimination to the latter, and that deduction of only 25 per cent from the weight of packages as an allowance for ice operates unjustly, as considerably more ice is used. In its answer defendant states that fresh fish are shipped from Florida points in barrels, the rate for which is computed on a basis of $3 per 100 pounds, which is low considering that fish are carried on fast passenger trains. The rate on fresh fish between points involved in the complaint by ordinary freight train is $2 per

100 pounds, and defendant's contracts with the rail carriers provide that its charges must be at least 50 per cent higher than the railcarriers' rates on the same commodity. It is also stated that there has been no change in the rate on fish from Haines City, Fla., to St. Louis, Mo., since November 15, 1900. There are three routes via which shipments are made. The distance is approximately 1,200 miles.

Reference is made in the answer to the fact that the subject of complaint had been before the Commission in an informal way and the statement contained in the correspondence was reiterated to the effect that the burden of the complaint as understood by the defendant is that complainant has been in the habit of putting more than 200 pounds of fish in a sugar barrel and agents of the defendant did not detect it, or, if they did detect it, did not put a stop to it.

Attached to the answer is tariff of Southern Express Company issued November 15, 1900, rate sheet No. 563, marked effective on receipt from Haines City, Fla., to various points in states named. This tariff provides rate to St. Louis, as follows:

Per sugar barrel..

Per flour barrel..

Per 100 pounds...

$6.00

4.75

3.75

5.75

Ten-barrel lots, one shipper, one consignee.....

The tariff contains provisions that:

These rates contemplate the transportation of 200 pounds of fish per sugar barrel, and 150 pounds net fish per flour barrel.

All shippers must be notified that the rates quoted will not apply on shipments containing in excess of the above named net weights of fish.

Apply the rate per 100 pounds on fish in half barrels and boxes, and when ice is used for preservation add 25 per cent to net weight, unless actual gross weight is less at time of shipment.

Hearing was had at Jacksonville, Fla., February 12, 1908.

Haines City is located on the Atlantic Coast Line Railroad in Polk County, Fla. It is 187 miles south of Jacksonville, from which point the rate to St. Louis per standard sugar barrel is $5. The complainant is an orange grower having a grove of 25 acres. He owns a private lake in which he captures the fish he markets. The services of his family are employed in catching the fish; they are hauled to the station by his own team, which is also used in hauling ice.

The fish season is usually from September 25 to April 15. Complainant kept no record of the number of barrels shipped per year, but it is stated to have been between 50 and 60. The shipments according to the complainant were not weighed and it appears that it would be impossible for the agent of the express company to find out how many pounds of fish were contained in a barrel except by unpacking the barrel, separating the fish from the ice, and weighing them.

Complainant testified that before the Hepburn law was enacted he shipped on an average of 275 pounds net of fish in a sugar barrel and then filled the barrel with ice, making the gross weight from 375 to 400 pounds per barrel, the amount of ice depending upon the weather; that approximately the same condition existed as to flour barrels and tubs and that a flat rate of $6, $4.50, and $3.75 for sugar barrel, flour barrel, and tub, respectively, was charged no matter how many pounds of fish were contained in the receptacle; that he did not know of anyone or any point getting a better rate than was given to him, and that the 10-barrel rate was open to everybody.

Shippers' statement of net weight was usually taken. The amount of ice used depended upon the locality; in some localities ice was more expensive than in others and, therefore, some shippers filled the barrel to capacity while others did not. The defendant has never limited the amount of ice. The average weight of a barrel containing 200 pounds of fish would be from 312 to 325 pounds. The route agent of the defendant testified that he had called upon the complainant and informed him that the defendant objected to his shipping more than 200 pounds of fish in a barrel; that the rate was $6 a barrel; and such notice was given complainant three times. In 1907 said agent went to Haines City with the express purpose of notifying complainant that he must discontinue the practice of putting too much fish in his barrels, otherwise the matter would be reported to the Commission. On January 10, 1902, and at various times thereafter, circulars were issued advising that sugar barrels should contain no more than 200 pounds net fish waybilled at 250 pounds, and flour barrels 150 pounds net fish waybilled at 187 pounds. Complainant testified that the rate on fish of 3 cents per pound shipped in sugar barrels and 14 cents on all in excess of 200 pounds was based on the billing of the agent and letter from the general superintendent; that there had been three changes since the express companies were brought under the law; the first a rate of 3 cents, flat; the next when the route agent came to see him, after which the practice of weighing fish was commenced, and later the allowing of 50 pounds for the barrel and ice. The published tariff of defendant does not show a rate of 14 cents per pound for all in excess of 200 pounds.

