use of a 'special' gondola, in the absence of a carrier convenience rule, was found unreasonable and the Commission ordered that the practice be terminated and that the carriers institute a reasonable 'practice', i.e., promulgate a carrier convenience rule.
In our view the Commission did not err in ruling that an unreasonable 'practice' is a proper basis for a finding of violation of § 1(6) and it acted within its authority in ordering the carriers to adopt a reasonable 'practice.'
(e) Violation of Sections 2 and 3(1).
Finally, plaintiffs contend that there was insufficient evidence to support findings of violations of §§ 2 and 3(1) of the Act. Section 2 declares it to be 'unjust' for any carrier 'directly or indirectly, by any special rate, rebate, drawback, or other device . . .' to 'charge one person more for 'like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions.' As the Supreme Court stated in Barringer & Co. v. United States, 319 U.S. 1, 6, 63 S. Ct. 967, 970, 87 L. Ed. 1171 (1943): 'Section 2 is aimed at the prevention of favoritism among shippers.'
Section 3(1) 'broadly prohibits any common carrier by rail from giving 'any undue or unreasonable preference' to any person, locality or type of traffic.' American Trucking v. A., T. & S.F.Ry., 387 U.S. 397, 411, 87 S. Ct. 1608, 1616, 18 L. Ed. 2d 847 (1967). To support a finding of a § 3(1) violation it must be shown that (1) there is a disparity in rates, (2) that the complaining party is injured, actually or potentially, and (3) that the carriers are the common source of the allegedly prejudicial and preferential treatment. If the complainant can show these three factors, it becomes the burden of the carriers to show that the disparity was justified by transportation conditions. Chicago & Eastern Illinois R.R. v. United States, 384 F.Supp. 298, 300-301 (N.D.Ill.1974), petition for cert. filed, 43 L.W. 3466 (Feb. 25, 1975); Big River Industries, Inc. v. Aberdeen & Rockfish R.R. 329 I.C.C. 539 (1967).
The Commission adverted to the very same facts and circumstances upon which it had relied to find violations of rule 66(a) and § 1(6) and held that the 'circumstances herein described show a presumptive situation of unjust discrimination and undue preference . . ..' (346 I.C.C. at 303), shifting the burden to the carriers to justify the possibility of disparity of treatment of similarly situated shippers. It was the potential for discriminatory treatment inherent in the practice which the Commission found to be violative of §§ 2 and 3(1). Plaintiffs charge that the Commission's reliance upon Citrus Fruits, Arizona and California to Eastern States, 341 I.C.C. 622 (1972), for shifting the burden to them is misplaced since that case involved an attempt by carriers to justify new rates to the Commission. In such case, carriers clearly had the burden to establish that the proposed rates were not unjust and unreasonable, whereas here carriers contend that the burden is on the shippers to establish violations of §§ 2 and 3(1). See Swift & Co. v. United States, 343 U.S. 373, 72 S. Ct. 716, 96 L. Ed. 1008 (1952); Chicago & Eastern Illinois R.R. v. United States, supra.
We believe, as did the Commission, that the shippers carried their burden when they established the unreasonable practice in violation of rule 66(a) and § 1(6). This justified the shifting of the burden to the carriers. See rule 66(a)(5). The findings supporting the rule 66(a) and § 1(6) violations are also sufficient to support the findings of potential violation of §§ 2 and 3(1) by the carriers' practice of furnishing 'special' cars when ordinary cars are ordered, in the absence of a carrier convenience rule.
Although the portion of the Commission's Report dealing with the §§ 2 and 3(1) violations are 'of less than ideal clarity', when read with the balance of the Report and in light of the vice sought to be remedied by the Commission, 'the agency's path may reasonably be discerned' and its action must, accordingly, be upheld. Bowman Transportation, supra, 419 U.S. at 286, 95 S. Ct. at 442.