vented from awarding reparation in the instant proceeding. With this we do not agree. Halifax Coal & Wood Co. v. Atlantic & Y. Ry. Co., 219 I. C. C. 594, 597. Sugar is rated fifth class, which is generally 50 percent of first class in Mountain-Pacific territory. Defendants compare the rates assailed with rates either prescribed or approved by us in various proceedings on other fifth-class commodities in Mountain-Pacific territory for similar distances. The car-mile and ton-mile revenues from these rates compare favorably with that resulting from the rates assailed. The average weighted hauls on sugar from San Francisco and Crockett to Salt Lake City, Ogden, East Ely, McGill, and Elko over lines of defendants the Western Pacific Railroad Company and Southern Pacific Company for the years 1934-35, the period within which all except two of complainants' shipments moved, were 898, 833, 860, 860, and 672 miles, respectively. These distances, which are much greater than those from and to the same points shown in the herein before mentioned table, are used by defendants as the basis for calculating the car-mile and ton-mile revenues from the rates assailed. As a result, less earnings than those shown in that table are produced. For example, to Salt Lake City, the reduction is 2.6 mills per ton-mile and 8.2 cents per car-mile. The record discloses that the carriers haul sugar from San Francisco to such far distant points as Omaha, Nebr., 1,772 miles, St. Louis, Mo., 2,253 miles, and Chicago, Ill., 2,260 miles, at a rate of 65 cents and, in our opinion, the rates assailed to these relatively nearby points exceed the maximum limit of reasonableness. This sugar was sold f. o. b. origin, and generally the freight charges were prepaid by the shippers and added to the invoices. On a few shipments the freight charges were collected at destination. Most of the shipments moved to Salt Lake City and Ogden consigned to either Ray & Whitney Brokerage Company or the Fabian Brokerage Company. Assignments were introduced assigning to these two complainants all rights, title, and interest of the shippers Western Sugar Refinery (J. D. & A. B. Spreckels Company) and the California & Hawaiian Sugar Refining Corporation, Limited, in any reparation awarded. In the prior report the Fabian Brokerage Company is shown as a corporation. This company is a partnership composed of T. R. Robins, John W. Robins, and Robert R. Brewer. On reconsideration, we find that the rates assailed were unreasonable to the extent that they exceeded rates, minimum 60,000 pounds, of 76.5 cents to Salt Lake City and Ogden, 79.5 cents to East Ely and McGill, and 59 cents to Elko; and that the present rate to Elko is and for the future will be unreasonable to the extent that it exceeds or may exceed 59 cents, minimum 60,000 pounds. We further find that complainants received shipments as described and, including Ray & Whitney Brokerage Company and T. R. Robins, John W. Robins, and Robert R. Brewer as assignees of the aforementioned shippers, paid and bore, or paid or bore, the freight charges thereon at the rates herein found unreasonable; that they have been damaged in the amount of the difference between the charges collected and those which would have accrued at the rates herein found reasonable; and that they are entitled to reparation, with interest. Complainants should comply with rule V of our Rules of Practice. An order for the future will be entered. To the rates herein found reasonable for reparation purposes there shall be added the authorized emergency charges in effect when the shipments moved. MCMANAMY, Commissioner, dissenting: The complainants have failed to show by any competent evidence that the assailed rates were or are unreasonable. The mere showing that this Commission has prescribed certain rates under the Arizona scale in other parts of Mountain-Pacific territory is not sufficient proof that the assailed rates in another part of the territory were or are unreasonable. Nevada and Utah destinations were not involved in either of the cases relied upon by complainants. On the other hand, defendants compared the assailed rates with rates on sugar heretofore prescribed or approved by us also in Mountain-Pacific territory. These comparisons show earnings as high as 60.2 mills per ton-mile on rates prescribed or approved by us, while no earnings greater than 30 mills per ton-mile have been shown under the assailed rates. It is my view that the record in this case does not support a finding of unreasonableness. The report of division 3 should be affirmed. I am authorized to state that COMMISSIONERS MAHAFFIE and MILLER concur in this dissent. 227 I. C. C. No. 27786 PENN METAL CORPORATION OF PENNSYLVANIA v. DELAWARE & HUDSON RAILROAD CORPORATION ET AL. Submitted February 7, 1938. Decided April 5, 1938 Less-than-carload rate charged on culvert pipe and collars from Philadelphia, L. V. Brandt and Edgar O. Anderson for complainant. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MEYER, PORTER, AND MAHAFFIE BY DIVISION 4: The shortened procedure was followed. Defendants filed exceptions to the examiner's recommendations. Complainant corporation alleges by complaint filed July 1, 1937, that the rate charged on culvert pipe and collars, in less than carloads, shipped September 14, 1935, from Philadelphia, Pa., to Glens Falls, N. Y., was inapplicable and unreasonable. No evidence was introduced in support of the allegation of unreasonableness and it will not be further considered. Rates are per 100 pounds and do not include the 2-cent emergency charge. The shipment consisted of three pieces of corrugated iron culvert pipe made of 16 gage or thicker material and three collars for same. Each piece of pipe was 10 feet in length and 72 inches in diameter. The shipment, weighing 5,760 pounds, moved over lines of defendants. The less-than-carload double first-class rate of $1.78 was charged. The claimed fifth-class rate is 31 cents, minimum 24,000 