A-24987, NOVEMBER 1, 1928, 8 COMP. GEN. 221

A-24987, NOVEMBER 1, 1928, 8 COMP. GEN. 221

TRANSPORTATION - RATES - VIOLATION OF "AGGREGATE OF INTERMEDIATES" CLAUSE OF SECTION 4 OF INTERSTATE COMMERCE ACT OF FEBRUARY 4, 1887, AS AMENDED WHERE THROUGH LIKE RATES ARE STATED IN RAILROAD TARIFFS THERE IS NO AUTHORITY FOR THE COMBINATION OF UNLIKE RATES. A THROUGH RATE IN A RAILROAD TARIFF CAN NOT EXCEED THE AGGREGATE OF INTERMEDIATE RATES. (MODIFIED BY 8 COMP. GEN. 345.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 1, 1928:

THE CENTRAL OF GEORGIA RAILWAY CO. APPLIED PER LETTER DATED AUGUST 1, 1928, N-11267-G-1, FOR REVIEW OF SETTLEMENT T-55875-W, FEBRUARY 14, 1928, OF BILL 11267-B BY WHICH $39.24 WAS DISALLOWED ON ITS CLAIM FOR $173.01 FOR THE TRANSPORTATION OF 7,900 POUNDS OF HOUSEHOLD GOODS FROM PITTSBURGH, PA., TO COLUMBUS, GA., VIA THE PENNSYLVANIA RAILROAD, CINCINNATI, OHIO; LOUISVILLE AND NASHVILLE RAILROAD, BIRMINGHAM, ALA.; AND THE CENTRAL OF GEORGIA RAILWAY.

THE CARRIER'S CLAIM WAS BASED ON THE PUBLISHED LESS THAN CARLOAD THROUGH RATE OF $2.19 PER 100 POUNDS, WHILE THE ALLOWANCE OF $133.77 WAS ON BASIS OF A COMBINATION OF LESS CARLOAD RATE AT ACTUAL WEIGHT TO CINCINNATI, AND THE CARLOAD COMMODITY RATE AT AN ESTIMATED WEIGHT OF 12,000 POUNDS THENCE TO DESTINATION.

THE CARRIER IN ITS APPLICATION FOR REVIEW CLAIMS THE AMOUNT DISALLOWED, CONTENDING THAT WHERE THROUGH RATES ARE PUBLISHED THEY IN ALL CASES TAKE PRECEDENCE OVER COMBINATIONS.

HOUSEHOLD GOODS ARE RATED AT FIRST CLASS IN LESS THAN CARLOAD LOTS IN BOTH OFFICIAL CLASSIFICATION (PITTSBURGH TO CINCINNATI) AND SOUTHERN CLASSIFICATION (CINCINNATI TO COLUMBUS), AND WHEN IN CARLOADS AT SECOND CLASS WITH A MINIMUM WEIGHT OF 12,000 POUNDS, IN OFFICIAL CLASSIFICATION, AND AT THIRD CLASS WITH A MINIMUM WEIGHT OF 12,000 POUNDS, IN SOUTHERN CLASSIFICATION. THE PUBLISHED THROUGH RATES FROM PITTSBURGH TO COLUMBUS, GA., ARE GOVERNED BY SOUTHERN CLASSIFICATION.

SECTION 2 OF RULE 16 OF THE CLASSIFICATION PROVIDES THAT WHEN BOTH L.C.L. AND C.L. RATINGS ARE PROVIDED FOR THE SAME ARTICLE THE TERM "LESS THAN CARLOAD" COVERS SHIPMENTS IN QUANTITIES LESS THAN THE MINIMUM WEIGHT PROVIDED FOR CARLOADS AND THE SHIPMENT UNDER CONSIDERATION WEIGHING 7,900 POUNDS WAS, UNDER THE TERMS OF RULE 16, A LESS-THAN-CARLOAD SHIPMENT BUT SECTION 1 OF RULE 15 OF THE CLASSIFICATION PROVIDES THAT THE CHARGE FOR A LESS-THAN-CARLOAD SHIPMENT MUST NOT EXCEED THE CHARGE FOR A MINIMUM CARLOAD OF THE SAME FREIGHT AT THE CARLOAD RATE.

