No. MC-C-232 EMERSON RADIO AND PHONOGRAPH CORP. v. SEABOARD FREIGHT LINES, INCORPORATED Submitted November 22, 1941. Decided July 22, 1943 Rate charged on any-quantity shipments of table-type radio cabinets from Leominster, Mass., to New York, N. Y., found applicable and not shown to be unlawful. Complaint dismissed. Robert DeKroyft for complainant. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2: Exceptions were filed by the complainant to the recommended order of the examiner, and the defendant replied thereto. By complaint filed November 29, 1940, as amended at the hearing, Emerson Radio and Phonograph Corp., New York, N. Y., alleges that the rate sought to be collected by the defendant, a motor common carrier, for the transportation of wooden radio cabinets from Leominster, Mass., to New York City is inapplicable, unreasonable, unjust, and unlawful in violation of section 216 (b) and (d) of the Interstate Commerce Act. We are asked to determine the applicable rate, to require defendant to cease and desist from the alleged violations of the act, and to establish a reasonable rate for the future. Eastern Motor Freight Conference, Incorporated, intervened, but offered no evidence. Rates are stated in amounts per 100 pounds, do not include the general increases which became effective in March 1942, and include pick-up and delivery services. The cabinets are the table type, as distinguished from the console type, made of solid and laminated woods, and are completely finished, including openings and grills to permit the installation of the radio mechanism. They are shipped set-up in fiberboard boxes, each box containing one cabinet. During 1940, approximately 260,000 pounds of the cabinets were shipped from Leominster to the complainant, at lower Manhattan, N. Y., and complainant estimated that two-thirds of that quantity was transported by the defendant. Charges were collected by the defendant at the second-class rate of $1.21, but, in June or July 1940, it concluded that the any-quantity first-class rate of $1.77 was the applicable rate and, accordingly, has billed the complainant for the alleged undercharges. There is no evidence that the defendant has transported any cabinets for the complainant since 1940. Minimum reasonable motor common carrier rates and ratings from Leominster to New York City, among other points, were prescribed by division 5 in New England Motor Carrier Rates, 8 M. C. C. 287, as modified by subsequent reports. The defendant contends that the proper rating on the cabinets is first class which is shown in connection with the description "FURNITURE AND FURNITURE PARTS, N. O. I. B. N.: Wood or Wood and Metal combined: S. U., boxed, crated or wrapped" in the governing classification, and reference is made to this description in the index to the classification opposite the words "Radio Cabinets." The complainant contends that the firstclass rating is not applicable, because the cabinets are not furniture or furniture parts and the words "radio cabinets" are not shown in the classification description. It is of the opinion that the secondclass rating contained in the classification on "CABINETS, N. O. I. B. N., other than furniture, with or without glass, S. U., in boxes or crates or wrapped in paper or burlap" is the applicable rating. The abbrevation n. o. i. b. n. is explained in the classification as meaning not otherwise indexed by name therein. Radio cabinets are indexed by name and therefore the rating on cabinets, n. o. i. b. n., may not be used on radio cabinets. In the governing classification, the index of the articles is more comprehensive than the descriptions opposite which the ratings are shown. The detailed names of the articles shown in the index frequently refer to generic descriptions for the ratings. This is so in the case of radio cabinets and hundreds of other specifically indexed articles which refer to the generic description "furniture and furniture parts" for the ratings. The interpretation of the classification which is urged by the complainant, when applied to the classification as a whole, would render hundreds of ratings ineffective. Such an interpretation is forced and unacceptable. The plain conclusion, the mode of the classification considered, is that ratings are provided for specific articles by reference to generic descriptions. We conclude that the description "furniture and furniture parts" includes radio cabinets where, as here, reference to the description is provided in the manner described, and that $1.77 was the applicable rate. 1 By order entered June 5, 1942, we suspended the effectiveness of the orders entered in that proceeding from July 1, 1942, until November 2, 1942, and have since extended the suspensions until November 1, 1943. We now come to the question as to the lawfulness of the rate of $1.77. The minimum reasonable motor class rates prescribed from Leominster to lower Manhattan, approximately 205 miles, are set forth in the following table: Four times fifth-class rate: Any quantity-- Under 6,000 pounds.. 6,000 pounds and overThird-class rates: Under 6,000 pounds---. 6,000 to 11,999 pounds-12,000 pounds and over. Fourth-class rates: Under 6,000 pounds---6,000 to 11,999 pounds12,000 to 19,999 pounds.. 20,000 pounds and over.. Fifth-class rates: Under 6,000 pounds---. 6,000 to 11,999 pounds. 