origin point prior to the actual handling of the vehicle." At the same time the specifically identified toll charges were increased. A similar change was effective September 17, 1970, in supplement 1 to tariff No. 165-E. Subsequently on May 7, 1971, in tariff No. 165 series and June 10, 1971, in tariff No. 164 series the “Origin Terminal Handling Charges" were deleted and in their place a toll charge which either increased the existing charges by $1.50, or instituted a new charge of $1.50 a vehicle applicable on each vehicle handled became effective. The increase in the tariff No. 165 series was not denoted by the appropriate symbol as being an increase. On August 16, 1973, protestant informed respondent tariff bureau that the $1.50 charge imposed since August 1, 1970, had been improperly levied in that its vehicles had not been extended by marshalling or special handling services and that the vast majority of the units were transported over routes which did not require payment of tolls. On September 18, 1973, respondent tariff bureau proposed to its members that the toll charge be incorporated into the line-haul rates. Subsequently the change was approved and the modification was accomplished in the publications whose lawfulness is here in issue.

On or about March 17, 1974, protestant filed a lawsuit in the United States District Court, Eastern District of Michigan, Southern Division, challenging the legality of the toll charge. Respondent is said to have learned of the suit much earlier and had notice of the contemplated action on or about August 16, 1973, when it was advised of protestant's position on the subject. Protestant believes that the incorporation of the toll charges into the line-haul rates was a maneuver designed to thwart the effect of the lawsuit. Thus under no circumstances can the incorporation of the toll charge into line-haul rates be justified as a tariff simplification measure designed to ease the burden on carriers and shippers of accurately computing charges. Protestant submits that the effect of the change is to assure that the toll charge, which is of dubious propriety and involved in a Federal lawsuit, is applied in an unjust, unreasonable, and illegal manner to each and every vehicle regardless of whether the vehicle receives the service for which the charge is imposed. It does not object to payment of toll charges in instances where shipments handled for its account actually incur toll expenses. It knows of no instance where the Commission has approved application of toll charges regardless of whether or not toll expenses are actually incurred. Inclusion of a toll charge in the line-haul rate is said to be improper because it leads to distortion of rates. Future general revenue increases, will be based on a percentage of the line-haul rates, the latter including a toll charge element which may not have incurred a cost increase.

Protestant raises several other issues with respect to various aspects of the charges referred to in the foregoing account. First, it endeavored to determine whether the cancellation of the “Toll and Marshalling Charge" and the "Origin Terminal Handling Charge" was associated with any changes in operations provided by the carriers at points where shipments originate. On or about May 31, 1974, protestant's consultant visited Dundalk Marine Terminal, Md., where he spoke with the manager of the terminal and seven drivers of whom five had been hauling vehicles since at least May 1970. All the persons interviewed indicated that over the years there had been no change in the services provided by the carriers at origin.

Second, protestant questions whether the increase in toll charges over the years is related to corresponding increases in toll payments. A study was made of the toll rates for highways, bridges, and tunnels in 1970 as compared with 1973. Of the 24 highways studied, only 4 or 17 percent experienced increases; on 19 the tolls remained unchanged, while on one there was a decrease. The average increase over the period is

less than 3 cents per vehicle assuming a seven-vehicle load. Of the 33 bridges or tunnels studied, the tolls on five increased, those on 27 were unchanged, while on one there was a reduction. The average increase per vehicle was about 9 cents. The seven carriers which supplied data for respondents' cost study reported transporting 409,593 vehicles in 1973 and to making toll payments of $453,582 or an average of $1.11 per vehicle. In contrast the predecessor publications in effect prior to December 11, 1973, provided for the payment of toll charges several times greater than the average 1973 toll expense. This establishes that the increase in toll charges over the years was not predicated on an increase in toll payments incurred by respondents, but rather was a substitute for the canceled "Toll and Marshalling Charge" and the "Origin Terminal Handling Charge."

Third, protestant disputes respondent's explanation that the practice of incorporating toll charges into the line-haul rates as was done in the assailed publications is patterned on the similar practice adopted several years ago with respect to tariffs covering domestic vehicle movements. Concerning the 1967 modification of tariff No. 10-0 covering movements from Lansing, Mich., protestant submits that toll charges were incorporated into the line-haul rates only with respect to those rates which in the prior tariff were specifically subject to toll charges. The same is true of the September 1965 revision of tariff No. 558 applicable on movements from Pontiac, Mich.

Finally reference is made to a certain anomaly in the way the assailed tariffs treat bridge crossing charges. Tariff No. 165-I, item 300 provides for a charge of $13 per truck or trailer crossing the Mackinac Bridge to reach the Upper Peninsula of Michigan. In contrast the charge is $11 in tariff No. 164-H. Protestant can perceive no reason for the difference. Since January 1, 1969, the one-way crossing charge for a five-axle truck is $5.50 or $11 for a round trip, but it is said to be unreasonable to charge the round trip toll when the trailer might return via the western route and not incur a toll expense.

