Applicant was a respondent in the cited proceeding, and has also been informed by letter from an official of this Commission that its tariff is not in conformity with the provisions of section 305 of the act, and the opinions expressed in the report in that proceeding. Subsequent to receipt of the aforesaid letter, applicant filed the application herein under section 303 (e) (2) of the act, which provides in part as follows: It is hereby declared to be the policy of Congress to exclude from the provisions of this part, in addition to the transportation otherwise excluded under this section, transportation by contract carriers by water which, by reason of the inherent nature of the commodities transported, their requirement of special equipment or their shipment in bulk, is not actually and substantially competitive with transportation by any common carrier subject to this part or part I or part II. Upon application of a carrier, made in such manner and form as the Commission may by regulation prescribe, the Commission shall, subject to such reasonable conditions and limitations as the Commission may prescribe, by order exempt from the provisions of this part such of the transportation engaged in by such carrier as it finds necessary to carry out the policy above declared. Certain interveners in opposition contend that applicant, being a certificated common carrier engaged in subject transportation, is not entitled to an exemption under the provisions of section 303 (e) (2) of the act. This contention is not entirely meritorious. Certificated common carriers by water, such as applicant, may in certain exceptional circumstances, be granted an exemption under this section. See S. C. Loveland Co., Inc., Application, 250 I. C. C. 571, and Seatrain Lines, Inc., Exemption Application—Oil, 265 I. C. C. 806 (not printed in full) decided July 19, 1949. There remains for consideration the question as to whether or not the transportation of grain from origins on Lake Superior in the same vessels with automobiles for a portion of the voyage is actually and substantially competitive with transportation by any common carrier subject to part I, II, or III of the act. Applicant states that in 1953 about 100 million bushels of grain were moved from Duluth. The destinations of such grain were not disclosed, and applicant was unable to specify the volume moved in any particular mode of transportation, the volume moved by it as an exempt operation, or the volume moved on vessels transporting at the same time automobiles from Detroit to Buffalo. It is indicated that there are several water carriers holding general-commodity authority on the Great Lakes that may engage in the transportation of grain and automobiles. Intervener T. J. McCarthy Steamship Company, holds authority to operate as a common carrier by self-propelled vessels in the transportation of motor vehicles between Detroit and ports on Lake Erie and Lake Superior. It asserts that the granting of this application will have the effect of unduly enlarging the scope of the exemption pro vided in section 303 (b) of the act; that the transportation by applicant of automobiles on loaded grain boats is actually and substantially competitive with protestant in the transportation of automobiles; and that if applicant's participation in the movement of automobiles is dependent on the exemption of the grain cargoes, then the granting of the exemption would be contrary to the intent and purpose of the provisions of section 303 (e) (2) of the act. This intervener also shows that, during portions of the navigation season of 1954, certain of its vessels were unemployed because of lack of traffic. As noted, applicant seeks exemption from regulation of that part of its cargo which consists of grain when carried in the same vessel simultaneously transporting automobiles. The record indicates that certain Great Lakes carriers may transport automobiles on the decks of the vessels while the hold of the same vessel is used for the transportation of grain. Moreover, applicant's transportation of automobiles is in competition with the automobile transportation performed by intervener McCarthy. It thus appears that the transportation for which applicant here seeks an exemption is not such as to which it is the policy of Congress to exempt from regulation. Compare Nassau Barge Corp.-Exemption, Sec. 303 (e), 250 I. C. C. 5. Transportation performed by applicant from upper lake ports in Ontario, Canada, to lower lake ports in the United States is not transportation in interstate or foreign commerce within the meaning of section 302 (i) of the act, and, therefore, not subject to the Commission's jurisdiction. Puget Sound Tug & Barge Co. Applications, 250 I. C. C. 791, 794. The movement of automobiles from Detroit to Buffalo on the decks of vessels carrying grain from Ontario ports to United States ports does not affect the status of the latter transportation. We find that applicant, with respect to the described transportation from United States ports on Lake Superior to lower Great Lakes ports is not entitled to an exemption under section 303 (e) (2) of part III of the act, and that its application therefor should be denied. The application with respect to transportation from ports in Ontario, Canada, to United States ports will be dismissed. An appropriate order will be entered. COMMISSIONER ELLIOTT Concurs in the result. 285 I. C. C. No. FF-148 (SUB-NO. 5)1 REPUBLIC CARLOADING AND DISTRIBUTING CO., INC., EXTENSION-NATIONWIDE Submitted September 21, 1954. Decided May 24, 1955 Extension of service by applicant as a freight forwarder of commodities generally between all points in the United States except between points in California, and points in Idaho, Oregon, and Washington, and those applicant presently is authorized to serve, found to be consistent with the public interest and the national transportation policy. Sixth amended permit and order issued, and application in all other respects denied. S. S. Eisen for applicant. Harry C. Ames, James L. Givan, R. C. Harmonson, J. R. McIntyre, Arlo D. Poe, T. R. Schneider, Lucien W. Shaw, and Cromwell Warner for protestants. William S. Pilling and Henry T. Ivers for interveners in opposition. A. S. Glikbarg, and J. R. Stanfield for interveners. