assail charges at the reshipping rate of 26.25 cents, and seek charges at a rate of 24.25 cents on bran from Chicago to Millsboro, Del., 1,449 miles. The latter rates applied by water to Buffalo, thence rail. From Chicago, reshipping rates are 8.5 cents lower than the local rates and average about 15 percent of first-class rates.

In Beacon Milling Co., Inc., v. New York Central R. Co., supra, division 4 awarded reparation to the basis of a rate of 38 cents from Milwaukee to Aquebogue, N. Y., as compared with the rate herein assailed of 28.75 cents from Chicago to Salisbury. The rates from Milwaukee are the same as those from Chicago. The record does not give comparative distances to Salisbury and Aquebogue. However, rates to Salisbury are 0.25 cent higher than to New York, whereas rates to Aquebogue are 4.25 cents higher than to New York. All the facts above stated indicate that the charges assailed in No. 28832 were not excessive.

Complainants seek reparation in No. 28832 due to alleged undue prejudice. There is no proof that their competitors controlled the market price nor is loss of business alleged. In undue prejudice proceedings, the damage might be the same as, or different than, the difference between the tariff charges, but it must be definitely proved in order to warrant an award of reparation. Any undue prejudice which may have existed has been removed, and in the absence of proof of damages a finding for the past would serve no useful purpose.

No. 28859.—In No. 28859, about 50 percent of the traffic originates in the West and moves beyond the gateways at low reshipping rates, 8.5 cents lower than the local rates from Chicago, although the rates and earnings from central territory are on a considerably higher basis. The terminal service, accorded complainants' traffic at Baltimore, consists of switch movements between the Pennsylvania's break-up yard and float bridge, and a water movement of 2.5 miles in each direction, not handled with other traffic, between the float bridge and the transit house. Of complainants' in-bound loaded cars, about 80 percent are used for out-bound loading. The car float remains at complainants' plant while cars are being unloaded and loaded. During three representative months, the average time per round trip in complainants' floatage service was about 28 hours, and the average loaded cars per trip 3.7, or 38.2 percent of capacity. Extra empty cars are necessary to balance the float and get the loaded cars on and off, as the engine cannot go on the float. Operations are handicapped by tide and weather. Complainants' competitors do not require float service.

Free terminal services are performed to and from transit houses of complainants' competitors. The services at Baltimore and certain other points consists of switch movements over the Pennsylvania between the break-up yard and the transit house, handled in connection

with other traffic. The terminal service at York consists of a switch movement partly over the Pennsylvania and partly over the Western Maryland. That at Buffalo and Hagerstown is over the Pennsylvania and connecting lines. The Buffalo house is also accorded an out-ofline haul of 270 miles by defendant's line, and 99 miles by the direct line, without extra charge. The Hagerstown and Portsmouth houses are accorded out-of-line hauls of 191 and 250 miles, respectively, at an additional charge of 4.5 cents, the out-of-line haul via Portsmouth embracing a water haul of 24 miles in each direction from and to Cape Charles, Va. The out-of-line haul by way of Baltimore is 54 miles, free of charge.

The assailed charge is the same as that named in the tariffs of all of the railroads at Baltimore on floatage service in connection with transit operations. However, complainants' is the only mixed-feed house in Baltimore requiring floatage service. In American Lime & Stone Co. v. Pennsylvania R. Co., 201 I. C. C. 467, 485, and other cases, the Commission approved a charge of 77 cents per net ton in addition to line-haul rates in connection with the movement of sand, slag, and ground limestone by carfloat in New York harbor. On practically all other traffic, car-float and lighterage service is performed in New York Harbor at no charge in addition to the line-haul rates. See Lighterage Cases, 203 I. C. C. 481, State of New Jersey v. Baltimore & O. R. Co., 245 I. C. C. 581. In those proceedings, the carriers, including the Pennsylvania, showed that, in some instances, the terminal service accomplished by the marine service in New York Harbor was no greater than that accomplished by on-land switching. With respect to the transit service at Baltimore, the Pennsylvania here contends that the car-float service is more burdensome than on-land switching. Moreover, the car-float service at Baltimore is in addition to free switching services to and from the Pennsylvania's water terminals.