Protestant also contends that the assailed publications and certain of their predecessors failed to comply with several rules in Tariff Circular MF No. 3. Rule 4(b)

states:

A tariff may provide rates from or to designated points by the addition or deduction of arbitraries or differentials from or to rates shown therein from or to base points, but provision for the addition or deduction of arbitraries or differentials shall be shown either in connection with the base rate or in a separate item which must specifically name the base point and clearly and definitely state the manner in which such arbitraries or differentials shall be applied.

Protestant believes it contrary to the terms of this rule to incorporate in a bridge or highway toll charge an amount to compensate carriers for unrelated services whether actually performed or not.

It seems clear that the purpose of the aforementioned rule is to require that the application of the arbitrary to the line-haul rates be made in a clear and definite manner so as to avoid confusion or uncertainty as to whether a particular rate is or is not subject to the arbitrary. Protestant does not contest whether the tariff makes the line-haul rates subject to the arbitrary (here a toll charge), but rather the reasonableness of the level of the arbitary and whether the shipments incurred the services which the arbitrary was ostensibly designed to cover. The toll charges were intended by the tariff maker to be applied to the line-haul rates and the tariff

publications effected this intent in a manner which is consistent with the terms of rule 4(b). Accordingly there is no violation of Tariff Circular Rate 4(b).

Objection is also made to the fact that tariff No. 165-I fails to conform to certain of the provisions of rule 7B of the tariff circular. That rules states:

All tariff publications shall indicate changes made in existing rates, charges, classifications, rules or other provisions by use of the following uniform symbols in connection with such change: (symbols omitted).

Explanation of such symbols shall be provided (see rule 3(e)) in the publication in which they are used, and these symbols shall not be used for any other purpose. When a change of the same character is made in all or in substantially all rates in a tariff or supplement, or a page thereof, that fact and the nature of such change may be indicated in distinctive type at the top of the title page of such issue, or at the top of each page, as the case may be, in the following manner: "All rates in this issue are increases"; or "All rates on this page are reductions"; or there may be added, when appropriate, "except as otherwise provided in connection with particular rates." In complying with this paragraph, a bold-faced dot "." shall be used to symbolize a rate or other provision in which no change has been made and the proper symbol shall be used for the purpose of denoting any other change not indicated by the general statement referred to above.

The predecessor of tariff No. 165-I was No. 165-H and item 350 of the latter tariff, according to protestant, authorized application of toll charges. Tariff No. 165-1, the publication whose lawfulness is here in issue, contains no item 350, but despite this, rate sections 4 and 5 have a column headed ".Toll Charge (x)." Reference mark "x" is indicated as meaning "Refer to item 350." Under the aforementioned column there are toll charges in connection with some movements. Protestant directs attention to the obvious contradiction between the reference to item 350 in rate sections 4 and 5 but the failure to set forth the terms of the item in the rules section of the tariff. It also points to the anomaly of the bold faced dot “.”, which means no change, alongside the failure to give meaning to the reference mark by publishing item 350. Finally there is the conflict of the bold faced dot against the publishing agent's justification for the tariff, dated October 25, 1973, wherein it was stated that for purposes of simplifying computation of freight charges the "Toll Charge" would be included in the line-haul rates and that all toll charges were canceled.

It seems obvious that tariff No. 165-I did contain a contradiction or ambiguity, but so far as the record shows protestant's rights as set forth in the Interstate Commerce Act were not abridged. The guidelines established over the years for resolving tariff disputes dictate that the toll charges listed in rate sections 4 and 5 under the column headed ". Toll Charge (x)" may not be applied because there was no corresponding rule in the tariff authorizing application of the toll charges. The confusion has been cleared through publication of tariff No. 165-J, MF-I.C.C. 344 and supplement 2 thereof with effective dates of August 29 and September 9, 1974, respectively. They are successor publications to tariff No. 165-1. It is not established that the tariff ambiguity of itself worked to protestant's disadvantage, but any toll charges collected by the members of respondent tariff bureau between December 11, 1973, and August 24-September 9, 1974, were imposed without tariff authority and therefore ought to be refunded. It is true with respect to tariff No. 165 series that the May 7, 1971 increases in toll charges and the establishment of new toll charges where heretofore there had been none, was not denoted by an increase as required by rule 7B of the tariff circular,

but the rules in the latter publication are designed to bring uniformity to tariff publishing practices. Infractions of the rules do not redound to the benefit of shippers unless the violations run counter to the Interstate Commerce Act, and there is no evidence or contention that this is so.

