CONSTRUCTION AND INTERPRETATION. See also CAR-RENTAL CHARGES (Prescription); EXPORT TRAFFIC; PROTECTIVE SERVICES (Heating); SCHEDULES. ADMINISTRATIVE CONSTRUCTION: Holding in 242 U. S. 208, that Commission could not order a carrier to furnish tank cars for petroleum traffic because amendment of definition of transportation by Hepburn Act did not enlarge its scope, and that such action was precluded, under doctrine of administrative construction, by Commission's findings prior to that amendment that it lacked such jurisdiction, could not be construed as denying jurisdiction over any other matter arising under sec. 1 (3) (a) in light of 333 U. S. 169, which upheld finding in 266 I. C. C. 55 that certain provisions of the act, including that section, clearly conferred the power to regulate and control carriers' practices affecting transportation of property. Charges for Protective Service to Perishable Freight, 751 (758, 759). IN PARI MATERIA: Since sec. 8 makes carriers liable for damages resulting from violations of part I, and sec. 16 (1) empowers Commission to order payment thereof, Commission's power to fix compensation to be paid car owners for past periods, under sec. 1 (11) prohibiting unjust and unreasonable car-service rules and practices and sec. 1 (14) (a) empowering it to prescribe reasonable rules, including compensation, did not differ from its authority to pass on past unlawful freight rates or passenger fares under secs. 1, 2, and 3. Keith Ry. Equipment Co. v. Assn. of American Railroads, 469 (472); -Even aside from those provisions, Commission's authority to determine car-rental charges for past periods would not differ from that respecting motorcarrier rates, rules, and practices under part II, discussed in 43 M. C. C. 337. Id. (472). CONTINUANCES. See COMPLAINTS (Informal). CONTINUITY OF MOVEMENT. See PROPORTIONAL RATES. OUT-OF-POCKET COSTS: Where intrastate and interstate traffic move under substantially similar conditions and costs of handling the two classes of traffic are woven together, it is unnecessary in a proceeding under sec. 13 (4) to show out-ofpocket cost of intrastate traffic and value of carrier property used for such transportation separately from interstate costs and values. Increases in Alabama Frt. Rates and Charges, 439 (463). COURTS. See CONSTITUTIONAL LAW; DAMAGES (Insolvent Carriers). INSOLVENT CARRIERS: When defendants had undergone receivership or reorganization since considered overcharge claims arose, question whether their liability or that of their receivers passed to their successor companies was for determination by the courts. However, as record did not show whether considered claims had been presented to the courts, since only typical examples representing many claims were given in the two formal complaints considered, reparation was awarded. Midland Flour Milling Co. v. Atchison, T. & S. F. Ry. Co., 281 (300).. PENDENTE LITE: Reparation may be awarded on shipments moving during pendency of a complaint, even though there is no specific prayer to that effect. Harrison Construction Co. v. Baltimore & O. R. Co., 317 (321). DELIVERY. See also EXPORT RATES (Schedules); LIVESTOCK; SIMILAR CIRCUMSTANCES AND CONDITIONS (Discrimination or Prejudice); SPOTTING. DUTY OF CARRIER: When line-haul carrier was obligated under shipside rates to make delivery at dock, and in furtherance of that duty it had by written contract employed wharf company to perform unloading and reserved a measure of control over latter's services, fact that tracks at the dock were owned by the wharf company, and that it undertook to act independently in ordering placement of cars on dock, did not relieve line-haul carrier of its duty under the act to make proper delivery under the transportation contract. Albert Schwill & Co. v. Illinois Central R. Co., 689 (693). SERVICES REQUIRED: When bargeload shipments of bulk grain moved at "free on and off" rates which applied from "in barge" at origin to "in barge" at destination, and included only spotting of barge at shipper's loading or unloading facilities, transfer by barge line from barge to cars and switching to complainant's elevator, or equivalent, was necessary when river stage was too high for delivery of barge at complainant's dock. The situation was similar to unavoidable interference or delays due to rain or other weather conditions over which neither shipper nor carrier has any control and against which it is reasonably impracticable for shipper to equip himself. Continental Grain Co. v. Inland Waterways Corp., 339 (347). TENDER OF: As barge line's tariffs did not specifically define "tender for unloading," meaning thereof must be determined by general customs, practices, and understanding of shippers and carriers in handling bargeloads of bulk commodities at "free on and off" rates, under which unloading was consignee's obligation. Complainant's witness conceded that it had always been custom and understanding of complainant and defendant that written notice of arrival of barge at fleet point constituted tender for unloading. Clearly such notice was in nature of a constructive placement notice, which includes a tender. Continental Grain Co. v. Inland Waterways Corp., 339 (346). DEMURRAGE. See also CONSIGNEE; EMBARGOES; SHORT LINES; STORAGE. AVERAGE AGREEMENT: Assuming that complainant could have unloaded certain cars on which demurrage accrued within free time if carrier had granted it larger platform space, protected from weather, and had placed cars in order of arrival, nevertheless, as complainant was operating under an average agreement, unfavorable conditions such as weather and placement out of order were presupposed. United States Trucking Corp v. New York, N. H. & H. R. Co., 552 (555). CARS HELD FOR CONSIGNOR OR CONSIGNEE: Cars held on carrier's tracks awaiting industry's spotting orders, under procedure developed over the years by carrier and the industry, and handled in customary manner for the industry's convenience, were cars held "for or by" consignee within demurrage rules expressly made applicable to cars so held, and demurrage charges applied in absence of any provision in demurrage tariff excusing or canceling them. Security Whse. Co. v. Chicago, St. P., M. & O. Ry. Co., 503 (507). CAUSES RELIEVING FROM CHARGES: Demurrage rule 8 applies only where unloading and release of cars is prevented by a strike of consignee's employees, and detention of car at port of transshipment because of water carrier's failure to call at the port owing to a seamen's strike was not a similar circumstance establishing unreasonableness of applicable demurrage charges, since during entire detention period shipment was under complainant's control and could have been reconsigned or unloaded into storage at any time. Union Oil Co. of California v. Pennsylvania R. Co., 303 (305, 306). When barge line's demurrage rules applied only when barge was to be unloaded by shipper and line-haul rates applied on freight "on and off" barge, shipper could not reasonably be relieved from paying demurrage for detention of barges due to low river stages, a condition beyond control of shipper or carrier. Continental Grain Co. v. Inland Waterways Corp., 339 (343). Where proximate cause of detention is of consignee's own making, no relief from applicable and otherwise reasonable demurrage charges can be granted. Proximate cause of detention resulting in assailed charges was contract made by complainant, whereby it obligated itself to accept considered shipments when and as made, without notification until after they were en route or had arrived at destination. Froehling Supply Co. v. Atchison, T. & S. F. Ry. Co., 513 (519). Following end of a truckers' strike and concurrent embargo of complainant, a distributor by truck of shippers' freight, shippers immediately began loading accumulated orders, resulting in congestion of cars consigned to complainant at carrier's yard. As complainant showed due diligence in effort to avoid detention by operating on Saturdays and a holiday, by loading its equipment with deliveries for customers who would not receive shipments on those days, and by willingness to operate night shifts if carrier permitted, it was entitled to relief from penal portion of demurrage charges. United States Trucking Corp. v. New York, N. H. & H. R. Co., 552 (553, 556). That complainant was prepared to operate night shifts to unload accumulated cars, but was not permitted to do so because carrier used tracks serving complainant's platform in its regular switching operations after 6 p. m., did not relieve it of liability for demurrage, since carrier was not obliged to change operation of its yard, satisfactory under normal conditions, to enable complainant to meet an emergency. Id. (554, 555). When carrier, because of operating difficulties and congestion of its yards, was unable to spot cars held for complainant on complainant's siding within a reasonable time after receipt of placement orders, and complainant could have unloaded them within a reasonable time had they been delivered as called for, the proximate cause of detention was carrier's failure to provide adequate spotting service, and collection of demurrage charges for period between receipt