No. 31338

PREMIER DISTRIBUTORS v. ANN ARBOR RAILROAD COMPANY ET AL.

Decided October 6, 1955

Rates charged on peat, in carloads, from origins in Quebec and New Brunswick, Canada, to various points in the United States, found applicable, and not shown to have been unjust, unreasonable, or unduly prejudicial. Complaint dismissed.

George A. Olsen for complainant.

R. H. Stahlheber, J. Edgar McDonald, and J. Raymond Hoover for defendants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS ALLDREDGE, FREAS, AND WINCHELL BY DIVISION 2:

The modified procedure was followed. The complainant filed exceptions to the report proposed by the examiner, and certain defendants replied. Exceptions and requested findings not discussed in this report nor reflected in our findings or conclusions have been considered and found not justified.

The complainant, a corporation with principal offices in New York, N. Y., is engaged in the production and sale of peat. By complaint filed on August 21, 1953, as amended, it alleges that the rates charged on numerous carloads of peat from Cacouna, Chicoutimi, Isle Verte, Riviere Blanche, Riviere du Loup, and St. Anaclet, Quebec, and Shippigan, New Brunswick, Canada, to numerous points in the United States on and between October 13, 1947, and May 6, 1948, were inapplicable, unjust and unreasonable, and unduly prejudicial. Reparation only is sought. An informal complaint covering these shipments was filed on October 11, 1949, and closed on April 10, 1953, as not susceptible of informal adjustment.

The shipments originated on the lines of the Canadian National Railway Company and moved through various international gateways to connections with domestic carriers for movement to the destinations in this country. The evidence concerning the shipments, the routes used, and the rates determined to have been applicable is meager. A brief discussion of the circumstances existing prior to the period of the complaint will be helpful in clarifying the issues.

The Canadian Freight Association's tariff naming exceptions to the official and western classifications published ratings on moss, peat, n. o. i. b. n.,1 ground or not ground, of class 27.5 (27.5 percent of first class), minimum 30,000 pounds, and class 22.5, minimum 40,000 pounds. The same tariff also published a rating of class 22.5, minimum 40,000 pounds, on a list of fertilizers and fertilizer materials which included peat and peat filler. In some instances agency tariffs of domestic carriers included peat in the list of fertilizers and fertilizer materials, and in others specific rates were published on peat, n. o. i. b. n., ground or not ground. Following our final report in Ex Parte No. 162,2 and in accordance with our findings therein, the defendants published increased rates on lists of fertilizers and fertilizer materials subject to a maximum increase of 6 cents per 100 pounds. By the carriers' interpretation, however, rates published separately on peat, n. o. i. b. n., were properly subjected to the full percentage increases authorized on traffic generally. In addition, in compliance with our findings, the defendants' master-increase tariff contained a rule providing that where through rates were made by the combination of individual factors, the published increases would be added to each factor thereof, except that where the commodity was subject to a maximum increase, the total increase would not exceed such maximum. Thus, in instances where the specific rates on peat applied, shipments were required to bear the full percentage increase, if moving on joint through rates, and, if moving on combinations, the additional burden of having the full increase applied to each factor.

Shortly after the beginning of the period with which this complaint is concerned, the complainant called the situation to the attention of the defendants. Thereafter, by supplement to the master tariff, effective March 29, 1948, the defendants accorded peat, n. o. i. b. n., the 6-cent maximum. In the meantime, in Ex Parte No. 166, interim general increases were granted in decisions of October 6 and December 29, 1947, and, subsequently, on April 13, 1948. The first two reports authorized percentage increases. In the decision on the last-mentioned date, interim increases were authorized in the rates on fertilizers and fertilizer materials not to exceed $1.60 per net ton. or 8 cents per 100 pounds. The defendants extended the same maximum to rates on peat, n. o. i. b. n., in publishing the increases effective May 6, 1948. In the final report in Ex Parte No. 166, 270 I. C. C. 403, decided July 27, 1948, the maximum previously prescribed on an interim basis was retained in the findings. In substance, therefore,

1 Means not otherwise indexed by name in the classification.
'Increased Railway Rates, Fares, and Charges, 1946, 266 I. C. C. 537.

• Increased Freight Rates, 1947, 269 I. C. C. 83, 270 I. C. C. 81 and 98, respectively. 296 I. C. O.

the complainant seeks reparation to the extent that the charges paid exceeded those which would have accrued on the basis of the maximum increase authorized in the final report.

The rates on peat, n. o. i. b. n., including the percentage increases, were published in tariffs duly filed with the Commission and were thus the rates which the defendants were required to charge, without regard to questions of their lawfulness in other respects. Kansas City Fuel Oil Co. v. Atchison, T. & S. F. Ry. Co., 210 I. C. C. 134. The assailed rates were applicable.

