New York moved by rail, and that, while but 35.6 percent moved to Boston by all-rail routes, the water carriers do not handle this traffic beyond New York and the rail lines participated in all the traffic thereto. During that season the relief authorized applied only to sailing days. It is also indicated that shippers were dissatisfied with the sailing-day plan and apparently considerable traffic was delivered to the water lines that otherwise would have moved by rail had the rates been effective on all days of the week. On October 27, 1937, we authorized the rail carriers to apply the rates on all days, but the record does not contain information as to the number of cars shipped by the respective lines for the 1937-38 season. It is well known that rail service is superior in many respects to water service. It is more elastic, and cars shipped by rail may be reconsigned or diverted, which is not possible in connection with water routes. This is an important advantage in the handling of fresh fruits. The superior rail service at equal rates with water lines tends to destroy legitimate competition by water.

The competition here shown to be met is that of unregulated water lines, and it is indicated that approval of applicants' proposal will force these carriers to reduce their rates on this traffic, and that, in the event of loss by the water lines of a substantial amount of tonnage, efforts will be made to replace such loss with vegetable traffic, of which there is a heavy movement by rail from Florida to north Atlantic ports. The carrying out of these threats will place the rail carriers in a worse position than at present.

I dissent from the grant of authority to maintain lower rates to the more distant than to intermediate points, and I disagree with the majority that the low level of rates is required to meet the truckwater competition.

COMMISSIONER PORTER dissents.

CHAIRMAN SPLAWN and COMMISSIONERS EASTMAN and CASKIE did not participate in the disposition of this proceeding.

APPENDIX 1

Proposed rule to be published in connection with truck-and-water competitive rates on citrus fruit from Florida to the eastern ports and New England points now published on pages 6 and 7 of supplement 111 to Agent Roy Pope's I. C. C. 1828 (citrus fruit-strawberry-vegetable tariff)

Item To meet truck-water competition on citrus fruit, carloads, from Florida, the rates subject to this item will include the following refrigeration service when the destination shown on bill of lading is Boston, Mass., or points named in Item 224; New York, N. Y., or points named in Items 215 and 230;

Philadelphia, Pa., or points named in Item 218, or Baltimore, Md., or points named in Item 221.

(a) Refrigerator cars will be placed for loading without ice in bunkers. (b) After a car has been loaded and bill of lading has been issued, car will be handled from loading point with vents open and plugs out to an icing station in Florida en route, where 8,000 pounds of ice will be placed in bunkers, except during the months of December, January, February and March when 6,000 pounds of ice will be placed in bunkers.

(c) After a car has been iced as provided in paragraph (b) above, it will be handled to destination with vents closed and plugs in, and no additional ice will be placed in bunkers, except as provided in paragraphs (d), (e), and (f). (d) If, upon instructions from shippers, cars are re-iced only once before arrival at final destination charges will be assessed as provided in Rule 251 of Agent R. C. Dearborn's I. C. C. No. 9 (Perishable Protective Tariff No. 9), supplements thereto or successive issues thereof, from point of initial icing to final destination, or if re-iced more than once Standard Refrigeration charges will be assessed from point of initial icing to final destination as provided in Agent R. C. Dearborn's I. C. C. No. 9, supplements thereto or successive issues thereof.

(e) If, upon instructions from shippers, consignees or owners, cars subject to this item are diverted or reconsigned to destinations other than Boston, Mass., or points named in Item 224; New York, N. Y., or points named in Items 215 and 230; Philadelphia, Pa., or points named in Item 218, or Baltimore, Md., or points named in Item 221, diversion order must specify what additional icing service is desired, if any. If no additional icing is desired charges will be assessed as provided in Rule 240 of Agent R. C. Dearborn's I. C. C. No. 9, supplements thereto or successive issues thereof, from point of initial icing to final destination; but if cars are subsequently re-iced one time before arrival at final destination, charges will be assessed as provided in Rule 251 of Agent R. C. Dearborn's I. C. C. No. 9, supplements thereto or successive issues thereof, from point of initial icing to final destination, or if re-iced more than once before arrival at final destination Standard Refrigeration charges from point of initial icing to final destination will apply, as provided in Agent R. C. Dearborn's I. C. C. No. 9, supplements thereto or successive issues thereof.

