DISCUSSION AND CONCLUSIONS

Item 255 of Louisiana and Arkansas Railway Company Tariff No. 15-F makes reference to rate basis 29 and 30 of item 295 as applicable bases for intraplant switching. All of the cars involved were privately owned by Shell. Rate basis 29 contains a switching charge for private cars which applies on intrastate traffic. Neither rate basis contains a switching charge for private cars which applies on interstate traffic. Although shipping orders had not been issued at the time of the switch movement, the L & A has not rebutted Shell's assertion that all of the cars moved to interstate destinations. The defendant views the switch movement as a distinctly intraplant operation which is accomplished prior to the commencement of interstate line-haul service. We cannot agree that the switch movement is separable from the interstate transportation of these cars for purposes of finding the defendant's rate basis applicable. Whether or not the switch movement constitutes service in addition to the carrier's line-haul obligation, it is clear that from the moment cars are moved from the point of loading they are en route to their ultimate interstate destination. There is no indication in the record that cars are held for any reason other than to await the issuance of shipping instructions. We, therefore, conclude that defendant's published rate basis does not apply to the switch movements to complainant's hold track.

The defendant correctly states that in the absence of an applicable tariff provision the Commission is empowered to fix a reasonable charge for transportation service provided. However, the L & A may be entitled to a charge for the switch movements only if we determine that it has provided a service for which it had not been adequately compensated under its line-haul rates.

Although the tariff provisions in Ex Parte No. 104 were not adopted in toto in defendant's tariff, the standards endorsed by the Commission in Ex Parte No. 104 for determining the terminal service obligation of a line-haul carrier are applicable to the situation presented by the parties. American Smelting & Refining Co. Terminal Services, 294 I.C.C. 745 (1955); United States Dept. of Defense v. Northern Pac. Ry. Co., 309 I.C.C. 691 (1960).

The decisions in Magnolia Petroleum Co. Terminal Allowance. 308 I.C.C. 57 (1959) and Carrier Switching at Industrial Plants in the East, 294 I.C.C. 159 (1955) make it clear that when a carrier is prevented from performing uninterrupted service to or from industry loading points because of some action or disability of the

industry, the performance of service beyond the point of interruption is deemed to exceed simple switching or team-track delivery, and, as such, is compensable over and above the line-haul rate. It is equally clear from these decisions that the temporary holding of cars on tracks of the carrier or industry for instructions from the shipper or receiver is not deemed to break the continuous movement of cars, to be an interruption or interference for which the industry is directly responsible, or to be in excess of the ordinary operating convenience of the carrier. In Carrier Switching at Industrial Plants in the East, supra, the Commission stated:

There is here no delay to the locomotive *** but a shunting of the car onto a hold track for billing or placement instructions from a shipper or receiver. The temporary holding under this paragraph, therefore, is not one which requires the assessment of additional charges under rule III [of the Ex Parte 104 tariff), but one such as that for specific placement instructions discussed in Wickwire Bros., Inc., Terminal Allowance, 274 I.C.C. 307, 310, and Cancellation Terminal Charges at Decatur, Ill., 277 I.C.C. 57, 62, 63, and therein found to be properly included under the line-haul

rates.

The purpose of the switch movement to the hold track is to await shipping instructions. The L & A is asked to move cars from the loading track in advance of the issuance of shipping instructions so that it may spot empties necessary for Shell's loading operation without delay. This procedure indirectly benefits the L & A since it facilitates the transportation of Shell's products and reduces congestion during periods of peak demand. That the defendant considers the temporary holding of loaded cars for this reason to be a standard terminal service is evident from the fact that its chief disagreement with Shell concerns the latter's preference for its own rather than for L & A hold tracks. Although the L & A does not receive demurrage or hazardous storage charges for cars held on the refinery hold track, it does not experience any substantial risk, delay of equipment, occupation of space, or other detriment as a result of the procedure. It appears that the complainant's choice of a hold track does not impair the efficiency of the carrier's operation or require the performance of service significantly greater than that involved in the use of the defendant's hold track. Shell's issuance of shipping instructions is reasonably prompt, permitting the great majority of cars to be removed from the hold track within a few days. Its behavior in this regard is neither erratic nor abusive of the situation, and does not appear to interfere with the defendant's ordinary operating convenience. The defendant's failure to assess a

switching charge during the years prior to 1975 supports this conclusion. There is no indication in the record that the complexity of the switch movement has increased since the time when the carrier believed it was adequately compensated for the service by its line-haul charges. Defendant should, if it believes that it is not adequately compensated, publish appropriate charges.

