shipped to the Express Agency, one at Tempe, Ariz., and the other at Des Plaines, Ill., with like instructions.

On July 10, 1951, transferor consolidated a carload of rubber weighing 40,600 pounds consigned to Vancouver, Wash., for break bulk, destined to Portland and Seattle. On June 29 and July 6, 1951, shipments weighing 470 and 420 pounds, respectively, of vegetable concentrates were forwarded by motor carrier to Seattle for break bulk and distribution. The break-bulk services on these shipments were performed by the Weeks Transfer Company at Vancouver and the Fortune Transfer Company at Seattle pursuant to contractual arrangements entered into with the transferor. Also, a carload shipment of lucite, assembled and consolidated at Los Angeles, was forwarded to the Monoplastic Chemical Company of Newark, N. J., in February of 1951. The applicants anticipate that the transferee's freight-forwarder services to Oregon and Washington will consist of one or two carloads a week.

The protestants, Coast Carloading Co. and Superior Fast Freight, are authorized to forward commodities generally between points in California and points in Idaho, Oregon, and Washington. They, or their predecessors, have been in operation since 1939. Offices and facilities for the assembly and consolidation of freight are maintained in Los Angeles. Break-bulk and distribution services are performed by them, or their contract agents, at Portland and Eugene, Oreg., and Tacoma, Seattle, and Spokane, Wash. Although the protestants compete for traffic, each has been able to assemble and consolidate sufficient tonnage to forward between 65 and 70 carloads a month to points in Oregon and Washington. It is only within a short period prior to the hearing that the protestants experienced competition from the transferor. They contend that regular daily service out of Los Angeles is necessary to attract forwarder traffic and that service on a less frequent schedule would prove unprofitable. The operations contemplated by the transferee, it is asserted, would adversely affect their business in that the assembling of similar classes of freight to the same destinations would become more difficult, thereby resulting in inferior service.

The issuance or transfer of a permit pursuant to the provisions of section 410, paragraphs (c) and (g), to any qualified applicant therefor, where a question of competition is raised, is controlled by section 410 (d), providing as follows:

The Commission shall not deny authority to engage in the whole or any part of the proposed service covered by any application made under this section solely on the ground that such service will be in competition with the service subject to this part performed by any other freight forwarder or freight forwarders.

There is some evidence to the effect that the transferor made several shipments in 1951 which, when inspected by employees of the underlying carriers, were found to be misbilled as to weights, and in a few instances were subject to different rates than those applicable on the articles as billed. It was also testified by an employee of an underlying carrier that a claim presented by the transferor concerning the loss in transit of a radio, victrola, electric iron, shoes, and other articles valued at $200, was irregular in that upon investigation it developed that the package shipped contained a substituted article of less value improperly described.

The transferor explained that most of the misdescriptions resulted from the manufacturer's labels on the packages and that the discrepancies in weights and rates were caused through clerical errors and through other causes beyond his control. He states that the loss of the articles for which the foregoing claim was made occurred while the consignment was held in storage at destination prior to delivery. In making these shipments the transferor states that he acted as a shipper's agent for the consignors and not in the capacity of a freight forwarder.

In view of the irregularities alleged, and the absence of documentary proof of any forwarder shipments other than those above referred to, the protestants contend that the transfer should not be granted. Our Bureau of Inquiry submitted a motion that the permit in No. FF-155 be revoked. In this respect, section 410 (f) provides, in part, as follows:

no such permit shall be revoked (except upon application of the holder) unless the holder thereof fails to comply, within a reasonable time, not less than thirty days, to be fixed by the Commission, with a lawful order of the Commission, commanding obedience to the provision of this part, or to the rule or regulation of the Commission thereunder, or to the term, condition, or limitation of such permit, found by the Commission to have been violated by such holder: *

Section 402 (a) (5) defines a freight forwarder, among other things, as any person which (otherwise than as an underlying carrier used by it) holds itself out to the general public as a common carrier to transport or provide transportation of property, or any class or classes of property, for compensation, in interstate commerce, and which, in the ordinary and usual course of its undertaking, assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of breakbulk and distributing operations with respect to such consolidated shipments, and assumes responsibility for the transportation of such property from point of receipt to point of destination. The protestants contend that in those instances where the transferor has utilized the services of the Express Agency in the breaking of bulk and distribution, the transferor was not acting in the capacity of a freight

forwarder, citing Kagarise Freight Forwarder Application, 260 I. C. C. 745.

