City and Traverse City through Cadillac and Grand Rapids, Mich., Fort Wayne, Ridgeville, and Richmond, Ind., and Hamilton, Ohio, to Cincinnati, Ohio, thence on, south, and east of the line of the Louisville and Nashville Railroad Company from Cincinnati, Ohio, through Louisville, Elizabethtown, and Guthrie, Ky., thence through Clarksville, McKenzie, and Bells, Tenn., to Memphis, Tenn., thence on and east of the Mississippi River from Memphis, Tenn., to New Orleans, La., on the other hand. Also between stations embraced in territory A above, on the one hand, and (B) stations on the lines of the Chicago and North Western Railway Company, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, and Minneapolis St. Paul & Sault Ste. Marie Railway Company, and on their connections in Wisconsin, Upper Michigan, Minnesota, North Dakota, Montana (except stations on the line of the Chicago, Burlington & Quincy Railroad Company), Iowa on and north of the Chicago, Milwaukee, St. Paul & Pacific from Marquette through Mason City and Sheldon, Iowa, to Canton, S. Dak., and South Dakota on and north of the Chicago, Milwaukee, St. Paul & Pacific from Canton through Mitchell to Rapid City, S. Dak., and the Chicago & North Western to Belle Fourche; also stations on the Chicago, Milwaukee, St. Paul & Pacific, Great Northern Railway Company, and Northern Pacific Railway Company in Idaho, Washington, and Oregon including stations on lines connecting in those States; also stations in western Canada on the Minneapolis, St. Paul & Sault Ste. Marie and on connections of the Chicago & North Western, Chicago, Milwaukee, St. Paul & Pacific, and Minneapolis, St. Paul & Sault Ste. Marie, on the other hand. 226 I. C. C. FOURTH SECTION APPLICATION NO. 17066 BALTIMORE STEAM PACKET COMPANY RATES Submitted September 4, 1937. Decided March 11, 1938 Authority granted, on conditions, to establish and maintain class and commodity rates in connection with the Baltimore Steam Packet Company between Baltimore, Md., and points in eastern trunk-line territory adjacent thereto, on the one hand, and other points in the United States, on the other hand, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. C. G. Rogers and A. P. Gilbert for applicants. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND CASKIE BY DIVISION 2: By this application, as amended, the Baltimore Steam Packet Company and the Chesapeake and Ohio Railway Company, for themselves and on behalf of carriers parties to tariffs listed in the application, apply for authority to establish and maintain class and commodity rates between Baltimore, Md., and points in eastern trunk-line territory adjacent thereto, on the one hand, and other points in the United States, on the other, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. Relief was temporarily authorized by fourth-section order no. 12935. Applicants propose to establish between the considered points over the lines of the Baltimore Steam Packet Company between Baltimore and Newport News, Va., thence over the lines of the Chesapeake and Ohio Railway Company or the Chesapeake & Ohio and its connections, rates the same as those concurrently in effect from and to the same points over the lines of the Chesapeake Steamship Company of Baltimore City to West Point, Va., thence Southern Railway Company to Richmond, Va., and the Chesapeake & Ohio and its connections, hereinafter termed the West Point route. Applicants' route will traverse the same intermediate points as the West Point route except as to Chesapeake & Ohio stations east of Richmond. Except as to these stations the fourth-section departures over the proposed route herein will be exactly the same as those existing over the other route. The ground for relief is carrier competition resulting from the opening of a new route. The departures at the Chesapeake & Ohio stations east of Richmond will be similar in character to departures at Virginia points on the West Point route and at intermediate Virginia points in connection with the Baltimore Steam Packet Company line to Norfolk, Va., thence the Norfolk and Western Railway. The distances beyond Baltimore and west of Richmond will be the same over the proposed route as over the West Point route. A constructive distance of 140 miles has been used heretofore between Baltimore and Virginia ports. From Newport News to Richmond over the Chesapeake & Ohio, the distance is 75 miles, as compared with 40 miles from West Point to Richmond over the Southern Railway, thus making a difference of 35 miles between the routes here considered. The fourth-section departures existing over the West Point route are protected by outstanding fourth-section orders or applications on file and applicants seek the same relief over the proposed route. The adjustment here proposed will not change the present rate structure in any particular and no additional participating carriers will be added to the rate tariffs. The sole effect of the adjustment will be the establishment of a new route both as to local and overhead traffic. The lines beyond Baltimore and west of Richmond that will participate in traffic over the new route will be the same as those which now participate in traffic transported over the West Point route. We conclude that a special case exists and that the record justifies relief similar to that granted in connection with the West Point route, subject to the conditions hereinafter stated. Applicants will be authorized, in those instances in which departures from the long-and-short-haul provision of section 4 lawfully exist in class and commodity rates over the West Point route between the points of origin and destination here considered, to establish and maintain rates the same as those contemporaneously in effect on like traffic between the same points over the West Point route, but not lower than the present rates in effect over that route, and to maintain higher rates from, to, and between intermediate points, including those on the Chesapeake & Ohio Railway east of Richmond; provided that rates at such higher-rated intermediate points shall not be increased except as may be authorized by this Commission and shall in no instance exceed the lowest combination of rates subject to the Interstate Commerce Act, and provided further, that the relief authorized herein shall be subject to the same terms and conditions as that over the West Point route, and if such relief over the latter route shall expire or be rescinded, the relief hereby authorized shall expire contemporaneously therewith. An appropriate order will be entered. 