No. 21586

CIRESI FRUIT COMPANY ET AL. v. CHICAGO & NORTH WESTERN RAILWAY COMPANY ET AL.

Submitted May 28, 1929. Decided September 4, 1929

Rate charged on grapes, in carloads, from Paw Paw, Mich., to St. Paul, Minn., found applicable but unreasonable. Reparation awarded.

A. R. Fowler for complainants.

W. K. Williams and Wm. R. Seaton for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER

BY DIVISION 3:

This case was presented under the shortened procedure. Exceptions were filed by defendants to the report proposed by the

examiner.

Complainants Ciresi Fruit Company, owned solely by D. Ciresi, Cooney McGuire Company, a copartnership composed of W. R. Cooney and E. J. McGuire, and Dore-Redpath Company, a copartnership composed of J. B. Redpath, E. C. Lucas, and M. J. Dore, produce dealers at St. Paul, Minn., by complaint filed October 3, 1928, as amended, allege that the rate charged on three carloads of grapes from Paw Paw, Mich., to St. Paul, delivered September 23, 1925, and October 13 and 22, 1926, was inapplicable and unreasonable. An informal complaint was filed September 19, 1927, covering the shipment of September 23, 1925. That file was closed September 22, 1928. Reparation is sought. Rates will be stated in cents per 100 pounds.

The salient facts regarding the three shipments in the instant case are as follows:

Refrigeration and detention charges of $164.25 were also collected, but these charges are not assailed. The Belt Railway of Chicago and the Chicago, St. Paul, Minneapolis & Omaha, referred to in the route column in the above statement, were not named as defendants in the complaint. This omission is not fatal, for it is well settled that where an unreasonable joint rate has been collected the liability of the carriers made parties defendant is joint and several and reparation may be awarded although all of the carriers which participated in the transportation have not been made parties defendant. Paw Paw is in Michigan zone B on the Pere Marquette, 5 miles west of Lawton, Mich., the next more distant station in zone A. From the latter point the contemporaneous commodity rate on grapes, in carloads, was 112 cents prior to September 30, 1926, and 112.5 thereafter. The title-page of the tariff publishing those rates provided that by authority of rule 77 of our Tariff Circular 18-A, rates named in the tariff, as amended, are not made applicable from all intermediate points. Under the application of rates carried in the tariff the following provisions appear:

By authority of Rule 77 of the Interstate Commerce Commission Tariff Circular No. 18-A, the commodity rates made subject to this rule are not made applicable from all intermediate points. Commodity rates not exceeding those from the next more distant point from which a commodity rate, subject to Rule 77, is named, either in this or other tariffs lawfully on file with the Commission will be established, under this rule, upon one day's notice to the Commission

Where Rule 77 is applicable, and it develops that shipments have moved from an intermediate point under a rate higher than that contemporaneously applicable from the more distant point, carriers will file an application with the Interstate Commerce Commission on the special docket for authority to make refund on all such shipments to the basis of the rate from the more distant point.

Complainants contend that as defedants have declined to file a special-docket application they have failed to comply with the provisions of their tariffs, and that the second-class rate charged was unreasonable to the extent that it exceeded the commodity rate of 112 cents or 112.5, as the case may be, contemporaneously applicable from Lawton.

Defendants contend that on account of errors in the publication of rates from Lawton the rate of 112 cents was on an incorrect basis and should not be used as a measure of the rate from Paw Paw. The departure from the long-and-short-haul provision of section 4 of the act was protected by fourth-section order No. 6803. However, the tariff publishing the rates of 112 and 112.5 cents made no reference to that fourth-section order. Publication of rule 77 in the tariff in connection with the rates from Lawton constituted a holding out by

the carriers interested of a promise to apply those rates from intermediate points, such as Paw Paw. It follows that reparation is warranted regardless of the level of the lower rates from Lawton. See Handy Chocolate Co. v. B. & O. R. R. Co., 146 I. C. C. 213.

We find that defendants' failure to accord complainants and to apply on the shipments considered the rate of 112 cents prior to September 30, 1926, and 112.5 cents thereafter was unjust and unreasonable; that complainants made the shipments as described and paid and bore the charges thereon; that they have been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable; and that they are entitled to reparation in the sum of $47.86, with interest.

An order awarding reparation will be entered.

157 I. C. C.

No. 20567

ATLANTIC LUMBER COMPANY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY ET AL.

