scribed the shipments at the original hearing, wherein the term "derricks" is used throughout; and testimony of the witness at the further hearing who could not definitely state whether the shipments consisted of derricks or derrick parts. A careful study of the original decision proves that defendants' position is unsound. Therein we said that the derricks under consideration are known as tubular iron and steel derricks, and that the shipments did not constitute complete derricks but merely derrick parts. As previously stated, we found that the assailed rates on all of the iron and steel articles embraced in the cases were unreasonable. The finding specifically names complainant in the instant case as entitled to reparation on the shipments of iron and steel derricks from Parkersburg to Tulsa and Wetumka described in the complaint. Upon further hearing, we find that complainant is entitled to reparation on the shipments considered, with interest, in the amounts shown from the defendants whose names appear opposite the several amounts, as follows: The Baltimore and Ohio Railroad Company and St. Louis-San The Baltimore and Ohio Railroad Company and Missouri-Kansas- $1, 174. 15 596. 70 198 I.C.C. No. 24665 JOHNSON-BATTLE LUMBER COMPANY v. SEABOARD AIR LINE RAILWAY COMPANY ET AL. Decided February 20, 1934 Upon reconsideration, rate on two carloads of lumber from Vereen, Fla., to Bessemer, Ala., found to have been unreasonable. Reparation awarded. Former findings in 185 I.C.C. 595 and 195 I.C.C. 235 modified. Appearances shown in original report. REPORT OF THE COMMISSION ON RECONSIDERATION BY THE COMMISSION: The shortened procedure was followed. In 185 I.C.C. 595, division 4 found that the failure of defendants to comply with the terms of their tariff which published the joint through rate of 25 cents per 100 pounds charged on two carloads of pine lumber shipped February 13 and 18, 1930, from Vereen, Fla., to Bessemer, Ala., subject to the aggregate-of-intermediates provision of rule 56 (c) of Tariff Circular 20, was unreasonable and awarded reparation. The division also found that there was no violation of the aggregate-of-intermediates provision of section 4 of the Interstate Commerce Act, for the reason that the shipments did not pass through River Junction, Fla. In 195 I.C.C. 235, we affirmed the findings of division 4. Upon petition of defendants the proceeding was again reopened for reconsideration on the record as made. In their petition defendants contend that the finding that rule 56 (c) obligates the carriers to protect, on shipments that move through Tallahassee, Fla., the aggregate of intermediate rates applicable through River Junction, is contrary to the terms of rule 56 (c) and is inconsistent with the finding that there was no violation of the aggregate-of-intermediates clause of section 4 of the act. They also contend that sight has been lost of the fact that the purpose of rule 56 (c) is to facilitate the publication of rates which will be in accord with the aggregate-of-intermediates provision of the fourth section. The rule 56 (c) published in the governing tariff reads as follows: Carriers have endeavored to publish in this Tariff, through rates which do not exceed the aggregate of the intermediate rates between points between which there is an actual movement of traffic, but if there should be in this Tariff, any through rate which is in excess of the aggregate of intermediates, or if through subsequent change in an intermediate factor the through rate is made higher than the aggregate of intermediates in violation of the provision of the fourth section of the Act, carriers will reduce such through rate to the basis of the combination of the intermediate rates on one day's notice under authority of Rule 56 of Tariff Circular 18-A, of the Interstate Commerce Commission, on any commodity between points between which there is a movement or a prospect of movement of that commodity. The publication of such reduced rates will be made within 30 days after such unlawful rates come to carrier's notice. Carriers, parties to tariff, whose through rates over the route of movement are higher than the aggregate of the intermediates over that route, further agree that on all shipments on which the higher through rates named in tariff, for that route have been charged, application will be made promptly to the Interstate Commerce Commission for authority to award reparation to the basis of the aggregate of intermediates in effect on date of shipment. This rule is substantially the same as the rule set forth in Tariff Circular 20 and prefaced by the following: In order to facilitate the publication of rates which will be in accord with the aggregate-of-intermediates provision of the fourth section of the act the following rule may be incorporated in tariffs. Therefore, the purpose of rule 56 (c) was to provide a means whereby carriers might prevent unforeseen or unintended violations of the fourth section. By the provisions of the rule, defendants promise to make application for authority to pay reparation where their joint through rate over the route of movement exceeds the aggregate-of-intermediate rates in violation of the provisions of the fourth section over the said route of movement. The aggregate of the intermediate rates over that route was 26 cents. There was no violation of the aggregate-of-intermediates provision of section 4 here as the shipments moved north directly through Tallahassee and did not pass through River Junction. Rule 56 (c), therefore, has no application