12,000 to 19,999 pounds20,000 pounds and over.. The rail less-than-carload rate on radio cabinets from Leominster to New York City was a first-class rate of 91 cents. The complainant, however, prefers motor-carrier service, which is faster than rail. The facilities for unloading at complainant's place of business will accommodate only three vehicles at one time, and the defendant's vehicles are sometimes delayed more than 2 hours after arrival before they can approach the unloading platform. In the governing classification, table-type radio receiving sets are rated third class and console-type radio receiving sets are rated second class. The complainant contends that there also should be a distinction made between the ratings on table-type radio cabinets and consoletype radio cabinets, and that a spread of two classes between the tabletype cabinets and radio receiving sets is too great. Some comparisons of the ratings on other articles with the rating on the cabinets were presented, but these comparisons, except as noted, are of little value since the record does not contain the densities, values, and other transportation characteristics of such other articles. More than 100 articles, rated either first class or four times fifth class in the governing classification, according to an exhibit introduced by the defendant, have densities ranging from 1 to 15 pounds a cubic foot. This exhibit gives the density of radio cabinets as 5 pounds a cubic foot. These densities were taken from a cubic-density survey made by the Federal Emergency Relief Administration for Massachusetts. For the most part, the ratings in the governing classification are based on the shipping densities of the articles and are predicated in part on the densities disclosed by this survey. See New England Motor Carrier Rates, supra, at page 291. The principal ground relied upon by the complainant in support of the allegation of unlawfulness of the first-class rate is that the densities of the cabinets entitle them to the second-class rates. It refers to the density formula, used to determine the ratings shown in the classification, as stated in Classification Rating on Radio Bulbs or Tubes, 2 M. C. C. 25, which is as follows: 5 pounds or less a cubic foot, four times fifth class or first class; 6 to 10 pounds, second class; 11 to 15 pounds, third class; 16 to 20 pounds, fourth class; and over 20 pounds, fifth class. The complainant submitted the dimensions, shipping weights, shipping densities, and the number of radio cabinets of each of five models received by it from Leominster during 1940. These data and the total weight of each model are shown in the following table: The defendant measured and weighed many packages of radio cabinets consigned to the complainant and found each to measure approximately 14.75 by 10.625 by 11.375 inches and to weigh approximately 5 pounds, or 4.85 pounds a cubic foot. These dimensions and weight are the same as those of cabinet model 403, which is not included in the above table. The number of model 403 cabinets received by the complainant from Leominster was not shown, but the complainant estimated the quantity received during 1940 as less than 2,000 cabinets. The value of cabinet model 346 is $3.53 each at Leominster, or approximately 22 cents a pound. Model 346 with radio installed weighs 26 pounds ready for shipment, and has a value of $15.45. From the standpoint of density, the applicable third-class rating on an article weighing 26 pounds, and having the dimensions of model 346, appears to be in accord with the ratings assigned to other articles in the governing classification having similar densities. The values of the other models are not of record, except that the defendant was quoted a price of $10.50 when it sought to buy cabinet model 403 from Emerson. Ninety percent of the defendant's vehicles have a capacity of approximately 950 cubic feet each. Allowing for certain space which cannot be utilized for loading because of the construction of the vehicle, the defendant estimated that 814 model 403 cabinets would fill a vehicle to its cubic loading capacity. Based on a shipping weight of 5 pounds for each cabinet, a full load would weigh considerably less than 5,000 pounds. The quantity of the other models that could be loaded in a truck of the same capacity, or the quantity of any of the cabinets that could be loaded in trucks having a greater capacity than 950 cubic feet, is not of record. The defendant's witness stated that the average weight of the cabinets, received at the defendant's New York City terminal at one time for delivery to the complainant, is 1,000 pounds. The complainant, however, referred to a few shipments which weighed from 2,400 pounds to 5,316 pounds each. It is not shown whether each of these shipments was transported from Leominster to New York City in 1 or more than 1 vehicle. The average shipping density of the six cabinet models referred to is 5.47 pounds a cubic foot, which is the sum of the densities of the six models divided by six. Complainant in its exceptions urges that a weighted average of 6.65 pounds a cubic foot should be considered instead of the simple average. As indicated, approximately 260,000 pounds of cabinets were received by the complainant from Leominster during 1940. The complainant supplied data concerning only five of the models which had a total weight of 190,095 pounds. We are not informed of the shipping density and other data concerning the remaining approximately 70,000 pounds. Five of the six models referred to have a shipping density of less than 6 pounds a cubic foot, and three of the five have a density of less than 5 pounds a cubic foot. There is no showing by the complainant that the rating in the New England classification on wooden radio cabinets is unreasonable as compared with the ratings on other articles having similar transportation characteristics. The rating provided on radio cabinets is based on the transportation characteristics of the types of cabinet transported by truck. Some have a greater weight per cubic foot than others, and to the extent the shipping density of an article is a factor, it is proper for motor carriers to predicate the rating on the average weight per cubic foot of shipments of the article. Even if we were to accept the weighted-average density of 6.65 pounds urged by the complainant, we do not feel that we would be justified in finding the applicable rating unreasonable. We find that, during 1940, the applicable rate on table-type wooden radio cabinets from Leominster, Mass., to lower Manhattan, N. Y., was the first-class any-quantity rate of $1.77. |