to adjust the charges to the basis of the rate of $1.98 and a carload minimum of 24,000 pounds for each of the three cars used. Complainant bore the freight charges. At the time the shipment moved, Second Revised Service Order No. 104 was in effect. After reciting that the shortage of cars constituted an emergency which required immediate action, that order provided that, under certain circumstances, refrigerator cars could be substituted by the carriers in lieu of a boxcar ordered, subject to the carload minimum that would have applied if the shipment had been loaded in a boxcar. The origin terrritory specified in the order included Gardner, but the destination territory specified did not include Seattle. By its terms the order became effective September 2, 1945, and expired with April 1, 1946. Agent Kipp's tariff I. C. C. No. 1509 named rates on the shipment. Supplement No. 33 to that tariff contained a reproduction of Second Revised Service Order No. 104. The supplement was issued September 11, 1945, and was filed with the Commission on September 12, 1945. The provisions of the service order remained in effect without change until January 21, 1946. The shipment of gocarts, tendered for transportation on December 12, 1945, was not affected by the provisions of the service order as it did not include Seattle. The rate tariff mentioned above provided alternating carload rates of $2.64, carload minimum 14,500 pounds for cars less than 40 feet 7 inches in length and 18,500 pounds for cars 40 feet 7 inches to and including cars 50 feet 6 inches in length, and $1.98, carload minimum 24,000 pounds. The paid freight bill lists the car initials and number of one car to have been ART 16885. Reference to the Railway Equipment Register shows the inside measurement of this car as 32 feet 11.5 inches. The other two cars were of similar size, all three being under 40 feet 7 inches in length. The lading was divided as follows: 8,224 pounds in each of two cars and 8,220 pounds in the third car. The rate of $2.64 produces charges of $1,148.40 for the shipment which is less than the charges at the rate of $1.98. The rate of $2.64 was applicable. At the time the shipments moved, there was no tariff rule which authorized the carriers to substitute the cars used in lieu of the boxcar ordered by the complainant for movement of a shipment from Gardner to Seattle. Complainant was assured by the carrier's agent at Gardner that the charges would be the same for the use of three refrigerator cars as for the use of a car of the size ordered. The substitution was made by and for the convenience of the carriers. In Imperial Paper & Color Corp. v. Delaware & H. R. Corp., 272 I. C. C. 141, a similar situation was considered by division 3. In that 274 I. C. C. proceeding, three refrigerator cars were substituted for a boxcar ordered by the shipper, there was no tariff authority for such substitution, and it was done for the carriers' convenience. The applicable charges were found to have been unreasonable. That proceeding was cited and followed by division 3 in American Radiator & Standard Sanitary Corp. v. P. R. Co., 272 I. C. G: 488. A similar conclusion is warranted in the instant proceeding. We find that the rate of $1.98 was inapplicable on complainant's shipment of gocarts; that the applicable rate was $2.64; that this latter rate resulted in charges that were unreasonable to the extent that they exceeded charges based upon the rate of $1.98 and the actual weight of the shipment; that complainant made the shipment as described and bore the charges thereon; and that it was damaged thereby in the amount of the difference between the charges borne and the charges found reasonable and is entitled to reparation in the amount of $937.17, with interest. An order requiring the payment of reparation will be entered. 274 I. C. C. No. 29788 BANANA SUPPLY COMPANY v. BEAUMONT, SOUR LAKE & WESTERN RAILWAY COMPANY ET AL. Submitted January 24, 1949. Decided April 6, 1949 Rates on imported bananas, in carloads, from Brownsville, Tex., to St. Louis, Mo., not shown to have been, or to be, unreasonable or unduly prejudicial. Complaint dismissed. J. W. Carlisle for complainant. Glenn S. Givens, A. B. Strunk, W. C. Neely, and G. F. Harrelson for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MILLER, ROGERS, AND PATTERSON BY DIVISION 3: No exceptions were filed to the report proposed by the examiner. Complainant is engaged in a general produce business at St. Louis, Mo. By complaint filed July 2, 1947, as amended at the hearing,1 it alleges that the rates' charged on bananas of Mexican origin, in carloads, minimum 20,000 pounds, from Brownsville, Tex., to St. Louis, Mo., were and are unreasonable and unduly prejudicial, in violation of sections 1 and 3 of the Interstate Commerce Act. The prayer is for reasonable and nonprejudicial rates and reparation. Subsequent to the filing of briefs, defendants moved to strike certain portions of complainant's brief which they contend contain factual statements in some instances in error, and in other instances not supported by the record, and a reply thereto was filed by complainant. The statements to which objection is taken are of no consequence in the proper determination of the issues. Consequently, a ruling upon the motion is unnecessary. 