of placement orders and actual placement was unreasonable. Security Whse. Co. v. Chicago, St. P., M. & O. Ry. Co., 503 (507, 508, 509); -But complainant was not entitled to relief on cars for which it failed to issue spotting orders promptly as siding space became available. It had ample storage space and could readily have given carrier a description of alternate cars for spotting, which would have lessened total demurrage charges, aided in relieving carrier's operating difficulties, and furthered objectives of service orders under which the demurrage charges were assessed. Id. (507, 508, 509). Since neither shipper nor consignee can insist on placement of an embargo as a matter of right, acceptance or forwarding of shipments to an embargoed industry or point does not relieve consignee from demurrage charges. Froehling Supply Co. v. Atchison, T. & S. F. Ry. Co., 513 (518); -And knowledge by complainant of embargo against it did not appear necessary to enable it to arrange for diversion of cars. It was aware of the accumulation of cars awaiting its unloading, and as it was apparently in position to divert cars en route, due diligence demanded that it do so. Id. (519). CHARGES: Barge line's demurrage charges at St. Louis of $35 per barge per day for first 3 days after free time, $50 for each of next 5 days, and $75 for each succeeding day, regardless of size of barge or tonnage of lading, found not unreasonable when barges in actual line-haul service yielded about $90 per day for a 2,000-ton load of grain and $30 for a 500-ton load. Continental Grain Co. v. Inland Waterways Corp., 339 (341). To best serve the shipping public, a carrier must see that its cars and tracks are released within a reasonable time, and it may impose reasonable charges to effect their prompt release. Security Whse. Co. v. Chicago, St. P., M. & O. Ry. Co., 503 (509). EXPORT TRAFFIC: Demurrage charges claimed under Service Order 242-B on cars containing export shipment, detained at port because of wharf company's delay in ordering placement on dock when arrival of vessel was delayed, were inapplicable when transportation contract called for shipside delivery and the wharf company was carrier's agent for performance of that duty Albert Schwill & Co. v. Illinois Central R. Co., 689 (692, 693). FREE TIME: Additional free time at St. Louis during low river stages was not required for unloading bargeload shipments when only 1 of 36 barges consigned to complainant was held beyond free time during low water. Complainant had recognized its obligation to furnish adequate unloading facilities when the river was as low as "minus 6," and while its procedure entailed extra cost, it was a matter beyond the barge line's control. Continental Grain Co. v. Inland Waterways Corp., 339 (343). Notwithstanding provision of barge line's tariff naming rates on bulk grain, that it would not be responsible for shipper's failure to unload barges within specified free time at facilities not owned by it, evidence supported finding that its demurrage rules at St. Louis were unreasonable in failing to exclude from computation of free time hours and minutes actually lost during periods when river stage at complainant's dock exceeded 24.5 feet. Id. (348). RULES, GENERALLY: River stages and facilities at other destinations or port areas to which complainant might or might not have been able to divert its shipments for unloading were not determinative of reasonable demurrage rules respecting high water at complainant's dock, where all considered shipments were actually unloaded. Continental Grain Co. v. Inland Waterways Corp., 339 (348). SCHEDULES: Since, under demurrage tariff provision that disposition at point of detention determines purpose for which car is held, in absence of contrary provision, shipment intended for intercoastal movement but reconsigned from transshipment port after detention during seamen's strike must be considered as having been held for reconsignment and therefore not within Amendment No. 1 to Service Order No. 559, exempting intercoastal traffic held in cars at ports for transshipment from penalty demurrage charges therein prescribed. Rules and charges on reconsigned traffic applied. Union Oil Co. of California v. Pennsylvania R. Co., 303 (305). Demurrage charges claimed by terminal carrier on cars of export shipments detained at port facility because of line-haul carrier's failure to hold cars on their tracks during free time allowed by their tariffs, found inapplicable. Complainant's evidence indicating that its staff tried unsuccessfully to induce those carriers so to hold shipments