INTERSTATE COMMERCE COMMISSION

REPORTS

No. 30013

NORTHWESTERN ENGINEERING COMPANY v. GREAT NORTHERN RAILWAY COMPANY ET AL.

Submitted February 10, 1949. Decided April 5, 1949

Rate charged on carload shipment of contractors' outfit from Dell, Mont., to Bruno, Minn., found inapplicable. Applicable rate and charges determined. Reparation awarded.

A. R. Morgan for complainant.

Conrad Olson, Elmer B. Collins, Hallan Huffman, and R. J. Hagman for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MILLER, ROGERS, AND PATTERSON BY DIVISION 3.

The shortened procedure was followed. Defendants filed exceptions to the report proposed by the examiner. Exceptions and requested findings not discussed in this report nor reflected in our findings or conclusions have been given consideration and found not justified.

1

Complainant corporation is in the road contracting business. By complaint filed June 25, 1948, it alleges that the rate charged on a carload shipment of second-hand, used contractors' equipment made on July 13, 1944, from Dell, Mont., to Bruno, Minn., and delivered on July 31, 1944, was inapplicable and unreasonable. An informal complaint alleging the same violations was filed on July 26, 1946, but not being susceptible of informal adjustment, was closed May 10, 1948. We are requested to award reparation. No evidence concerning the issue of reasonableness was submitted and it will not be further considered.

1 Rates in this report are stated in amounts per 100 pounds.

The shipment weighed 67,100 pounds, and was billed as a "C/L Jaeger Road Mix." It consisted of a Jaeger traveling plant or asphalt mixing plant, a Kohler light plant, and an MP-2 leveling device, also known as a finishing machine. Originally, the complainant was both consignor and consignee. It routed the shipment from Dell by way of the line of the Union Pacific Railroad Company to Butte, Mont., thence over the line of the Northern Pacific Railroad Company to Grafton, N. Dak. On July 17, 1944, 3 days after the shipment was tendered for transportation at Dell, complainant sent telegrams to the origin carrier's agents at Portland, Oreg., and Dell requesting diversion of the shipment to the Woodrich Construction Company at Bruno. The diversion order, although seasonably issued before the shipment reached Fargo, N. Dak., where interchange should have been accomplished with the line of the Great Northern Railway Company, admittedly through carriers' error was not carried out. On July 21, 1944, the car arrived at Grafton, having moved as originally routed by complainant. From Grafton it was transported by the Great Northern to final destination. Grafton is not on the direct route between Dell and Bruno. Defendants are parties to the applicable rate tariffs containing the emergency routing clause which provides in part as follows:

The rates named in this tariff will apply only via the routes and injunction points authorized herein except that when * through carriers' error, carriers forward shipments via other junction points of the same carriers the rate to apply will be that specified in this tariff

In E. H. Sanders & Co. v. Missouri Pac. R. Co., 263 I. C. C. 746, division 2 found that the failure of the defendants in that proceeding to forward the shipments over the lowest rated tariff route in accordance with the shipper's routing instructions constituted "carriers' error" within the meaning of the emergency routing clause contained in the governing rate tariff; and that, consequently, the rate subject to such published routing was applicable. The origin carrier's failure to accomplish timely diversion and the consequent misrouting of the shipment beyond Fargo, constituted a "carriers' error" within the meaning of the emergency routing clause. Consequently, the applicable rate will be determined the same as though the shipment had moved over the direct route to destination as instructed in the diversion order.

A combination rate of $2.13, composed of a class A rate of 47 cents from Dell to Butte and a rate of $1.66 beyond was charged, which at the actual weight of the shipment resulted in a total charge of $1,429.23, for a movement over the direct route to Bruno. In addition, a demurrage charge of $2.20 per car for detention of the car at Dell 1 day beyond the free time allowed, and a diversion charge of

$2.48 per car, were also collected. Freight charges of $391.86, including interest, and demurrage charges of $31.90, which accrued at Grafton, together with a charge of $3.96 covering interchange switching at that place, all of which were the direct result of defendants' error, have been refunded. Defendants admit that the rate of $1.66 charged for the portion of the movement beyond Butte was inapplicable and express a willingness to make a further refund as a straight overcharge of the amount that the charges collected exceed charges based on a combination rate of $2.09 composed of the 47-cent rate and a class A rate of $1.62, published from Butte to destination. These class rates, however, applied on machinery and machines, n. o. i. b. n.,2 under the western classification over the direct route.

