HEATING: That definition of "transportation" in sec. 1 (3) (a) does not spe-
cifically enumerate protective service against cold, heaters, or heater service does
not relieve rail carriers of duty to furnish such protection on perishable shipments.
Such service is an "instrumentality and facility of shipment or carriage" and a
"service in connection with the receipt, delivery * * * and handling of
property transported," within general terms of that definition. Charges for Pro-
tective Service to Perishable Freight, 751 (756);
-Clearly Congress, by specifically mentioning "ventilation" and "refrigeration
or icing" in amendment of that definition by the Hepburn Act, had in mind pro-
tective service in general, as ventilation is protection against either heat or cold;
and confirmatory evidence that Congress intended by its earlier enactments to
embrace protection against cold is found in Transportation Act of 1940, which
made contracts for furnishing of protective service against heat or cold subject to
Commission's approval, and required persons furnishing such service to submit
their accounts to Commission's inspection. Id. (756, 757);
-And holding of 242 U. S. 208 that the Hepburn amendment did not modify
original definition of "transportation" as embracing "all instrumentalities of ship-
ment or carriage" precluded successful contention that failure to specify protective
service against cold excluded it under doctrine of expressio unius est exclusio alterius.
Id. (757, 758);
-Moreover, protection of perishable freight from damage by severe cold is no
less an element of providing that "safe" handling, transportation, and delivery of
property which is made the duty of all common carriers by sec. 1 (6) than is pro-
tection of certain commodities from damage by rain, which is an accepted obliga-
tion. Id. (758);
-As such protection is indispensable to distribution and marketing in cold
weather of perishable commodities of which the public is in need of a regular year-
around supply, nothing less than unequivocal language evincing intent of Congress
to except such protective service from the comprehensive definition of "transporta-
tion" is acceptable. There is no such language in the act. Id. (757);
-And the duty to furnish protective service from cold being a common-carrier
duty, carriers may not make extent of demand the determinant of whether they
will furnish the service. Id. (763);
-Finally, under doctrine of administrative construction Commission has juris-
diction to require such service. Jurisdiction over protective service against heat
was asserted from an early date, and there is no jurisdictional difference between
enforcement of that service and protective service against cold. Both were
treated at length in 56 I. C. C. 449, at request of Director General of Railroads,
and weight of views expressed in that proceeding was not lessened by Commis-
sion's lack of authority over acts of the Director General. Id. (759).
Carriers should establish "carriers' protective service" against cold on perish-
able freight in eastern territory before commencement of winter season of 1949-50,
but in any case by March 1, 1950. Lowest daily temperature likely to be en-
countered by such shipments in that territory in winter months of each year was
such that protection was necessary, and there was a shippers' need and demand
for it. Id. (764, 771);
-However, requirement of that service neither contemplated compulsory use
by shippers nor precluded arrangements between shippers and carriers for com-
pulsory service in instances where considered desirable. Id. (754);
-And heater service furnished at shipper's request and risk under existing
tariff provisions was not in issue. That service bore same relation to as service
prescribed as lesser protective services against heat bore to standard refrigeration
service; it satisfied entire needs of some shippers and might be chosen by any
and unduly prejudicial to interstate shippers who were at serious disadvantage
in competing in Alabama markets. Intrastate rates should be increased to basis
of interstate rates prior to effective date of first interim increase authorized in
Ex Parte No. 166. Increases in Alabama Frt. Rates and Charges, 439;
-The lower Alabama rates caused diversion of traffic normally moving over
interstate routes to unnatural and more expensive intrastate routes, resulting in
added burden on interstate commerce, since interstate carriers were forced to
meet, over normal interstate routes, the lower rates maintained over competing
intrastate routes. Id. (462).
That intrastate rates on coal from Illinois mines to Alton-Wood River-East St.