Bills of lading and expense bills of shipments of fish from Haines City since November 15, 1906, at rate of 3 cents on 200 pounds and 1 cents on all in excess thereof were requested at the hearing, but were not furnished, by complainant. He states that he was unable to furnish the originals and that when he called for copies the agent at Haines City informed him that the records were in possession of the superintendent at Savannah. The defendant stated that copies. of the billing of all shipments from Haines City to St. Louis since

the passage of the act would be forwarded, but they have not as yet been received. If the billing called for should show shipments since November 15, 1906, at the rates testified to by complainant, it would prove that shipments had moved at unlawful rates.

Complainant now submits various reports of sales from consignees at St. Louis in 1905, 1906 and 1908, which show net weight of fish in sugar barrels considerably over 200 pounds, express charges $6 per barrel; and tubs, apparently above 175 pounds, express charges $3.75. Some accounts of sales show express charges at the rate of $6 plus 14 cents for excess above 200 pounds. These exhibits were not the ones called for at the hearing. They are statements made up by one not a party to the record; are not binding on the defendant and have no probative force as evidence.

Complainant's allegation that the rate has been increased is not sustained by the evidence. The tariff containing the rates complained of has been in effect since November 15, 1900, and was filed with the Commission November 15, 1906. But it is apparent that prior to the time at which defendant was brought under the act to regulate commerce, notwithstanding notices and written instructions to its agents that the sugar-barrel rate contemplated but 200 pounds of fish, its tariff provisions relating thereto were not observed. The defendant lays stress upon the fact that earnest endeavors were made by it to have the shippers conform to its regulations in packing for shipment, but it states those regulations have been disregarded in many instances. The fact that the regulations were not complied with by the complainant resulted in his obtaining transportation of a greater weight of fish at the rate per barrel than was contemplated. The defendant contends that it is entitled to the credit of attempting to enforce the provisions of the law under which it now operates, and it appears that honest attempt has been made to bring about compliance with tariff provisions. It is manifestly impracticable to weigh the fish in every barrel in order to determine in each instance whether or not the contemplated weight, or any excess thereof, is contained in the package. The law places the same obligation upon the shipper as upon the carrier to observe lawful tariff provisions. Any willful false representation of the contents of a package on part of a shipper is prohibited by the law, denominated as a fraud, and declared to be a misdemeanor; and the shipper convicted thereof is subject to fine or imprisonment, or both, in the discretion of the court.

The tariff referred to limited the amount of ice to be shipped with fish to 25 per cent of the weight of the fish. The actual practice has been to permit 50 or 60 per cent to be used. Defendant has no tariff provision which justifies this practice, and if it is to be continued 13 I. C. C. Rep.

the allowance of the larger amount of ice must be provided for in tariff.

The practice of the defendant is, when that is necessary for the preservation of fish, to re-ice in transit, charging the market price for ice at the locality where such re-icing is done; but it has no tariff provision therefor. The law requires, and the Commission has repeatedly stated, that no charge shall be made by carrier for any service except such as is provided for in a lawful tariff; and if the defendant is to continue the practice of re-icing in transit and charging the shipper therefor, it must provide for that service and charge, in a tariff applicable to the commodity so re-iced.

The railroad freight rate on fish between the points of shipment involved in this complaint is $2 per 100 pounds. The express company's service is by fast passenger trains, each package is given especial attention, the shipments are delivered at doors of consignees, and the rate of freight is $3 per 100 pounds.

We can not hold that the rate charged is unreasonable.

Manifestly, where a shipper has in effect received a reduced rate on account of his irregularities and those of the carrier transporting the goods, correction of those irregularities can not be made the basis for award of reparation.

The complaint will be dismissed.

13 I. C. C. Rep.