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No. MC-50905 ANTONIO CAVALLARO COMMON CARRIER APPLICATION

Decided July 11, 1938

l'pon further hearing, public convenience and necessity found to require con

tinuance of operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of agricultural commodities, over a regular route between Chester and New York, N. Y., serving Newark, N. J., and other points in New Jersey on a regular route, and over an irregular route between Chester and Philadelphia, Pa., and of beer, from Brooklyn and New York, N. Y., to Newburgh, N. Y., via Jersey City, N. J., over U. S. Highway 9.w. Certificate granted. Application in other respects denied. Prior report, 2 M. C. ('. 65. T'. D. Pratt for applicant. Grorer R. James and Irving Benimowitz for protestants.

REPORT OF THE COMMISSION
DIVISION 5, COMMISSIONERS EASTMAN, CASKIE, AND ROGERS
BY DIVISION 5:

On June 10, 1938, the following recommended report and a recommended order appended thereto, filed with us by joint board No. 67, were served on the parties. No exceptions to the order were filed, but on June 30, 1938, we postponed to July 11, 1938, the date on which the said order should become the order of the Commission and become effective. Not having been stayed or further postponed by us, it has become effective as our order.

REPORT AND ORDER ON FURTHER HEARING RECOMMENDED BY JOINT BOARD

XO. 67, COMPOSED OF JOHN A. BERNHARD OF NEW JERSEY AND RICHARD J. BEAMISH OF PENNSYLVANIA

In a prior report herein, 2 M. C. C. 65, joint board No. 67 found that public convenience and necessity did not require operation by applicant, Antonio Cavallaro, of Chester, N. Y., as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities between Chester, on the one hand, and New York, X. Y., Philadelphia, Pa., and certain points in New Jersey, on the other, and that the application which sought such authority should be denied. No exceptions were filed to the order recommended by the joint board and not having been stayed or postponed by the Com. mission, it became effective May 19, 1937.

On June 3, 1937, the proceeding was reopened for further hearing and applicant was permitted to file an amended application, which was filed on July 1, 1937. In accordance with the provisions of the Motor Carrier Act, 1935, the application was referred to joint board No. 67 for appropriate proceedings. Further hearing has been held. Two-C-Trucking Company and trunk-line rail carriers opposed the application.

In the prior report applicant was denied a certificate of public convenience and necessity on the ground that he transported exclusively unmanufactured agricultural commodities over specified routes, and that his operation was exempt under section 203 (b) (6) of the act. The proposed operation for which authority is sought in the amended application is to transport beer from Brooklyn and New York, N. Y., to Newburgh, N. Y., along the west bank of the Hudson River, via Jersey City, N. J., over U. S. Highway 9-W.

The evidence of record indicates that applicant transported agricultural products exclusively from the inception of his carrier operation in June 1936 until March 1937, when he started to haul beer from Brooklyn and New York to Newburgh for the Storm King Beverage Company, of Newburgh. Applicant continued this operation until October 1937. During this period he made about 30 round trips over an intrastate route, crossing the Hudson River on the Newburgh-Beacon ferry, then following the intrastate route down the east bank of the Hudson River. Newburgh is about 16 miles northeast of Chester. Applicant's reason for seeking authority to conduct this operation on the west bank of the Hudson through New Jersey is to avoid the congested areas on the New York side, which results in a saving of about two hours in time and in a lower cost of operation.

A representative of the Storm King Beverage Company testified that during the warmer months the consumption of its products increases to such an extent that it has been necessary to hire other trucks in addition to its own equipment to handle its business. Applicant's trucks were hired during the summer of 1937, when needed to take care of the overload, and the compen-ation paid was at the rate of 50 cents a half barrel. No contract was entered into between the parties. The witness further testified that, although there were a number of motor carriers in and around Newburgh, it was difficult, owing to the movement of farm crops, to secure the proper equipment needed during the summer months, and that applicant's service had been more dependable than that rendered by other carriers hired heretofore.

OM.C.O.

Protestants contend that there are numerous motor and rail carriers operating between the metropolitan district and Newburgh, and that there is no necessity for an additional common carrier in that territory.

Section 203 (b) (6) of the act provides that nothing in the act, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment, shall be construed to include motor vehicles used exclusively in carrying livestock, fish (including shellfish), or agricultural commodities (not including manufactured products thereof). The exception above referred to applies to vehicles used exclusively in the transportation of agricultural commodities and applicant may not transport agricultural commodities in interstate or foreign commerce if he transports nonexempt commodities in intrastate commerce. See Zambroski Common Carrier Application, 3 M. C. C. 610. In view of the foregoing, applicant's operations since March 1937 have been illegal and should be discontinued until appropriate authority therefor has been obtained.