On local traffic to and from Baltimore, no extra charge is assessed for the floatage service, subject to a minimum line-haul revenue of 10 cents. Thus, defendant maintains a so-called water competitive rate of 8.5 cents on grain and grain products to Baltimore from the DelMar-Va peninsula, for distances ranging from 73 to 141, and averaging 102 miles. Where floatage service is required, the additional amount added to this rate would be 1.5 cents to bring it up to the minimum revenue. On the transit traffic, in view of the four terminal services required as contrasted with the two terminal services on local traffic, an extra charge for floatage is assessed.

Complainants' in-bound shipments averaged only 52,093 pounds, whereas those of its competitors averaged from 84,731 to 55,969 pounds. Complainants' out-bound shipments averaged slightly more than those of two competitors, but considerably less than those of two

other competitors. The light loading and the low line-haul rates, previously referred to, yielded depressed line-haul revenues on complainants' traffic. The Pennsylvania's absorption of $9.25 per inbound car for switching at Buffalo was due primarily to carrier competition. The carriers terminating at Buffalo absorbed each other's switching charges in connection with rates between the East and West generally, and this practice was met by the through lines like defendant. The absorption of $13.86 per car at Hagerstown was to meet motortruck competition. Thus, the all-rail charges beyond Hagerstown for laying down this traffic on the peninsula would be 10.21 cents, consisting of the 3.25-cent balance of the through rate, the 4.5-cent out-of-line charge, and average switching charge of 2.46 cents, while the corresponding total charges by rail-truck are 9.5 cents, composed of the 1-cent balance of the through rate to Elsmere Junction, Del., plus a contract truck rate of 8.5 cents beyond.

There is keen competition in the marketing of mixed feeds on the Del-Mar-Va peninsula. During September 1942, complainants' average prices per ton f. o. b. Baltimore were $42.53 for scratch feeds and $58.78 for mash feeds, or lower than Baltimore group prices per ton of its five principal competitors, ranging from $43.69 to $46.40 and $59.63 to $65.93, respectively. During the 5 fiscal years 193842, the total output of complainants' Baltimore house increased steadily from 75,168 to 103,773 tons. From July 1940 to June 1942, 1,111 out-bound carloads from this house moved over the Pennsylvania to the peninsula. In June, July, and August, 1942, this tonnage dropped to 29 carloads as compared with 190 carloads in the corresponding period of 1941. Recently, complainants have been shipping to the peninsula from their transit house at Cincinnati (Reading), Ohio, instead of from their Baltimore house. In July 1942, complainants' Baltimore house and its five principal competitors combined shipped only about 23 percent of the total shipments to the peninsula. The shipments of the Portsmouth house under the rates and transit arrangements here considered were negligible. At Portsmouth, the Pennsylvania absorbed a total of $12.50 per car.

The Pennsylvania points out that, as a cooperative, complainant has certain advantages over a private concern. Moreover, the destinations herein are local points on the Pennsylvania, and complainants have access under through rates and transit arrangements to destinations on both the Baltimore & Ohio and Pennsylvania, while transit houses local to these lines have such access to destinations on their line-haul carrier only.

In No. 28832, we find that the line-haul charges assailed were not unreasonable and that there is no proof of damage due to the alleged undue prejudice.

In No. 28859, we find that the assailed floatage charge in connection with the traffic there under consideration is not shown to have been or to be unreasonable or otherwise unlawful.

The complaints will be dismissed.

INVESTIGATION AND SUSPENSION DOCKET No. 5155

CHALK WHITING FROM NEW JERSEY TO WISCONSIN

Submitted April 15, 1943. Decided July 24, 1943

Proposed increased rates on chalk whiting, in carloads, from Bayonne, Carteret, Newark, and Camden, N. J., to Oshkosh, Wis., and related points, found unduly prejudicial. Suspended schedules ordered canceled, and proceeding discontinued.

