No. MC-40087 C. &C. TRUCKING CO., INC., COMMON CARRIER Submitted April 30, 1940. Decided August 23, 1943 Applicant found entitled to continue operations over irregular routes, as a common carrier by motor vehicle, (1) of general commodities, with exceptions, between various points in New York, New Jersey, Connecticut, and Pennsylvania, and (2) of auto parts, accessories, and supplies, between points in Westchester County, N. Y., and Essex County, N. J., on the one hand, and Cambridge, Mass., on the other, by reason of its having been so engaged on June 1, 1935, and continuously since. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. Theo. D. Pratt and Barker D. Leich for applicants. DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: Exceptions were filed by applicant to the order recommended by the examiner. Our conclusions differ from those recommended. By application filed February 3, 1936, as amended, under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act, C. & C. Trucking Co., Inc., of North Tarrytown, N. Y., seeks a certificate of public convenience and necessity authorizing continuance of operation, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities, except uncrated household furniture and perishable or bulky commodities, between points in New York, New Jersey, Connecticut, Massachusetts, Rhode Island, Pennsylvania, Maryland, and Delaware, over irregular routes, and also over regular routes and certain alternate routes: (1) Between Belleville, N. J., and Albany, N. Y., (2) between Belleville and Philadelphia, Pa., (3) between Tarrytown and Boston, Mass., and (4) between Tarrytown and Hartford, Conn. M. & M. Transportation Company and rail carriers in official territory oppose the application. Applicant was incorporated in 1929. On June 1, 1935, it had approximately 17 pieces of equipment in revenue service, and at the time of hearing the number had increased to 22. It was registered under a code of fair competition for the trucking industry, and maintains terminals at North Tarrytown and Belleville. The examiner recommended that applicant be authorized to continue the transportation (1) of general commodities, except household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, perishable commodities, and commodities requiring special equipment, between New York, N. Y., and points in Westchester County, N. Y., and between such points, on the one hand, and, on the other, points in New Jersey north of and including Mercer and Middlesex Counties, over irregular routes; and (2) of specified commodities over regular and irregular routes between certain points or territories in New York, New Jersey, Pennsylvania, and Connecticut. No exceptions were filed in respect of the recommended grant of authority to transport general commodities as described in (1) above, and we adopt the recommendation of the examiner to that extent. On exceptions, applicant contends that it has established the right to transport general commodities between all points in the territory claimed, except Cambridge, Mass. As to operations from and to the latter point, it is conceded that "auto parts, supplies, accessories, etc.," constitute practically all of the commodities transported. In support of such claim, it is urged that the method pursued by the examiner in analyzing the digest of past shipments, namely, the selection of two periods, one covering a period of 1 year immediately prior to the statutory date and the other covering the year 1939, does not accurately reflect applicant's true operations. In reaching our conclusions, consideration has been given to all shipments shown by the exhibits submitted by applicant. These exhibits reflect applicant's operations between 1933 and 1939, and are said to be fairly representative of its operations both as to points served and commodities transported. IRREGULAR-ROUTE OPERATIONS As indicated above, applicant is claiming a nonradial general commodity operation between all points in eight States. The evidence establishes, however, that its operations since prior to the statutory date have been radial in character, preponderantly to or from a base area including points in Westchester County, N. Y., where its headquarters are located, and points in a number of nearby New Jersey counties. Practically every shipment shown to have been transported by applicant had its origin or destination in such an area, herein called its base territory. The scope and size of this base territory has varied to some extent in connection with the operations to or from the different States as will more clearly appear from our discussion below. Connecticut operations.-The documentary evidence discloses that transportation between applicant's base territory and certain points in Connecticut has clearly been a general-commodity operation. The movement of such diverse commodities as show material, auto parts, machinery, advertising matter, wire, boiler parts, tools, chemicals, electrical appliances, empty reels, felt, and rectifiers is shown on and since the statutory date. Applicant's base territory with reference to such operations consisted of varied points in Westchester County, N. Y., and Essex County, N. J. Service was shown to 7 points in the first named county, and 3 points, Bloomfield, Belleville, and Irvington, in Essex County. More than 25 scattered points in Connecticut, all lying west of the Connecticut River, were served in connection with operations to and from the base territory. These operations have been substantially continued since prior to the statutory date. Only a few isolated shipments are shown beyond the radial territories heretofore described. We conclude from the foregoing evidence that applicant is entitled to grant of general commodities, with the usual exceptions, between points in the afore-mentioned territory, and those in Connecticut west of the Connecticut River. Pennsylvania operations.