THE FREIGHT CHARGES ON THIS SHIPMENT AT THE RATE OF $2.19 PER 100 POUNDS FOR THE ACTUAL WEIGHT WOULD BE $173.01 AS CLAIMED--- BUT THE CHARGE IS LIMITED TO THE CHARGE FOR A MINIMUM CARLOAD OF THE SAME FREIGHT AT THE CARLOAD RATE. THE CARLOAD RATE IS BASED ON THE THIRD CLASS THROUGH RATE OF $1.64 FOR 12,000 POUNDS WHICH GIVES $196.80, BUT THE THROUGH CARLOAD CHARGE BASED ON COMBINATION IS AS FOLLOWS: CHART TO CINCINNATI 12,000 POUNDS 2ND CLASS CARLOAD RATE---$85.20 AT ----------------------- 71 CENTS TO COLUMBUS, GA., 12,000 CARLOAD COMMODITY RATE--- 67.80 POUNDS AT ------- --------- 561/2 CENTS

THROUGH RATE ---------- $1.27 1/2 THROUGH CHARGE ------ 153.00

SECTION 4 OF THE INTERSTATE COMMERCE ACT OF FEBRUARY 4, 1887, 24 STAT. 379, AS AMENDED BY THE ACT OF JUNE 18, 1910, 36 STAT. 539, AND THE TRANSPORTATION ACT OF 1920, 41, STAT. 456-480, PROVIDES:

THAT IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER, SUBJECT TO THE PROVISIONS OF THIS ACT, * * * TO CHARGE ANY GREATER COMPENSATION AS A THROUGH RATE THAN THE AGGREGATE OF THE INTERMEDIATE RATES.

THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT THE FAIR MEASURE OF THE REASONABLENESS OF A JOINT THROUGH RATE THAT EXCEEDS THE COMBINATION BETWEEN THE SAME POINTS VIA THE SAME ROUTE IS AND WILL BE HELD TO BE THE LOWEST COMBINATION THAT WOULD LAWFULLY APPLY IF THE JOINT THROUGH RATE WAS CANCELED. SEE WINDSOR TURNED GOODS CO. V. CHESAPEAKE AND OHIO R-Y CO; 18 I.C.C. 182, AND J. D. HOLLINGSHEAD CO. V. TEXAS AND PACIFIC R-Y CO., 102 I.C.C. 603. IN "INVESTIGATION AND SUSPENSION DOCKET NO. 1769" DECIDED JANUARY 26, 1928, 96 I.C.C. 19, THE COMMISSION SAID THAT WHERE TRAFFIC MOVES IN CONSIDERABLE VOLUME THROUGH RATES SHOULD BE LOWER THAN THE SUMS OF THE SEPARATELY ESTABLISHED LOCALS EXCEPT IN INSTANCES WHERE ONE OR BOTH OF SUCH SEPARATELY ESTABLISHED FACTORS IS SHOWN TO BE IN SOME MANNER DEPRESSED. IN A DECISION OF SEPTEMBER 28, 1921, OF THE WENGER ARMSTRONG PETROLEUM CO. V. DIRECTOR GENERAL AS AGENT, MISSOURI, KANSAS AND TEXAS R-Y CO. OF TEXAS, 64 I.C.C. 175, THE COMMISSION HELD THAT IN ASCERTAINING WHETHER THE PROVISIONS OF THE FOURTH SECTION HAVE BEEN CONTRAVENED, RATES OF THE SAME CHARACTER MUST BE COMPARED.

THE COMMISSION IN A DECISION OF JUNE 4, 1925, IN CASE OF MEMPHIS FREIGHT BUREAU, FOR DINSWANGER AND CO. V. BALTIMORE AND OHIO R.R.CO. ET AL., 100 I.C.C. 327, RELATING TO CARLOAD SHIPMENTS OF PLATE GLASS FROM TOLEDO, OHIO, SAGINAW, MICH., AND BLAIRSVILLE, PA., TO MEMPHIS, TENN., FOUND THAT THE APPLICABLE THIRD-CLASS CARLOAD RATES WERE CHARGED WHILE AT THE TIME OF MOVEMENT THE AGGREGATE OF THE INTERMEDIATE RATES, COMPOSED OF THE THIRD- CLASS OR RULE 26 CARLOAD RATES GOVERNED BY OFFICIAL CLASSIFICATION TO THE OHIO RIVER CROSSINGS AND THE CARLOAD COMMODITY RATE BEYOND, WERE LOWER THAN THE APPLICABLE RATES. THE COMMISSION HELD THAT THE RATES CHARGED WERE UNREASONABLE TO THE EXTENT THAT THEY EXCEEDED THE AGGREGATE OF INTERMEDIATE RATES CONTEMPORANEOUSLY IN EFFECT AND THAT THE COMPLAINANT WAS ENTITLED TO REPARATION TO THE AMOUNT OF THE DIFFERENCE BETWEEN THE CHARGES PAID AND THOSE WHICH WOULD HAVE ACCRUED ON THE BASIS OF SUCH AGGREGATE OF INTERMEDIATE RATES.