(f) If, after arrival at final destination, cars subject to this item are re-iced upon instructions from shippers, consignees or owners, such ice will be supplied at charges provided in section 4 of Agent R. C. Dearborn's I. C. C. No. 9, supplements thereto or successive issues thereof.

(g) Where shipper elects to avail himself of the special refrigeration service described in Paragraphs (a), (b) and (c) of this item shipping orders and bills of lading should bear the following endorsement:

"Special refrigeration service (Item, Agent Pope's I. C. C. No. 1828)."

(h) Waybills must bear the following notation:

"To be initially iced at — with four tons of ice; no reicing. Keep vents open and plugs out until initially iced; thereafter plugs in and vents closed to final destination."

1 During the months of December, January, February and March, substitute "three tons of ice (one and one-half tons in each end of car)."

APPENDIX 2

Movement of citrus fruits from Florida to north Atlantic ports

1 To and including May 1936.

Practically all moved by truck-water routes to New York, N. Y., and by rail beyond.

To and including May 1937.

226 I. C. C.

No. 24050

A. JOHNSTON, GRAND CHIEF ENGINEER OF BROTHERHOOD OF LOCOMOTIVE ENGINEERS, ET AL. v. ATLANTIC COAST LINE RAILROAD COMPANY ET AL.

Submitted February 15, 1938. Decided February 28, 1938

Upon reconsideration, the order in this proceeding, 222 I. C. C. 542, modified in certain respects.

Appearances same as in prior report.

REPORT OF THE COMMISSION ON RECONSIDERATION

MCMANAMY, Commissioner:

By petition filed January 5, 1938, on behalf of practically all of the class I railroads, originally defendants in Johnston v. Atlantic Coast Line R. Co., 222 I. C. C. 542, we are asked to reconsider that report and to modify the order therein with respect to paragraph (b) of rule 157 of the rules and instructions for inspection and testing of steam locomotives and tenders and their appurtenances. That paragraph requires that steam locomotives used in road service and built prior to September 1, 1937, weighing on driving wheels 150,000 pounds or more, and steam locomotives used in switching service and built prior to that date, weighing on driving wheels 130,000 pounds or more, which are equipped with manually operated reverse gear shall have a suitable type of power-operated reverse gear substituted therefor when they receive class 3 repairs 1 or heavier, after September 1, 1937, and that all such steam locomotives shall be so equipped before September 1, 1942. We are asked to modify that paragraph so as to provide that the locomotives shall be equipped hereafter when they are given class 12 or class 23 repairs, as defined by the United States Railroad Administration. The petitioning railroads do not ask that the order be modified to extend the ultimate limit of September 1, 1942, before which all the locomotives involved shall be equipped with power reverse gear.

The petitioners urge their impaired financial condition as grounds for modification and state that the order at present in force would

1 Flues all new or reset (superheater flues may be excepted); necessary repairs to firebox and boiler; tires turned or new; general repairs to machinery and tender.

New boiler or new back end; flues new or reset; tires turned or new; general repairs to machinery and tender.

New firebox, or one or more shell courses, or roof sheet; flues new or reset; tires turned or new; general repairs to machinery and tender.

involve a substantial immediate increase in expenses and tend to affect their ability to furnish adequate and efficient transportation to the public. It will be observed that repairs defined as class 1 and 2 are given at less frequent intervals than those defined as class 3, and that the former are heavier and involve greater expenditures than the latter.

After the receipt of the petition the original complainants asked for, and were granted, an extension of time in which to file replies. No replies have been filed, nor has any objection been raised to the modification requested.

We therefore find upon reconsideration of the report and order, that the order should be modified in accordance with the petition.

An appropriate order amending paragraph (b) of rule 157, supra, to provide that the locomotives involved shall be equipped with a suitable type of power-operated reverse gear the first time they are given repairs defined by the United States Railroad Administration as class 1 or class 2, instead of class 3, and that all such locomotives shall be so equipped before September 1, 1942, will be entered.

226 I. C. C.