In Acme Peat Products v. Akron C. & Y. R. Co., 277 I. C. C. 641 and 293 I. C. C. 510, rates on ground peat from points in Canada to points in the United States were assailed as inapplicable, unjust and unreasonable, and unduly prejudicial for the same reasons and under circumstances similar to those in the instant proceeding. In the report on reconsideration, the Commission observed that while the defendants were subject to censure for improper tariff publication, that fact alone did not afford an adequate basis for finding the assailed rates unreasonable and awarding reparation, since we have no authority to award punitive or exemplary damages. See also F. W. Bolgiano & Co., Inc., v. Baltimore & O. R. Co., 289 I. C. C. 169 and 291 I. C. C. 659.

The instant record is devoid of evidence regarding the level of the rates assailed, or tending to show that the total rates charged exceeded a maximum reasonable basis. Similarly, the allegation of undue prejudice, based upon the different increases applied on the same commodity in the manner above described is not supported by evidence that the complainant was damaged thereby.

We find that the rates assailed were applicable and are not shown to have been unjust, unreasonable, or unduly prejudicial. The complaint will be dismissed.

ALLDREDGE, Commissioner, dissenting:

When the defendant railroads published rates in violation of the Commission's orders an unlawful factor was included in the total charges. Past precedent, which has had Supreme Court approval, supports the principle that the inclusion of an unreasonable or otherwise unlawful factor in the total rate may make the rate unlawful. This principle should not be confused with, nor be permitted to derogate from, the equally valid principle that the total rate must be shown unjust and unreasonable where interim increases in excess of those finally approved are assailed. I would find for the complainant.

CASES DISPOSED OF BY THE COMMISSION WITHOUT

PRINTED REPORT DURING THE TIME COVERED BY THIS VOLUME

APPLICATIONS FOR RELIEF FROM THE PROVISIONS OF SECTION 4

(Disposed of by order only, except as noted.)

DIVISION 2, COMMISSIONERS ALLDREDGE, FREAS, AND WINCHELL F. S. A. No. 13082, CLASS AND COMMODITY RATES BETWEEN POINTS IN LOUISIANA, filed by the Illinois Central Railroad Company, for itself and other carriers. Decided September 6, 1955. Long-and-short-haul relief granted, on conditions, to maintain between New Orleans and Baton Rouge, La., Natchez, Miss., and other specified points east of the Mississippi River, on the one hand, and Shreveport, La., Lorraine, La.-Tex., Greenwood, and other specified points in Louisiana west of the Mississippi River, on the other, class and commodity rates the same as over competing routes.

F. S. A. No. 13560 and others, RATES FROM, TO, AND BETWEEN POINTS IN SOUTHWESTERN TERRITORY, filed by F. A. Leland, J. R. Peel, Roy Pope, D. Q. Marsh, F. C. Kratzmeir, and R. E. Boyle, Jr., agents, for carriers parties to the applications. Decided September 6, 1955. Long-and-short-haul relief granted on conditions, to maintain between points in southwestern territory, and between points in that territory, and points in official, Illinois, western trunkline, and southern territories, and southern Missouri, rates constructed on bases of specified percentages of the column 100 rates prescribed or approved in Consolidated Southwestern Cases, 123 I. C. C. 203, and certain supplemental reports, plus subsequently authorized general increases.

F. S. A. Nos. 17085 21104, 23970, 27495, and 28824, CONSOLIDATED SOUTHWESTERN CASES, filed by F. A. Leland, Roy Pope, D. Q. Marsh, and F. C. Kratzmeir, agents, for carriers parties to the applications. Decided September 6, 1955. Long-and-short-haul relief, Consolidated Southwestern Cases, 211 I. C. C. 575, and others, amended to include authority to maintain between points in southwestern territory, and between points in that territory, and points in official, Illinois, western trunkline, and southern territories, and southern Missouri, rates constructed on the bases described in the applications, plus subsequently authorized general increases.

F. S. A. Nos. 18455 and 18623, PULPWOOD FROM NEW BRUNSWICK TO BUCKSPORT, MAINE, filed jointly by the Canadian National Railways and the Maine Central Railroad Company. Decided September 1, 1955. Long-and-short-haul relief granted, on conditions, to maintain, to Bucksport and South Brewer, Maine, carload rates not lower than those proposed in the applications.

