required. The Northern Pacific permits movement to points south of Everett and Seattle at the joint rates without a back-haul charge to meet the competition of the Great Northern, which can handle grain through these stations without back haul. Likewise, shipments moving via Tacoma and destined to points north thereof must be back hauled about 18 miles. Transit is permitted at Tacoma to meet the competition of the Oregon-Washington Railroad & Navigation Company, hereinafter referred to as the O.-W. R. & N., which can handle grain over its route via Portland through Tacoma to points north thereof without back haul. The same situation is true as to Portland. A short back haul to Vancouver is required on shipments moving north thereof, but the O.-W. R. & N. can transport its grain through Portland without back haul. Milling of Northern Pacific grain at the interior points of Dayton, Huntsville, and Waitsburg requires out-of-line movements from the main-line junction at Pasco to the transit points and return, distances of 196, 182, and 176 miles respectively, the return movements to Pasco constituting back hauls. Likewise transit at Walla Walla, Milton, Athena, and Pendleton requires substantial back hauls. All of these points, however, with the exception of Huntsville and Waitsburg, are served by the O.-W. R. & N., which line permits milling in transit at the joint rates to Pacific Coast destinations. There is no carrier competition at Huntsville and Waitsburg, but those points are intermediate on the Northern Pacific between Dayton and Pasco and the rates applicable via Dayton are observed. Northern Pacific grain can be milled at Reardon, Davenport, Wilbur, Hartline, Moscow, and Lewiston without back haul, transit at those points being accomplished by movements over routes somewhat circuitous but over which the direct-line rates are applicable. The location of Astoria, near the mouth of the Columbia River, is advantageous for the export movement of grain and grain products, but it is disadvantageous for the movement by rail of grain products to the domestic consuming markets in the Pacific Northwest in competition with the alleged preferred points. Astoria is located approximately 100 miles by rail west of the nearest large consuming market. The north-coast milling points alleged to be preferred are near the consuming markets and in a territory served by four transcontinental lines. Grain can move through these points over the direct line of one or the other of these carriers to destination. The interior points alleged to be preferred lie in the territory between the points of origin and the consuming markets. These points have the advantage of service by defendants without back haul or more nearly direct service by competing lines not here defendant. Withdrawal of defendants from participation in the joint rates applicable over routes through the alleged preferred points would not benefit complainant, because those rates would still be available over other routes. Eagle-Ottawa Leather Co. v. Cleveland, C., C. & St. L. Ry. Co., 167 I.C.C. 466. There is no adequate basis for a finding of undue prejudice. Complainant does not contend that the rates on grain from the considered origin points to Astoria, or the rates on the milled products from Astoria to the considered destination points are unreasonable per se. It is complainant's contention that it is unreasonable for defendants to charge the combination basis on grain milled at Astoria while grain may be milled at competing mills on basis of the joint rates to final destination plus a transit charge although movements via the competing mills frequently involve substantial outof-line hauls. Grain originating at Logan, milled at Astoria, and forwarded to San Francisco, Calif., would require an out-of-line haul from Portland to Astoria and return, a distance of 190.4 miles. On similar shipments milled at the compared points the out-of-line hauls would range from 52.8 to 202 miles. The out-of-line haul on shipments having final destination north of Portland is substantially greater when the grain is milled at Astoria than when it is milled at the compared points. For example, the distance from Logan to Seattle via Astoria exceeds the short-line distance by 343.2 miles, whereas the out-of-line hauls on shipments transited at the compared points range from 35.8 to 196 miles. Complainant's comparisons fail to distinguish between a direct back haul, such as the movement from Astoria to Portland, and the difference in distances permitted in the use of optional routes. The purpose of transit is to permit service at some point between origin and destination of traffic and in the general direction of the movement of the traffic. A back haul is contrary to this purpose. Carriers under certain conditions may voluntarily perform back hauls in connection with transit, but it is something which we will not ordinarily require them to do except to remove unjust discrimination or undue prejudice. Defendant Northern Pacific performs back hauls in connection with the milling in transit of grain in instances where it feels that carrier competition demands that action. The record herein is not persuasive that its refusal to permit transit at Astoria is unlawful, involving, as it would, a direct back haul of about 100 miles, We find that the rates and charges assailed are not unreasonable or unduly prejudicial. An order will be entered dismissing the complaint. FOURTH SECTION APPLICATION No. 14341 COAL TO INDIANAPOLIS, IND. Submitted January 2, 1934. Decided February 1, 1934 Authority granted, on conditions, to maintain rates on coal and coal briquets, in carloads, from certain mines in Kentucky, Virginia, and West Virginia to Indianapolis, Ind., without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. B. A. Gaetz for petitioners. