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No. W-104 (Sub-No. 6) 1

UNION BARGE LINE CORPORATION EXTENSIONALGIERS CANAL

Decided March 19, 1957

Operations by applicants over the Algiers Canal found not to be extensions of service within section 309 (d) for which amended certificates would be required. Applications dismissed.

R. Granville Curry for applicant in No. W-104 (Sub-No. 6). Rene A. Stiegler for applicants in Nos. W-262 (Sub-No. 7), W-498 (Sub-No. 10), and W-844 (Sub-No. 3).

Donald Macleay for applicants in Nos. W-377 (Sub-No. 7) and W-700 (Sub-No. 9).

T. S. Christopher for applicant in No. W-923 (Sub-No. 6).

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS MITCHELL, ARPAIA, AND WINCHELL BY DIVISION 4:

Exceptions to the report proposed by the examiner were filed by Dixie Carriers, Inc., Coyle Lines Incorporated, and Gulf-Canal Lines, Inc. Our conclusions differ from those recommended by the examiner.

By application filed July 13, 1956, in No. W-104 (Sub-No. 6), under the provisions of section 309 (d) of the Interstate Commerce Act, Union Barge Line Corporation, of Pittsburgh, Pa., seeks a revised certificate of public convenience and necessity authorizing extension of its presently authorized operations as a common carrier by water, in interstate or foreign commerce, in the performance of freighting and towage to include such services between all points along the Algiers Canal.

By similar applications filed May 21, 1956, in No. W-262 (Sub-No. 7) Gulf Coast Towing Company, Inc., New Orleans, La. ; June 6, 1956, in No. W-498 (Sub-No. 10), John I. Hay Company, Chicago, Ill., May 22, 1956, in No. W-844 (Sub-No. 3), L. N. Boudreaux (Mrs.

1 This report also embraces Nos. W-262 (Sub-No. 7), Gulf Coast Towing Company, Inc. Extension-Algiers Canal, W-377 (Sub-No. 7), Dixie Carriers, Inc. Extension-Algiers Canal, W-498 (Sub-No. 10), John I. Hay Company Extension-Algiers Canal, W-700 (Sub-No. 9), Coyle Lines Incorporated Extension-Algiers Canal, W-844 (Sub-No. 3), Mrs. L. N. Boudreaux, Tutrix of the Estate of L. N. Boudreaux Extension-Algiers Canal, and W-923 (Sub-No. 6), Gulf-Canal Lines, Inc., Extension-Algiers Canal.

L. N. Boudreaux, tutrix of the Estate of L. N. Boudreaux), Morgan City, La.; and July 16, 1956, in No. W-923 (Sub-No. 6), Gulf-Canal Lines, Inc., Houston, Tex., likewise seek revised certificates authorizing extension of their respectively authorized water-carrier operations as common carriers to include service between all points along the Algiers Canal. Also by similar applications filed July 3, 1956, in No. W-377 (Sub-No. 7), Dixie Carriers, Inc., Houston; and July 3, 1956, in No. W-700 (Sub-No. 9), Coyle Lines Incorporated, New Orleans, seek revised certificates authorizing extension of their respectively authorized water-carrier operations to include service via the Algiers Canal. Dixie Carriers, Inc., Coyle Lines Incorporated, and Gulf-Canal Lines, Inc., also filed motions to dismiss their applications, contending that their present certificates already authorize them to operate on the Algiers Canal.

Section 309 (d) of the act provides in part that a common carrier subject to part III of the act may extend its services over the uncompleted portions of waterway projects authorized by Congress, over the completed portions of which it already operates, as soon as such uncompleted portions are open for navigation. By order entered June 11, 1941, the Commission provided, in part, that a certificate must be obtained from the Commission to engage in such extended service. 49 CFR 305.1.

Applicants, insofar as here pertinent, are authorized to serve New Orleans and all ports and points for a distance of more than 100 miles west thereof along the Gulf Intracoastal Waterway, hereinafter called the waterway. At New Orleans the waterway enters the Mississippi River from the east by way of the Inner Harbor Navigation Canal. Until the opening of the Algiers Canal the only route on the waterway to the west extended from the Inner Harbor Navigation Canal up the Mississippi River for approximately 5.6 miles and thence south and westward on the waterway by way of the Harvey Lock and Canal. Because of heavy traffic at New Orleans there has been a growing congestion at Harvey lock. This congestion reached serious proportions and, in recognition of the adverse effect upon traffic in the event an accident or necessary major repairs should require closure of the lock, the construction of an additional lock and canal to afford an alternate connection in the vicinity of Algiers, La., was authorized in the Rivers and Harbors Act of 1945 (59 Stat. L. 10). This alternate connection, herein referred to as the Algiers Canal, extends in a southwesterly direction from the Mississippi River from a point approximately 4.3 miles below the entrance of the Inner Harbor Navigation Canal for a distance of 9.3 miles where it joins the other route of the waterway at a point 6.8 miles from

Harvey lock. The new connection was officially opened for navigation on April 27, 1956.