E. A. Hodkinson and E. W. Heimert for respondents.

E. J. Balda for protestant.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MILLER, PATTERSON, AND JOHNSON BY DIVISION 3:

By schedules filed to become effective October 15, 1942, respondents, the many rail carriers parties to Agent W. S. Curlett's tariff I. C. C. No. A-723, proposed to cancel their rates on chalk whiting, in carloads, from Bayonne, Carteret, Newark, and Camden, N. J., to Oshkosh, Wis., and related points in Wisconsin, and in lieu thereof to apply rates in accordance with the column 20 rating, minimum 60,000 pounds, provided under exceptions to the official classification. Upon protest of Ira Parker & Sons Company, a manufacturer of paints and putty at Oshkosh, operation of the schedules was suspended until May 15, 1943, and respondents have voluntarily deferred operation of the schedules pending disposition of this proceeding. Rates and differences in rates will be stated in amounts per net ton, and will not include the general increases authorized by the Commission on March 2, 1942. Effective May 15, 1943, the Commission suspended until January 1, 1944, the authorization to apply these increases.

The present commodity rate of $5.34 on chalk whiting, minimum 60,000 pounds, from Camden to Oshkosh and many other points in Wisconsin was established on October 25, 1940, following Southwark Mfg. Co. v. Pennsylvania-R. Seashore Lines, 241 I. C. C. 233. This rate of $5.34 was established on July 1, 1941, from Bayonne, Carteret, and Newark to Oshkosh and South Oshkosh, Wis., under authority of fourth-section order No. 13997. Under authority of supplemental fourth-section order No. 13997, a rate of $5.12 on chalk whiting was

established on July 1, 1941, from these New Jersey origins to Chicago, Ill., and Milwaukee, Wis. A rate of $5.78 applies on this commodity from these origins in New Jersey to St. Louis, Mo. It is not proposed to increase these rates to Chicago, Milwaukee, and St. Louis.

These commodity rates of $5.12, $5.34, and $5.78 are based on a distance scale of rates prescribed by division 2 on ground or pulverized limestone in American Lime & Stone Co. v. Pennsylvania R. Co., 201 I. C. C. 467. That scale, which will be referred to hereinafter as the 25220 scale, was prescribed for distances in official-classification territory to and including 500 miles. Respondents voluntarily extended the 25220 scale beyond 500 miles at the same rate and mileage progression for the longer distances to Chicago, Milwaukee, St. Louis, and Oshkosh as a basis for the commodity rates to those points. Rates on the same basis were also established to a number of other points in official territory, to some of which the distances exceed 500 miles. Under the suspended schedules, the present rate of $5.34 from the New Jersey origins named to Oshkosh would be increased to $7.20, or 20 percent of the first-class rates from and to the same points. The present rates to Oshkosh were established by respondents under the misapprehension that Oshkosh was included in the decision in Southwark Mfg. Co. v. Pennsylvania-R. Seashore Lines, supra, which related to rates from Camden to interstate destinations only in official territory. Oshkosh is located beyond the bounds of official territory, in what is known as extended zone C territory. A further error was made by respondents' tariff compilers in extending the 25220 scale for distances beyond the prescribed maximum distance of 500 miles, on the assumption that the rate progression and mileage progression would be the same for such extended distances. Respondents argue that the present rates are subnormal and that as soon as their erroneous publication was brought to light steps were taken to cancel them.

American Lime & Stone Co. v. Pennsylvania R. Co., supra, was reopened by the Commission for consideration along with Southwark Mfg. Co. v. Pennsylvania-R. Seashore Lines, supra, to the extent that the first proceeding named related to the rates on finely ground or pulverized limestone known as whiting or whiting substitute. In the second proceeding named the Commission found that, for the future, rates made 20 percent of first class would be reasonable maxima on chalk and limestone whiting, and expressly modified the decision of division 2 in American Lime & Stone Co. v. Pennsylvania R. Co., supra, to the extent that it conflicted with this finding.

The spread of 22 cents in the present rates on chalk whiting from the New Jersey origins under consideration to Oshkosh over those from the same points to Chicago and Milwaukee will be increased to $2.08 if the suspended schedules are permitted to become effective.