While Commission has denied authority for a new service when it was desired
y shippers solely because it would offer lower rates than those of existing carriers
f same type, there is a distinguishable difference in authorization of a service by
different mode of transportation which traditionally offers lower rates that
eflect generally the inherent disabilities of such service. 517
There is an affirmative burden of proof on applicant to establish by clear and
onvincing evidence that a proposed service will conform to requirements of the
ational transportation policy for promotion of safe, adequate, economical, and
fficient service, and for fostering of sound economic conditions in transportation
nd among the several types of carriers. That burden was not met when neither
pplicant's cost estimates nor its experience with an experimental round trip
stablished that proposed barge-and-towboat operation between Pacific coast
nd gulf ports would be profitable or even practical, and no inadequacy of existing
ranscontinental rail and intercoastal steamship service was shown. 543; 547;
Although applicant's experience under temporary authority had proved feasi-
bility of transporting grain stowed below decks of its automobile-carrying barges,
grant of permanent authority for grain on Mississippi and tributary rivers and
Gulf Intracoastal Waterway was not justified by shortage of barges during
beak shipping season, when existing water carriers were otherwise rendering
easonably adequate service. A reasonably consistent and determinable demand,
vhich existing carriers cannot satisfy, should be shown.
In addition to supporting shipper testimony, need for applicant's service on
grain and soybeans from points on Illinois Waterway, Mississippi River above
and including Memphis, and St. Croix River below and including Stillwater,
Minn., to Tampa, Fla., and on phosphate rock, phosphatic feed elements, and
ertilizers in reverse direction, was shown by failure of opposing water carriers to
stablish through interline service without transfer of lading, despite their aware-
ness of applicant's exempt single-line service, as well as by lack of evidence that
hey would procure barges suitable for combined river-gulf routes. Moreover,
extent of applicant's exempt service or its continuance was limited by difficulties
›f effecting satisfactory towing arrangements. 676
When there was no regularly scheduled water service between gulf ports and
Portland, Oreg., and Seattle, proposed scheduled barge operation between those
>orts would serve a useful public purpose in response to expressed need of shippers,
uch as those who testified in support of application. 790
Public need for applicant's proposed barge service on Willamette River, Oreg.,
vas not established by general statements of three public-organization witnesses
elative to growth of population and industry and character and flow of traffic in
Willamette Valley, and their opinion that additional water service was needed;
or by purely speculative shipper testimony as to traffic that would move by
vater if application was granted. Lumber shippers indicated that most of their
raffic moved by rail or truck to nonwater points, and shippers of other com-
nodities had not sought service from existing water carriers; 586
-But on reconsideration applicant's service was found to be needed, in view
of economic growth of that area, when services of existing water carriers con-
sisted almost entirely of towing and they were not shown to have actively solicited
reighting of general commodities, and rail service in the area had been subject
o recurrent car shortages.
CORPORATIONS. CORPORATE ENTITY DISREGARDED: Corporate entities may
be disregarded where necessary to proper exercise of statutory regulatory power.
When practically all individuals managing transferee and controlling its policy
285 I. C. C.
ASSOCIATIONS. See also CONTRACTS (Operating); OPERATION (Unauthor-
ized). Despite its name, Florida Shippers Association was not within exemp-
tion of § 402 (c) when its members had nothing to do with its operation and
management; it accepted shipments from any shipper whether he was a mem-
ber or not; and any profits inured to benefit of individual who had organized it
and who managed it, and he assumed any losses. 280
While service of shippers' association in assembling, shipping in c. 1. lots, and
distributing multiple small individual shipments of granite between areas for
which applicant sought forwarder authority had demonstrated economy of that
method of transportation, public interest would not be served by confining
benefits thereof to dealers who bought from association members. 708;
-Even if the association's service had forwarder status, denial of permit to
applicant solely on ground of competition therewith was barred by § 410 (d);
and refusal of permit for operation as a regulated forwarder because of possible
harm to an exempt activity would be inconsistent with national policy of fair and
impartial regulation of all modes of transportation subject to the act. 708
BARGES. See TRANSPORTATION; VESSELS.
BARGELOADS. See CERTIFICATES (Restriction); OPERATION (Scope).
BILLS OF LADING. See FORWARDERS (Responsibility for Transportation).
BONA FIDE OPERATION. See AGENTS.
BULK COMMODITIES. See also CONTRACTS (Transportation); CONVENIENCE
AND NECESSITY (Proof).