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS JOHNSON, ELLIOTT, AND TUGGLE BY DIVISION 4: Exceptions to the report proposed by the examiner were filed by applicant and certain freight-forwarder protestants replied. Our conclusions differ somewhat from those proposed. Exceptions and requested findings not discussed in the report nor reflected in our findings or conclusions have been considered and found not justified. By application filed May 29, 1953, under the provisions of section 410 of the Interstate Commerce Act, Republic Carloading and Distributing Co., Inc., of New York, N. Y., seeks a revised permit authorizing the forwarding of commodities generally between all points in the United States, except to the extent such service is authorized in its present permit. Acme Fast Freight, Inc., National Carloading 1 This report also embraces for the purpose of giving effect to the determination herein No. FF-148, Republic Carloading and Distributing Co., Inc., Freight Forwarder Application; No. FF-148 (Sub-No. 1), Republic Carloading and Distributing Co., Inc., Extension-Utah; No. FF-148 (Sub-No. 2), Republic Carloading and Distributing Co., Inc., Extension-Illinois; No. FF-148 (Sub-No. 3), Republic Carloading and Distributing Co., Inc., ExtensionMidwest Origins; No. FF-148 (Sub-No. 4), Republic Carloading and Distributing Co., Inc., Extension-Southeast; and No. FF-144, Gulf Carloading Company, Inc., Freight Forwarder Application. vided in section 303 (b) of the act; that the transportation by applicant of automobiles on loaded grain boats is actually and substantially competitive with protestant in the transportation of automobiles; and that if applicant's participation in the movement of automobiles is dependent on the exemption of the grain cargoes, then the granting of the exemption would be contrary to the intent and purpose of the provisions of section 303 (e) (2) of the act. This intervener also shows that, during portions of the navigation season of 1954, certain of its vessels were unemployed because of lack of traffic. As noted, applicant seeks exemption from regulation of that part of its cargo which consists of grain when carried in the same vessel simultaneously transporting automobiles. The record indicates that certain Great Lakes carriers may transport automobiles on the decks of the vessels while the hold of the same vessel is used for the transportation of grain. Moreover, applicant's transportation of automobiles is in competition with the automobile transportation performed by intervener McCarthy. It thus appears that the transportation for which applicant here seeks an exemption is not such as to which it is the policy of Congress to exempt from regulation. Compare Nassau Barge Corp.-Exemption, Sec. 303 (e), 250 I. C. C. 5. Transportation performed by applicant from upper lake ports in Ontario, Canada, to lower lake ports in the United States is not transportation in interstate or foreign commerce within the meaning of section 302 (i) of the act, and, therefore, not subject to the Commission's jurisdiction. Puget Sound Tug & Barge Co. Applications, 250 I. C. C. 791, 794. The movement of automobiles from Detroit to Buffalo on the decks of vessels carrying grain from Ontario ports to United States ports does not affect the status of the latter transportation. We find that applicant, with respect to the described transportation from United States ports on Lake Superior to lower Great Lakes ports is not entitled to an exemption under section 303 (e) (2) of part III of the act, and that its application therefor should be denied. The application with respect to transportation from ports in Ontario, Canada, to United States ports will be dismissed. An appropriate order will be entered. COMMISSIONER ELLIOTT Concurs in the result. 285 I. C. C. No. FF-148 (SUB-No. 5)1 REPUBLIC CARLOADING AND DISTRIBUTING CO., INC., EXTENSION-NATIONWIDE Submitted September 21, 1954. Decided May 24, 1955 Extension of service by applicant as a freight forwarder of commodities generally between all points in the United States except between points in California, and points in Idaho, Oregon, and Washington, and those applicant presently is authorized to serve, found to be consistent with the public interest and the national transportation policy. Sixth amended permit and order issued, and application in all other respects denied. S. S. Eisen for applicant. Harry C. Ames, James L. Givan, R. C. Harmonson, J. R. McIntyre, Arlo D. Poe, T. R. Schneider, Lucien W. Shaw, and Cromwell Warner for protestants. William S. Pilling and Henry T. Ivers for interveners in opposition. A. S. Glikbarg, and J. R. Stanfield for interveners. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS JOHNSON, ELLIOTT, AND TUGGLE BY DIVISION 4: Exceptions to the report proposed by the examiner were filed by applicant and certain freight-forwarder protestants replied. Our conclusions differ somewhat from those proposed. Exceptions and requested findings not discussed in the report nor reflected in our findings or conclusions have been considered and found not justified. By application filed May 29, 1953, under the provisions of section. 410 of the Interstate Commerce Act, Republic Carloading and Distributing Co., Inc., of New York, N. Y., seeks a revised permit authorizing the forwarding of commodities generally between all points in the United States, except to the extent such service is authorized in its present permit. Acme Fast Freight, Inc., National Carloading 1 This report also embraces for the purpose of giving effect to the determination herein No. FF-148, Republic Carloading and Distributing Co., Inc., Freight Forwarder Application; No. FF-148 (Sub-No. 1), Republic Carloading and Distributing Co., Inc., Extension-Utah; No. FF-148 (Sub-No. 2), Republic Carloading and Distributing Co., Inc.. Extension-Illinois; No. FF-148 (Sub-No. 3), Republic Carloading and Distributing Co., Inc.. ExtensionMidwest Origins; No. FF-148 (Sub-No. 4), Republic Carloading and Distributing Co., Inc., Extension-Southeast; and No. FF-144, Gulf Carloading Company, Inc., Freight Forwarder Application. |