Rail carriers in trunk-line territory opposed the granting of the application. Applicant was originally a road contractor and became engaged in stevedoring and trucking operations in 1933. The stevedoring operations consist of unloading barges of the New York State Barge Canal and transporting cargoes, in truckload lots, to warehouses at the New York canal ports and to points in New York within 50 miles of the canal ports. Occasionally cargoes are handled in the reverse direction, from New York interior points to the canal ports, for transportation by barge. Applicant testified that he was the only operator performing this service, and he presented sworn statements of such transportation for the years 1933 to 1937 inclusive. This evidence shows that prior to June 1, 1935, and continuously since that time applicant has performed this service at various canal ports between Lockport, on the west, and Syracuse, on the east. Many shipments via the canal originate outside the State of New York and are ultimately destined to New York interior points served by applicant. Applicant does not participate in any through rates or common arrangements for a continuous carriage of these shipments. He is instructed by the shipper's agent at the canal port as to where to make delivery and from whom to collect his charges. This service is performed under written contracts between applicant and various shippers. Applicant has published a tariff providing common-carrier rates for similar services on shipments of scrap paper, sulphur, and wood pulp. Thus he has held himself out in a dual capacity as a contract carrier under written contracts and as a common carrier under his tariff. Applicant testified that he would transport for any one who wished to employ his services and that he preferred to operate as a common carrier. Applicant's other trucking operations consist of the transportation of various commodities, principally fresh fruits and vegetables, in truckload quantities from western New York to points in the States listed in the application, with return loads as available. He testified that he always returns to his base of operations and does not handle traffic between the various States in cross-movements. He construed his base of operations to include points in Genesee, Monroe, Niagara, Orleans, and Wayne Counties, N. Y. Prior to 1936 applicant kept very little documentary evidence of shipments transported. Exhibits submitted show that prior to June 1, 1935, and continuously since that time he has transported fresh fruits and vegetables from points in Orleans County to Washington, Baltimore, Philadelphia, Boston, Erie, and Pittsburgh. This transportation includes the return of empty shipping containers, such as baskets and crates. Applicant also transported six other commodities from Medina and vicinity prior to June 1, 1935, but the only commodity handled continuously since that date has been furnace pipe from Medina to Erie and Pittsburgh. Return trips to Medina and vicinity prior to the statutory date show two nonrecurring shipments, and applicant testified that his trucks often returned empty. It is noted that applicant has increased the scope of his operations since the statutory date but such transportation cannot be authorized in this "grandfather" clause proceeding. Applicant should discontinue any unauthorized transportation until he obtains proper authority for such operation. Applicant has six semitrailer units and five trucks, and employs approximately 20 experienced drivers. He maintains a small warehouse for ordinary storage in Medina. Applicant has no competitor at Medina, a town of approximately 6,000 population. Applicant was registered in 1934 under the trucking code of the National Recovery Administration. The examiner finds that applicant on June 1, 1935, was, and continuously since has been, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle of the commodities described and between the points and over the routes set forth in the appendix hereto; that applicant is entitled to a certificate authorizing continuance of such operation; and that in all other respects the application should be denied. It is recommended that the appended order be entered. APPENDIX Commodities General commodities, in truckloads, when moving via New York State Barge Canal: Between canal ports from Lockport to Syracuse, N. Y., inclusive, on the one hand, and points in New York within 50 miles of said ports, on the other, over irregular routes. Fresh fruits and vegetables, in truckloads: From Orleans County, N. Y., to points in District of Columbia, Maryland, Massachusetts, and Pennsylvania, over irregular routes, and the return of empty containers. Furnace pipe, in truckloads: From Medina, N. Y., to Erie and Pittsburgh, Pa., over routes 1 and 2, respectively. Routes Route 1, from Medina over New York Highway 31 to Lockport, N. Y., over New York Highways 78 and 278 to junction with U. S. Highway 20, over U. S. Highway 20 to Silver Creek, N. Y., over New York Highway 5 to New YorkPennsylvania line, and over Pennsylvania Highway 5 to Erie. Route 2, from Medina over above-described route 1 to Erie, and thence over Pennsylvania Highway 5 to Avonia, Pa., over Pennsylvania Highway 98 to Meadville, Pa., and over U. S. Highway 19 to Pittsburgh. No. MC-89173 WILKES-BARRE ANTHRACITE CORPORATION Decided July 15, 1938 Operation by applicant as a contract carrier, of malt beverages, from WilkesBarre, Pa., to points in New York, New Jersey, Delaware, Maryland, and Connecticut, and of empty malt-beverage containers on return trips, over irregular routes, found consistent with the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Permit granted. Earl D. MacCallum for applicant. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, CASKIE, AND ROGERS BY DIVISION 5: On June 25, 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 have been filed, and, not having been stayed or postponed by us, it has become effective as our order. REPORT AND ORDER RECOMMENDED BY THE EXAMINER By application filed May 19, 1938, Wilkes-Barre Anthracite Corporation, of Wilkes-Barre, Pa., seeks a permit authorizing operation as a contract carrier by motor vehicle, in interstate or foreign commerce, of malt beverages, from Wilkes-Barre to points in New York, New Jersey, Delaware, Maryland, and Connecticut, and of empty malt-beverage containers on return trips, over irregular routes. No protest against the granting of the application has been filed. It appearing, upon investigation of the matters involved in the application, that no hearing in respect thereof might be necessary, the application was referred to the examiner for appropriate proceedings, in accordance with the provisions of the Motor Carrier Act, 1935. Applicant indicates that authority has been granted it by the Pennsylvania Public Utility Commission for the transportation of malt beverages and empty containers from Wilkes-Barre to points within Pennsylvania. It appears that applicant has been operating under this authority in intrastate commerce and now desires to ex pand its business so that similar operations may be conducted in a broader territory. Stegmaier Brewing Company, of Wilkes-Barre, a shipper, has requested the Commission to authorize applicants' proposed service in interstate commerce. This shipper desires to engage the services of applicant in the hereinabove-noted transportation. A contract has been filed with the application binding applicant and shipper in connection with the proposed service. It is stipulated, however, that operation under the contract is contingent upon the Commission's granting of the authority sought. According to the shipper's experience, rail facilities are inadequate for the performance of the desired transportation. The shipper is equipped to load trucks but does not have the special equipment required for loading railroad cars. Transportation by truck has proven more satisfactory in meeting the demand for prompt delivery and careful handling. The shipper reports that its customers have expressed a definite preference to have shipments made by truck. The shipper pointed out, moreover, that when empty containers are returned to the plant by rail service a period of several days elapses before the containers reach the plant. On the other hand, when trucks have been employed the return of containers has been effected in a substantially reduced period of time. As a result, a saving is realized in eliminating the need of maintaining a larger stock of containers. The superior service rendered by truck transportation in meeting the specialized needs of the shipper, and the consequent benefit to the public, indicates that applicant's proposed operations would be in the public interest. Two motor carriers, who were named by applicant as competitors, filed statements that they would not oppose the granting of the application. They suggest, moreover, that it would be consistent with the public interest to authorize the operations sought by applicant. Applicant uses or proposes to use 12 pieces of equipment in order that adequate and efficient service may be provided. It maintains its own garages for the maintenance of equipment. The officers of the corporation have had several years of experience in the trucking business. The operators are trained to render satisfactory service. Applicant is able, financially and otherwise, to carry on the operations here considered. The examiner finds that operation by applicant as a contract carrier by motor vehicle, in interstate or foreign commerce, of malt beverages, from Wilkes-Barre to points in New York, New Jersey, Delaware, Maryland, and Connecticut, and of empty malt-beverage containers on return trips, over irregular routes, will be consistent with the public interest and with the policy declared in section 202 (a) of the act. The examiner further finds that applicant is fit, willing, and able properly to perform the proposed service and to conform to the provisions of the act and the lawful requirements, rules, and regulations of the Commission thereunder; and that an appropriate permit should be granted upon full compliance by applicant with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628. It is recommended that the appended order be entered. 9 M. C. C. |