Louis district were now lower than interstate rates to St. Louis by more than 25-
cent differential prescribed 20 years earlier was not shown to be unduly prejudicial
within sec. 13 (4) when general character of industries on east and west sides of
the river differed, there was proof of competition between east side and west
side manufacturers on only two or three articles and no evidence of competitive
practices of those industries or of extent to which rail-borne coal entered into
manufacturing cost of those items, or that vendors of any of them had been ad-
versely affected by the rate relation, and it was not shown that any shipper in
St. Louis area had suffered injury or that any consumer had changed to coal
shipped under the intrastate rates. Coal from Illinois to Alton and East St. Louis,
637 (640, 665, 668);
-Nor did comparison with interstate and intrastate coal scales prescribed for
same general territory indicate that the intrastate rates were abnormally low or
discriminated against interstate commerce by failing to contribute their fair share
of revenues. Mere showing that if they were increased to restore the 25-cent
differential and volume of traffic remained constant they would produce so many
dollars of additional revenue did not prove unjust discrimination under sec. 13
(4). Id. (650, 669).
RATES: Increases proposed in intrastate rates on coal from Illinois mines to
Alton-Wood River-East St. Louis district, to restore former spread under St.
Louis which had been widened as result of State commission's failure to permit
same general increases as in interstate rates, found not justified when existing
rates were not unreasonably low and did not cast an undue burden on interstate
commerce, and increases proposed from Belleville and DuQuoin groups would
exceed those authorized in general increase proceedings for rates of same levels.
Coal from Illinois to Alton and East St. Louis, 637 (640, 670, 671).
Authority over intrastate rates under sec. 13 (4) is conferred on Commission
as an incident to regulation and protection of interstate commerce, and must be
considered and exercised in light of sec. 15a. Where there is evidence that intra-
state traffic, because of inadequacy of intrastate rates, is not contributing its fair
share of revenues required for furnishing the adequate and efficient railway trans-
portation service, both interstate and intrastate, contemplated by the act, Com-
mission may require those rates to be raised to a level which will accomplish that
purpose and thus end an unjust discrimination against interstate commerce.
Id.
(668);
-But before entering a thirteenth-section order requiring increase of State
rates, it must first be found that the interstate rates are, and that the intrastate
rates when so increased will be, just and reasonable. When evidence showed
that the intrastate rates were not unreasonably low, but that the interstate rates
were unreasonably high, no order could be entered under that section. Id. (669,
672).
RATE STRUCTURE.
RAW MATERIALS. See REASONABLENESS (Raw vs. Finished Products).
REASONABLENESS. See also ADMISSIONS; CLASSIFICATION (PROPERTY);
DIRECTION; INCREASED RATES; INTRASTATE COMMERCE (Rates); VALUE; and
particular types of rates or service.
COMPETITION: Assailed rates on crude sulphur on basis 13.5 percent of first-
class, which applied generally between considered territories, were not unreason-
able when lower rates to certain destinations were compelled by water or water-
truck competition, and compared rates on other commodities by market compe-
tition, not affecting considered traffic. Marion Mfg. Corp. v. Akron, C. & Y. R.
Co., 493 (495, 496, 498).
DISTURBANCE OF ADJUSTMENT: Disruption of existing adjustment on sand,
gravel, and crushed stone to central and southern Illinois, which had been agreed
on by carriers and shippers, including complainant, some 20 years earlier, by
prescription of distance basis was not warranted when complainant's rates from
Riverton, Ind., to points within 120-mile radius were reasonably related to those
of competitors, it marketed 96 percent of its commercial rail shipments in that
territory, and its operation under that adjustment had been profitable. Merom
Gravel Co. v. Illinois Central R. Co., 217 (219, 228).
GRADE AND STATE OF COMMODITY: That carriers voluntarily maintained lower
rates on fine than on lump coal did not justify prescription of such lower rates.
Midwest Coal Traffic Bureau v. Atchison, T. & S. F. Ry. Co., 33 (47).
PRESCRIBED OR APPROVED RATES: Rate 29 percent of first class on imported
bananas from Brownsville, Tex., to St. Louis, found not unreasonable when no
rate lower than 45 percent of first class had been prescribed from Texas ports or
Mexican border crossings, and lower rates from compared ports were higher
percentage of first class than assailed rates. Banana Supply Co. v. Beaumont,
S. L. & W. Ry. Co., 53 (58, 59).
RAW VS. FINISHED PRODUCTS: Allowing for waste resulting from processing
crude brucite to produce dead-burned magnesite, rate on brucite from Luning,
Nev., to Narlo, Ohio, 68.2 percent of rate on magnesite from western producing
points to transcontinental group including Narlo was not unfavorably related.