was not refuted by testimony of freight agent of one carrier and cashier of the other, who were not persons normally concerned with such matters at a large city. Moreover, under terminal carrier's tariff computation of demurrage time could not begin before notice of arrival was sent, and its failure to give such notice was not redeemed by sending of arrival notices by linehaul carriers, since their demurrage tariffs did not apply to cars on its line, or vice versa. Ernest v. Alabama, T. & N. R. Corp., 614 (618, 619). When STORAGE: A shipper has no legal right to use a car as a warehouse. complainant had many unused siding spaces every day and sufficient warehouse space for unloading cars, but did not issue placement orders for some time after arrival of cars at carrier's yard, despite their availability for switching to its siding, proximate cause of detention was complainant's desire to avoid unloading them until trucks were ready to haul away the lading. Security Whse. Co. v. Chicago, St. P., M. & O. Ry. Co., 503 (508). TIME COMPUTATION: For purpose of computing time for assessment of demurrage charges, constructive placement is as effective as actual placement. Continental Grain Co. v. Inland Waterways Corp., 339 (346). WEATHER CONDITIONS: Since freight handling platform assigned to complainant by carrier was protected only with a roof, and on days when it rained or threatened rain it had to suspend unloading of cars containing commodities susceptible to damage by rain, resulting detention of cars was beyond its control. United States Trucking Corp. v. New York, N. H. & H. R. Co., 552 (554). DENSITY. See also CLASSIFICATION (PROPERTY (Light and Bulky Articles; Reasonableness)). WEIGHT OF ARTICLES: Less-than-carload ratings on plywood boat shapes, nested, the same as on completed boats, found unreasonable when density of shapes was materially the greater and common rating, applied to average weights, produced revenue on shapes about 3.8 times that on finished boats and about 153 percent greater per cubic foot. Moreover, while boat shapes nested 6 or more to a crate had greater aggregate value than a single finished boat crated, nesting conserved revenue space in cars. Reduced ratings prescribed on basis previously approved for articles of like density. Algoma Plywood & Veneer Co. v. Aberdeen & R. R. Co., 231 (235, 237). DEPRECIATION. While average service life of freight cars was not definitely shown, it appeared to be about 29.75 years on basis of ledger value, rate of depreciation, and retirement credits; and while that figure might be too high, it was used to measure amount which per diem rate should yield to enable car owners, on basis of service life, annual retirements, and current price levels, to replace in 1 year a proportionate part of cars in service. A shorter service life would mean proportionately greater average number of replacements at greater cost per year. Alabama, T. & N. R. Co. v. Aberdeen & R. R. Co., 383 (392). Acceleration of a depreciation rate on a direct use basis would be contrary to sound cost accounting based on extended retirement experience, which has shown that though much depreciation of tank cars is attributable to use, a substantial part is due to ordinary decay or deterioration brought on by weather conditions and time. Since use is responsible for most of required maintenance on tank cars, there is a clearer relation between mileage and repairs than between mileage and depreciation. Keith Ry. Equipment Co. v. Assn. of American Railroads, 469 (476). DIFFERENTIALS. See also COMPETITION (Water); INTRASTATE COMMERCE (Discrimination or Prejudice); WATER AND RAIL. IN GENERAL: A chief purpose of differentials is to stabilize rate relations between competing producing points or markets, which is of special importance to a highly competitive commodity like coal. Fixed and stable differentials are the rule, and proposals to establish percentage differentials between competing coal fields have often been rejected. Coal from Illinois to Alton and East St. Louis, 637 (665). GROUP RATES: Distance, competition, and cost of service considered coal rates from prescribed Henryetta-Judy, Okla., group to considered w. t. 1. destination territory should be lower than from Arkansas-Oklahoma group and higher, but by not more than 25 cents, than from Tulsa, Okla., group. Prescribed rates made 65 cents over prescribed rates from Pittsburg, Kans., group to southeastern Kansas and 75 cents over Pittsburg to the other destinations would achieve that result. Midwest Coal Traffic Bureau v. Atchison, T. & S. F. Ry. Co., 33 (43, 47, 48). |