IN GENERAL: That applicant's exempt transportation of bulk sludge from
Chicago to Tampa, Fla., would be continued if application was denied did not
indicate lack of need for certificate, since public need for applicant's service was
shown and denial would not divert the traffic to rail protestants, but would
deprive applicant of opportunity to effect operating economies by transporting
it in mixed tows of more than three commodities. 747
BULK WITH NONBULK SHIPMENTS: Exemption of § 303 (b) does not apply to
any part of a movement when on same voyage the vessel is used for transportation
of a nonbulk commodity. Transportation of bulk grain from Duluth to Buffalo
was subject to part III for entire movement when vessels were stopped at Detroit
to take on deckloads of automobiles for movement to Buffalo. 638;
-But since transportation from upper lake ports in Ontario, Canada, to lower
lake ports in United States is not in foreign commerce within § 302 (i), and there-
fore not subject to the act, movement of automobiles from Detroit to Buffalo on
decks of vessels carrying bulk grain from Ontario to United States ports did not
affect status of latter transportation. 640
BURDEN OF PROOF. See also CONVENIENCE AND NECESSITY (Proof); FOR-
WARDERS (Proof Requisite for Permit). There is a definite distinction between
burden of proof on applicant in an application proceeding, which does not shift,
and burden which falls on protestants when they seek to show that operations
in manner contemplated are impractical or impossible. 97
CANADA. See BULK COMMODITIES (Bulk With Nonbulk Shipments).
CAR FERRIES. See also COMMODITIES (Restriction). Car-ferry service is
not of itself an independent or complete medium of transportation but is a
specialized adjunct to rail service and from shipper's standpoint is an extension
thereof. Under part III car-barge service has been authorized at points served
by railroads where rail facilities or service were inadequate; but except for those
or other compelling reasons it would be inconsistent with national transportation
policy to find that public convenience and necessity require establishment of
car-ferry service. 32;
narine transportation, about 14 of which were in area of his existing and proposed
›perations; and his failure to be specific and precise in his estimates of traffic he
expected to handle, as well as revenues, operating expenses, or profits to be
›xpected, did not adversely affect creditability of his testimony. 198
EXEMPTIONS. See also ASSOCIATIONS; BULK COMMODITIES; CONTRACT
CARRIERS (Furnishers of Vessels); FORWARDERS.
APPLICATIONS: Denial: Nicholson Transit Co. 637
Dismissal: Nicholson Transit Co.
Grant: Atlas Construction Co., 244; Gwinn Barge Co., Inc., 593;
Pan-atlantic S. S. Corp.
NONCOMPETITIVE CONTRACT CARRIAGE: Certificated common carriers by
vater may in certain exceptional circumstances be granted exemption under
303 (e) (2). 639
Carriage of grain in same vessel with a deckload of automobiles was not such
ransportation as it was the policy of Congress to exempt from regulation, since
ertain other Great Lakes carriers could carry automobiles on decks of vessels
vhose holds were simultaneously used for transportation of grain; moreover,
pplicant's transportation of automobiles was directly competitive with that
›erformed by protestant. 640
Removal, as to towage of empty vessels to and from shipyards, of exemption
;ranted under § 303 (e) for towage of floating objects (49 CFR 315.2), was not
varranted. Despite keener competition among water carriers for such towage,
lue to added movement of surplus Government vessels being consigned to or
emoved from "mothball fleets," circumstances surrounding movement of such
́essels had not changed; it continued to be contract carriage, even when per-
ormed by certificated carriers, since it was performed under individual contracts
nd was so regarded by custom of the maritime industry; and it was not com-
›etitive with common carriage, since it was not generally engaged in by rail or
otor carriers and inherent nature of empty vessels precluded their transportation
o and from shipyards by water common carriers. 682
Exemption granted for contract carriage of bulk petroleum and products in
ankers whose decks were used for simultaneous transportation of dry cargo,
etween Gulf and North Atlantic ports, when applicant's principal competition
as with private and other exempt carriers, considered traffic moved in large
olume, and because of fluctuating and lower transportation charges of exempt
ater carriers those commodities were not readily susceptible of common carriage.
53, 755
TRANSPORTATION FOR STOCK OWNER: Though Commission has recognized two
ypes of water contract carriage, vessel furnishing and actual transportation, it
oes not follow that "engaged solely in transporting the property," as used in
303 (h), includes only latter type; such interpretation would be unduly restrictive
that under one section of part III a vessel furnisher would be considered as
ngaging in transportation and subject to permit requirements thereof, but would
ot be subject to exemption provision of § 303 (h). Furthermore, "transporta-
on" definition in § 302 (h) specifically includes any and all services connected
herewith. 596;
-And since under § 302 (e) applicant's chartering of barges to noncarrier
orporation which owned all its voting stock, for transportation of the parent
ɔmpany's own products, constituted contract carriage subject to the act, appli-
ant was entitled to exemption under § 303 (h) even though the physical operation
as performed by another subsidiary. 596
RESTRICTION: Removal of restrictions on applicant's general-commodity
authority to shipments in trailers between certain ports on Gulf coast and Intra-
coastal Waterway, and to quantities of 150 tons or less between others, found
justified when those restrictions, which prevented a normal type of barge service,
precluded an economically sound operation and might result in inability to
continue the trailer and 1. b. 1. service previously found to be required. With
their removal, applicant could render an integrated b. 1. service which would
enable it to operate more efficiently and economically. 292, 299
Since Commission has no jurisdiction over operations between continental
United States and Alaska and has no function to promote or protect such service,
suggested restriction of certificate for intercoastal barge service against integration
thereof with applicant's existing service between Alaska and Seattle was not
apropos to issues in application proceeding. 788
CHARTER. See CONTRACT CARRIERS (Furnishers of Vessels); VESSELS (Charter
or Lease; Control, Use, or Operation).