Concerning respondent's rate comparisons, protestant submits that the burden is on the carriers to justify the increase and comparisons with other tariffs cannot satisfy this obligation. Moreover, there are serious questions as to the relevancy of the comparisons inasmuch as the tariffs governing the movement of Volkswagens and the transportation conditions attaching to the movement of this traffic differ from the compared tariffs and the circumstances surrounding movements thereunder. The principal difference and the one stressed most frequently is that the assailed tariffs contain a six or seven-vehicle truckload minimum provision whereas the compared publications, with the exception of Bannon's tariff No. 4 and ATTB tariff No. 134, do not require that a minimum number of vehicles be loaded on a truck. Thus under most of the compared tariffs, respondent carriers could be required to transport a shipment as small as a single vehicle at the single vehicle rate. In contrast most Volkswagens are loaded seven on a truck and application of the column B rates is dependent on minimum loads of seven cars. The usual Volkswagen shipment comprises a sevencarload, and such a load is attainable even when one of the vehicles is a camper or bus type. If the load consists entirely of the classic Volkswagen “bug” ́eight such vehicles may be, loaded on a truck. Another characteristic which distinguishes Volkswagen traffic is that invariably carriers are tendered full loads at origin and that the load moves to a single destination for delivery. The compared tariffs applicable on the movement of domestic automobiles allow the loading of full-size vehicles with the result that a fewer number of such vehicles can be loaded on a trailer than is the case with the seven or eight Volkswagens which the typical trailer can accommodate. There are other ways in which the compared tariffs differ from those assailed. For example, Nu-Car Carriers Tariff series 40 permits more than one shipment for movement to more than one consignee or destination to be loaded on a single truck. Respondent's tariff Nos. 176 and 116 series allow up to 2 hours free time for stops enroute, while tariff No. 134 series contains a storage in transit provision. Objection is made to the M & G Convoy comparison of Bannon tariff No. 4, six-vehicle minimum rate, covering movements from Baltimore to 14 points in Maryland, New Jersey, and Pennsylvania. Had the comparison been made with the assailed column D, six-vehicle minimum rate, (applicable on cars weighing over 3,000 pounds), the latter rates for each of the compared movements except to Rockville and Silver Spring, Md., are higher than those in the Bannon tariff. On the basis of a seven-vehicle load the column D rates produce substantially more revenue than do the compared rates except to Rockville and Silver Spring where the compared rates produce 35 cents and $10.15 more revenue, respectively. Furthermore M & G does not show the weight of the vehicles which it transports under the Bannon tariff.

Protestant points out that the comparison by respondent Boutell of the assailed minimum seven-vehicle rate with the tariff series 36 no minimum rate, plus toll charge, is unfair not only because the latter rate does not require loading of a minimum number of vehicles but also because the latter rates include an origin terminal handling service. No such service is performed in connection with the movement of Volkswagens.

Protestant submits that respondents have not shown that the traffic conditions in connection with movements under the involved tariffs are in any way similar to the movements made under the compared tariffs. The compared tariffs are structured in a

manner entirely different, in terms of truckload minimums, stop-in transit services, and split delivery movements, from the considered tariffs, and, therefore, no judgment may be made concerning the significance of the lower level of charges in the assailed publications.

Cost presentation

RESPONDENT

Respondent tariff bureau retained the services of a cost consultant to study motor carrier costs associated with the movement of imported automobiles under the assailed tariffs. The first step was the gathering of data. A total of 17 carriers participate in the tariffs and a poll taken by respondent identified nine carriers as handling the predominant portion of the traffic. The consultant circulated a form to the nine carriers designed to obtain information for 1973 as to the number of imported vehicles handled, volume of loaded and empty trailer miles operated, and representative destinations. The material furnished disclosed that the nine carriers, with the exception of Kenosha Auto Transport Co., handled significant volumes of traffic. The principal carriers at Baltimore, Md., were Automobile Transport, Inc. (ATI), F. J. Boutell Driveaway Co., Inc. (Boutell), Clark Transport Co., Inc. (Clark), and Nu-Car Carriers, Inc. (Nu-Car); at Port Newark-Elizabeth, N.J., they were Arco Auto Carriers, Inc. (Arco), M & G Convoy, Inc. (M & G), ATI, Boutell, and Nu-Car; at Boston, Mass., and Providence, R.I., the principal carrier was Nu-Car; at Toledo, Ohio they were Clark, Gate City Transport Co. (Gate City), and Square Deal Cartage Co. (Square Deal), while at Chicago they were Arco and Clark. As the result of information developed by the survey, the aforementioned eight carriers, were requested to provide detailed revenue and expense data relating to operations at the aforementioned terminals where they were the predominant carriers, investment in transportation property and equipment in 1973, and data pertaining to increases in operating costs incurred in the early part of 1974 compared with 1973.

All except Arco furnished the information requested. The latter does not maintain its records so as to be able to provide information relating to particular terminals and thus could not develop revenues and expenses separately for its Chicago and Port Newark operations. Accordingly data pertaining to this carrier was not included in the cost study.

The seven carriers which supplied data for the study provided breakdowns of operating expenses incurred and revenues realized at the study terminals during 1973. A breakdown of expenses was necessary to derive information which could be applied to the standard cost format to develop expenses separately between those related to distance and those not so related. Costs related to distance are included in the linehaul category. Those not so related are classed as terminal expenses and are shown separately for loading-unloading as distinguished from all other terminal expenses. The procedure followed in assigning or allocating expenses to the various categories followed the methods developed by the Cost Finding Section of the Commission. The study carriers showed that there were important increases in wage, health, welfare, pension and fuel payments and other operating costs during 1973 and January and February 1974. The increases are taken into account in the adjustment made in the 1973 operating expenses. With the 5-percent rate increase which became effective December 11, 1973, carriers which rely on owner-operators incurred a corresponding increase in purchased transportation costs.