From the evidence introduced on further hearing it appears that applicant has been transporting agricultural commodities to New York, N. Y., Philadelphia, Pa., and certain points in New Jersey, and it appears that there is a need for a continuance of such service. The joint board finds, upon further hearing, that applicant is fit, willing, and able properly to perform the service of a common carrier by motor vehicle and to conform to the provisions of the Motor Carrier Act, 1935; that public convenience and necessity require the continuance of applicant's operation as a common carrier, in interstate or foreign commerce, of agricultural commodities, over a regular route between Chester and New York, N. Y., serving intermediate points in New Jersey, over New York Highways 45 and 17, New Jersey Highways 2 and 3, and U. S. Highway 9, and over irregular route between Chester and Philadelphia, Pa., and of beer from Brooklyn and New York, N. Y., to Newburgh, N. Y., via Jersey City, N. J., over U. S. Highways 1 and 9-W; that a certificate authorizing such operations should be granted; and that in all other respects the application should be denied.

It is recommended that the appended order be entered. 9 M. C. C.

No. MC-50915 RICHARD (ORIELL & COMPANY (OMMON CARRIER

APPLICATION

Decided July 11, 1938

Public convenience and necessity found to require continuance of operations

by applicant as a common carrier by inotor vehicle, of household goods, between points in New Jersey, ('onnecticut, Maryland, Ohio, Pennsylvania, and New York, over Irregular routes. Certificate granted. Bernard F. Flynn, Jr., for applicant.

REPORT OF THE COMMISSION
Division 5, COMMISSIONERS EASTMAN, CaskiE, AND ROGERS
By Division 5:

On June 10, 1938, the following recommended report and a recommended order appended thereto, filed with us by the examiner, were served on the parties. No exceptions to the order were filed, but on June 30, 1938, we postponed to July 11, 1938, the date on which the said order should become the order of the Commission and become effective. Not having been stayed or further postponed by us, it has become effective as our order.

REPORT AND ORDER OX FURTHER HEARING REX OMMENDED BY THE

EXAMINER

In a recommended report previously entered herein, the examiner found that applicant, Richard Coriell & Company, a corporation, should be granted a certificate authorizing continuance of its opera. tion as a common carrier by motor vehicle, in interstate or foreign commerce, of furniture and household goods, over irregular routes, between Millington, X. J., or points within a radius of 12 miles of Millington, and the metropolitan area of New York City, including all of Westchester (ounty and Long I-land, N. Y., and that an appropriate certificate should be granted. The examiner further found that public convenience and necessity did not require operation by applicant as a common carrier of other commodities or operation to other points in Conneticut, New York, New Jersey, Pennsylvania, Maryawl, ali (!), as alleged in its application. Thereafter, by orders entered April 7, 1937, and November 24, 1937, the case was reopened to determine whether public convenience and necessity require continuance of operation by applicant as a common carrier of furniture and household goods over irregular routes in the States of Connecticut, New York, New Jersey, Pennsylvania, Maryland, and Ohio, as alleged in its application.

9 M.C.c

Pursuant to the provisions of the Motor Carrier Act, 1935, the application was referred to the examiner for further hearing and the recommendation of an appropriate order thereon. Further hearing has been held. There was no opposition to the granting of the application.

Applicant is incorporated under the laws of New Jersey for the purpose of conducting a general merchandise business. All outstanding stock is owned by the Coriell family.

Applicant herein was in bona fide operation on June 1, 1935, but failed to file its application for a certificate authorizing a continuance of those operations within 120 days after section 206 became effective. Applicant was registered under the code of fair competition for the trucking industry on August 4, 1934. In view of the provisions of section 206 (a) of the act, that a certificate shall be issued to a motor carrier, without requiring further proof that public convenience and necessity will be served, to the extent that such carrier was in bona fide operation as a common carrier on June 1, 1935, and has filed its application covering such operations with this Commission within 120 days after that section became effective, proof of such bona fide operations should be regarded as evidence of considerable merit in any case.

Applicant has been in the trucking business for the past 25 years. Details of representative shipments for each year from 1934 to 1937, inclusive, were introduced in evidence as documentary proof of the extent of its partial past operation. A witness testified that about 15 or 20 trips were made into Pennsylvania each year, five or six into Maryland, five or six into Connecticut, and two or three into Ohio.

Applicant was informed that its operations were unlawful and it suspended interstate operations for a short time after the application was filed.

Applicant owns one 1928-model van-type truck and one 1934-model truck with rack body. It carries public-liability and property-damage insurance but acts as a self-insurer of the cargo on all shipments unless a specific request is made for cargo insurance. Applicant is able, financially and otherwise, to conduct the operation. Applicant is willing to comply with all rules, regulations, and requirements issued by the Commission under the act.

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