However complainant's demonstrated lack of diligence in bringing its claim before this Commission is "something akin to laches" and, accordingly, complainant's request for an award of damages, which is discretionary with the Commission is denied.--Id., pp. 544. 112. Hearing, notice.--Under $5, the holding of a hearing in a proceeding whereby the acquisition of control of one carrier by another through stock ownership is contemplated is discretionary with the Commission.--Denver & R.G.W.R. Co. v. United States, 255 F. Supp. 704 (707)*. The Commission did not exceed its discretion in deferring consideration of the issue of control of Railway Express Agency by Greyhound, as radical changes in the relevant facts might take place in the 60-day deferra period, and it is highly unlikely that any harm could flow to appellants or to the public interest from a deferral limited to that issue.--Denver & R.G.W.R. Co. v. United States, 387 US 485 (499-501)*. $6(1). SCHEDULE OF RATES, FARES, AND CHARGES; FILING AND POSTING Rates, Fares, and Charges 35. Export and import rates.--See International Joint Rates and Through Routes case at $1(1), n. 52 Rules and Regulations 81. In general.--A rule promulgated by the Commission which required publication in tariff form of rates and rules governing the leasing of equipment by railroad or its affiliate to any person using railroad trailer-on-flatcar (TOFC) service as supported by provisions of §6(1) requiring full publication of all charges and privileges or facilities and defining rail transportation, insofar as said rule concerned railroad's service as part of a total transportation service.--Atchison, T. & S. F. Ry. Co. v. United States, 244 F. Supp. 955 (971)*. Commission prescribed new rules and regulations for filing and publishing both joint and combination rates over international-domestic through routes. These rules permit such filing and publishing in connection with any carrier subject to parts I, II, and III of the Act by amendment of 49 CFR $1300.67 and $1307.22.--International Joint Rates and Through Routes, 337 ICC 625 (632-36). $6(3). CHANGE IN RATES, FARES, ETC.; NOTICE REQUIRED; SIMPLIFICATION OF Changes in Schedules 1. In general.--Proposed change in rail classification rule 24 and similar rules in other tariffs pertaining to the use of overflow cars not shown just and reasonable. Respondents assert that former rule led to abuses in connection with incentive rates, e.g., sending lead car to one destination and overflow car to another under the terms of the stopoff rule. Such evidence is insufficient justification for proposed change as the proper way to handle such abuses is to apply specific restrictions on the rates.-Freight in Excess of Full Carload, 337 ICC 509 (515-16). Respondents' cost evidence introduced to show that service rendered in accordance with rule 24 has been expensive is not sufficiently reliable to be probative. Furthermore, cost data stated are not used in any meaningful manner considering the issue herein. Schedules ordered canceled.-Id., pp. 516. §6(7). TRANSPORTATION WITHOUT FILING AND PUBLISHING TARIFFS FORBIDDEN; REBATES; PRIVILEGES Principles Governing Tariff Interpretation 10. In general.--It is well established that plain tariff provisions should be interpreted as published, notwithstanding that intent of the framer may be aborted thereby. At issue was whether a charge, named in another tariff item and specifically restricted to apply on rates to shipside, was applicable on shipments delivered to Government port facility under proviso in governing line-haul tariff specifying that aforementioned tariff item will apply. Commission held that provisions restricting additional charge to rates to shipside may not be ignored and thus the additional charge was inapplicable.-United States of America v. Southern Pacific Co., 337 ICC 504 (507-08)*. Observance of Published Tariff 225. Refund of overcharges.-See United States v. Southern Pacific Company, at §6(7), n. 10. §6(12). THROUGH ARRANGEMENTS BY WATER TO FOREIGN COUNTRY 2. Construction and interpretation.--This section empowers Commission, once a voluntary establishment of international joint rates has been made, to require carriers subject to our jurisdiction to enter into like kinds of arrangements with other water carriers in the same trade. Section 6(12) also affirmatively indicates that arrangements for through routes and joint rates between domestic carriers subject to our jurisdiction and oceangoing carriers were contemplated.--International Joint Rates and Through Routes, 337 ICC 625 (629). $8. LIABILITY IN DAMAGES TO PERSONS INJURED BY VIOLATION OF LAW 193. at §6(7), n. 10. Section 6 of Interstate Commerce Act Overcharge.--See United States v. Southern Pacific Company, $13a. DISCONTINUANCE OR CHANGE OF CERTAIN OPERATIONS OR SERVICES 2. Construction and interpretation.--It is the essential character of service, rather than numbering and description, that is the primary indicium of nature of a train. Subject passenger cars transport through passengers between Cincinnati, Ohio, and New York, N. Y., and therefore are within this Commission's jurisdiction even though locomotives and train crews may operate solely within one State.--Penn Central Transportation Co. Discontinuance, 338 ICC 380 (388-89). Commission found protestants' contention that certain trains herein are segments of a through train service and that appropriate notices were not posted to be without merit. Subject trains originate and terminate at stated points and through passengers must change trains to complete their journey and applicants are not required to file discontinuance notices past these terminal points.--Id., pp. 389. Proceeding herein found not to be a "wholesale" discontinuance of unrelated trains inasmuch as through passengers do travel on subject trains and on other of 32 trains considered herein in through service and Commission accordingly has jurisdiction.--Id., pp. 390. Commission, citing Southern, 376 US 93, must carry out the manifes intent of Congress embodied within the present law, notwithstanding any changes to the law now in the making, which is to provide effective means of discontinuing passenger trains for which public need is insufficient to justify the financial loss involved.--Id., pp. 470-71. 15. Procedure; notice; hearings.--Protestants' petition to dismiss this proceeding on grounds that applicant's refusal to voluntarily continue subject trains and the Commission's condensed hearing schedule deprived them of an opportunity for a fair hearing denied inasmuch as the district court had provided the equivalent of an extension by its order restraining proposed discontinuance.