On review of this record fails to disclose substantial evidence which would warrant a finding of a widespread practice of total absorption of switching charges on like traffic in the South. We conclude, therefore, that based upon our review of this record the Commission, in adopting the Hearing Examiner's report, made an error free finding that this record does not contain sufficient evidence upon which a finding of unreasonableness could have been made by the Commission pursuant to Section 1(6) of the Act.
NO VIOLATION OF SECTION 1(5) OF THE ACT WAS SHOWN
The third error claimed by Scott and International is that the Commission, by adopting the finding of the Hearing Examiner that the total amount of the charges was not unreasonable, made an unjustified and unexplained departure from its long-established doctrine that the best test of the reasonableness of a rate is a comparison of the assailed rate with other rates in effect on like traffic moving in the same general territory. We find that the Commission did not depart from the doctrine that the best test of the reasonableness of a rate is a comparison of the assailed rate with other rates in effect on like traffic moving in the same general territory. The report of the Hearing Examiner, as adopted by the Commission, made the following finding in connection with the alleged violation of Section 1(5) of the Act:
It is the basic contention of complainants that because of the unabsorbed switching charges at the Alabama State Docks, they are being required to pay a transportation cost higher than the level prevailing under the Modified Roanoke Rapids Scale applicable to the movement of pulpwood and wood chips in the South. According to the testimony of a witness for complainants this scale of rates was initially found by the Commission in Reduced Rates on Pulpwood in Southern Territory, Docket No. 30958, to be below a minimum reasonable level (291 ICC 155 and 297 ICC 735), but that following further hearings and the making of a cost study by the respondent railroads therein, the Commission found in its order dated December 17, 1957 in said proceeding, that these rates having been substantially increased, were not 'below a reasonable minimum' and were permitted to go into effect. It is fair to conclude, therefore, that the 'Roanoke Rapids' rates are not at their maximum level of reasonableness and it cannot be found that the addition of the small amount of $ 4.21 per car of unabsorbed switching charges would result in rates which exceed the maximum of reasonable charges. Hance, a violation of Section 1(5) does not exist. See Public Belt R. Comm., supra, at page 167; and Pressed Steel Car Company v. Director General, supra.
The Hearing Examiner correctly ruled that Scott and International had not placed in issue the reasonableness of the Modified Roanoke Rapids Scale of Rates which generally applied in the South. He also correctly ruled that Scott and International did not challenge the reasonableness of the switching charge in the proceeding before the Commission. They merely alleged that the total charge, line-haul plus switching, was unreasonable in that it exceeded the Modified Roanoke Rapids Scale of Rates, the rate prevailing throughout the South (NT 10).
Scott and International contend that they established a prima facie case of an unreasonable charge under Section 1(5) of the Act since they established that the total charges exceeded by $ 4.21 the level under the Modified Roanoke Rapids Scale. We agree with the Commission's conclusion that this record does not contain sufficient evidence from which a probative comparison could be made as to whether Scott's and International's traffic in pulpwood and wood chips moved at a higher rate than like traffic moving in the South.
There is no single 'reasonable' rate for a commodity. Rather, there is a 'zone of reasonableness' within which carriers are free to adjust their rates at will. United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 506, 55 S. Ct. 462, 79 L. Ed. 1023 (1935). The Commission, based upon the Hearing Examiner's findings, concluded that the Modified Roanoke Rapids Scale of Rates was not at its maximum level of reasonableness, and there was no evidence upon which it could find that the addition of the small amount of $ 4.21 per car of unabsorbed switching charges resulted in rates which exceeded the maximum of reasonable charges. The Commission's determination in this case is not unlike their disposition of a similar issue in Public Belt, supra, at page 167.
Section 1(5) of the act requires that all charges made for any service rendered in the transportation of property, or in connection therewith, shall be just and reasonable. It is contended that the through charges made by the defendants, including the $ 4.95 added for switching to or from points on the Belt Railroad, are unreasonable, in violation of section 1(5). The examiner found that, although a violation of this section was alleged, there was no allegation that the level of any rate or charge was or is unreasonable in and of itself. On exceptions the complainant, while conceding some inadequacy in its pleading, contends that the complaint and evidence in its entirety must be read together to resolve this issue. To do so, however, would be of no aid to the complainant. There is no probative evidence that the existing rates to New Orleans are at a maximum reasonable level, and it cannot be found that the addition of the small amount per hundred-weight, due to addition of the $ 4.95 charge per car, would result in rates which exceed the maximum of reasonableness. See New Orleans Public Belt R. Switching and Absorptions, supra, 644; Pressed Steel Car Co. v. Director General, 157 I.C.C. 623, 626; and High Point Chamber of Commerce v. Southern Ry. Co., 314 I.C.C. 683, 688. The circumstances are not such as to warrant conclusions under the principles mentioned in Port of New York Authority v. Aberdeen & R.R. Co., 321 I.C.C. 738, 746.
We, therefore, conclude that based upon our review of this record the Commission, in adopting the report of the Hearing Examiner, made an error free finding that there was not sufficient evidence upon which to find a violation of Section 1(5) of the Act.
REBUTTAL EVIDENCE OF PROFITABILITY OF THE MODIFIED ROANOKE RAPIDS SCALE OF RATES INADMISSIBLE
The fourth and final contention of Scott and International is that it was error for the Hearing Examiner to deny their offer of rebuttal evidence, through an expert witness, to show that the Modified Roanoke Rapids Scale of Rates was highly profitable to the line-haul carriers. Such evidence would have been improper rebuttal. The line-haul carriers did not place in issue the reasonableness of the Modified Roanoke Rapids Scale of Rates. While such evidence might have been admissible in Scott's and International's case in chief to show that the Modified Roanoke Rapids Scale of Rates was at its maximum level of reasonableness, it was improper rebuttal and the Hearing Examiner correctly ruled it inadmissible.
Accordingly, the following Order is entered:
And now, this 8th day of March 1974, it is ordered that the Complaint of Plaintiffs, Scott Paper Company and International Paper Company, and the Complaint of Intervenor Plaintiff, Terminal Railway Alabama State Docks, are dismissed.