Magnesite, General Increases, 253 (268).
RELEVANT FACTS: In fixing rates many factors must be considered, such as
weight, volume of movement, value, cost of service, competition, loss and damage
claims, packing requirements, revenue yielded, etc., and mere showing of dis-
parity of transportation charges as between different commodities, even though
in same category, does not establish unreasonableness. Webrib Steel Corp. v.
Reading Co., 363 (366).
RIGHTS OF SHIPPER: Although no movement of aplite rock to New England
was shown, complainant was entitled to ship to such points at reasonable rates.
Same basis was therefore prescribed to New England as to remainder of official
territory. Dominion Minerals, Inc., v. Akron, C. & Y. Ry. Co., 73 (83).
REBATES. See SPOTTING (Allowances).
RECEIVERS. See PARTIES (Defendants).
RECONSIGNMENT AND DIVERSION. See DeMURRAGE (Causes Relieving
From Charges; Schedules); ERROR.
REDUCTIONS. See also DAMAGES (General Readjustment); INCREASED
RATES; PREFERENCE and PREJUDICE (Equality of Treatment): Transporta-
TION (Cost to Shipper).
VOLUNTARY: That carriers had voluntarily provided for application of lower
export lumber rates on export shipments of wooden railroad ties immediately
after considered shipment moved, together with fact that wooden ties generally
Formal complaint was seasonably filed as to shipments delivered more than 2
years earlier but embraced by informal complaint filed by a practitioner, when
presumption of his authority to act for complainant was not rebutted. While
formal complaint was filed more than 6 months after Commission notified the
practitioner that its file would be closed on the informal complaint because ship-
ments were included in rule 5 statements submitted in another docket, the in-
formal complaint was reactivated after carriers declined to dispose of the matter
on that docket, and informal file had not been closed when formal complaint was
received. Standard Cap & Seal Corp. v. Delaware, L. & W. R. Co., 357.
Complaint not filed within 2 years after delivery of shipments or within 6 months
after carriers' disallowance of overcharge claim was barred by sec. 16 (3). The
statutory period having expired, neither carriers' subsequent discussion of merits
of claim, nor letter of intermediate carrier's claim agent advising complainant
that claim had no merit and was barred by the statute, could revive a dead matter.
Plastic & Die Cast Products Corp. v. Pacific Elec. Ry. Co., 500.
Expiration of the statutory period for filing claims or complaints not only bars
the remedy but destroys the liability. Id. (502).
LINE-HAUL RATES. See DELIVERY; LIVESTOCK; SPOTTING.
LIVESTOCK. See also EVIDENCE (Relevance); MARKETS; SIMILAR CIRCUM-
STANCES AND CONDITIONS (Discrimination or Prejudice).
IN GENERAL: Although, under long-standing terminal practice in stockyards
area served by Chicago Junction Ry., Junction did not handle ordinary livestock,
that traffic being handled entirely by line-haul carriers, it published switching
charges on "all carload freight," which, without qualification, included livestock.
There was therefore a holding out to switch livestock to and from industries,
sidings, team tracks, and districts listed in its tariff. Swift & Co. v. Atchison,
T. & S. F. Ry. Co., 557 (559, 576);
-And while its service, tracks, and yards were not adapted for direct delivery
of any substantial volume of livestock to packing plants, its proposal to except
livestock from traffic it would transport, and to cancel application of its switching
charges thereon, except to and from Union Stock Yards, was not justified. Main-
tenance of a switching charge on livestock would not adversely affect terminal
operations. Id. (569, 573, 576).