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, PORTER, AND TATE BY DIVISION 2: By this application the New York, Chicago & St. Louis Railroad Company, for itself and on behalf of certain other carriers applies for relief from the long-and-short-haul provision of section 4 of the Interstate Commerce Act in rates on coal and coal briquets from producing points in Kentucky, Virginia, and West Virginia to Indianapolis, Ind., over the following route: Norfolk & Western Railway Company to Ivorydale, Ohio; Baltimore & Ohio Railroad Company to Cincinnati, Ohio; Chesapeake & Ohio Railway Company to Muncie, Ind.; thence New York, Chicago & St. Louis Railroad Company. Temporary relief was granted pending the determination of application no. 13439 for relief in rates on like traffic from Chesapeake and Ohio stations in Kentucky, Virginia, and West Virginia to Indianapolis over that line in connection with the New York, Chicago & St. Louis from Muncie. After hearing in the latter and similar applications, Coal and Coke to Central and Trunk-Line Territories, 196 I.C.C. 765, relief was granted to establish rates the same as, but not lower than, those in effect over the short routes from and to the same points, and to maintain higher rates from and to intermediate points; provided, that the rates at higher rated intermediate points should not be increased except as authorized by this Commission and should in no case exceed the lowest combination of interstate rates; and provided further that the relief granted should not apply over any route which exceeded certain circuity limitations. In no case were the circuitous routes authorized to exceed the short route by more than 60 percent, and, in event they exceeded the short route by more than 50 percent, relief was to apply only when the earnings would be not less than 5 mills per ton-mile. The order in that proceeding is effective on February 24, 1934, thus terminating the temporary relief granted in this application. In view of this the parties have filed a petition for the same measure of relief in rates over their route as was granted in Coal and Coke to Central and Trunk-Line Territories, supra, from points on the Chesapeake & Ohio to Indianapolis. The origins are on the Norfolk & Western and its connections in the so-called Inner Crescent, Outer Crescent, and Radford district. Rates will be stated in amounts per net ton. To Indianapolis the present rates are $2.52, $2.62, and $2.97 from the Inner Crescent, Outer Crescent, and Radford district, respectively. From representative Norfolk & Western stations in each of these districts the distances over the route in question are from 14 to 22 percent greater than the distances over the short route from the same points. These distances compare favorably with that over the Chesapeake & Ohio in connection with the New York, Chicago & St. Louis from Muncie. The rate of $2.52 from the representative point in the Inner Crescent yields 7.59 mills per ton-mile, 44.17 cents per car-mile, and $146.64 per car, based on the average loading of 58.19 net tons. The rates of $2.62 and $2.97 from representative points in the other districts yield earnings of 5.37 and 5.2 mills per ton-mile respectively. These earnings we believe to be reasonably compensatory. To Blountsville, Medford, and Muncie, Ind., intermediate points on the Chesapeake & Ohio and to New York, Chicago & St. Louis stations between Muncie and Indianapolis, the rates are $2.70, $2.95, and $3.30 from the Inner Crescent, Outer Crescent, and Radford district, respectively. Blountsville, Medford, and Muncie are within the so-called equidistant provision of section 4 of the act, but petitioners urge that the principal ground for relief is not the circuity of their route but the necessity for the preservation of the longstanding group adjustment of these rates. That contention was considered in Coal and Coke to Central and Trunk-Line Territories, supra, and the relief there authorized was not made subject to the equidistant provision. The similarity of this situation to that considered in the case cited warrants the granting of the same measure of relief here as granted in that proceeding. An appropriate order will be entered. TATE, Commissioner, concurring: I approve the report without the imposition of the equidistant clause, while voting as a member of a division, out of deference to the action of the Commission in prior cases involving grouping. No. 24813 PARKER-YOUNG COMPANY v. CENTRAL OF GEORGIA RAILWAY COMPANY ET AL. Decided February 5, 1934 Findings in former report, 195 I.C.C. 797, modified in part. Appearances in former report. REPORT OF THE COMMISSION ON RECONSIDERATION DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3: This case, former report 195 I.C.C. 797, was reopened for the purpose of modifying the finding as to the reasonableness in the past of the assailed rates from Gordon and Winthrop, Ga., to Lincoln, N.H., so that it will be consistent with the findings in Vanderbilt Co. v. Atlantic Coast Line R. Co., 167 I.C.C. 319, 194 I.C.C. 702, concerning rates from the same points of origin, among others, to destinations in the same general territory with Lincoln. Upon further consideration, we find that the former finding should be, and it is hereby, modified to read as follows: We find that the assailed rates from Gordon and Winthrop were inapplicable; that the applicable rate of $12.27 was unreasonable to the extent that it exceeded 16 percent of the first-class rates in effect from and to the same points on April 25, 1931, when the order in Vanderbilt Co. v. Atlantic Coast Line R. Co., 167 I.C.C. 319, became effective; that the assailed rate from Portland was, is, and for the future will be, unreasonable to the extent that it exceeded, exceeds, or may exceed 19 percent of the present first-class rate from and to the same points plus a charge of 50 cents per net ton for handling the traffic from ship side to cars at Portland; that complainant received shipments as described and paid and bore the charges thereon; that it was damaged thereby in the amount of the difference between the charges paid and those which would have accrued at rates herein found reasonable; and that it is entitled to reparation, with interest. Complainant should comply with rule V of the Rules of Practice. In all other respects the former report and order are affirmed. |