the establishment of separate charges for them is an issue in another important case which is now pending. Under the circumstances I shall withhold an expression of opinion until that case and the record therein have been considered.

MCMANAMY, Commissioner, dissenting in part:

I disagree with the finding:

That the record is insufficient to establish that the charges on the traffic under consideration are so low as to impose a burden upon other traffic.

This finding is negatived by the report itself which shows in detail the actual cost per ton of accessorial or port services for the principal railroads serving the north Atlantic ports, also the weighted-average cost per ton for each port. Similar figures, although not compiled exactly on the same basis, are shown for the south Atlantic ports. The report shows accessorial port-service costs varying from a few cents to more than $26 per ton. The line-haul charges on this traffic are also available. Where the cost of accessorial port services approximates or exceeds the total revenue received by the carrier for transportation of the traffic it is apparent to me that a burden is thereby imposed upon other traffic.

I also disagree with the finding:

That the record does not warrant the prescription of a tariff rule requiring the accessorial or terminal charges to be stated separately from the line-haul rates on export, import, coastwise, and intercoastal traffic to and from Atlantic and Gulf ports.

In my opinion the record shows not only the need but the practicability of separately publishing such charges. The report states:

With one exception the north Atlantic ports favor a segregation of the port charges from the line-haul rates. New York interests, alone, desire the present method of ship-side rates on this traffic to be continued.

The method of publishing the rates at south Atlantic ports is generally dif ferent from that at north Atlantic ports as the port charges are published separately from the line-haul rates. Agency tariffs in which the rail carriers serving these ports generally concur, contain separate charges for storage, handling, wharfage, and other port charges which apply on most of the traffic between southeastern territory and these ports.

* Rates between Mobile, Gulfport and Pensacola and points south of the Ohio and east of the Mississippi River are published in the same general manner as those to and from south Atlantic ports.

The south Atlantic and Gulf ports and the carriers serving them are practically all in favor of a separate statement of the port charges.

One of the strongest arguments favoring a separation is the fact that the rates from the southeastern territory to the south Atlantic and Gulf ports are now stated separately from the port charges, and that the shippers at and

through those ports are not dissatisfied with that method of rate publication, but insist that all of the rates be published in that manner., * *

It is the position of many of the public and private operators of port terminal facilities at south Atlantic and Gulf ports, east of New Orleans, that the port charges should be published separately from the line-haul rates, although they have no objection to the publication of ship-side rates provided the carriers publishing them show the amount of the port terminal charges that are absorbed.

Against this is the opposition of the port of New York, certain New Orleans interests, and some of the carriers serving that port. The report states:

Shippers at New York testified that it is an advantage in making sales in foreign countries to be able to quote the rate for ship-side delivery as a single factor; that the statement of separate port charges might lead foreign purchasers to believe that some improper expense was being imposed upon them; and that this skepticism would eventually lead to loss of trade. *

*

The New York interests further oppose the separate statement of the port charge because it would mean a base line-haul rate to Jersey City or Hoboken with an additional charge for lighterage, and that if the port charges were based upon cost of the service there would be one charge to Chelsea Piers, another to the New York dock, a third to Bush Terminal, and a fourth to Staten Island, etc., until equality of rates now existing for the port of New York as a whole would be completely disrupted.

* The New Orleans interests, and Illinois Central and Southern Pacific lines which serve that port and the Muscle Shoals, Birmingham & Pensacola at Pensacola particularly favor ship-side rates which include all of the port charges.

This statement is followed, however, by the further statement that:

New Orleans may be eliminated from the controversy to a great extent as the State of Louisiana owns a large share of the water front, and exercises virtual control of the remainder.

To my mind the question of free dockage is also important. The report states:

As a rule no charge is made by the carriers for dockage.

It was also testified that the practice of steamships throughout the world, except at railroad piers in the United States, is to pay charges for dockage. In New York Harbor the railroads do not charge dockage for the use of piers by the steamships; both free dockage and free wharfage is accorded by the rail carriers there.

This the majority disposes of as follows:

The evidence on this record does not show that because of the free dockage described the channel of traffic is diverted from one port to another or from one carrier to another at the same port. Substantially no concrete evidence is presented on this record that would warrant a finding of unjust discrimination or undue prejudice.

157 I. C. C.

This it seems to me is beside the point. Section 6, which in no way deals with discrimination or prejudice, requires that the schedules - of common carriers shall:

state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require *. The provisions of this section shall apply to all traffic, transportation, and facilities defined in this Act.

Without a separate statement of the cost to the carrier of providing free facilities to steamships, how can it be determined whether or not such contributions burden other traffic? That, in my opinion, is the purpose of the authority granted in the paragraph above quoted.

This commission should be concerned not at all with the question of whether either private or public port facilities can be operated at a profit in competition with similar facilities operated by the railroads for which a reasonable charge is made. It should be deeply concerned with the burdens of the carriers incident to the furnishing of port facilities free or at less than a reasonable charge and absorbing the cost of ownership and operation of such facilities in their operating revenues.

In my opinion the record and the report overwhelmingly warrant the prescription of a tariff rule requiring the accessorial or terminal charges to be stated separately from the line-haul rates. If, as the majority contends, this record is not sufficient, the proceeding should be reopened and an adequate record obtained. There can be no question as to our authority.

I am authorized to state that COMMISSIONERS CAMPBELL and TAYLOR concur in this expression.

PORTER, Commissioner, dissenting:

I am in accord with and join in substantially all that is said in COMMISSIONER EASTMAN's dissenting expression, except, I do not agree that the performance, however long continued, of accessorial service which is clearly not "transportation" as that term is defined in the act, is sufficient in and of itself to bring such service within the definition of "transportation."

157 I. C. C.

No. 203701

MAX HERTZ LEATHER COMPANY ET AL. v. BALTIMORE & OHIO RAILROAD COMPANY ET AL.

Submitted June 19, 1929. Decided October 4, 1929

Rate charged on carload shipments of fresh meats, packing-house products, and hides from Kansas City, Kans.-Mo., and St. Joseph, Mo., to destinations east of the Illinois-Indiana State line found applicable. Complaints dismissed.

Nuel D. Belnap for complainants.

A. B. Enoch, Kenneth F. Burgess, Louis H. Strasser, Guy A. Gladson, and Walter McFarland for defendants.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND WOODLOCK MEYER, Commissioner:

Exceptions were filed by complainants to the report proposed by the examiner. Defendants replied thereto and the case was orally argued.

Complainants are corporations operating packing houses and tanneries at various points. By informal complaints seasonably filed and formal complaints filed November 3, 1927, and May 23 and 28, 1928, they allege that the rates charged on numerous carload shipments of green-salted hides, packing-house products, and fresh meats moving prior to February 1, 1926, from Kansas City, Kans.-Mo., over the Chicago and Alton or the Wabash and their connections, and on carload shipments of packing-house products and hides moving prior to February 1, 1926, from St. Joseph, Mo., over the Chicago, Burlington & Quincy or the Chicago, Rock Island & Pacific and their connections, to destinations east of the Illinois-Indiana State line, were inapplicable. Reparation is sought. Rates will be stated in amounts per 100 pounds.

These cases present questions of tariff interpretation with respect to shipments forwarded prior to February 1, 1926, the date on which the tariff claimed by complainants to have been applicable was

1 This report also embraces No. 20370 (Sub-No. 1), Swift & Company et al. ♥. Akron, Canton & Youngstown Railway Company et al.; and No. 20370 (Sub-No. 2), Armour à Company et al. v. Same.