We find that the charges assessed and paid for approximately 1,400 switch movements are not applicable as to the interstate shipments placed in issue in this proceeding. Should defendant believe that the line-haul rates do not adequately compensate for the intraplant switching then defendant should publish intraplant switching charges applicable in connection with interstate transportation. This decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. IT IS ORDERED, That the defendant pay reparations for the approximately 1,400 switch movements involved, the amount to be computed in conformity with rule 95 of the Commission's General Rules of Practice, 49 CFR 1100.95, plus interest computed pursuant to the Commission's Notice of Revised Procedures to Calculate Interest Rates, served April 18, 1977. Interest should be the auction established average yield on 91-day, 13-week treasury bills for the week in which the first unlawful charge was paid.

355 I.C.C.

No. 35717'

SOUTHERN RAILWAY COMPANY-PETITION FOR
DECLARATORY ORDER

Decided October 4, 1977

Application and interpretation of certain tariffs determined on shipments of household electrical appliances from Appliance Park, Ky., to transcontinental destinations, and proceeding discontinued.

Fred R. Birkholz, Peter S. Craig, and James L. Tapley for 'petitioners.

Robert B. Batchelder, William P. Higgins, and John S. Walker, Jr., for respondents.

Benson T. Buck and Donald MacLeay for interveners.

REPORT AND Order of THE COMMISSION

DIVISION 2, COMMISSIONERS MURPHY, MACFARLAND, AND CLAPP

BY THE DIVISION:

The modified procedure was followed, exceptions to the initial decision of the Administrative Law Judge were filed by petitioners and respondents, replies were filed by respondents and petitioners respectively, and exceptions were filed by interveners. Our conclusions differ in part from those recommended by the Administrative Law Judge, and the facts have been restated. Exceptions and requested findings not specifically discussed in this report or reflected in our findings or conclusions have been considered and found not justified or unnecessary for the proper disposition of this proceeding.

The Southern Railway Company and the Louisville and Nashville Railroad Company (respectively Southern and L&N, and collectively petitioners), seek declaratory orders from this

'This report also embraces docket No. 35717 (Sub-No. 1), Louisville and Nashville Railroad Company-Petition for Declaratory Order-Refund Rule-Electrical Appliances, which was heard on a common record with the captioned proceeding and was consolidated by agreement of the parties.

Commission under section 554(e) of the Administrative Procedure Act. The instant petitions are ancillary to district court suits in which petitioners seek restitution of divisions withheld by Union Pacific Railroad Company and Denver & Rio Grande Western Railroad Company (respectively, UP and D&RG, and collectively, respondents), after the payment of certain overcharge claims to interveners, General Electric and General Motors (Frigidaire Division).

This Commission is now asked to determine the proper through rates applicable to numerous westbound transcontinental shipments of household appliances stored in transit at Clearfield, Utah.

BACKGROUND

A brief review of the rates applicable to shipments originating at Appliance Park, stored at Clearfield, and subsequently shipped to western destinations, is essential to an understanding of this controversy. The parties have agreed to use Appliance Park as a representative origin since a majority of the inbound shipments originated at that point, and the tariff and rate situation is similar regardless of the actual origin.

3

Alternating rates subject to varying minimum weights, usually 18,000 and 30,000 pounds, were published on these articles from Appliance Park to transcontinental destinations. In most instances, these rates also applied from Appliance Park to Clearfield under rules providing for the alternative application of transcontinental rates as maximum. Consequently, the rates from Appliance Park to Clearfield and the rates to the final destinations were the same. The rate tariffs contained an "omnibus" clause providing that the rates therein would be governed by transit arrangements authorized in the individual carriers' transit tariffs.5

'Petitioners seek clarification of issues arising in civil action No. C-3200, Southern Ry. v. Union Pacific R.R. and Denver and Rio Grande Western R.R., and civil action No. C-3694, Louisville and Nashville Railroad Co. v. Union Pacific R.R. and Denver & Rio Grande Western R.R., in the United States District Court for the District of Colorado. By orders dated July 1, 1972 and August 10, 1972, respectively, the court suspended the judicial process, “pending a determination by the Interstate Commerce Commission of the proper tariff rates and rules applicable to the shipments involved in this action and the making of such further findings as the Interstate Commerce Commission may deem advisable."

"The record is not clear as to the exact number of inbound shipments involved. The petitioners indicate, however, that between 30,000 and 40,000 shipments originated at Appliance Park alone. 'For convenience, these rates will be referred to as the "light loading" rates. It is not necessary to cite the actual rates as the level of the various rates is not in issue.

"The use of the "omnibus" clause as a means of referring to governing transit and other special service tariffs is specifically authorized by rule 10(b) of the Commission's Tariff Circular No. 20.