No. 9943. AETNA EXPLOSIVES COMPANY v. CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY ET AL. Submitted December 4, 1918. Decided December 19, 1918. Rate on high explosives, in carloads, from Fayville, Ill., to Atlanta, Mich., found to have been unreasonable. Measure of reasonable maximum rate prescribed and reparation awarded. George G. Reynolds for complainants. R. Walton Moore for Director General of Railroads. REPORT OF THE COMMISSION. DIVISION 3, COMMISSIONERS CLARK, HARLAN, AND HALL. BY DIVISION 3: The complaint in this proceeding filed October 20, 1917, by the receivers of the Aetna Explosives Company, a corporation formerly engaged in the manufacture of high explosives, alleges, in substance, that the charges collected by the defendants on a carload of high explosives shipped November 3, 1915, from Fayville, Ill., to Atlanta, Mich., were unreasonable to the extent that they exceeded the charges that would have accrued at the first-class rate of 70.4 cents per 100 pounds contemporaneously applicable from Fayville to Camp 15, Mich. Reparation and the establishment of a reasonable rate are asked. By supplemental complaint filed on October 1, 1918, the Director General of Railroads was made a party defendant, and the complainants consented to the increase as provided in General Order No. 28 of the rate for the future prayed in their original 'complaint. The answer thereto of the Director General denies that complainants are entitled to relief and prays that the original complaint and supplemental complaint be dismissed. No further hearing was asked or had. Rates are stated in amounts per 100 pounds. Fayville is on the Chicago & Eastern Illinois Railroad, about 4.4 miles north of Thebes, Ill. Atlanta is a local point on the Boyne City, Gaylord & Alpena Railroad, about 57 miles from Boyne City, Mich. The shipment, weighing 23,680 pounds, moved as specifically routed over the defendants' lines. Charges were collected in the sum of $229.04, which includes stopping charges of $10 not in issue. A combination rate of $1.161 was legally applicable, composed of rates of 38.4 cents from Fayville to Chicago, Ill., 31.5 cents from Chicago to Kalamazoo, Mich., and 46.2 cents beyond. The shipment was undercharged $55.88. At the time of movement Atlanta was not shown in the tariff naming through class rates from Fayville to points on the Boyne City, Gaylord & Alpena, but that tariff carried class rates from Fayville to Camp 15 applicable over various routes, including the route of movement. It is alleged that Camp 15 is now known as Atlanta, and the present tariff publishes rates to Atlanta but not to Camp 15. The tariff does not indicate specifically that Atlanta includes what was formerly Camp 15, but from the relative positions occupied by the names of those places in the former and present tariffs it would appear that this is the fact. The first-class rate from Fayville to Camp 15 at the time of movement was 70.4 cents and applied over various routes, including the route of movement. By way of routes other than the latter it applied on high explosives, in carloads. Effective September 20, 1917, following the C. F. A. Class Scale Case, 45 I. C. C., 254, the 70.4-cent first-class rate to Camp 15 was increased to 85.5 cents and, effective June 25, 1918, this rate was further increased to $1.07 pursuant to General Order No. 28 issued by the Director General of Railroads. The present combination rate legally applicable to high explosives from and to the points in question over the route of movement is $1.815, composed of rates of 58.5 cents from Fayville to Chicago, 50.5 cents from Chicago to Kalamazoo and 72.5 cents from Kalamazoo to Atlanta. The distance over the route of movement was 749 miles. The rate legally applicable yielded earnings of 3.1 cents per ton-mile and 36.7 cents per car-mile. The first-class rate of 70.4 cents would yield 1.88 cents per ton-mile and 22.26 cents per car-mile. We have repeatedly held that the first-class rates were the maximum reasonable rates on high explosives, in carloads. Du Pont de Nemours Powder Co. v. C. R. Co. of N. J., 25 I. C. C., 19; Same v. L. & N. R. R. Co., 33 I. C. C. 288; Nitro Powder Co. v. West Shore R. R. Co., 35 I. C. C., 77; and Du Pont de Nemours Powder Co. v. P. & R. Ry. Co., 44 I. C. C., 531. Following the cases cited and upon this record we find that the rate legally applicable was unreasonable to the extent that it exceeded 70.4 cents per 100 pounds; and that for the future a reasonable rate on high explosives in carloads from and to the points in question over the route of movement will not exceed the contemporaneously applicable first-class rate. We further find that the Aetna Explosives Company made the said shipment and paid and bore the charges thereon; that it was damaged to the extent of the difference between the charges paid and those that would have accrued at the rate herein found to have been reasonable; and that the complainants are entitled to reparation in the sum of $52.33, with interest. The undercharges mentioned may be waived. An appropriate order will be entered. No. 8275. WESTERN CAROLINA LUMBER & TIMBER ASSOCIATION ET AL. v. SOUTHERN RAILWAY COMPANY ET AL. Submitted July 20, 1918. Decided January 7, 1919. The amount of reparation due under our original findings and the parties entitled to reparation determined. George L. Forester for complainants. No appearance for defendants. SUPPLEMENTAL REPORT OF THE COMMISSION. BY THE COMMISSION: In our original decision herein, 41 I. C. C., 753, we found that as a result of a certain ambiguous. indefinite, and unlawful tariff provision the charges collected on certain carloads of lumber shipped from points in North Carolina and South Carolina to points in New York, New Jersey, and Pennsylvania between January 25, 1913, and July 21, 1914, were unlawful to the extent that they exceeded those that would have accrued had the unlawful provision been omitted; also that two of the shipments were apparently overcharged. Reparation was found due but no order was entered, as the record was insufficient. The parties were directed to file an agreed stipulation as to the parties entitled to reparation, together with the customary statement from the complainants relative to the shipments and its verification by defendants. Proper certification as to some of the shipments was not furnished by the necessary defendants and a further hearing was held to determine the amount of reparation due and the parties entitled thereto. The details of the shipments upon which we find that reparation is due are as shown in the table following. 52 I. C. C. We further find that W. S. Whiting made the shipments as described and paid and bore the charges thereon; that he has been damaged to the extent of the difference between the charges paid and those that would have accrued at the rates found lawful; and that he is entitled to reparation in the following amounts, with interest, which include the overcharges above shown: From Southern Railway Company; New York, Philadelphia & Norfolk Railroad Louisville & Nashville Railroad Company; Norfolk & Western Railway Southern Railway Company; New York, Philadelphia & Norfolk Rail- Amount. $52.93 13. 64 21.37 From Southern Railway Company; New York, Philadelphia & Norfolk Rail- Southern Railway Company; New York, Philadelphia & Norfolk Railroad Southern Railway,Company; New York, Philadelphia & Norfolk Railroad Southern Railway Company; New York, Philadelphia & Norfolk Rail- Southern Railway Company; New York, Philadelphia & Norfolk Railroad Company; Philadelphia, Baltimore & Washington Railroad Company; Pennsylvania Railroad Company; and New York Central Railroad Company.. An order awarding reparation will be entered. Amount. $13.25 16. 17 35.04 15.89 16.94 52 1. C. O. |