No. MC-22334 ONONDAGA FREIGHT CORP. COMMON CARRIER Decided February 20, 1941 On reconsideration, findings in prior reports, 21 M. C. C. 810 and 24 M. C. C. 161, granting applicant a certificate to operate as a common carrier by motor vehicle, of general commodities with certain exceptions, between Buffalo and New York, N. Y., and Boston, Mass., and between Fonda and Catskill, N. Y., over regular routes, serving certain intermediate and off-route points, and of specified commodities between certain points in New York, Maryland, Connecticut, Rhode Island, Massachusetts, Pennsylvania, and New Jersey, over irregular routes, modified so as to authorize the transportation of additional commodities between Newark, N. J., and points within 15 miles thereof, on the one hand, and points in a described area in New York, on the other, over irregular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions. Appearances shown in original report. SECOND REPORT OF THE COMMISSION ON RECONSIDERATION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: In the prior reports herein, 21 M. C. C. 810 and 24 M. C. C. 161, we found, among other things, that applicant was entitled to a certificate authorizing operation in interstate or foreign commerce as a common carrier by motor vehicle of groceries, oil, and paint, from New York, N. Y., Newark, N. J., and points within 15 miles of Newark to points in New York within 75 miles of Syracuse, including Syracuse, over irregular routes. Upon petition of applicant, we reopened the proceeding on December 9, 1940, for further consideration in certain respects and vacated and set aside, to the extent of the reopening, the partial denial order previously entered. A further review of the freight bills submitted shows that the commodities heretofore referred to as oil include shipments of penetrating oil, chassis lubricant, cup grease, spot remover, and insecticides. The more comprehensive description for these commodities is petroleum products in containers, spot remover, and insecticides. In addition to paint, applicant has transported between the same points, both prior to and continuously since June 1, 1935, stains, var 407283m-41-vol. 28- -6 nishes, lacquers, paint and varnish remover, paint materials, including lead, linseed oil, and turpentine, putty, and paint brushes. Shoe polish, floor polish, and laundry solutions also have been transported since prior to June 1, 1935, in connection with shipments of "groceries." A proper description of these commodities is such merchandise as is dealt in by retail food stores. The above-described commodities have been transported since prior to June 1, 1935, between New York, Newark, and points in New Jersey within 15 miles of the latter point, on the one hand, and points in the hereinafter-described area in New York, on the other, over irregular routes. On reconsideration, we find that applicant was, on June 1, 1935, and continuously since has been, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle of paint and paint materials, putty, brushes, stains, varnishes, lacquers, paint and varnish remover, petroleum products in containers, spot remover, insecticides, and such merchandise as is dealt in by retail food stores, between New York, N. Y., Newark, N. J., and points in New Jersey within 15 miles of the latter point, on the one hand, and points in New York on and east of U. S. Highway 15 and on and south of a line extending from Oswego to Rome along New York Highway 69, thence along New York Highway 49 from Rome to Utica, thence along New York Highway 5 from Utica to Schenectady, thence along New York Highway 7 from Schenectady to Troy, and thence along New York Highway 96 from Troy to the New York State line, on the other, including points on the indicated portions of the designated highways, over irregular routes; and that applicant is entitled to a certificate authorizing the continuance of such operations. An appropriate certificate will be issued upon compliance by applicant with the requirements of sections 215 and 217 of the Interstate Commerce Act and our rules and regulations thereunder. 28 M. C. C. INVESTIGATION AND SUSPENSION DOCKET No. M-953 ALL FREIGHT BETWEEN PORTLAND, OREG., AND SEATTLE, WASH. Submitted July 11, 1940. Decided February 19, 1941 Proposed commodity volume rates on articles rated first class to fourth class, inclusive, and rules on mixed shipments in connection therewith, between Seattle, Wash., and Portland, Oreg., found unlawful and ordered canceled, without prejudice to the filing of new schedules in conformity with the views expressed. Proceeding discontinued. D. E. MacMillan, Albert E. Stephan, and C. T. Kathrens for respondents. R. H. Culbertson, Arlus C. Morris, and Henry T. Ivers for protestants. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2: By schedules filed to become effective February 3, 1940, respondent motor common carriers, Heyser's Nickle Plate Line, Inc., Consolidated Freightways, Incorporated, and Smart's Auto Freight, proposed to establish commodity rates, minima 10,000 and 20,000 pounds, on articles rated first class to fourth class, inclusive, except certain specified articles,' between Seattle, Wash., and Portland, Oreg. Upon protest of Pacific Inland Tariff Bureau, Inc., on behalf of five other motor common carriers operating or participating in rates between Seattle and Portland, and the North Pacific Freight Bureau, the operation of the proposed schedules was suspended until August 1, 1940, and further voluntarily postponed until February 27, 1941. Rates are stated in cents per 100 pounds. Motor common carriers operating between Portland and Seattle, including the respondents, publish class