The facts here presented are distinguishable from those in the proceeding just cited. There, the applicant sought a freight-forwarder permit under which it proposed to assemble shipments to be moved into Los Angeles from interstate origins in freight-forwarder service and by pool-car distributors. The freight forwarder issued its bill of lading to the consignor of each shipment in the car. It assumed the responsibility for the transportation of such shipment from the initial point of origin outside California to the ultimate destination. After arrival in Los Angeles, the freight forwarder or pool-car distributor employed the applicant therein to distribute a part of the shipments to certain points in California beyond Los Angeles. Such shipments were picked up at the terminal of the freight forwarder by the applicant with his own trucks or trucks of other draymen, or they were delivered to his station by the freight forwarder or pool-car operator. The traffic was then assembled by the applicant into lots of 4,000 pounds, or more, for each destination and delivered to a commoncarrier rail line which performed the line haul and ultimate delivery service. Division 4 stated that in order to characterize the applicant as a freight forwarder subject to part IV, it was necessary to find, in addition, that he "performs or provides for the performance of breakbulk and distributing operations with respect to such consolidated shipments." In this instance, the transferor provides for break-bulk and distribution services through arrangements with the Express Agency or local trucking or warehouse concerns. The act does not require such services to be performed by the forwarder itself; they may be performed by the forwarder's agents, which is the case here.

Once a permit has become effective as such, the operating authority specified therein may not be revoked or modified without complying with the provisions of section 410(f). Pac. Forwarding Assn. Ext.— Intermountain and Pac. N. W., 265 I. C. C. 684. Our authority to terminate a permit is expressly limited after it has become effective. The granting of the transfer of the present operating rights of the holder to the corporation would not in any manner enlarge the authority now residing in the transferor and which the latter would retain if the transfer were not granted and consummated.

As stated, through stock ownership the transferee will be controlled by the transferor, and there will be no division of the operating rights presently held by the transferor. The latter's employees will not be adversely affected by the transfer. The Commission's transfer rules were not designed to preclude a transfer of operating rights to a transferee who, as an original applicant, would have been

285 I. C. C.

otherwise eligible to receive a permit as a freight forwarder. See Johnson and Babcock Freight Forwarder Application, 260 I. C. C. 574.

The transferee's financial backing, together with the other facts of record, establish that it is ready, willing, and able properly to perform the service authoribed by the operating rights here sought to be be transferred. Our approval of this transfer contemplates that the transferee shall file with this Commission tariff publications of its rates and charges which will conform in all respects to the requirements of part IV of the act and the rules and regulations promulgated thereunder.

We find that the transfer to United Freight Service, Inc., of the permit of B. Tarkington Dowden, an individual, doing business as Package Fast Freight, to operate as a freight forwarder of commodities generally, by the use of underlying carriers subject to parts I, II, and III of the act, from points in Los Angeles, Orange, Santa Barbara, and Ventura Counties, Calif., to all points in the United States, except points in California, will be consistent with the public interest and the national transportation policy, and will not adversely affect the interest of the employees of the transferor; that United Freight Service, Inc., is ready, able, and willing properly to perform such service and conform to the provisions of the act, and the requirements, rules, and regulations of the Commission thereunder; and that the application for transfer should be granted.

An appropriate order will be entered.

MITCHELL, Commissioner, dissenting:

I am against this report because, as I see it, the proposed operation is a new one. The examiner who heard the case and who prepared the proposed report was in favor of denying the application.

285 I. C. C.

No. FF-210

BENJAMIN S. GOLDBERG AND W. EARL GOLDBERG FREIGHT FORWARDER APPLICATION

Submitted April 7, 1952. Decided December 4, 1952

Proposed service by applicant as a freight forwarder of motion-picture film and film accessories between Los Angeles, Calif., and points in southern Arizona, found to be consistent with the public interest and the national transportation policy. Permit issued.

Arlo D. Poe for applicant.

Stephen W. Langmade and Maurice H. Greene for interveners in opposition to the application.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS MAHAFFIE, JOHNSON, AND MITCHELL BY DIVISION 4:

Exceptions to the report proposed by the examiner were filed by one intervener, and applicant replied thereto. Our findings differ somewhat from those recommended by the examiner. Exceptions and requested findings not specifically discussed in this report nor reflected in our findings or conclusions have been considered and found not justified.

By application filed September 18, 1950, as amended, Benjamin S. Goldberg and W. Earl Goldberg, a partnership, doing business as Film Transport Company of California, Los Angeles, Calif., seeks a permit under the provisions of section 410 of the Interstate Commerce Act to institute service, in interstate commerce, as a freight forwarder of motion-picture film and film accessories consisting of projecting machinery parts, advertising matter, advertising slides, light bulbs and electrical lighting effects, and theater tickets, such accessories to be limited to those moving in conjunction with motionpicture film and as a part of the same shipment, between Los Angeles, on the one hand, and, on the other, points and places in Arizona south of a line parallel with and 10 miles northerly of U. S. Highway 70. Watson Brothers Transportation Company, Alabam Freight Lines, Consolidated Copperstate Lines, Wells Truckways, The Pacific Freight Lines, and Southwestern Freight Lines, motor common carriers, and American Consolidators, a freight forwarder, intervened in opposition to the application. They are hereinafter collectively referred to