DELIVERY: Commission may disapprove inauguration of a continuing practice
of delivering livestock directly to packers under line-haul rates where such prac-
tice would seriously interfere with, delay, and disrupt terminal operations and
the movement of livestock generally. Swift & Co. v. Atchison, T. & S. F. Ry. Co.,
557 (573);
-Therefore, requirement of free delivery of direct livestock shipments on siding
of complainant's proposed new packing plant served only by Chicago Junction
Ry. was not warranted when Junction's terminal services had been developed for
handling of dead freight only. in conjunction with centralized delivery of live-
stock to Union Stock Yards by line-haul carriers, and its customary operating
methods were not adapted to livestock traffic. Id. (568, 573);
-And while livestock consigned to complainant could be handled in consoli-
dated trains by grouping cars at head of train with cars of dead freight intended
for set-out in Junction's receiving yard, nevertheless, because of difficulties peculiar
to livestock traffic, such handling would adversely affect line-haul carriers' opera-
tions in carrying traffic to Union Stock Yards, as all such traffic must move over
Junction's in-bound track and any delay in unloading stock would tend to delay
and pile up other trains seeking ingress to the stockyards. Id. (569);
-Moreover, if one of Junction's classification tracks was used for complainant's livestock shipments, cars would often be blocked between cars of dead freight and would have to be dug out for a special run to complainant's plant. In some instances, Junction might have to make a special run immediately on arrival of a consolidated train, since in practically all instances livestock arriving at Chicago has only a limited time left before it must be unloaded to comply with the 28-hour law, and Junction had no facilities for feeding and watering, while such facilities of line-haul carriers were very limited. Id. (570);
-Even if the time factor created by the 28-hour law were eliminated or minimized, livestock cars for complainant's plant, if handled in regular course, would have to be classified, etc., together with cars of dead freight; and because livestock cars and dead-freight cars handled with them could not be switched in usual expeditious manner but must be carefully placed to avoid injuring animals, interferences and delays in Junction's yards and to livestock trains headed for the stockyards would result. Considering the congested condition of Junction's yards and tracks, handling of even 18 cars daily (complainant's current average), would considerably delay and burden its operations, and record showed that proportion of complainant's direct shipments to those bought at stockyards was increasing. Id. (571);
-Moreover, probability of similar demands by other packers if complainant's demand for private track deliveries at line-haul rates were fully granted, and the required avoidance of undue prejudice, must be considered. Other packers would be under strong competitive compulsion to construct the requisite tracks and unloading facilities to support such demands, and complainant conceded that if they did so they would be entitled to like delivery service at like rates. Such service, together with service rendered complainant, would seriously interfere with, delay, and disrupt carriers' terminal operations in delivering livestock to the stockyards and other freight to industries on Junction's line. Id. (568, 572). RATES AND CHARGES: Rates on horses on prescribed basis 115 percent of cattle rates were not unreasonable merely because the horses were intended for slaughter or because assailed rates were subsequently reduced to cattle basis, since apart from differences in value there are no distinguishing transportation characteristics that justify lower rates on horses for slaughter than on work horses. Jordan Bros. Co. v. Atchison, T. & S. F. Ry. Co., 510.
Requirement that Chicago Junction Ry. join in joint rates on direct shipments of livestock to complainant's proposed plant served only by it was not necessary or desirable when it would lead to demands for similar free private-track deliveries by other packers, which would overtax Junction's facilities and disrupt established terminal practices in the stockyard area. Line-haul rates on livestock to Chicago applied only to deliveries served by line-haul carriers, and Junction was not shown to participate in any from southwestern or w. t. 1. territory. Swift & Co. v. Atchison, T. & S. F. Ry. Co., 557 (573, 574);
-And while, in prescribing the line-haul rates, Commission included an amount considered sufficient to cover terminal services under normal operation, as well as unloading and loading at public stockyards, it did not consider what services would be required for deliveries by Junction on private industrial tracks, as that carrier did not perform such services. Id. (574);
-Junction's published switching charge, which had been found reasonable for similar private track deliveries of livestock sought by another plant served only by it, was appropriate for any switching of livestock cars to complainant's proposed plant, and its addition to line-haul rates would not be unreasonable, considering services and modifications of service required for the desired deliveries, d effect thereof on terminal operations generally. Id. (573, 575).
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