I. C. C. 317, at page 328. In the circumstances we conclude that the commodity rate of 25 cents specificaly named on ties was applicable on complainants' shipments.

On May 23, 1947, subsequent to movement, the description in item 240 was amended so as to specifically include wooden railroad ties when shipped for export. Complainants take the position that in the event the rate of 25 cents is found applicable such rate was unreasonable to the extent that it exceeded the rate subsequently established. They stress that the ties shipped were low-grade material having value less than bridge ties, caps, stringers, sway braces and many other forest products covered by the lumber description on which the lower export rate applied.

Reference to a lower rate subsequently established on a given article of transportation ordinarily without additional supporting evidence raises no presumption that the rate in effect at time of shipment was unreasonable. In this connection, however, complainants show that export rates on ties were published generally from other points in Oregon to Portland which yielded much lower earnings based on a minimum of 70,000 pounds than those yielded by the domestic rate applicable on the considered shipments. Certain of the rates and earnings referred to are reproduced below:

1 Except as noted, the earnings shown are based on a minimum of 70,000 pounds. Rate on which reparation is claimed.

Based on average carloading of 93,313 pounds.

Revenue yielded by rate assailed based on average carload weight of the shipments.

The earnings yielded by the rate assailed, distance considered, are not in alinement with those from the other points shown in the table. Defendant testified that for many years the export rates provided on lumber in tariff I. C. C. No. 4918 from interior Oregon to Portland for export have been on a low basis in order to permit lumber mills on and off defendant's lines to compete in foreign trade with mills located at tidewater points in Oregon. In the early part of 1947, defendant ascertained that a considerable volume of railroad ties exported to

England was being hauled by motortruck direct to the ports. It was to meet this truck competition that item 240 was amended on May 23, 1947, so as to include wooden railroad ties.

The Commission has on occasions stated that there is nothing inherent in export traffic which entitles it to receive lower rates than domestic traffic and has generally adhered to the policy of not prescribing rates on export traffic lower than those maintained on domestic traffic where the circumstances and conditions attending both kinds of traffic are substantially the same. However, it has been also recognized that there are frequently cogent reasons why an export rate should be lower than the corresponding domestic rate and the Commission has in instances, where the circumstances warranted such action, prescribed lower rates. See Iron or Steel to the Pacific Coast for Export, 255 I. C. C. 739, at 754. In the instant proceeding the defendant voluntarily maintained much lower export rates on all kinds of lumber produced by lumber mills on its lines to Portland, without according the same basis of rates on railroad ties from Mapleton to Portland. Recognizing that the domestic basis was excessive, defendant established the lower export rate on ties immediately following the movement of complainant's shipments. In Rates on Lumber and Lumber Products, 52 I. C. C. 598, the Commission determined that, with relation to the rates on lumber, the rates on ties, sawed, split, or hewn, including such as cross, switch, railroad, street railway and mine ties, should not exceed the rates maintained on lumber for the same movement.

We find that the rate charged was applicable, but that it was unreasonable to the extent that it exceeded the corresponding export rate of 16 cents published by defendant on lumber. We further find that complainants made the shipments as described, and paid and bore the freight charges thereon at the rate herein found unreasonable; that they were damaged thereby in the amount of the difference between the charges collected and those which would have accrued at the rate herein found reasonable; and that they are entitled to reparation with interest. Complainants should comply with the provisions of rule 100 of the General Rules of Practice.

274 I. C. C.

No. 29810

FAIRHURST LUMBER CO. OF OREGON v. SOUTHERN PACIFIC COMPANY

Submitted October 11, 1948. Decided July 7, 1949

Rates charged on wooden railroad ties, in carloads, from certain origins in Oregon to Portland and Coos Bay, Oreg., for export, found applicable, but unreasonable. Reparation awarded.

E. F. Brady for complainant.

J. E. Lyons, Wm. Meinhold, G. H. Muckley, and Stanfield Johnson for defendant.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2:

The modified procedure was followed. The complainant filed exceptions to the examiner's proposed report. Our conclusions differ from those recommended by the examiner. Exceptions and requested findings not discussed in this report have been given consideration and found not justified.

1

The complainant corporation alleges, by complaint filed August 1, 1947, as amended, that the rates charged on 95 carloads of wooden railroad ties, shipped from Lowell, Chitwood, Toledo, Bear Creek, Rowland, and Swisshome, Oreg., to Portland, Oreg., and from Broadbent, Oreg., to Coos Bay, Oreg., for export between January 27 and April 24, 1947, were unreasonable, unjustly discriminatory, unduly prejudicial and preferential, in contravention of the long-and-shorthaul principle, and inapplicable, in violation of sections 1, 2, 3, 4, and 6, respectively, of the Interstate Commerce Act. We are asked to award reparation. No relief for the future is sought. In view of our conclusions, it will not be necessary to consider further the alleged unjust discrimination, undue prejudice, and fourth-section departure.