3 The assailed rate of $1 is compared by complainant with banana rates from other Texas ports and ports in Louisiana to St. Louis and Kansas City, Co., Colorado common points and in some instances, 1 The amendment eliminated issues under section 2 of the act, and those relating to carloading and wharfage charges at Brownsville. The rates stated in this report are in amounts per 100 pounds, and, except as indicated do not include general increases authorized in 1946 and thereafter. Beaumont, Galveston, Houston, Orange, and Port Arthur. New Orleans and Lake Charles. Memphis, Tenn., and Oklahoma City, Okla. The table below, which is illustrative, contains the rates and also distances, car-mile yields, and the percentage ratio to the corresponding first-class rates: 1 Galveston and New Orleans are representative of the other Gulf ports. Denver is representative of other Colorado points. Complainant seeks a rate of 83 cents which is the rate from Galveston and New Orleans and other Gulf ports, west of New Orleans. Complainant contrasts the equalization of banana rates from Brownsville and Galveston to Colorado and Kansas City with the absence of a similar equalization to St. Louis. Differences in distances, Brownsville over Galveston, are to Denver, 229.2 miles, to Kansas City, 186.2 miles; to St. Louis the difference is 309.8 miles. The shortline distances to Denver from Brownsville and New Orleans are 1,311 and 1,291 miles, respectively, a difference of 20 miles. In its brief, complainant directs attention to the maintenance of the same rate to Denver from Laredo, Tex., 1,179 miles, as from Brownsville and Galveston, 1,322.5 and 1,093.3 miles, respectively; and similar equalization of rates to Kansas City from these three origins, 914, 1,026.9 and 840.7 miles, respectively. The Laredo rates are percentages of first class that are somewhat lower than the percentages that Galveston rates are of first class but higher than such percentage relations of the Brownsville rates. To support the equalization of Brownsville with other Texas ports complainant emphasizes the departures shown by the table in respect of the ratios of the compared commodity rates to first-class rates from the maximum reasonable basis of 45 percent of first class prescribed in numerous prior decisions. It recognizes, however, that, with few exceptions, rates within the area under consideration are lower than rates on the prescribed basis, but it is urged, nevertheless, that defendants' equalization of banana rates in some instances, and failure to establish similar equalization in other instances results in a lack of uniformity which adversely affects the interests of complainant in respect of its purchases at Brownsville. In competition with other produce merchants at St. Louis obtaining bananas at New Orleans, complainant absorbed the 17-cent difference between the New Orleans and the Brownsville rates. In 1945, because of the short supply at New Orleans and more favorable relations with importers at Brownsville, complainant purchased most of its bananas, about 350 carloads, at the latter port. In 1946, purchases there aggregated from 250 to 300 carloads. In 1947, up to the date of the hearing on October 24, purchases at Brownsville did not exceed 35 carloads, other supplies having been obtained at New Orleans, other Gulf ports east thereof, and Miami, Fla. The trend in the aggregate imports of bananas through the Texas and Louisiana ports during 1944-46, inclusive, shown by the following table, and particularly the increase in the movement by truck from Brownsville to interior destinations, also is relied upon by complainant as indicating a need for a reduction of the assailed rate: 1 Converted from net tons to carloads based on average loading of 22,200 pounds. It is argued that the reduction sought would effect a return of the traffic to the rail lines. It is not shown that trucks have participated in shipments from Brownsville to St. Louis. Complainant relies also upon defendants' origin grouping and rate equalization practices in respect to fresh vegetables, canned goods, and grain. The area in east and south Texas producing large quantities of fresh vegetables is divided into two groups, one lying north and east of a line drawn from San Antonio through Alice to the Gulf coast south of Corpus Christi, and the other lying west and south thereof. In each area all of the origin points are grouped, but from each origin group to destinations in Missouri, Oklahoma, Kansas, and beyond, there are varying rates. From the more distant group, which includes Brownsville, the rates are 4 cents to some destinations, and 5 cents to others, greater than from the other group which includes the alleged preferred Texas ports and extends west to Austin and Fort Worth, and north to the Texas-Oklahoma border. The afore-men |