Submitted February 1, 1929. Decided September 12, 1929

Rates charged on hardwood lumber, in carloads, from Duff and Knoxville, Tenn., to Cowansville and St. Hyacinthe, Quebec, Canada, found inapplicable. Applicable rates found unreasonable. Reparation awarded.

George E. Wentzel for complainant.

W. A. Northcutt for defendants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS CAMPBELL, MCMANAMY, AND BRAINERD BY DIVISION 2:

This case was presented under the shortened procedure. Exceptions were filed by complainant and defendants to the report proposed by the examiner. Our conclusions differ from those recommended by him.

Complainant, a corporation manufacturing and selling lumber, with principal office at Boston, Mass., alleges by complaint filed January 19, 1928, that the rates charged on numerous carloads of hardwood lumber shipped from Duff and Knoxville, Tenn., to Cowansville and St. Hyacinthe, Quebec, Canada, since July 23, 1924, were and are unreasonable and unduly prejudicial. Reparation and lawful rates for the future are sought. An informal complaint covering 16 shipments which moved since July 23, 1924, was received on November 13, 1926, and that file was closed on July 22, 1927. Formal complaint was duly filed thereafter. As to the shipments delivered or tendered for delivery prior to November 14, 1924, all issues except that of applicability are barred by the statute of limitations. Rates will be stated in cents per 100 pounds.

The shipments originated on the Louisville & Nashville and moved as routed by complainant through the Cincinnati, Ohio, gateway over routes composed of defendants' lines. St. Hyacinthe and Cowansville are on the Canadian National and the Canadian Pacific 35.7 miles east and 62.5 miles south, respectively, of Montreal, Quebec. Charges were collected at rates of 45, 49.5, and 54.5 cents from Knoxville to St. Hyacinthe, and 27.2, 52, 54.5, and 56 cents from Knox

ville to Cowansville. From Duff to Cowansville charges were collected at rates of 45 and 53 cents.

With respect to our jurisdiction to determine whether a joint rate between a point in the United States and a point in Canada has been unreasonable and unduly prejudicial in the past, and our authority to prescribe reasonable and nonprejudicial joint rates for the future, in Cyanamid and Cyanide from Niagara Falls, 155 I. C. C. 488, decided May 13, 1929, we said:

We adhere to the view first expressed in Black Horse Tobacco Co. v. I. C. R. R. Co., 17 I. C. C. 588, that the United States lines have a clear alternative in respect of their participation in international traffic. They may publish reasonable and lawful rates applicable to or from the border in which event they are answerable only for those rates. Or, they may become parties to joint rates covering the entire transportation, in which event they become jointly and severally liable for any unlawfulness in such rates. We have jurisdiction over the United States carriers. We have jurisdiction over a portion of the transportation. If, in such circumstances the United States carriers enter into a joint undertaking and participate in a rate which is an entity, in respect of such transportation, we entertain no doubt that our control over them empowers us to require them to cease and desist from participating in an existing joint rate, or to find their participation in a proposed joint rate not justified, if we find such rates are or will be unreasonable or otherwise unlawful. The fact that a portion of the transportation takes place within a foreign country might make proof of unlawfulness more difficult. But proof should not be confused with responsibility.

Prior to July 20, 1924, the Louisville & Nashville published a joint through rate of 43.5 cents on lumber from Duff and Knoxville to Boston, Mass. By tariff reference that rate was made applicable to various Canadian basing points, including Sherbrooke, Montreal, and St. Johns, Quebec. The basing tariff provided that Cowansville and St. Hyacinthe should take the Sherbrooke rate. On July 20, 1924, defendants canceled the applicable tariff and transferred numerous lumber rates from an individual-line tariff to an agency tariff, and inadvertently omitted to show reference to the basing tariff. This resulted in the application of combination rates based on Cincinnati. The tariffs of the Louisville & Nashville naming the factors of 17 and 18.5 cents from Duff and Knoxville to Cincinnati specifically provided for applying the rule for constructing combination rates published in Jones's I. C. C. No. U. S. 1. The factor of 36 cents beyond Cincinnati made no reference to the so-called combination rule. In Sligo Iron Store Co. v. W. M. Ry. Co., 62 I. C. C. 643, 73 I. C. C. 551, and numerous other cases, we have found that where one carrier, or group of carriers, refers to the rules for constructing combination rates in connection with one factor and no reference is made to such rules in connection with the other factor, the carrier, or group of carriers, making such reference should be considered as holding out a manner of making combination