Commodity rates of 22 cents were charged on the traffic from Lowell, Chitwood, and Toledo, and 18, 20, and 25 cents, respectively, from Bear Creek, Rowland, and Swisshome under item 335-R of the defendant's tariff I. C. C. No. 4563. The defendant charged a rate of

1 Rates will be stated in this report in amounts per 100 pounds, and will include the authorized general rate increases effective January 1, 1947.

274 I. C. C.

9 cents on the shipments from Broadbent under item 290 of its tariff I. C. C. No. 4364. These two tariffs published commodity rates on lumber, veneer, and forest products, including ties.

The complainant contends that the defendant applied domestic lumber rates; that it should have classified ties as lumber; and that it should have charged the export lumber rates shown in item 240 of its tariff I. C. C. No. 4918 of 13 cents from Swisshome, 8 cents from Broadbent, and 11 cents from the remaining origins. The rates on export lumber were subject to a minimum of 70,000 pounds. The commodity description in item 240, in effect at the time of the shipments, follows:

Fir, Hemlock, Spruce, Cottonwood, Larch and Pine Lumber, viz.: the product of saw and planing mill plants, not further advanced in manufacture than by sawing, resawing and passing lengthwise through a standard planing machine, crosscut to length, and end matched.

Cedar Lumber and Cypress Lumber two feet or over in length, one inch or over in thickness and four inches or over in width.

To meet truck competition, this item was amended, effective May 23, 1947, after the complainant's traffic moved, to include wooden railroad ties.

Tariff No. 4563 shows on its title page that it is a local, joint, export, and proportional freight tariff, and applies to export as well as domestic traffic. Tariff No. 4364 shows on its title page that it covers local, joint, and proportional freight traffic. Neither of these tariffs published specific rates on ties for export.

The answer to the question whether the export rates on lumber or the domestic rates on ties were applicable on this traffic turns upon the correct interpretation of item 240. According to its terms, that item applied on specified kinds of lumber on which a limited amount of manufacturing had been done. Tariffs must be applied according to the language used. It is well settled that a commodity description must be applied strictly, and that it only includes articles clearly embraced therein. In view of the fact that ties are named in the tariffs which the defendant used, whereas item 240 covered only certain particular types of lumber, we conclude that the latter described a specific commodity, and that wooden railroad ties may not properly be construed as coming within that description. As the export lumber rate did not apply, the domestic rates on ties were applicable on this export traffic.

The average of the domestic rates assailed was 20 cents, whereas the average of the export lumber rates was 11 cents. In urging that the rates assailed were unreasonable, the complainant stresses the fact that the Union Pacific Railroad Company, and the Spokane, Portland

and Seattle Railway Company in connection with the Oregon Electric Railway Company (which parallels the defendant's line from Portland to Eugene, Oreg.), maintained the same export rates on wooden railroad ties as on lumber from points in Oregon to Portland and Vancouver, Wash. The defendant Southern Pacific Company also maintained the same export rates on ties and lumber from points in southern Oregon to the San Francisco Bay ports. One of the best tests of the reasonableness of a rate is its comparison with rates available on the same or comparable commodities from and to points in the same general territory.

While the subsequent establishment of a lower rate ordinarily raises no presumption that the rate in effect at the time of shipment is unreasonable, in view of the fact that the defendant provided for the application of the lower export lumber rates on ties from and to the points under consideration almost immediately after complainant's shipments moved, the further fact that wooden railroad ties generally were accorded the same rates as lumber, and the following showing of the ton-mile revenue under the assailed and subsequently established rates, the conclusion is warranted that the rates assailed exceeded the maximum of reasonableness.

The shipments were transported in gondola cars. The minimum weight for wooden railroad ties when loaded in or on open cars, singlecar lengths, was 57,000 pounds, except that when compactly loaded to a height of 13 feet above the rail and to 90 percent of the floor space of the car, actual weight, but not less than 40,000 pounds, applied. Three of the 95 shipments under consideration met the exception specifications, and the actual weights applied were 51,880, 53,600, and 55,800 pounds. Charges on the remaining shipments were based on weights of 57,000 to 115,980 pounds. The rates subsequently established, and here sought as the measure of reparation, are subject to a minimum of 70,000 pounds. Although about 20 percent of the 95 shipments weighed less than 70,000 pounds, the freight charges at the subsequently established rates would be less than those which were collected.