No. 10051.

BERNARD, JUDAE & COMPANY

v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY
COMPANY.

Submitted May 25, 1918. Decided March 7, 1919.

Charges on a less-than-carload shipment of egg albumen from Tacoma, Wash., to Chicago, Ill., found to have been unreasonable. Reparation awarded.

H. C. Lust for complainant.

J. N. Davis for defendant.

REPORT OF THE COMMISSION.

DIVISION 3, COMMISSIONERS CLARK, HALL, AND EASTMAN. By DIVISION 3:

In a complaint seasonably filed by Bernard, Judae & Company on behalf of the W. K. Jahn Company, a corporation dealing in confectioners' and bakers' supplies at Chicago, Ill., it is alleged that the charges collected by the defendant on a less-than-carload lot of dried egg albumen shipped September 29, 1914, from Tacoma, Wash., to Chicago, were unreasonable and reparation is asked. Rates are stated in amounts per 100 pounds.

The shipment, which originated in China, consisted of 50 cases and weighed 12,700 pounds. At the time it moved from Tacoma, there was no specific rating on egg albumen in the governing western classification, and charges were collected in the sum of $431.80 at the first-class rate of $3.40, applicable to eggs, condensed or desiccated. Effective October 24, 1914, the defendant established an import commodity rate of $1.75 on this commodity in less than carloads from Tacoma to Chicago. On February 20, 1915, the western classification established a rating of first class on egg albumen in less than carloads and third class in carloads, minimum 30,000 pounds. Reparation is sought to the basis of the subsequently established commodity rate.

There were cited less-than-carload commodity rates, in effect at the time of movement from and to the points in question, of $1.25 on tea, sago, tapioca, and spices; $1.50 on canned goods, desiccated coconut, chicken feathers, and vegetable tallow; and $1.75 on crude

rubber. No evidence was offered for the defendant, and in its application on the informal docket permission was sought to pay the reparation asked.

While the W. K. Jahn Company was not a party to the transportation records, it was testified that the shipment was made for its account, and that it paid and bore the freight charges and is the real party in interest.

We find that the charges collected were unreasonable to the extent that they exceeded those that would have accrued at a rate of $1.75 per 100 pounds; that the shipment was made as described; that the W. K. Jahn Company paid and bore the charges thereon; that it has been damaged to the extent of the difference between the charges paid and those that would have accrued on the basis herein found reasonable; and that it is entitled to reparation in the sum of $209.55, with interest. An order awarding reparation will be entered.

52 I. C. O.

No. 8818.

WALTER A. ZELNICKER SUPPLY COMPANY

v.

MALLORY STEAMSHIP COMPANY ET AL.

Submitted August 23, 1918. Decided March 7, 1919.

Charges on five carloads of old rails and angle bars from Jersey City, N. J., to Louin, Miss., found to have been illegal and unreasonable. Reparation awarded.

John D. Fidler for complainant.

No appearance for defendants.

REPORT OF THE COMMISSION.

DIVISION 3: COMMISSIONERS CLARK, HALL, AND EASTMAN. BY DIVISION 3:

The complainant, a corporation engaged in the manufacture of railway and other supplies at St. Louis, Mo., alleges by complaint seasonably filed, as amended, that unreasonable charges were collected by the defendants on five carloads of old rails and angle bars shipped July 18, 1914, from Jersey City, N. J., to Louin, Miss. Reparation and the establishment of a reasonable rate are asked.

The shipments originated at the steel storage yards of the Central Railroad Company of New Jersey in Jersey City, and moved, as routed by the shipper, over the rail and boat lines of that company to Mallory pier, New York, N. Y.; Mallory Steamship line to Mobile, Ala., and New Orleans, Mobile & Chicago Railroad beyond. Charges were originally collected in the sum of $2,502.03 at a joint rate of 58 cents per 100 pounds, based upon weights of 407,070 pounds of rails and 23,280 pounds of angle bars, and included $6 marine insurance. At the time defendants were of the opinion that the charges to Mallory pier were absorbed by the lines parties to the joint rate. Subsequently, additional charges were collected for this movement in the sum of $192.12 at a rate of $1 per long ton. The legally applicable rates were: On the rails, 64 cents per 100 pounds made up of the sixth-class rate of 6 cents, applicable in carloads, to Mallory pier and 58 cents beyond; on the angle bars, 66 cents made up of the fourth-class rate of 8 cents, applicable in less than carloads, to Mallory pier and 58 cents beyond. There is therefore an outstanding undercharge equal to the difference between $1

per long ton and 6 cents per 100 pounds on the rails and 8 cents per 100 pounds on the angle bars. The tariff publishing the 58-cent rate stated that the rates therein were uninsured and made no reference to the Mallory tariff of marine-insurance rates. The marineinsurance charges were therefore illegally assessed.

The contract of sale provided for inspection of the rails by a testing laboratory. The weights upon basis of which charges were col lected were obtained by the Central Railroad Company of New Jersey after the rails had been tested. In its answer the Mallory Steamship Company admits an error of 500 pounds in these weights. After that carrier had obtained the weights used, a second test was made and six rails, weighing, according to complainant's evidence, 3,000 pounds, were rejected. The weight as shown in the final report of the laboratory and in complainant's invoice of this material is 403,570 pounds, which we find was the weight upon basis of which charges should have been assessed.

net

On October 16, 1914, defendants established carload commodity rates, applicable from Mallory pier to Louin, of $5.25 per long ton, minimum 30,000 pounds, on iron and steel rails, and of $5.05 per ton, same minimum, on railway-track fastenings. Complainant contends that the charges collected were unreasonable to the extent that they exceeded those that would have accrued on basis of a rate of $1 per long ton from Jersey City to Mallory pier and the subsequently established rates beyond.

No evidence was offered to show that the rate legally applicable from Jersey City to Mallory pier was unreasonable. It was testified that the subsequently established rates from New York to Louin represented substantially the all-water rate to Mobile, not on file with us, plus the switching and wharfage charges at that point and the local rate of the delivering line beyond.

We are of opinion and find that the applicable through charges were unreasonable only to the extent that the charges applicable for the movement from New York to Louin exceeded those that would have accrued at rates of $5.25 per long ton, minimum 30,000 pounds, on the rails and $5.05 per net ton, same minimum, on the angle bars, based on total weights of 403,570 pounds of rails and 23,280 pounds of angle bars. We further find that complainant made the shipments as described and paid and bore the charges thereon herein found unreasonable; that it has been damaged to the extent of the difference between the charges paid and those that would have accrued on the bases herein found reasonable and legal; and that it is entitled to reparation, with interest. The exact amount of reparation due can not be determined on this record and the complainant should prepare a statement showing the details of the shipments in

accordance with rule V of the Rules of Practice, also specifying the dates on which the charges were paid, which statement should be submitted to the defendants for verification. Upon receipt of a statement so prepared and verified we will consider the entry of an order awarding reparation. The outstanding undercharges should be included in this statement.

As to the future we make no finding and enter no order for the reason that the Director General of Railroads, in exercise of powers conferred upon the President by the federal control act, has initiated the rates now in effect. These rates are not in issue and the Director General of Railroads has not been made a party defendant.

52 I. C. C.