INVESTIGATION AND SUSPENSION DOCKET No. 4376 Submitted March 16, 1938. Decided May 7, 1938 Schedules proposing certain time limits for the issuance or exchange of through export bills of lading found not justified. Suspended schedules ordered canceled without prejudice to filing new schedules in conformity with the findings herein. Appropriate order entered. Charles P. Reynolds, H. H. Larimore, Geo. W. Holmes, and Toll R. Ware for respondents. H.J. Wagner, F. C. Hillyer, E. H. Thornton, W. W. Wolford, Louis A. Schwartz, Frank Carnahan, C. A. New, E. M. Cole, E. E. Ellis, Jean L. Dyer, M. A. Clark, H. E. Ketner, H. V. C. Wade, William Lee Pierce, and R. A. MacMillan for protestants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, PORTER, AND MILLER PORTER, Commissioner: At the request of respondents a proposed report was issued. Exceptions were filed by respondents to which certain protestants replied and the proceeding was argued orally. Our conclusions differ from those recommended by the examiner. By schedules filed to become effective July 10, 1937, respondents proposed certain new tariff rules and certain changes in rules, where now provided by tariff, to govern the issuance of through export bills of lading at points of origin, and to govern the exchange, at the ports, of through export bills of lading for domestic bills of lading. Upon protests of the Board of Commissioners of Lake Charles Harbor and Terminal District, Lake Charles, La., the Jacksonville Traffic Bureau, Jacksonville, Fla., and others, operation of the schedules was suspended until February 10, 1938. Subsequently respondents volutarily postponed the effective date of the schedules until June 10, 1938. Most of the rail carriers in southern territory and a few of those serving the Southwest are respondents. The ports affected by these proposals are the south Atlantic ports from Norfolk, Va., and nearby Hampton Roads ports, excepting Norfolk and Newport News, Va., when served by the Norfolk and Western Railway Company or the Chesapeake and Ohio Railway Company to and including ports on the Florida east coast, and all Gulf ports from Florida as far west as Lake Charles. The origin territory embraces southern and Carolina territories, the Ohio River crossings, that portion of Virginia within southern territory, Kansas, and southern Missouri. The rules will apply largely on traffic originating comparatively close to the ports and, insofar as the southern respondents are concerned, they will affect principally traffic from the Ohio and Mississippi River crossings and within the South. They will not apply from origins on certain lines in Louisiana west of the Mississippi River, nor from Texas, on traffic exported through Baton Rouge, Lake Charles, and New Orleans, La., and subports. The carriers serving those territories, however, have indicated that it is their intention to establish such rules as are approved by us. The proposed rules, which will apply to the transportation of all commodities except cotton, provide (1) that through export bills of lading will be issued not more than 10 days prior to due date of ship's arrival at the port, and (2) that through export bills of lading will be issued in exchange for domestic bills of lading, provided the due date of ship's arrival at the port is not more than 10 days from date of the domestic bill of lading. The Mobile and Ohio Railroad Company and the Southern Railway Company, by their tariffs which are proposed to be modified by these proposals, now restrict the issuance of through export bills of lading to 30 days and 15 days, respectively, prior to the date on which the vessel is expected to sail or to receive cargo; and the exchange of through export bills of lading for domestic bills of lading may be made, provided applications for exchange bills of lading are made within 15 days and 10 days (Sundays and legal holidays excluded), respectively, from the dates of the domestic bills of lading. With these exceptions the rules governing the time limit for the issuance or exchange of export bills of lading on traffic between origins in the territory above described and the ports mentioned have not been published in tariff form. The other respondents, prior to July 10, 1937, and now by virtue of this suspension, attempted and attempt to govern the issuance or exchange of such bills of lading by means of instructions contained in circulars to their employees, which circulars are not filed with this Commission and accordingly are difficult to enforce because they do not have the legal effect of tariffs. Since the hearing in this proceeding, southern carriers have published a rule which provides that through export bills of lading will not be issued, nor will through export bills of lading be issued in exchange for domestic bills of lading, on shipments of scrap iron, scrap steel, or other scrap metals booked for carriage beyond the ports in vessels not registered under laws of the United States. The rule applies on traffic originating in southern territory, including the Ohio River crossings, Arkansas, Kansas, southern Missouri, Oklahoma, and Texas, when exported through the ports heretofore mentioned to all foreign countries and insular possessions of the United States. Although protests were filed against this proposal, division 2 declined to suspend. The rule became effective February 28, 1938. No provisions are now in effect or are proposed with respect to the allowance of any free time on through export shipments at ports of exit, nor for the assessment of storage charges for undue detention of such shipments at the ports beyond what might be considered reasonable free time. There has been much detention of carrier equipment loaded with export traffic, particularly shipments of scrap iron, which detention the proposed rules are designed to correct. It is proposed to accomplish this by limiting the time within which export bills of lading, original or exchange, may be issued. Respondents consider traffic moving on through export bills of lading as being in the course of transportation from initial point to the foreign destination, and as such not subject to the ordinary demurrage rules at the ports of exit. Those rules are not involved. To support that view they rely upon the following language used by the Commission in Demurrage on Export Traffic at Louisiana Ports, 190 I. C. C. 704: Since the contract calls for through transportation to the foreign destination, and the shipper and consignee have nothing to do with the shipment after delivery at the point of origin until delivery at the foreign destination, it would hardly be consistent to penalize either of them for any detention at the port of exit for which they are in no wise responsible. In that proceeding the Commission considered and found not justified certain rules proposed by respondents to impose demurrage charges at Louisiana ports on shipments moving from inland points consigned to foreign destinations on through export bills of lading. It was there said, at page 708: Detention of cars at the ports of exit beyond a reasonable time for unloading is economically unsound, and is against the interests of everyone concerned. It results in more costly operation of rail terminals, and in many instances in the accrual of per diem charges to the terminal carrier without any adequate increase in revenue. Loaded cars are detained which may be needed by other shippers, the detention operating to cause losses to the carriers and the shippers. Free storage is purely a commercial convenience, and not a transportation necessity. The rail carriers should therefore devise a remedy to prevent detention of cars beyond a reasonable time for unloading. The remedy will call for mutually helpful efforts on the part of the rail carriers; the ocean carriers, and the shippers. No specific indication was given as to how the difficulties might be overcome. Respondents' proposals follow a suggestion in a concurring expression that the demurrage rules contain a provision that 76405m 39-vol. 227-26 |