No. 1269.

GEORGIA ROUGH & CUT STONE COMPANY

v.

GEORGIA RAILROAD COMPANY; LOUISVILLE & NASHVILLE RAILROAD COMPANY; ILLINOIS CENTRAL RAILROAD COMPANY, AND PITTSBURG, CINCINNATI,

CHICAGO & ST. LOUIS RAILWAY COMPANY.

Submitted March 17, 1908. Decided April 18, 1908.

A low rate on stone paving blocks was made to permit shippers to compete with producers in other states, upon the condition, which was expressed in the tariff, that the minimum carload weight should be the marked capacity of the car. Complainant knew the weight of a cubic foot of paving blocks and always counted the number placed in a car; never specified capacity of car desired, although, upon request, could have had cars ranging from 40,000 to 100,000 pounds capacity; always had sufficient material to load to marked capacity of car received, which could have been easily loaded to and beyond that capacity; and from October 1, 1904, to November 30, 1907, found no difficulty in loading to marked capacity of the cars received. Upon this record and under the circumstances the regulation making the minimum carload weight the marked capacity of the car was not unjust nor unreasonable, and reparation based thereon is denied.

R. J. Southall for complainant.

R. Walton Moore and Ed. Baxter for Georgia Railroad Company and Illinois Central Railroad Company.

REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainant corporation ships stone paving blocks from Lithonia, Ga., to Chicago, Ill., over the lines of the defendants.

During the time complained of the rate on said commodity between those points, via defendants' lines, was $3.10 per ton of 2,000 pounds, the tariff covering which fixed the minimum weight of a carload at the marked capacity of the car. All cars loaded by complainant, before being transported, were weighed on the scales of the Georgia Railroad Company at Lithonia. If the actual weight of the load was less than the marked capacity of the car, the charges were based upon the marked capacity; if it exceeded the marked capacity, charges were collected on the actual weight.

Complainant does not assail the reasonableness of the rate, but claims that the regulation fixing the minimum weight of carload at the marked capacity of the car unjustly discriminated against it on its shipments, and it asks reparation for the freight paid on the basis of marked capacity of the car when that was in excess of the actual weight of the shipment carried therein.

In 1897 the rate on paving blocks from Lithonia to Chicago over defendants' lines was $3.82 per ton of 2,000 pounds in carloads, minimum weight 40,000 pounds. This rate was subsequently reduced to $3.23 per ton of 2,000 pounds with the understanding that cars would be loaded to their marked capacities, but that regulation did not appear in the tariff which reduced the rate. Later this rate was further reduced to $3.10 per ton of 2,000 pounds in order to enable producers in the Lithonia and Stone Mountain sections to compete in Chicago with the quarries of Wisconsin and South Dakota, and the regulation was expressed in the tariff fixing such lower rate that the minimum weight of the carload would be the marked capacity of the car. The lines north of the Ohio River considered this rate entirely too low to retain the 40,000 pound minimum, and as a very material portion of the reduction was borne by the lines north of the Ohio River, they insisted upon the marked capacity minimum. At that time, as well as at present, the defendants were carrying paving blocks from Lithonia to Cincinnati at a rate of $2.43 per ton subject to a 40,000-pound minimum, but that rate produced a greater revenue per ton per mile than the $3.10 rate from Lithonia to Chicago. Effective November 30, 1907, defendants canceled this markedcapacity regulation, not because it was deemed unreasonable, but because they hoped thereby to satisfy the complainants, and published in lieu thereof a minimum weight of 40,000 pounds. Effective March 20, 1908, defendants canceled the rate of $3.10 per ton and established in lieu thereof a rate of $3.83 per ton of 2,000 pounds in carloads, minimum weight 40,000 pounds.

Although the marked-capacity regulation was maintained until November 30, 1907, reparation is claimed only on shipments moving between August 1 and October 1, 1904, and it would seem from this that after the dates mentioned complainant had no trouble in complying with the regulation complained of.

Complainant claims that prior to the moving of these shipments it was quoted a rate of $3.10 per ton without reference to the minimum weight regulation, but by whom this quotation was made does not appear. After all shipments complained of had moved the same rate was quoted by a clerk in the office of the general freight agent of the Georgia Railroad in a letter in which he made no reference to the minimum weight of the loads. However, complainant made no

effort to examine the tariffs of the defendants, although one of the defendants' managing officers, and its only witness in this case, was in and out of the depot at Lithonia at numerous times each day. The weight of a cubic foot of paving blocks, 165 to 170 pounds, was at all times well known to the complainant. It always knew the amount of paving blocks it had on hand when it ordered cars, and it always counted the paving blocks as they were put into the cars. When ordering cars, complainant made no demand for cars of any specific capacities, although defendants, during that period, had cars subject to demand whose capacities ranged from 40,000 to 100,000 pounds. Complainant admits that all cars received and loaded could easily have been loaded to their marked capacities. Based upon the weight per cubic foot of the paving blocks, each could have been loaded to about double its marked capacity.