Certain of the applicants seek authority to serve all points along the Algiers Canal and others seek authority to operate via such route. Gulf-Canal Lines, Dixie Carriers, and Coyle Lines claim that no additional points will be served which have not heretofore been served or cannot in the future be served under their present operating authorities. Each of these three carriers contends that its present certificate includes authority to perform such service and that its application was filed only as a matter of precaution. In the motions to dismiss their respective applications, these three carriers note that Algiers is within the metropolitan area and the switching limits of New Orleans and within the commercial zone thereof. They assert that the construction of an alternate lock and the short channel to provide an additional connection between the main route of the waterway and the Mississippi River does not constitute the completion of a previously uncompleted portion of a waterway project within the meaning and intent of the proviso of section 309 (d) of the act. In support of this position they cite John I. Hay Co. ExtensionBayou Sorrel Lock, 285 I. C. C. 229, wherein it was found that the provision of an alternate route for through traffic, not involving service to additional points, was not the completion of an uncompleted portion of a waterway as contemplated by section 309 (d). On exceptions, the three carriers renew these contentions, and, in addition, point out that since the applications here under consideration were filed, the Harvey Lock was closed to navigation for about 67 days and that all waterway traffic was routed through the Algiers Canal.

As noted, applicants are authorized to operate on the waterway westward from New Orleans. The Algiers Lock and its short connecting channel were constructed and have served merely as a duplicate connection between the waterway and the Mississippi River in the vicinity of New Orleans. During periods of emergency, vessels operating on this portion of the waterway are routed over either the Harvey or Algiers Canals by the Army Corps of Engineers, depending upon prevailing traffic conditions or other circumstances over which the vessel operators have no control. At such times the carriers have no choice as to the route to be traversed by them. Thus, it appears that the newly constructed lock and canal are a navigational improvement on an existing waterway which provides carriers operating on such waterway with more flexible and efficient facilities for making the passage between the levels of the Mississippi River and the waterway. In utilizing this alternate connection applicants

provide no new service. In the circumstances, it is clear that construction of the Algiers Canal is not the completion of an uncompleted portion of a waterway as contemplated by section 309 (d) of the act.

We find that operations by applicants over the Algiers Canal not to be extensions of service within section 309 (d) of the act for which amended certificates are required, and that the applications should be dismissed.

An appropriate order will be entered.

285 I. C. C.

amount currently handled by them to and from affected area. When that was
not disclosed, extent to which applicant's business would consist of traffic so
diverted could not be determined, and a finding that protestants would be sub-
stantially injured would be mere conjecture. 98, 99

That existing forwarders offered service to Vermont origins by way of assembly
stations in neighboring States or that one forwarder had opened an assembly
station in Vermont the day before the hearing, after many years of opportunity
to do so, did not justify denial of extension authority to applicant when Vermont
shippers needed a forwarder service with conveniently located assembly stations
in that State. 435

Diversion of traffic from existing forwarders as result of extension of applicant's
service to all United States except between California and Idaho, Oregon, and
Washington would not necessarily cause impairment of their services, since it
was the practice, in absence of sufficient traffic for each to make up a carload, for
two or more forwarders to load their shipments together in same car in order to
dispatch shipments more frequently. 652

Prohibition in § 410 (d) of denial of a forwarder application solely on ground
of competition with other forwarders does not bar denial if substantial impair-
ment of existing forwarder services is threatened or reasonably to be anticipated,
since that would clearly be contrary to public interest. 651;

-And when there was an abundance of forwarder service from Georgia,
Alabama, and Mississippi to western destinations and no prospect of better
service by applicant, authorization of additional service by applicant would be
inconsistent with public interest. 797

MOTOR: When operating ratios of protesting motor carriers, whose 1. t. I.
traffic ranged up to 95 percent of total shipments handled and who had large
sums invested in equipment and terminal facilities, were approaching a disturbing
figure, authority for proposed forwarder operation, under ownership of local
cartage companies performing pickup and delivery on rail 1. c. 1. shipments, and
designed to offset losses from decline of such traffic, would place its agents in a
unique position to secure customers currently served by protestants, and was
not warranted in absence of showing of need for additional service. 426, 431

TRAFFIC AVAILABLE: Although funneling to tidewater of considerable lumber
traffic which ordinarily would have moved by rail was due to Korean War and
current defense emergency, growth of lumber industry along the Oregon coast,
development of Willamette Valley, Oreg., and expanding Pacific coast markets
indicated that the area's enlarged economy was permanent and that potentially
available traffic was amply able to support proposed extended operations from
all Washington and Oregon coast ports to those in California without jeopardizing
existing services. 122

Although no basis for accurately determining volume of traffic moving along
Gulf Intracoastal Waterway was presented, applicant asserted, and supporting
witnesses agreed, that the gulf coast area was undergoing substantial industrial
growth with increased transportation needs, and that new plants would provide
new business not now moving in protestants' service. Available traffic therefore
appeared ample to support applicant's proposed b. 1. service, in addition to its
1. b. 1. and trailer service, without adversely affecting protestants. 293, 299, 300
Since territory along Columbia River from Pasco to Priest Rapids, Wash.,
would become increasingly more productive and populous due to nearby irrigation
projects, availability of economical and dependable water transportation was de-
sirable, and grant of extension authority to applicant already operating as far as
Pasco would not adversely affect protestant which had provided only a negligible
amount of service above Pasco. 306

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