--Penn Central Transportation Co. Discontinuance, 338 ICC 380 (384-85). Commission is empowered by $12 to obtain from carriers such information necessary to carry out its duties and therefore Commission's closed session meetings with officials of applicant herein do not constitute improper ex parte communications and are not a basis for Commission to disqualify itself. Petitioner's reliance on Sangamon, 269 F. 2d. 221, is inapplicable as there is no allegation herein of private approaches to members of the Commission.--Id., pp. 387-89. 22. Continued service needed.--Commission ordered continuance of 20 of 34 trains involved herein in view of substantial passenger usage and the increase in revenues resulting from an intercity passenger fare increase and discontinuance of the 14 other trains considered herein.--Penn Central Transportation Co. Discontinuance, 338 ICC 380 (471-78). 25. Losses from operations.--Discontinuance and reduction in service sought herein of subject passenger trains between Springfield, Mass., and Hartford, Conn., approved inasmuch as evidence is uncontroverted that applicant's deficit from such service is inordinately high and may be reduced by approval herein and in view of applicant's overall financial condition which requires appropriate remedial action.--New York, N.H. & H.R. Co. Trustees Discontinuance, 338 ICC 23 (41). Commission approved discontinuance of subject trains between Chicago, Ill., and Council Bluffs, Iowa, in view of applicant's prior overall financial condition, the loss sustained on such trains, and the net savings that would be lost if the now suspended service were to be restored. --Chicago, R.I. & P.R. Co. Discontinuance of Trains, 338 ICC 68 (83-84)*. Commission approved discontinuance of 14 of the 34 trains involved herein in view of obvious minimal need by public for such service, insolvency of the carrier, limited effect upon territory encompassed, proportionately large losses incurred by carrier, relatively few number of passengers involved, and minimal adverse effect on employees.--Penn Central Transportation Co. Discontinuance, 338 ICC 380 (478-79). Computation; out-of-pocket costs: In computation of short-term savings, the accuracy of input data need only come within a range that provides a substantial and persuasive evidentiary basis for decision.-Penn Central Transportation Co. Discontinuance, 338 ICC 380 (478). 30. Employees.--Although term "public convenience and necessity" is broad enough to embrace consideration of employee interests in §13a proceedings, this Commission has uniformly held that it lacks power to impose employee protective conditions (see Great Northern, 307 ICC 59, 74-76).--Penn Central Transportation Co. Discontinuance, 338 ICC 380 (467-68). $15 (7). COMMISSION TO DETERMINE LAWFULNESS OF NEW RATES; SUSPENSION; Procedure 35. Burden of proof upon the hearing; in general.--Rail carriers failed to sustain their burden of proof when evidence they presented, although considerable, is not convincing that proposed increase in the additive charge on waterborne traffic moving through North Atlantic, Pacific coast, and Canadian ports is just and reasonable. Record indicates that, as performed by respondents, port terminal services associated with waterborne traffic have substantially decreased since an additive charge was authorized in 1958; also, fact that the charge is now incorporated into the base rate before applying three subsequently authorized general increases weakens the justification for respondents' proposal. circumstances, therefore, and in absence of clear and precise representative cost evidence demonstrating a need for additional revenues, the proposed increased waterborne is not shown to be justified; not approved. --Increased Waterborn Charge, 337 ICC 534 (535, 540-41)*. 50. Evidence; generally.--Commission prescribed cost evidence rules based on various cost formulae developed by the Commission's Cost Finding Section inasmuch as such formulae are valuable tools in estimating carrier costs but should not be given prima facie validity.-Rules to Gover Assembling & Presenting Cost Evidence, 337 ICC 298 (322-27). Particular Justification for Changes 70. Cost of service.--While the cost of performing port terminal services has increased since approval of a waterborne additive charge in Ex Parte No. 212, 304 ICC 289, to be applied to rail rates on waterborne traff at all ports, evidence indicates that the service performed by railroads at some ports has substantially decreased since 1958; at several ports, the carriers have sold or ceased operating their marine terminal facilities. In addition, the waterborne charge was originally established to help offset the cost of certain port services and was to accrue to the carrier providing those services or absorbing costs thereof; however, due to its being incorporated into the base rate before application of authorized general increases, the charge currently provides additional revenue for the line-haul carriers. Therefore, since respondents failed to present clear and precise representative cost evidence showing a need for additional revenues, proposed increases in the waterborne additive on traffic moving through North Atlantic, Pacific coast, and Canadian ports cannot be approve --Increased Waterborne Charge, 337 ICC 534 (537-38, 540-41)*. $20(3). UNIFORM SYSTEM OF ACCOUNTS 24. Depreciation accounting.--On reconsideration, Commission concludes that, for depreciation purposes, the purchaser of a pipeline system of facility should be permitted to record in its carrier property accounts the cost of property acquired to the extent that it represents fair market value at the date of acquisition.--Uniform System of Accounts for Pipelines Companies, 337 ICC 518 (522-23)*. 6. In general.--See Uniform System of Accounts for Pipeline Companies, at $20 (3), n. 24. $20a (2). ISSUANCE OF SECURITIES; ASSUMPTION OF OBLIGATIONS; AUTHORIZATION General Considerations 45. Public interest generally.--The Commission is required, as a general rule, under its duty to determine that the proposed transaction is in the "public interest" and for a "lawful object, to consider the control and anticompetitive consequences before approving stock issuances under $20a (2). This does not mean the Commission must grant a hearing in every case, or that it may never defer consideration of issues which arise when special circumstances are present. But it does mean that when the Commissio |