Carriers establishing carload rates on commodities are permitted and sometimes required to establish different minimum carload weights for the numerous varieties, by reason of their nature, weight, and bulk. No general rule can be laid down that will fix a standard of measurement in all cases. The mandate of the law is that such regulation shall be reasonable and not unjustly discriminatory or unduly preferential. These restrictions are to be measured by the commodity to which they are applied. A minimum weight fairly applicable to one commodity might not be reasonable if applied to another commodity. The minimum weight regulation is for the purpose of insuring to the carrier a fair load for its cars and to advise the shipper of the amount he is required to load in order to get the carload rate and to escape paying the less-than-carload rate or the freight on weight not coming up to the minimum. Actual weighing of the article or articles making up a carload is the only way by which their total weight can be ascertained to a certainty, but this practice is not always convenient, practicable, or even advisable. Where a carload minimum is established for a given commodity, careful consideration should be given to the character of the commodity as well as the ease or difficulty attendant upon estimating the amount required to make up the minimum weight. Most shippers do not have their own scales or the means of ascertaining the actual weight put into a car, and of necessity are required to depend somewhat upon an estimate of the amount they load and whether it equals the minimum weight or exceeds the maximum. Where the commodity is not susceptible of a reasonably accurate estimated weight there should be sufficient margin between the minimum and the maximum weights to allow for reasonable variation between the estimated and the actual weights. Certain standard packages, such as barrels of flour, have an estimated weight based upon experience

of actual weights, and this is true of many commodities that are shipped in packages. Estimated weights of articles measured by the cubic foot or cubic yard can be made very close to the actual weights. It is not to be understood from what we have here said that actual weighing is to be dispensed with in determining carload weights upon which freight is to be collected. There are, however, many instances in which an estimated weight, prescribed in carrier's tariffs, is entirely satisfactory to shippers and carriers, and is recognized as reasonable. See White & Co. v. Baltimore & Ohio Southwestern R. R. Co. et al., 12 I. C. C. Rep., 306.

Based upon the facts in the record, the regulation complained of in the instant case imposed no unjust burden upon the complainant, and reparation predicated thereon is not warranted.

At the hearing the complainant originated the claim that on some shipments the defendants had exacted higher charges than those provided in their published tariffs, and that the total overcharge thereon amounted to $80.84. Defendant, the Georgia Railroad, conceded that if the charges on any shipment exceeded the lawful published charges complainant was entitled to the return of such overcharge, and it was agreed that such defendant should take complainant's exhibits referring thereto, ascertain their correctness, and thereafter file statement showing the result of its checking and make the same a part of the record in this case. The general freight agent of the Georgia Railroad Company has filed a statement herein showing that the charges collected in excess of the lawful charges on the shipments set forth in the exhibits amount to $65.81.

If the defendants have collected upon any shipment or shipments charges in excess of the lawful rate based upon the lawful minimum weight, it is clearly their duty to refund, at once, such overcharges, and no order of the Commission should be necessary therefor. An order will therefore be entered dismissing this case, but if complainant and defendants are unable to reach an agreement as to the correct amount of overcharges unlawfully collected from complainant, or if such overcharge is not promptly refunded by defendants, the facts may be brought to our attention and the case will, if necessary, be reopened for the entry of such order, or the inauguration of such proceedings as may be warranted.

13 L. C. C. Rep.

No. 976.

MASURITE EXPLOSIVE COMPANY

v.

PITTSBURG & LAKE ERIE RAILROAD COMPANY; ERIE RAILROAD COMPANY; PENNSYLVANIA RAILROAD COMPANY; BALTIMORE & OHIO RAILROAD COMPANY; LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY; NORFOLK & WESTERN RAILWAY COMPANY, AND CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY.

Submitted April 7, 1908. Decided April 13, 1908.

1. Masurite, which is a high explosive but not dangerous to handle, should be accorded a lower rate than dynamite, the handling of which is attended with great danger. 2. Masurite classified as 14 times first class in less than carloads and second class in carloads, minimum 20,000 pounds.

Chrystie & Brightman for complainant.

George E. Shaw for Pittsburg & Lake Erie Railroad Company. F. J. Jerome for Lake Shore & Michigan Southern Railway Company.

Kline, Tolles & Goff for Baltimore & Ohio Railroad Company.

REPORT OF THE COMMISSION.

PROUTY, Commissioner:

The petitioner asks that the rate on masurite be reduced. This commodity at the present time takes the same rate as dynamite and other high explosives of that kind, namely, double first class in less than carloads, and first class in carloads, with a minimum of 20,000 pounds. The reduction in rate is asked upon the ground that this substance, while a high explosive, is not dangerous to handle.

The base of masurite is nitrate of ammonia. It is manufactured by the Masurite Company, the complainant, by a secret process. It can be used as a substitute for dynamite, black powder, and other similar explosives, although at present its use is confined mainly to coal mines. It is exploded by means of a detonating cap embedded