basis of 2,680,684 cars reported, $1,032.88; in 1920, based on the actual cost of the cars reported in 1919 plus estimated cost of new cars, $1,066.77. The new equipment, 158,805 cars, cost on an average $3,045.66 per car. On the basis of the average of the actual cost for old cars and estimated increased cost of present maintenance, plus cost of all of the new cars which have been added, including those ordered, the average cost of ownership is about 99.58 cents per car per day.

The $1 rate of per diem is an average figure necessarily based upon compromise, and applies to cars of widely varying values, but in view of all the facts and circumstances it is deemed a fair basis for measuring the cost of car ownership, and it lends itself to a practicable solution of the controversy before us. In Chrysler Corp. v. New York Central R. Co., supra, we found that $1 per day for the entire time of detention, without the usual allowance of free time, plus 20 cents to cover the extra expense to which the carriers were put by the unusual situation, represented a reasonable compensation to the carriers for the detention of the cars forcibly held within complainant's plants.

Many of the shipments were made after the strike had begun and the conditions resulting therefrom were generally known throughout the north Pacific coast territory. It therefore cannot fairly be said that complainants were free from fault in those instances. It is true, however, that earnest efforts were constantly being made to bring about a settlement of the strike, and that the shippers had reason to hope that it might end at any time. Many shippers in the origin territory, upon learning of the strike conditions obtaining at the north Pacific coast ports, particularly at Portland, made other disposition of their shipments, in many instances at considerable disadvantage to themselves, including the payment of additional freight charges. It does not follow, however, that the shipments here involved could have been diverted or otherwise disposed of without prohibitive expense.

We find that the demurrage charges assailed were unreasonable to the extent that they exceeded $1.20 per car-day for the actual period of detention during the pendency of the strike in question, including Sundays and legal holidays, and without free time for loading and unloading. The charges for this period are to be computed independently of demurrage accruing before or after such period, whether under the straight plan or the average agreement. We further find that complainants paid and bore the demurrage charges on the cars as described, and were damaged thereby in the amounts of the differences between the charges paid and those which would have accrued at the rate herein found reasonable; and that they are entitled to reparation with interest. Complainants should comply

with rule V of the Rules of Practice, or a further hearing may be held if necessary.

We will not undertake to prescribe a rule for the future at this time, as the whole matter is the subject of negotiation between representatives of the shippers and the carriers. If the carriers are willing to publish a rule satisfactory to the shippers, there is no need for an order for the future.

AITCHISON, Commissioner, concurring:

I concur in the disposition of this proceeding, on the authority of Chrysler Corp. v. New York Central R. Co., supra, assuming the cars on the docks and in the outer yards were "held" for the consignees, within the meaning of the demurrage code. However, I am of the opinion that the circumstances of this case clearly show that cars held on the docks, or outside but intimately associated with and directly affected by the conditions on and around the docks, were not "held" within the fair intendment of the demurrage rules in force; and consequently demurrage could not be assessed against them. The conditions of public disorder prevalent were such that performance of the duties of carrier and shipper alike was made impossible by the superior force of outside agencies directed against the subject matter of the carrier-shipper arrangement. In such circumstances sanctions intended to compel the prompt performance of the contractual obligations of one party should not be enforced.

CASKIE, Commissioner, concurring in part:

I concur in the findings of the majority to the extent that they relieve complainants of the payment of penalty charges. No charge should be made for the usual free time authorized by the tariffs.

SPLAWN, Commissioner, dissenting:

I dissent from the finding that the demurrage charges assailed were unreasonable. The division, upon careful consideration of all the evidence, reached a conclusion in consonance with previous findings of the Commission. The majority sweeps aside those precedents with the statement that they related to controversies arising during periods of serious car shortage and congestion prior to 1922. But the finding of unreasonableness plainly will have the effect of creating such car shortage and congestion for the reason that it fails to take into account the fundamental purpose of demurrage charges, i. e., to stimulate the prompt release of equipment and thus avoid serious handicaps to efficient operation and adequate service.

Although it

A strike is recognized as a lawful method of protest. may be so conducted as to come in conflict with the law of the land, it is not for the Commission to decide whether or not there is such

conflict in determining the reasonableness of applicable demurrage charges accruing at the time of the strike. Before circumstances such as those here present should be considered as a ground for revising those charges, shippers and carriers throughout the country should be afforded full opportunity to be heard. In view of the Nationwide application of the present rules, an isolated case such as this does not justify the Commission in making findings therein which in all probability will have extensive application.

