definition of foreign commerce in section 203(a)(11) of the Interstate Commerce Act is applicable to its operations, and that no authority is needed to provide the service to and from the points. involved.

In the course of its operations applicant is contacted by an Ontario-based purchaser of the bananas and requested to send a given number of trucks to specified piers in a named port. Sometimes the purchaser will follow up with a confirmation telephone call. Applicant is generally not contacted initially by the banana importer/distributor. Applicant's drivers neither participate in the loading of the vans, nor in the removal of any boxes of bananas for any reason from the loaded vans.

For a number of years prior to the filing of this application Melburn did transport roller loads which were tendered to it." Applicant indicated at the hearing that it was no longer transporting rollers. In the event that its present operations are found not to require authority from this Commission, but that if it is determined that rollers do require specific authority, no roller traffic will be transported or solicited.

Applicant contends that the bananas are moving in continuous foreign commerce from a point in a foreign country to a point in another foreign country; that during this continuous movement the bananas are transferred from an oceangoing vessel to applicant's trucks; and that those trucks are merely continuing the journey in foreign commerce through the United States. Applicant admits the transportation of other commodities between Ontario points, on the one hand, and, on the other, United States ports based upon the same continuous foreign commerce theory. Additionally, applicant admits conducting operations upon advice of counsel during the period leading up to the hearing even though its temporary authority had expired.

THE SUPPORTING SHIPPERS

Nine shippers supported the application at the modified procedure stage. At the hearing, by stipulation of all interested parties, the statements of five of the said shippers were stricken, and it was agreed that only the additional verified statements of applicant and shippers which were attached to applicant's petition to reopen to present new evidence would be considered in the

'The term "roller" load appears to be unique to the banana trade and is more fully defined later in this report.

disposition of the case at the hearing stage. Standard Fruit and Steamship Company, United Fruit Company, West Indies Fruit Company, and Chiovitti Banana Co., Ltd., were the supporting firms whose statements accompanied the petition, and at the hearing those companies presented evidence relative to their activities. Inasmuch as the modus operandi of Standard, United, and West Indies are substantially the same, in order to avoid unnecessary duplication a single description of shippers' operations will be made. Shippers are engaged in the importation and distribution of bananas. At the time of the hearing these three companies were responsible for 95 percent of the volume of bananas entering east coast ports. The bananas are harvested and packaged in cardboard boxes in the tropics and are taken to the foreign port where they are loaded onto an ocean vessel. Arrangements for transportation of the bananas from Central America to the various ports are made by the banana importer/distributors who also bear the cost of the water transportation. The ocean vessels discharging the bananas at the port of entry are either owned or chartered by the banana importer/distributors or their affiliates, but the exact terms or conditions under which transportation by water is conducted are not of record. The banana importer/distributor is the consignee designated on the ocean bill of lading. At the time the bananas are harvested and shipped from Central America they are intended to be sold and distributed to points throughout the United States and Canada.

Bananas are packaged, 40 pounds to a box, at the point of origin, and classified and marked according to quality at that time. They are not marked or identified in any way as being intended for a particular consignee as shippers have determined that such marking is not feasible. No documentation accompanies the ocean vessel specifying the names of consignees, nor is any distinction made between bananas intended for United States or Canadian customers. Segregation as to quality and quantity of bananas destined to a particular consignee is done at the port as the bananas are unloaded from the vessels. The importer/distributor pays the cost of unloading the bananas from the vessel and the loading of the trucks which are waiting at dockside. All bananas discharged from the ships, whether previously sold or not, are unloaded directly into trailers. No bananas are warehoused at the various ports.

Under normal practice within the trade the purchaser of bananas selects the motor carrier which is to receive the bananas as they are unloaded from the ship. Each van goes directly to the scales located

on the dock and is weighed empty. The driver is given a loading ticket which shows the consignee and the ultimate destination of the shipment and he then proceeds to a designated location for loading. The orders which are to be filled by the unloading of an incoming vessel are given to the wharf superintendent who plans the ship's unloading. A conveyor system is used and the boxes of bananas are rolled off the ship directly onto one of the many trailers which are waiting to be loaded. Specific boxes of bananas are not diverted to any particular trailer. Inasmuch as the quality or grade of banana is clearly marked on the box, in filling the order it is only necessary to have the correct number of boxes of each quality. Trailers carrying shipments destined to points in the United States and Canada are loaded simultaneously. After loading, the drivers check for the total number of boxes loaded.