in this instance. Under the provisions of rule 55 (c) of the Tariff Circular 20 the River Junction combination of 20.5 cents would have applied in the absence of the joint rate of 25 cents without the necessity of hauling the shipments from Tallahassee to River Junction and back. The existence of this combination rate raises a presumption that the rate charged was unreasonable. We believe, however, that this presumption is rebutted by the fact that the basis of rates approved by us in Adams-Bank Lumber Co. v. Aberdeen & Rockfish R. Co., 157 I.C.C. 280, for general application throughout southern territory makes a rate of 23.5 cents for the distance over the route of movement. In several cases we have declined to award reparation on lumber which had moved between points in southern territory on rates which were somewhat higher than those on the basis of the Adams-Bank scale, but the reparation dealt with in such cases had to do primarily with shipments which had moved prior to October 8, 1929, the effective date of the rates published in response to the Adams-Bank case. The shipments with which we are here concerned moved after that date, and we are aware of no reason why it would not have been reasonable to apply on these shipments a rate on the basis of that scale. We find that the rate assailed was unreasonable to the extent that it exceeded 23.5 cents; that complainant was damaged in the amount of the difference between the charges collected and those which would have accrued at the rate found reasonable; and that it is entitled to reparation in the sum of $13.09, with interest. The outstanding reparation order will be vacated and a new order awarding reparation entered. FARRELL, Commissioner, concurring in part: In this case, I concur in the result, but am unable to concur in the view that, under rule 55 (c) of the Commission's Tariff Circular 20, the defendant carriers would have had a right, in the absence of an applicable joint rate, to disregard the published and filed rate applicable to transportation over the line of movement and apply instead a lower rate applicable over another line. Such a conclusion appears to me to be in conflict with the language contained in paragraphs (1) and (7) of section 6 of the act. TATE, Commissioner, dissenting: I cannot approve the report now adopted by the Commission which reverses both the former action of the Commission and the action of the division which first decided the case. The defendant had a rate applying on lumber from Vereen, Fla., to River Junction, Fla., via Tallahassee, Fla., of 6.5 cents. It also had a rate from River Junction to Bessemer, Ala., via Tallahassee of 14 cents. It is, therefore, my opinion that the maximum reasonable rate which could be here charged from Vereen to Bessemer was the total of those factors, to wit, 20.5 cents. Tallahassee is directly intermediate between Vereen and River Junction and also between River Junction and Bessemer. It is my opinion that former decisions of the Commission make it unnecessary for the carrier to go through the idle ceremony of taking this shipment down to River Junction and bringing it back to Tallahassee, since all of that portion of the haul is on the line of the same carrier, and that, therefore, the 20.5-cent rate must apply. The difference in reparation is small, but the precedent is of sufficient importance that I feel constrained to register this dissenting opinion. I am anthorized to state that COMMISSIONERS AITCHISON, MAHAFFIE, and MILLER concur in this expression. No. 15156 SINCLAIR OIL & GAS COMPANY v. PENNSYLVANIA RAILROAD COMPANY ET AL. Submitted December 29, 1933. Decided February 20, 1934 Upon further hearing, reparation awarded on shipments of iron and steel tank material, in carloads, from East Chicago, Ind., to Shidler, Okla. Former reports, 126 I.C.C. 73; 168 I.C.C. 449; and 181 I.C.C. 252. Summers Hardy for complainant. George W. Holmes and C. D. Bordelon for defendants. REPORT OF THE COMMISSION ON FURTHER HEARING BY THE COMMISSION: No exceptions were filed to the examiner's report on further hearing. The pertinent facts are set forth in 168 I.C.C. 449, wherein we found, among other things, that the applicable rates on iron and steel tank material, in carloads, shipped after August 4, 1922, from East Chicago, Ind., to Shidler, Okla., were unreasonable to the extent they exceeded the column 35 rates prescribed or approved in the southwestern revision for application from and to the same points, minimum 36,000 pounds, and awarded reparation. For determination of reparation due, we prescribed a formula similar to that in Prairie Pipe Line Co. v. A. W. Ry. Co., 146 I.C.C. 149, 158, 159, embracing what may be called circuity-tolerance provisions, whereby the rates prescribed for reparation purposes are to be applied to shipments not routed by the shippers, and to shipments routed over lines less than 15 percent longer than the defined shortest routes between origins and destinations, and rates 10 percent higher, or column 38.5, to be used in cases of shipments routed over lines exceeding in circuity that percentage limitation, as more particularly provided therein. Further hearing was held to determine the amount of reparation due. Complainant's evidence consists of exhibits similar to rule V statements, identifying 30 shipments made after August 4, 1922, by car number, date of shipment, date of delivery, and other data. Copies of prepaid freight bills issued to the consignor were introduced in evidence. Defendants objected to the statements on the |