Said Act further provides that the term 'transportation' as used in the Act shall include all instrumentalities of shipment or carriage and all services in connection with the receipt, handling, delivery, transfer in transit, storage, and handling of property transferred (49 U.S.C.A. § 1). (Complaint, par. 6.)
Plaintiff brings this suit to recover the difference between $ 1,501.04 and $ 1,213.92, namely, $ 287.12.
Rule 10 of the Official Express Classification No. 35, I.C.C. No. 7950, filed April 11, 1952, issued pursuant to the directions contained in paragraph 1, § 6, of the Interstate Commerce Act (see Finding of Fact 12) provides as follows:
'(A) Unless otherwise provided, charges must be based upon the actual gross weight or each shipment.
'(B) When the volume of traffic is so large as to make it impossible to weigh each separate package without delaying the forwarding, estimated weights may be used for shipments of articles of food, provided they closely approximate the actual weights; such estimated weights will be arrived at by weighing a number of packages of the same size and containing the same commodity, the average weight to be adopted as the estimated weight.'
Although it is recognized that 'the actual weight of shipments constitutes the true basis upon which to assess transportation charges,'
and that 'inaccuracies in weighing result in the imposition of unreasonable charges and in discrimination between shippers,'
by reason of the perishable nature of the commodity (lettuce) and the large movement of this type of traffic during relatively short periods of time, the utmost expedition in transportation is required. Therefore, the obtaining of actual weights would generally be impracticable and the use of estimated weights which approximate actual weights is mutually beneficial to both carriers and shippers and has long been approved. See Northwest Potato Exchange v. Great Northern Railway Co., 172 I.C.C. 671 (1931); Simpson Fruit Co. v. Wells Fargo & Co., 23 I.C.C. 412 (1912); Estimated Weights on Fruits and Vegetables, 245 I.C.C. 479 (1941); White & Co. v. B.O.S.W.R.R. Co., 12 I.C.C. 306 (1907); and Davies v. Illinois Central R.R. Co., 16 I.C.C. 376 (1909).
Defendants contend that plaintiff has not, within the meaning of Rule 10 above, proved that the volume of traffic on the day of the shipment, May 13, was so large as to make it impossible to weigh each separate package without delaying the forwarding. Plaintiff produced a witness (its agent at Salinas in May 1953, who had actual knowledge of the shipment) who testified that at the time of the year when this shipment was made, the volume of traffic was very heavy. (See Finding of Fact No. 8.) In an attempt to rebut this, defendants submitted evidence via shipping point records of produce compiled by the Department of Agriculture that although 322 carload lots of freight shipments of lettuce went out from Salinas, California, that date, only one carload lot of lettuce of express shipment went out from Salinas that date.
There is nothing in the record to show (1) that express cars of less than carload lots did not leave Salinas that day,
(2) that full (or less than full) carload lots of commodities other than fruits and vegetables did not leave Salinas that day; or (3) that the large volume of freight traffic
which admittedly was leaving Salinas at that time did not make it essential that this carload of perishable material in large numbers of relatively small cartons
be weighed by sample if the shipment was to leave promptly.
All three possibilities could support the above testimony of plaintiff's witness (the Railway Express agent supervisor of the Salinas office of plaintiff), who was the only witness actually present in Salinas on that day who could have had first-hand knowledge of the conditions there.
Defendants further contend that since this was a new type of shipment, namely, lettuce in cartons, the freight tariff adopted by the railroads establishing a 31-pound rule per carton should be justification for its position that there could not have been 42 pounds per carton. But, in the absence of any contradictory evidence, the procedure described in Finding of Fact No. 6 for arriving at the estimated weight of this shipment satisfies the hearing judge that the procedures specified in Rule 10 have been adequately complied with and the freight tariff should have no applicability to this shipment.
III. Conclusions of Law
1. Jurisdiction is based upon the fact that the matter in controversy arises under certain laws of the United States, to wit: an Act of Congress, approved February 4, 1887, entitled 'An Act to Regulate Commerce,' and its amendments and supplements.
2. Rule 10 of the Official Express Classification No. 35, I.C.C. No. 7950, governs the computation of the rate of payment for this shipment.
3. The shipment of lettuce was correctly weighed according to the provisions of Rule 10 of the Official Express Classification No. 35, I.C.C. No. 7950.
4. The charges on the Waybill (Exhibit P-1) are applicable and have not been shown to have been unreasonable or otherwise unlawful. The evidence has not been sufficient to support a finding of unjust discrimination or undue prejudice.
5. Defendants are liable to plaintiff for the freight charges, as indicated in the Collect Waybill No. 631934 (P-1), namely $ 1,501.04.
6. Plaintiff may recover judgment against defendants in the amount of $ 287.12, with interest from May 13, 1953.