chase price of the commodity shipped they used the weights which had been used by the carriers as a basis for the assessment of freight charges, even though such weights might have been in error and the shippers therefore might have paid the vendor for a greater quantity of the commodity than they received.

There were used in the transportation of this traffic 59 open-top cars belonging to the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, hereinafter referred to as the Milwaukee, all of which were built in 1913 and were known as Hart convertible cars, with side doors, removable ends, and drop bottoms. They have since been withdrawn from commercial use and many of them have been dismantled. In these 59 cars, used in shuttle service, complainants made 615 shipments to Sioux City and 57 shipments to Dakota City, a total of 672 shipments. The stone in question was purchased from L. G. Everist, Incorporated, under a contract which provided that the purchase price would be $1.70 per ton "F. O. B. cars Wickham Bridge & Pipe Company's spur track located on the C. & N. W. Ry., approximately one mile south of Sioux City, Iowa," and that the "basis of settlement shall be made strictly on railroad weights." Freight charges were paid in the first instance by complainants, but were charged back to the consignor, who was the seller.

The stone was used by complainants in construction work for the Federal Government on the banks of the Missouri River just south of Sioux City. Settlement was made by the Government on the basis of an estimated weight of 2,700 pounds per cubic yard, ascertained by measurement after the stone had been loaded on barges. Due to what appeared to be discrepancies between the railroad weights and the weights determined by the Government, complainants began having the cars weighed empty in order that the tare weights might be checked against those being used. Some 37 cars were weighed at complainants' request by the Western Weighing and Inspection Bureau, apparently on scales of the Chicago & North Western Railway Company, between June 23 and November 1, 1934, most of the weights being taken in June and July of that year. Some of these same cars, and the others embraced in the complaint, were weighed by the Milwaukee, beginning in September 1934. These reweighings resulted for the most part in weights higher than those stenciled on the cars and used in the assessment of the freight charges, and complainants rely for their proof on the scale tickets of the Inspection Bureau and on letters received from the Milwaukee in which the results of its reweighings are stated. None of the cars seems to have been weighed immediately after unloading. The claimed discrepancies, as shown by complainants, run from 100 pounds to 6,100 pounds, more than half of the claims resulting, how

ever, in alleged overcharges of less than $1 per car. One shipment moved on April 11, 1933, and one on May 17, 1933, more than three years prior to the filing of the informal complaint and claims thereon are barred.

Defendants urge that the stenciled weight of a car must be used until officially reweighed for stenciling purposes; that to use a newly ascertained weight retroactively would open the door to discrimination, and would as often require the collection of undercharges as the refund of overcharges. Moreover, they point out that the alleged discrepancies in weight might well be due to the fact that a considerable quantity of the stone was rejected by the Government at destination, which rejected stone, called "spalls," built up a pile, as complainants testified, as large as a building one block long, half a block wide, and 10 stories high, and which, defendants estimate, composed a mass of between 90,000 and 100,000 cubic yards, or in the neighborhood of 135,000 tons. The record is contradictory as to whether or not this rejected stone was measured by the Government, but inasmuch as it appears that only that loaded on the barges was measured, it would seem to be a fair assumption that the rejected stone was not included.1

A witness for the Milwaukee further submitted photostatic copies of the office records of that carrier of each car embraced in the complaint, which show the major repairs to the respective cars and the various tare weights obtained for the purpose of stenciling. The weights submitted by complainants and those submitted by defendants are so at variance that it is impossible on this record to determine, as a fact, what the actual tare weight of any particular car was at the time of shipment. For example, C. M. St. P. & P. car 72909 carried a stenciled weight during the period that this car was used in the movement, October 21, 1933, to November 17, 1934, of 43,000 pounds. Complainants show by the scale ticket of the Inspection Bureau that the tare weight of this car on July 27, 1934, was 48,100 pounds. The office records of the Milwaukee, on the other hand, show that this car weighed 43,000 pounds on April 8, 1933, 41,500 pounds on October 24, 1934, and 42,000 pounds on April 29, 1936. Other and older weighings are shown, the highest weight being 45,400 pounds in May 1913, when the car was built. Again, the stenciled tare weight of C. M. St. P. & P. car 71223 was 44,000

1 The pertinent testimony in this respect is as follows: Complainants' witness, referring to discarded stone called "spalls", which he stated was not "suitable or acceptable" for the work in hand, testified, “* the Government didn't measure it. The Government only measured it when it was barge.

"

on the

Question. "Did the Government measure this stuff you threw away and stacked up as big as this building?"