HAD THE SHIPMENT IN THE PRESENT CASE FROM PITTSBURGH TO COLUMBUS BEEN A CARLOAD AND CHARGED AT THE CARLOAD RATE IT WOULD HAVE BEEN A CASE SIMILAR TO THAT OF THE PLATE GLASS CASE BECAUSE THE THROUGH CARLOAD RATE IS $1.64 WHILE THE AGGREGATE OF INTERMEDIATE RATES, COMPOSED OF THE CARLOAD 71-CENT RATE FROM PITTSBURGH TO CINCINNATI ADDED TO THE CARLOAD COMMODITY RATE OF 56 1/2 CENTS FROM CINCINNATI TO COLUMBUS, MAKES A RATE OF $1.27 1/2 WITH A MINIMUM CARLOAD WEIGHT OF 12,000 POUNDS. THE RATE OF $1.64 IS CLEARLY IN VIOLATION OF THE "AGGREGATE OF INTERMEDIATES" CLAUSE OF THE FOURTH SECTION.

THE CHARGE MADE BY THE CARRIER OF $173.01 IS IN VIOLATION OF WHAT SHOULD BE CHARGED FOR A CARLOAD OF 12,000 POUNDS AT THE COMBINATION CARLOAD RATE OF $1.27 1/2 MADE OVER THE ROUTE OF MOVEMENT, OR $153, RESULTING IN AN OVERCHARGE OF $20.01; THE CARRIER BY ITEM 308-A, PAGE 7 OF SUPPLEMENT 34 TO BUFFALO-PITTSBURGH TARIFF 92-B, AGENT JONES' I.C.C. 1672 AND AGENT SPEIDEN'S I.C.C. 923 INFORMS THE SHIPPING PUBLIC THAT IF THERE SHOULD BE ANY THROUGH RATE WHICH IS IN EXCESS OF THE AGGREGATE OF INTERMEDIATES THE CARRIERS WILL REDUCE SUCH THROUGH RATES TO THE BASIS OF THE COMBINATION OF INTERMEDIATE RATES ON ONE DAY'S NOTICE, AND THAT ON ALL SHIPMENTS ON WHICH THE HIGHER THROUGH RATES NAMED IN THE TARIFF AND SUPPLEMENTS 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 INTERMEDIATE RATES.

THERE APPEARS TO BE NO AUTHORITY FOR THE DETERMINATION OF CHARGES ON THIS SHIPMENT OF $133.77, AS ALLOWED IN SETTLEMENT BASED ON FIRST CLASS LESS THAN CARLOAD RATE TO CINCINNATI OF 83 1/2 CENTS PER 100 POUNDS AND THE CARLOAD COMMODITY RATE FROM CINCINNATI TO COLUMBUS OF 56 1/2 CENTS PER 100 POUNDS FOR A MINIMUM CARLOAD OF 12,000 POUNDS. THIS WAS A THROUGH SHIPMENT FOR WHICH THROUGH RATES WERE NAMED WHICH WOULD HAVE BEEN APPLICABLE HAD NOT THE CHARGES ON SAID BASIS EXCEEDED THE CHARGES BASED ON THE AUTHORIZED CARLOAD CHARGES WHICH ARE REQUIRED TO BE APPLIED AS MAXIMUM.

THE DIFFERENCE BETWEEN THE CORRECT CHARGES AS ABOVE SET FORTH, $153, AND THE AMOUNT ALLOWED, $133.77, IS $19.23, WHICH IS HEREBY CERTIFIED FOR ALLOWANCE.