While in ocean transit bananas are kept in their green state through means of constant mechanical refrigeration. While it is possible that due to a mechanical failure bananas could become overripe and be rejected by drivers, such an occurrence is extremely rare. When a trailer is completely loaded, usually with between 38,000 and 40,000 pounds of bananas, the driver returns to the weighmaster who once again weighs the truck. The trailers are sealed by the weighmaster after they are loaded, and they are usually not unsealed until unloaded at their ultimate destination. The seal number is indicated on the loading ticket. The driver signs the loading ticket, which acknowledges receipt of the specified quantity and quality of bananas in good green order, and proceeds to his destination. Export declarations which name the ultimate consignee (i.e., purchaser) are prepared by employees of the importer/distributor. The wharf superintendent, the weighmaster, and all the laborers who run the conveyor system and load the trailers are employees of the banana importer/distributors.

The sales transaction is complete when the bananas are loaded onto the awaiting trailers. Charges are assessed according to the weight shown on the loading tickets issued to the various drivers. After delivery to the drivers at the various ports, the purchaser assumes the risk of loss and also pays the cost of transporting the bananas to their ultimate destination.

As here pertinent, the types of sales of banana importer/distributors fall into three categories: advanced order, seaboard, and roller. Although the time periods for each designation of sale vary among the companies, the following general definitions are applicable. Advanced orders are generally made 2 or

3 weeks before the arrival of the ship at the designated port; however, such orders can be placed before the fruit is actually harvested. Seaboard sales are those made either (a) after the expiration of advance orders, (b) while the vessel is en route to a United States port, or (c) after the vessel has docked but before discharge of the bananas has begun. Roller sales consist of all remaining bananas discharged but not sold before loading into trailers. Roller sales involve loading the bananas into trailers requested by the importer/distributor. The motor vehicles are dispatched toward a general market area. The importer/distributor then arranges to sell these bananas to its usual customers. Sale of the produce is consummated while the vehicle is moving toward the general market and then the particular load is diverted to a specific destination. Once a roller sale has been consummated all charges revert back to the point of origin and all costs of transportation, insurance, and the like, are paid by the purchaser.

The appendix hereto indicates the various seaport origins supported by each banana importer/distributor, the ratio of sales to United States and Canadian customers, and the estimated breakdown of advanced, seaboard, and roller sales. Also indicated are any shipping activities which pertain solely to a particular supporting firm.

Chiovitti Banana Company, a banana purchaser, at the time of the hearing had utilized applicant's services for 5 years. Applicant handles about 35 percent of the supporting firm's transportation needs, but no volume data was presented at the hearing. Chiovitti generally purchases bananas prior to the docking of vessels, but has on occasion purchased roller loads.

PERTINENT AUTHORITIES OF PROTESTANTS

At the time of the hearing protestants held the following authorities: (1) Fruitbelt held authority to transport bananas from New York, N.Y., and Philadelphia, Pa., to certain ports of entry on the United States-Canadian boundary line in Michigan and New York; (2) Key was authorized to transport bananas from port facilities in New York and New Jersey within a defined New York harbor area, Philadelphia, Pa., and Baltimore, Md., to points in a portion of New York which includes ports of entry on the international boundary line between the United States and Canada; and (3) Zavitz held authority to transport bananas (a) from Norfolk, Va., Baltimore, Md., Philadephia, Pa., Newark and Weehawken,

N.J., and New York, N.Y., to specified ports of entry on the United States-Canadian boundary line in New York, and (b) from Wilmington, Del., to ports of entry on the United States-Canadian boundary line located in New York.

CONTENTIONS OF THE PARTIES

Applicant has maintained throughout this proceeding that the involved transportation is not subject to Commission jurisdiction because it falls within the partial exemption of section 203(a)(11) of the act. It asserts that the transportation is clearly transportation between a place in one foreign country and a place in another foreign country. It argues that the temporary pause in unloading from a ship to a truck does not interrupt the continuity of movement, that the transfer to motor transportation is an orderly and convenient transfer from one form of transportation to another in the course of carrying out what is intended to be a continuous movement to destinations beyond the seaport, and that the character of the movement remains one of foreign commerce. While applicant acknowledges that the individual boxes of bananas are not marked with their ultimate destination, it asserts that this in no way changes the fixed and persisting intent of the shippers that the bananas are in foreign commerce and that they move beyond the east coast ocean ports to their ultimate destinations, various points on the North American continent. Applicant argues that based upon the above-stated theory, the shipments can in no way be considered to originate at the ocean ports.

Protestants argue that the considered transportation cannot be held to come within the partial exemption of section 203(a)(11) because the transportation to points in Canada actually originates on the piers in the United States at which time the shipper's representative decides that a particular box of bananas is to move to Canadian destination. To support their contention protestants note that the boxes of bananas are unmarked except for grade of bananas, and that the shipping documents merely show the name of the shipper at the ports of discharge in the United States.

Protestants refer to No. MC-129815 (Sub-No. 1), Keith Brinkerhoff Contract Carrier Application (not printed), in which a recommended order of an Administrative Law Judge became effective by operation of law as the order of the Commission on January 10, 1969. That proceeding involved a motor carrier application to transport bananas imported from Central America

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