Complainants' witness. "Absolutely. Everything that comes in there."

pounds during the period this car was used, October 10, 1933, to October 11, 1934, while complainants show by the scale ticket of the Inspection Bureau that the car weighed 48,800 pounds on June 23, 1934. The Milwaukee's records show that this car weighed 44,000 pounds on December 1, 1932, 44,600 pounds on November 7, 1934, and the same on April 29, 1935. Prior to 1932 the stenciled tare weight varied from 43,600 pounds to 46,300 pounds, the latter being the initial tare weight. The stenciled tare weight of C. M. St. P. & P. car 71291 was 45,500 pounds during the period of movement from October 21, 1933, to September 4, 1934, while complainants contend that the tare weight was 51,600 pounds, as per letter from the Milwaukee to complainants dated September 17, 1934. The office records of the Milwaukee, on the other hand, show the last weighing of this car to have been on April 8, 1933, and the weight to have been 45,500 pounds. Three years previous the car weighed 44,400 pounds, and at no time is it shown to have exceeded 46,100 pounds. Here it will be observed that the weight relied on by complainants was not obtained until after the movement ceased. The stenciled weight of C. M. St. P. & P. car 72883 during the period of movement, December 9, 1933, to September 11, 1934, was 42,700 pounds, whereas the tare claimed by complainants is 47,000 pounds as indicated in letter from the Milwaukee to complainants dated September 25, 1934, after the termination of the movement. The office records of the Milwaukee show the last weighing of this car to have been on April 14, 1933, and that the weight was 42,700 pounds. The prior weights ran from 42,800 pounds in July 1928 to 45,400 pounds in May 1913.

The foregoing examples are those showing the greatest discrepancies claimed, but are representative of practically all of the cars involved, and it is upon such evidence that we are asked to find what was the actual weight of the several cars during the period of movement which, in most cases, extended over 12 months. Although the cars started moving in October 1933, none seems to have been reweighed at complainants' request until the latter part of June 1934, while a number were apparently not weighed until after the movement was completed. It is impossible, for example, to reconcile a tare weight of 48,100 pounds on car 72909, obtained July 27, 1934, by the Inspection Bureau, with the tare weight of the same car of 41,500 pounds obtained by the Milwaukee on October 24, 1934, but three months later.

On the record as made, we find that it is impossible to determine with any degree of accuracy or definiteness the actual tare weights of the respective cars at the time of movement, except those hereinafter referred to. Taking the entire situation into consideration, we must find that the stenciled tare weights used in the determination

of the weight of the shipments were reasonably accurate at the time of movement.

The record indicates that certain cars were reweighed by the Milwaukee prior to the termination of the movement in those cars, that subsequently the newly ascertained weights were stenciled on these cars, and that the correct stenciled weights were not used for certain shipments. Defendants concede that those shipments were overcharged. In the latter instances the weights so obtained and subsequently stenciled on the cars should be used as the basis for determining the charges on those shipments made between the dates of reweighings and the dates the corrected tare weights were stenciled on the cars.

We find that as to those certain shipments which moved between the dates the respective cars were reweighed and the dates the corrected tare weights were stenciled on such cars, the tare weights used in computing charges were inaccurate; that the shipments were made as described; that complainants paid charges thereon based upon the incorrect tare weights; and that they have been damaged thereby and are entitled to reparation, with interest, in the amount of the difference between the charges collected and those which would have accrued if the corrected tare weights had been used. We further find that as to shipments other than those covered by the foregoing finding the stenciled tare weights used have not been shown to have been inaccurate.

Complainants should comply with rule V of the Rules of Practice.

227 I. C. C.

FOURTH SECTION APPLICATION No. 17087

TUNG NUT POMACE FROM AND TO THE SOUTH

Submitted October 8, 1937. Decided April 4, 1938

Authority granted, on conditions, to establish and maintain rates on tung-nut pomace, in carloads, between points in southern territory and between points in that territory, on the one hand, and points in official territory, on the other, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act.

J. G. Kerr for applicants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND CASKIE BY DIVISION 2:

By this application, carriers parties to Agent Roy Pope's tariff I. C. C. No. 1896 apply for authority to establish and maintain rates on tung-nut pomace, in carloads, between points in southern territory and between points in that territory, on the one hand, and points in official territory, on the other, without observing the long-andshort-haul provision of section 4 of the Interstate Commerce Act. Temporary relief was authorized by fourth-section order No. 12959. No opposition was presented to the relief sought. Rates will be stated in amounts per net ton.

The production of tung nuts in the United States has been very limited in the past, but in recent years tung-nut trees have been planted in the southern parts of Georgia and Louisiana and the northern part of Florida. Tung-nut pomace is the product or residue of the nuts which have been crushed to obtain the oil, which is used principally in the manufacture of paints and varnish. The pomace, being classed as a poison, cannot be used in the manufacture of mixed feeds and is valuable only as a fertilizer material. It is not specifically named in the classification or commodity tariffs. Under the analogous rules the carriers apply on tung-nut pomace the tenth-class rating provided in the governing classification on oil cake or oil-cake meal n. o. i. b. n. Applicants state that they have been advised that the tenth-class rates will not move this traffic and, since its transportation characteristics are similar to those of such commodities as castor pomace and grape pomace, which are included in the list of fertilizer and fertilizer materials, it is proposed to establish and maintain on tung-nut pomace,