rates, dependent upon the volume shipped, on commodities rated first class to fourth class, inclusive, as follows: 1 Exceptions: Liquid acid; perishable freight requiring refrigeration; alcoholic liquors, including wine; livestock; nursery stock; passenger and freight automobiles; explosives: fresh or green fruits and vegetables; fresh milk and cream; live poultry; and raw, spun, or thrown silk, Present rates between Portland, Oreg., and Seattle, Wash. These class rates apply on straight shipments of any one class, and on consolidated shipments of commodities having different ratings; the rate on a mixed shipment of articles subject to different classes is that applicable to the highest-rated commodity included in the shipment. The three respondents herein propose to establish the foregoing class rates on quantities of 10,000 and 20,000 pounds as commodity rates, and to apply thereto the rule that "mixed shipments of two or more classes will be taken at rates applicable to each class on basis of the aggregate weight of the entire shipment." This rule would not change the level of the rates. It would enable the shipper having a shipment consisting of numerous commodities with different ratings and weighing 10,000 pounds or over to apply the respective rates to the weights of the commodities within each class, in lieu of applying to the entire weight of the shipment the rate on the highestrated commodity included in the shipment. For example, on a shipment of 20,000 pounds, of which 10,000 pounds is rated first class, 5,000 pounds second class, and 5,000 pounds fourth class, the rate on the entire shipment, under the present rule for mixed shipments, would be 68 cents, resulting in freight charges of $136, whereas, under the proposed rule, the 68-cent rate would apply on the weight of the commodities rated first class, the 56-cent rate on the second-class merchandise, and the 38-cent rate on the articles rated fourth class, resulting in total charges of $115, or a reduction of $21 in the total charges. The proposed rule on mixed shipments makes no provision for shipments aggregating less than 10,000 pounds or less than 20,000 pounds. For example, where a shipment of 17,000 pounds is tendered, no basis is provided for charges on the deficiency in weight of 3,000 pounds. The respondents suggest that the proposed rule be amended by providing that "any deficiency in weight will be considered as fourth class." In addition they propose a further amendment, namely, "does not apply on articles taking any-quantity commodity rates, and the weight of such articles must not be included in determining these class-rate reductions." At the hearing a question was raised as to whether under the proposed rule articles could be included in a consolidated shipment which were rated higher than first class. Counsel for the respondents agreed that the rule should be amended by providing that the suspended schedules would apply only to commodities rated first class to fourth class, inclusive. Representatives of Heyser's Nickle Plate Line, hereinafter referred to as Heyser, a respondent; Sears, Roebuck & Company, hereinafter called Sears; Montgomery Ward & Company; and Western Auto Supply Company appeared in support of the proposed schedules. They maintain that a shipper of mixed quantities is entitled to the same consideration as that accorded shippers of single commodities or commodities commercially related, which move under commodity rates, and that the proposed schedules would not result in undue prejudice because all shippers who would be able to ship in sufficient volume would obtain the same benefit from the proposed schedules. Sears is the principal shipper advocating these rates. It maintains a branch house in Seattle and stores in Portland, and it ships from Seattle to Portland about 10,000 different articles, which generally move in small quantities. Prior to 1938 its freight moved at an all-commodity rate of 45 cents by contract carrier. When that carrier was found to be a common carrier in 1938, it increased its charges between Portland and Seattle to those in effect over the lines of other motor common carriers. During the period from June 1 to November 30, 1938, freight shipped by Sears from Seattle to Portland, exclusive of that moving at commodity rates, amounted to 1,816,837 pounds and took an average class rate of 71.56 cents, resulting in charges of approximately $13,000.91, an increase in charges of $4,825.15, or 59.2 percent, over those which would have been paid had the former rate of 45 cents been effective. Since March 15, 1939, it has shipped merchandise from Seattle to its stores in Portland over Heyser's line. It contends that the proposed rates are necessary in the conduct of its business, and asserts that if the proposed schedules are not found justified it will inaugurate its own truck service, which it estimates would cost 36 cents per truck-mile. The distribution system of Montgomery Ward is similar to that of Sears except that its warehouse is in Portland and the bulk of its traffic is shipped from that city to Seattle. It intends to use the proposed adjustment in connection with shipments from Portland to Seattle. Western Auto Supply has a warehouse at Seattle and ships freight from that city in less-than-truckload quantities daily. It believes, however, that it would be able to consolidate many of its shipments to take advantage of the proposed rates. Heyser operates principally between Seattle and Portland. Since it began the transportation of the traffic of Sears in March 1939, its total tonnage hauled, gross revenues, and net earnin substantially. An exhibit submitted by its tr ve increased or shows |