Complainant contends that a combination rate of $1.48 was applicable. This rate is composed of a distance commodity rate of 26 cents from origin to Butte, and a column rate of $1.22 (35 percent of first class) minimum 40,000 pounds, beyond. The combination rate claimed applicable would result in a total charge of $993.08 on complainant's shipment. Both components of the combination rate contended for were applicable on bridge builders', contractors' or graders' outfits, n. o. i. b. n., as described in the western classification. That description was subject to note 10, which provided, in part, as follows:

Note 10.-C. L. ratings will only apply on mixed CL of second-hand (used) implements, machinery or tools which are an essential part of working outfits required in connection with construction work commonly known as contractors' outfits, including only coal, coke, implements, machines, vehicles other than motor vehicles, but including one second-hand (used) motor vehicle, tools *

or other second-hand (used) construction equipment,

Defendants contend that the rate charged was applicable and that the rate sought was inapplicable in view of the fact that the shipment consisted of a straight carload of machines, not otherwise indexed by name, rather than, in their opinion, a mixed carload of contractors' equipment. While the shipment consisted of three separate and distinct machines each having a different work function, these machines were nevertheless second-hand (used) implements utilized in connection with construction work and were comprehended, from a classification standpoint, within the description of contractors' or graders' outfits, n. o. i. b. n. In no other item of the classification were these articles as covered by that description specifically indexed by name or more specifically provided for. Such commodity description being applicable, it follows that the combination rate of $1.48 was appli

This abbreviation means not otherwise indexed by name and not more specifically provided for in this classification.

274 I. C. C.

cable and that the shipment was overcharged. See Harrison Construction Co. v. Cincinnati, N. O. & T. P. Ry. Co., 266 I. C. C. 313.

The charges were paid by the consignee but borne by complainant who reimbursed the consignee in full.

We find that the freight charges collected were inapplicable; that charges based on the combination rate of $1.48, and actual weight, plus the demurrage and diversion charges of $2.20 and $2.48, respectively, were applicable. We further find that complainant bore the inapplicable charges on the shipment as described; that it was damaged thereby in the amount of the difference between the charges collected and those which would have accrued at the combination rate and charges herein found applicable; and that it is entitled to reparation in the sum of $431.47, with interest. An order awarding reparation will be entered.

274 I. C. C.

No. 29754

BROWNSVILLE NAVIGATION DISTRICT OF CAMERON COUNTY, TEX., ET AL. v. ST. LOUIS, BROWNSVILLE & MEXICO RAILWAY COMPANY (GUY A. THOMPSON, TRUSTEE)

Submitted August 23, 1948. Decided March 30, 1949

Charges for switching at Brownsville, Tex., not shown to be unreasonable or otherwise unlawful. Complaint dismissed.

Jas. H. Hartzog for complainants.

R. L. Ostos, M. J. Frechie, and S. S. Eisen for a steamship company, intervener, supporting the complaint.

Toll R. Ware, Geo. W. Holmes, James B. Gray, Glenn S. Givens, and C. S. Bindner for defendant.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MILLER, ROGERS, AND PATTERSON BY DIVISION 3:

By complaint filed May 27, 1947, as amended July 29, 1947, complainants, the Brownsville Navigation District of Cameron County, Tex., hereinafter referred to as the navigation district or the port of Brownsville, and the Brownsville Chamber of Commerce allege that charges assessed by the defendant for switching services performed within the Brownsville switching district are unreasonable, unjustly discriminatory, and unduly prejudicial. We are asked to prescribe reasonable, nondiscriminatory, and nonprejudicial charges for the future. The Newtex Steamship Corporation, a common carrier of property by water subject to part III of the Interstate Commerce Act serving the port of Brownsville, intervened in support of the complainants but did not introduce any evidence. In its brief, the intervener asserts that the charges published by the defendant for switching services to and from its piers and docks at the port of Brownsville are unreasonable and unduly preferential of rail-borne traffic and unduly prejudicial to water-borne traffic.

1 Except as noted, charges will be stated herein in amounts per car and do not include general increases authorized by the Commission subsequent to July 1, 1948.