pounds. Defendants concede that the rate of 31 cents was applicable. This controversy relates solely to the weight to be used in determining the charges on this shipment. Defendants maintain that the complainant insists This pipe was rated charges must be based on 26,880 pounds, and that 24,000 pounds is the proper weight to use. double first class, in less than carloads, and fifth class, in carloads, minimum 24,000 pounds, subject to rule 34, in the governing official classification. The car in which the shipment moved was 40 feet 4 inches in length and the minimum for that size of car under rule 34 was 26,880 pounds. The charges at the less-than-carload rate and actual weight were $102.53, and at the carload rate, minima 24,000 and 26,880 pounds, they would be $74.40 and $83.33 respectively. Rule 15 of the classification provided in section 1 thereof that the charge for a lessthan-carload shipment must not exceed the charge for a "minimum carload" of the same freight at the carload rate. The parties do not agree as to the meaning of the term "minimum carload." Complainant contends that it means the minimum of 24,000 pounds, applicable on a car of 36 feet 6 inches or less in length, and defendants maintain that it means the minimum under rule 34 for the size of the car used, or 26,880 pounds. Section 2 of rule 15 provided, in substance, that where a shipment is tendered as less than carload and is loaded and unloaded by carriers, and it developed that it is subject to the carload rate, a charge of 2.5 cents for loading and a like charge for unloading will be made, such charge to be based upon the actual weight of the shipment. The last sentence in section 2 reads as follows: The carload minimum weight to be applied on such shipments will be that applicable to the car of the size required for the shipment in the condition tendered for transportation. Section 2 authorized the minimum applicable in connection with the size of the car required, for the shipment tendered as a less than carload and loaded and unloaded by the carriers. On shipments so handled the minimum was that provided for a car 36 feet 6 inches in length, providing the shipment could have been loaded in such a car. The instant shipment could have been loaded in a 36-foot car. It was tendered as less than carload and was loaded by the shipper and unloaded by the consignee as required by rule 27 of the classification, which provided that owners must load and unload heavy or bulky freight. This pipe was bulky. On shipments handled in this manner, rule 15 did not and does not specify whether the minimum carload weight will be that provided for a 36-foot car or that provided under rule 34 for the size of the car used. If this shipment had been loaded and unloaded by the carriers, the minimum thereon would have been 24,000 pounds. Carriers should arrange immediately to amend rule 15 to definitely state the minimum to be applied on shipments of the character here considered. As before indicated, rule 27 required that the shipper load this pipe, and the shipper advised the originating carrier that a doubledoor box car would be required, due to the bulky character of the shipment. No particular length of car was specified. The standard 36-foot box car has doors 6 feet wide. The originating carrier owned 371 box cars that are 36 feet in length with 12-foot side doors. Defendants proceed on the theory that, the shipper having informed the carrier that a double-door box car was necessary, the subsequent use of a car 40 feet 4 inches in length was equivalent to an order by the shipper for that size of car. They refer to section 1 of rule 34, which, so far as here material, provided that when articles are loaded in cars exceeding 36 feet 6 inches in length, the charges will be based on the graduated minima provided for the size of car used, and to section 4 of that rule reading: Except when furnished by carrier in place of a shorter car ordered if a car over 36 feet 6 inches in length is used by shipper for loading articles "subject to Rule 34" without previous order having been placed by shipper with carrier for a car of such a size, the minimum weight shall be that fixed for the car used. In general, rule 34 covers situations where the shipper orders a car of a specified length or, without ordering such a car, used one the length of which is greater than 36 feet 6 inches. Defendants' position is based on the erroneous assumption that the facts indicate that complainant ordered the car used. All that these facts show is that the shipper was required by the tariff to load the shipment and, instead of specifying the size of the pipe to be loaded, it designated the kind of doors the car should have in order to load this bulky shipment. The fact that a 40-foot car was used does not change the situation, because that car was furnished solely for the convenience of the carrier. It is not customary or permissible for a shipper to order a car for a shipment tendered as less than carload. In construing the term "minimum weight," as used in rule 15, we must determine from the facts what the minimum weight would have been on the instant shipment if it had been tendered as a carload. From the facts, it is obvious that the shipper would not have ordered a box car in excess of 36 feet 6 inches in length with double doors. Section 2 of rule 34 provided that when the carrier is unable to furnish car of desired length when ordered, a longer car not exceeding 40 feet 6 inches in length will be furnished, and the minimum weight for that car will be that fixed for the car ordered, except that when the loading capacity of the car is used the minimum will be that fixed for the car furnished. Thus, the minimum on the instant shipment, if tendered as a carload, would have been 24,000 pounds. That also would have been the minimum under section 2 of rule 15 on shipments loaded and unloaded by the carriers. Defendants are endeavoring to collect $6.62 more on this |