226 I. C. C. No. 24145 1 WISHNATZKI & NATHEL v. RAILWAY EXPRESS AGENCY, INCORPORATED, ET AL. Submitted November 3, 1937. Decided March 11, 1938 Upon further hearing, amounts of reparation due complainants under former findings, 190 I. C. C. 520, 197 I. C. C. 85, that rates on strawberries, in carloads, in express service from points in Florida to destinations in trunkline and New England territories were unreasonable, determined and ordered paid. Russell G. Stidolph and F. Trowbridge Vom Baur for complainants and interveners. Albert M. Hartung for defendants. REPORT OF THE COMMISSION ON FURTHER HEARING DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND CASKIE BY DIVISION 2: Exceptions were filed by complainants to the report proposed by the examiner, defendants replied, and the proceedings were argued orally. In the original report herein, R. W. Burch, Inc., v. Railway Exp. Agency, Inc., 190 I. C. C. 520, with which Nos. 24145 and 24671 were consolidated, division 5 found, among other things, that the rates on fresh strawberries, in carloads, in express service, under refrigeration, from points in Florida to destinations in trunk-line territory, including the Buffalo-Pittsburgh district, and in New England territory were, and for the future would be, unreasonable to the extent that they exceeded or might exceed 120 percent of the first-class freight rates from and to the same points constructed in accordance with findings 17-b, 17-d, and 17-f in the third supplemental report in Southern Class Rate Investigation, 128 I. C. C. 567, 599, minimum carload 17,000 pounds; that the charges for standard refrigeration of fresh strawberries, in carloads, in express service, from points in Florida to the destinations described above were not shown to have been unreasonable or otherwise unlawful; that the charges on fresh strawberries, in carloads, from points in Florida to the destinations described, diverted or reconsigned in transit without back hauls or 1 This report also embraces No. 24671, Caruso, Rinella, Battaglia Company, Incorporated, v. Railway Express Agency, Incorporated, et al. out-of-line hauls, were and for the future would be unreasonable to the extent that they exceeded or might exceed those that would have resulted from application of the rates prescribed as aforesaid plus a charge not to exceed $3 for each diversion or reconsignment after the first in each case, without further charge, subject to specified conditions; and that complainants were entitled to reparation on past shipments. The rates found reasonable by division 5 were established March 3, 1933. Upon petitions of complainants, the proceedings were reopened, on April 3, 1933, for reargument. In its report on reargument, 197 I. C. C. 85, November 7, 1933, the Commission found, among other things, that prior to March 3, 1933, the assailed rates on strawberries, in carloads, in express service, under refrigeration, under through billing, from points in Florida to destinations in trunk-line territory, including the Buffalo-Pittsburgh district, and in New England territory, were unreasonable to the extent that they exceeded 120 percent of first-class freight rates from and to the same points, constructed in accordance with findings in Southern Class Rate Investigation, supra, carload minimum 17,000 pounds, and that such rates "are and for the future will be unreasonable to the extent that they exceed or may exceed 105 percent of first-class rates constructed in the same manner"; that the charges for standard refrigeration of fresh strawberries, in carloads, in express service, from points in Florida to destinations described above "are and for the future will be unreasonable to the extent that they exceed or may exceed 85 percent of the present charges from and to the same points"; and that complainants in Nos. 24145 and 24671 were entitled to reparation, with interest. Complainants were directed to comply with rule V of the Rules of Practice, including in the statements filed thereunder shipments made during the pendency of the proceedings if accompanied by proof in affidavit form that complainants made such shipments and paid and bore the charges thereon. It was further stated that if defendants objected to proof in that manner a further hearing might be requested. As to issues which were not covered by the foregoing findings the findings of division 5 were affirmed. Under the order of the Commission the prescribed rates and refrigeration charges were required to be established December 28, 1933. Instead of complying with the order, defendants filed an application with the United States District Court, Southern District of New York, for an injunction to prevent its enforcement, and, to give the court sufficient time to dispose of the matter, the effective date of the order was postponed until 10 days after the decision of the court. In a decision rendered March 7, 1934, Railway Exp. Agency, Inc., v. United States, 6 Fed. Supp. 249, the court sustained |