Diversion of the cars, their reconsignment, or unloading and storage of the shipments were alternatives available to complainants, at least as to a great majority of the cars involved. Complainants were as fully advised as were the carriers and other shippers of the conditions at these ports. But a study of the record leaves the impression that they had much confidence in their judgment as to the duration of the strike and at the time of making their shipments had no thought of seeking relief from the penalty provisions of the demurrage rules. The majority does not question the validity of the reasons assigned by the division for its finding, one of which was the inadequacy of the record as a basis for determining what portion of the charges assailed represented penalty. There is much reason to believe that the basis of $1.20 per day falls far short of compensating defendants for all elements of expense incident to the detention of the cars. But it is concluded that the collection of charges in excess of that amount, assumed to be the cost of furnishing the cars, was futile as a deterrent against excessive detention and could not have accomplished their prompt release. This is the principal argument advanced in support of the finding of unreasonableness. It fails to recognize the necessity for and propriety of the charges assailed as a deterrent to much detention and congestion which, but for their application, would have greatly hampered defendants' operations. Admitting that the circumstances surrounding the detention of a few of the cars were such as to preclude their release and thus defeat the primary purpose of the demurrage rules as to those cars, it does not follow that such circumstances warrant condemnation of those rules. Clearly they afford no ground for a finding of unreasonableness, having in mind the intended purposes of the rules and their effectiveness, generally, in accomplishing those purposes.

I am authorized to state that COMMISSIONER PATTERSON concurs in this expression.

235 I. C. C.

No. 28188

MID-WEST CHANDELIER COMPANY v. CHESAPEAKE & OHIO RAILWAY COMPANY ET AL.

Submitted October 9, 1939. Decided December 7, 1939

Rates applicable on glassware consisting of lamp parts, including glass globes and shades, in carloads, from Monaca, Pa., and Dunbar and Charleston, W. Va., to North Kansas City, Mo., not shown to have been or to be unreasonable or otherwise unlawful. Complaint dismissed.

J. H. Tedrow for complainant.

Leo P. Day and R. T. Wilson, Jr., for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MAHAFFIE, ALLDREDGE, AND PATTERSON BY DIVISION 3:

Exceptions to the report proposed by the examiner were filed by complainant.

Complainant corporation manufactures electric-lighting fixtures and chandeliers at North Kansas City, Mo. It alleges by complaint filed January 16, 1939, that the rates applicable on glassware, in carloads, from Monaca, Pa., and Dunbar and Charleston, W. Va., to North Kansas City, were and are unreasonable, unjustly discriminatory, and unduly prejudicial. Complainant asks that we prescribe lawful rates for the future, authorize waiver of outstanding undercharges, and award reparation. Rates will be stated in amounts per 100 pounds.

In the governing western classification, glassware, other than cut, n. o. i. b. n., is rated fourth class, in carloads, minimum 24,000 pounds, and lamp parts, glass, other than cut, globes or shades, glass, n. o. i. b. n., are rated second class, in carloads, minimum 12,000 pounds. By exceptions to the western classification, glassware, other than cut, n. o. i. b. n., actual value not exceeding $20 per 100 pounds and so certified to by shipper, is rated 37.5 percent of first class, in carloads, minimum 24,000 pounds. A note to the exceptions provides that various articles, including lamp globes or shades, glass, n. o. i. b. n., may be included in carloads of glassware at the same rate, where the actual value of the articles named does not exceed $20 per 100 pounds and the weight of those items does not exceed 33% percent of the total weight of the car.

Between January 22, 1937, and April 19, 1938, inclusive, complainant received at North Kansas City 18 carloads of glassware from Monaca, Dunbar, and Charleston. The purported basis for the original charges was 37.5 percent of first class, minimum 24,000 pounds. Charges were collected at rates of 66 cents on 1 car from Dunbar and 67 cents on 14 cars from Dunbar, 1 from Monaca, and 2 from Charleston. Rates based on 37.5 percent of first class to North Kansas City are 66 cents from Dunbar and Charleston and 68 cents from Monaca. Subsequently, the carriers submitted undercharge bills, based on the second-class rates of $1.52 from Monaca and $1.49 from Dunbar and Charleston. Two shipments from Dunbar weighed 12,000 and 12,100 pounds, and one from Charleston weighed 12,389 pounds. The remaining shipments weighed from 15,300 to 31,800, and averaged 23,505 pounds. Since April 19, 1938, complainant has received no carload shipments of the articles under consideration from these origins.

The shipments consisted of pressed or molded glass articles, described on the billing as glassware, n. o. i. b. n., and blown-glass articles, of less weight density, described as globes or shades. In most of the cars the heavier pressed or molded glass articles constituted the greater portion of the lading, and their value was certified as less than $20 per 100 pounds. The values of the articles billed as globes and shades are in some instances shown to be less and in others greater than $20 per 100 pounds. Where the latter articles constitute more than one-third of the lading of the car complainant agrees that the second-class rates on the entire shipment do not result in unreasonable charges. But where they constitute less than one-third of the lading and are valued at less than $20, it contends that the application of second-class rates on such shipments results in charges which are unreasonable, unjustly discriminatory, and unduly prejudicial, to the extent that they exceed rates based on 37.5 percent of first class. Some of the shipments contained glass globes or shades weighing less than one-third of the total but valued at more than $20. On those shipments complainant contends that lawful charges should be based on the second-class rate and actual weight of the globes or shades and the carload rate (37.5 percent) and minimum weight on the other articles.

In Mid-West Chandelier Co. v. Pittsburgh & L. E. R. Co., 225 I. C. C. 509, this same complainant contended that the charges sought to be collected on four carloads of pressed glassware, other than cut, forwarded between April 24 and September 28, 1933, from Monaca to North Kansas City were inapplicable. In that proceeding division 2 concluded that the articles in those shipments came within the classi