-The radial territory in Pennsylvania which has been served by applicant consistently since prior to the statutory date consists of Philadelphia and points in Pennsylvania within 10 miles thereof, such as Ardmore, Norristown, Ambler, North Wales, and Crescentville. Although 2 shipments of wire are shown prior to the statutory date to Catasaqua, Pa., none is shown thereafter; isolated shipments are also shown to 4 remotely scattered Pennsylvania points solely during 1939; however, such sporadic transportation may be disregarded because it is beyond the realm of the normal operations conducted by applicant on and since the statutory date. More than 15 classes of commodities are shown to have moved on and prior to June 1, 1935, between the Philadelphia area and various points in applicant's base territory. Varied commodities are shown to have moved on and since the statutory date to or from such base territory. Points in Westchester County, N. Y., such as Tarrytown, Yonkers, Ossining, Irvington, Hudson, White Plains, and Port Chester, N. Y., and also varied points in Essex, Middlesex, Passaic, and Union Counties, N. J., were served. Seven shipments, principally of auto parts, are shown between Philadelphia and New York City prior to June 1, 1935, but only 4 are shown thereafter, 1 in 1937 and 3 in 1938. Based on this evidence, we conclude that a grant of "grandfather" rights authorizing the transportation of general commodities, with the usual exceptions, between Philadelphia, and points in Pennsylvania within 10 miles thereof, on the one hand, and points in Westchester County, 1 Bloomfield, Belleville, Perth Amboy, Paterson, and Linden, N. J. N. Y., and the 4 New Jersey counties heretofore mentioned, on the other, is justified. Considering the fact that New York, N. Y., and Philadelphia are highly industrialized cities which usually have well diversified traffic in large volumes available for transportation, the meager showing made with respect to actual physical transportation between them appears to be wholly inadequate to support a grant. Massachusetts operations.-Transportation to or from points within this State has been confined almost exclusively to auto parts, accessories, and supplies. Transportation is shown on and prior to the statutory date to or from Cambridge and six other Massachusetts points; but no shipments are shown thereafter to any points in Massachusetts, except Cambridge. The only commodities consistently hauled to or from Cambridge are those heretofore described. Such commodities were transported between representative points in Westchester County and Essex County, on the one hand, and Cambridge, on the other. Appropriate authority will be granted herein for the continuance of such services. Other States.-"Grandfather" claims are also made in respect of Maryland, Rhode Island, and Delaware. Only six shipments are shown as moving from or to such States; two between Baltimore and Bloomfield, N. J., prior to the statutory date, one in 1937 from Ossining, N. Y., to Pawtucket, R. I., and three in 1939, from Clark, N. J., and Tarrytown, N. Y., to Baltimore, Md. While applicant professes a general holding out to serve all points in the above States transporting general commodities, its actual physical transportation to or from points in such States has been so limited as to negative its holding out, or at least to justify us in disregarding it in the absence of a showing of the performance of substantial operations consistent therewith. Accordingly, this part of the application will be denied. REGULAR-ROUTE OPERATIONS Applicant claims "grandfather" rights in respect of four regular routes and a number of alternate routes, (1) between Belleville, N. J., and Albany, N. Y., (2) between Belleville and Philadelphia, Pa., (3) between Tarrytown, N. Y., and Boston, Mass., and (4) between Tarrytown and Hartford, Conn. At the hearing, Cambridge, Mass., was substituted by applicant as a termini on route 3 in lieu of Boston. Route 1 appears to have been the only route which was served with any degree of regularity prior to the statutory date, and for a limited time thereafter. The documentary evidence shows a substantial service was performed at various points on this route from 1933 to 1936, but thereafter the service gradually diminished and finally ceased entirely on July 12, 1937. No satisfactory reason was given for the discontinuance of this service, neither was any showing made that such cessation was beyond the control of applacant within the meaning of section 206 (a) of the act. Authority to continue this regularroute operation will therefore be denied. Applicant's contention that it is entitled to "grandfather" rights over this route, had the hearing been held at an earlier date, cannot be sustained because it is well settled that a "grandfather" claimant must establish operation on and continuously since the statutory date as a condition precedent to a grant. See Gregg Cartage & Storage Co. Common Carrier Application, 21 M. C. C. 17. With respect to routes 2, 3, and 4, the service at points on such routes does not appear to have been different, either as to frequency or in any material respect, from that rendered generally throughout the claimed irregular-route territory. Applicant has selected the alleged regular routes, and various alternate routes, simply as convenience dictated, but the operations conducted were essentially irregular-route operations. FINDINGS We find that applicant was on June 1, 1935, and continuously since has been, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, (a) of general commodities, except those of unusual value, dangerous explosives, household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, perishable commodities, those in bulk, and those requiring special equipment, (1) between New York, N. Y., and points in Westchester County, N. Y., and between the above points, on the one hand, and points in Bergen, Essex, Hudson, Hunterdon, Mercer, Middlesex, Morris, Passaic, Somerset, Sussex, Union, and Warren Counties, N. J., on the other, (2) between points in Westchester County and Essex County, on the one hand, and points in Connecticut west of the Connecticut River, on the other, and (3) between Philadelphia, and points in Pennsylvania within 10 miles thereof, on the one hand, and points in Westchester County, N. Y., and those in Essex, Middlesex, Passaic, and Union Counties, N. J., on the other, and (b) of auto parts, accessories, and supplies, between points in Westchester County, N. Y., and Essex County, N. J., on the one hand, and Cambridge, Mass., on the other; that a certificate authorizing the continuance of such operations should be granted; and that, in all other respects, the application should be denied. Upon compliance by applicant with the requirements of sections 215 and 217 of the act, and our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the application except to the extent granted herein. |