CIVIL SERVICE. See EMPLOYEES.
COASTWISE OPERATIONS. See COMMODITIES; COMPETITION (Traffic
Available); CONVENIENCE AND NECESSITY (Extension of Operations); OPER-
ATING RIGHTS (Transfer); OPERATION (Abandonment); Porrs; SCHEDULES
(Operating).
COMMODITIES. See also CERTIFICATES (Restriction); FORWARDERS (Scope
of Operation); SCHEDULES (Rate).
RESTRICTION: Restriction of extension authority granted Seatrain Lines for
the port of Savannah to transportation of loaded and empty freight cars and liquid
cargoes in vessel tanks was not warranted. While in its existing general-com-
modity operations it transported principally loaded rail cars, it also handled
freight not in cars, particularly automobiles and other bulky articles; and the
vigorous support of its application by the general shipping public was not limited
to traffic in freight cars, but was premised on extension of its existing service as
replacement for that furnished by break-bulk steamship lines prior to World War
II, which had not been restored. Suggested restriction would serve no useful
purpose and would deprive a portion of the shipping public of economical water
transportation. 613
COMMON CARRIERS. See also EXEMPTIONS (Noncompetitive Contract
Carriage); SCHEDULES (Rate); WHARFINGERS.
QUALIFICATIONS: Applicant's failure to perform all service authorized by
existing certificate does not require finding it disqualified to perform proposed
extension operations.
COMMON CONTROL, MANAGEMENT, OR ARRANGEMENT. See also
FORWARDERS (Prohibited Interest in); INTERSTATE COMMERCE.
IN GENERAL: Joint control by three affiliated carriers of transferee of coastwise
rights of one of them, and management thereof in interest of the proprietary
companies, jointly or severally, approved when it would not place additional
carriers in the coastwise trade, but would assure transferee, through support
of its noncompetitive parent companies, of ample financial support and appropriate
equipment to perform service only recently found necessary in public interest. 183
Although 3 individuals who controlled 4 carriers and would add a fifth as a
result of approved transactions did not specifically apply for authority to exercise
joint management or control of any of the carriers, they had submitted informa-
tion concerning their activities for such consideration as Commission deemed
proper, and Commission could therefore make such findings and enter such orders
as seemed appropriate. 185
When 3 individuals and their wives were in complete numerical stock control
both of applicant and of 1 of 4 affiliated water carriers with which applicant had
close working arrangements, they would necessarily be primarily responsible for
actions of both carriers, warranting conclusion that applicant, upon issuance of
certificate, would be jointly controlled by them and managed in common interest
with the 4 affiliates. Since authority granted applicant was not duplicative of
rights held by the others and their operations would not be competitive, resulting
common control was approved. 739, 740
A father and son, together with their wives, controlled 1 carrier and with a third
individual controlled another; and latter individual, who controlled the largest
single block of stock of a third carrier, which was authorized to transfer its coast-
wise rights to a newly created corporation authorized to be controlled by those
3 carriers, had power with others in the family group to control transferor. As
record showed transferor's affairs were actually managed in common interest with
those of the other 2, it was clear that those 3 individuals had power to control
those carriers and a subsidiary of one of them. 183, 184;
-As all the companies involved had been operating in accordance with their
certificates, except for transferor's limited operations under its former coastwise
authority, and the joint management and control was not shown to be inimical to
public interest, but on the contrary had resulted in efficient and economical opera-
tion which had enabled those carriers to serve the public better, approval of con-
tinuance thereof was warranted. 185
FORWARDERS AND CARRIERS: Although three individuals who were the direc-
tors, officers, and stockholders of terminal company which owned one-third of
stock of forwarder applicant's parent company were also officers and directors of
applicant, and through their stock in the terminal company indirectly owned an
interest in applicant which, coupled with their apparent management control,
might well amount to actual control, issuance of permit to applicant would not
result in violation of § 411 (c), since the terminal company held no authority from
Commission to perform any service subject to the act. 486, 487
Ques ions concerning application of § 411 (c), arising from forwarder applicant's
affiliation with motor carriers, were collateral matters which need not be decided
in application proceeding, since § 410 (c) requires Commission to issue permit to
any qualified applicant upon showing of consistency with public interest, and
forbids denial because of applicant's affiliation with a common carrier subject to
the act. For correction of any violation of § 411 (c), Congress has provided
remedies in § 411 (d) and (e), empowering Commission to order termination of
any unlawful relationship and giving jurisdiction to district Courts to issue
restraining injunction upon Commission's complaint. However, Commission's
refusal to adjudicate such questions in application proceedings does not affect
duty of applicant and any persons connected with it to comply with that section.
488
When owner of half of forwarder applicant's stock was a motor carrier operating
in part of considered territory and owner of other half was a relative of the wife
of individual who jointly controlled that motor carrier, permit was denied, since
objective of application was apparently to advance the interest of the affiliated
carrier by increasing latter's cartage operations and volume, and need for proposed
service was not shown. 712, 717
COMMON LAW.
COMPENSATION.
285 I. C. C.
See OPERATING RIGHTS (Title).
See FORWARDERS (Carriers Serving).
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