F. S. A. No. 21514, COMMODITY RATES BETWEEN POINTS IN LOUISIANA, filed by Ira D. Dodge, agent, for carriers parties to his tariff I. C. C. No. 645. Decided September 6, 1955. Aggregate-of-intermediates relief granted to maintain through carload commodity rates from and to, or between points in Louisiana and points in other States.

F. S. A. No. 30424, SULPHURIC ACID TO LE MOYNE, ALA., filed by R. E. Boyle, Jr., agent, for the Southern Railway Company and other carriers. Decided June 3, 1955. Long-and-short-haul relief, Sulphuric Acid to Le Moyne, Ala.,

288 I. C. C. 683, amended to include authority to maintain from Baton Rouge and North Baton Rouge, La., tank-car load rates not lower than 290 cents per ton of 2,000 pounds.

F. S. A. No. 30525, ALCOHOL FROM TUSCOLA, ILL., filed by H. R. Hinsch, agent, for carriers parties to his tariff I. C. C. No. 4542. Decided June 20, 1955. Long-and-short-haul relief granted, on conditions, to maintain on alcohol, in bond, and denatured alcohol, to Carney's point and Newark, N. J., and Baltimore, Md., carload rates proposed in the application.

F. S. A. No. 30733, CANNED GOODS BETWEEN POINTS IN OFFICIAL TERRITORY, filed jointly by C. W. Boin and O. E. Swenson, agents, for carriers parties to Agent C. W. Boin's tariff I. C. C. No. A-1064. Decided July 7, 1955. Long-andshort-haul relief, Canned or Preserved Foodstuffs in Official Territory, 288 I. C. C. 275, amended to include authority to establish and maintain minimum carload rates prescribed or approved in docket No. 31104, Canned Goods in Official Territory, 294 I. C. C. 371, between points in official territory, on the one hand, and points in northern Illinois, Iowa, southern Wisconsin, and extended zone “C” in Wisconsin, on the other.

F. S. A. No. 30780, CAST IRON PIPE FROM IRONTON AND PROVO, UTAH, filed by the Union Pacific Railroad Company for itself and other carriers. Decided July 21, 1955. Long-and-short-haul relief granted, on conditions, to maintain, to destinations in Montana, carload rates constructed on basis of a distance scale set forth in the appendix to the report in Pacific States Cast Iron Pipe Co. v. C., M., St. P. & P. R. Co., 293 I. C. C. 441.

F. S. A. No. 30920, STYRENE From Kobuta, Pa., filed by F. C. Kratzmeir, agent, for and on behalf of carriers parties to his tariffs I. C. C. Nos. 4049 and 4115 and Agent C. W. Boin's tariff I. C. C. No. A-968. Decided September 2, 1955. Long-and-short-haul relief granted, on conditions, to maintain, to points in Louisiana and Texas, carload rates not lower than 80 cents per 100 pounds. F. S. A. No. 13492, Barge AND RAIL Rates from and TO SOUTHWESTERN TERRITORY, filed by the Mississippi-Warrior Service (now Federal Barge Lines, Inc.), for itself and other carriers parties to the application. Decided June 1, 1955. Long-and-short-haul relief granted, on conditions, to maintain over railbarge, barge-rail, and rail-barge-rail routes, from and to points considered in docket No. 13535, Consolidated Southwestern Cases, 123 I. C. C. 203, and supplemental reports, class and commodity rates differentially related to rates prescribed or approved in the aforecited proceedings, plus subsequently authorized general increases.

F. S. A. Nos. 20996, 21427, and 22291, CITRUS FRUITS FROM LOUISIANA TO THE WEST, filed by W. P. Emerson, Jr., agent, for carriers parties to his tariff I. C. C. No. 212. Decided September 19, 1955. Long-and-short-haul relief authorized, on conditions, to maintain to destinations in southwestern and western trunkline territories, carload rates made in relation to rates on like property from Harlingen, Tex., or Lake Wales, Fla., to the same points.

F. S. A. No. 21536, CLASS RATes from and to HAYWOOD AND SAVANNA, OKLA., filed by D. Q. Marsh, agent, for carriers parties to his tariffs I. C. C. Nos. 3515 and 3527. Decided July 1, 1955. Long-and-short-haul relief granted, on conditions, to maintain for the transportation of property between points in Arkansas, Colorado, Kansas, Louisiana, Missouri, Nebraska, New Mexico, Oklahoma, South Dakota, and Texas, Natchez and Vicksburg, Miss., and Memphis, Tenn., on the one hand, and Haywood and Savanna, Okla., on the other, the lowest carload class rates (other than class rates prescribed or approved in Class Rate Investigation, 1939, 281 I. C. C. 213) that may be constructed over any line or route between the same points and Haywood or Savanna, whichever is lower.