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our own. We will restate oniy those facts necessary to a clear discussion of the issues.
Applicant is a motor contract carrier operating under a permit which authorizes the transportation, over irregular routes, of building glass, (a) from New York City to points in Connecticut, New Jersey, Massachusetts, Rhode Island, and that part of Pennsylvania on and east of U.S. Highway 15 and that part of New York within 100 miles of New York City, and (b) from Butler, Pa., Clarksburg, W. Va., and points in that part of Pennsylvania and West Virginia within 50 miles of Clarksburg, W. Va., to New York City. Also, applicant has been granted temporary authority corresponding to that sought here.
Until late 1972, applicant served its supporting shippers in the transportation of imported building glass from piers in New York City to points in the destination territory here involved. Since then, the steamship lines have been shifting their ports of disembarkation from New York City to northern New Jersey. In the belief that its authority to originate freight in New York City included authority to serve all points within 5 miles of the New York City limits, applicant began serving shippers from the New Jersey piers. Upon learning that authority to serve the New Jersey piers was not embraced within its authority to serve New York City, applicant discontinued the unauthorized operations and sought and obtained temporary authority. Approximately 75 percent of the considered traffic now originates in New Jersey.
The record indicates that applicant under its existing permit or under temporary authority serves a total of 12 shippers which includes the 9 that it proposes to serve here: Sentinel Enterprises, Seaply Glass, John DeGorter, Solomon Glass Corp., Bienenfeld Glass Corp., Amworth Industries, Daniel DeGorter, Inc., Merchants Glass Distributors, Inc., Remington Aluminum Window Corp., Flat Glass, Ltd., General Glass Imports, and Associated Imports. Moreover, our records indicate that applicant has active contracts with 17 shippers on file, all of which date from December 1972 or January 1973.
Applicant maintains its terminal at Astoria and operates 6 tractors, 2 low-bed trailers, and 13 flat-bed trailers, equipped with chains, stakes, tables, turnbuckles, shackles, and binders. It employs drivers who are trained and experienced in the handling of building glass, and provides timed pickups and deliveries. It does not, however, dedicate equipment to any specific shipper.
Applicant submitted two traffic exhibits. The first covers the months of January and February 1973, and depicts 61 representative shipments transported for Merchants, DeGorter, Remington, Seaply, Amworth, and Bienenfeld, ranging in weight between 36,000 and approximately 290,000 pounds. The second covers the period between December 1973 and February 7, 1974, and again indicates 32 representative shipments for Remington, Amworth, Merchants, the DeGorters, Seaply, and Sentinel. Volume, however, is stated in terms of "pallets," "cases," or "containers." rather than weight. A significant number of shipments on both exhibits originated either at the New York or New Jersey piers and were destined to a point within the New York, N.Y., commercial zone.
Evidence in support of the application was submitted by Sentinel Enterprises of Miami, Fla., Seaply Glass, of New Rochelle, N.Y., Merchants Glass, of Lynbrook, N.Y., Amworth Industries, of Hempstead, N.Y., John DeGorter of Roslyn, N.Y., Daniel DeGorter of Roslyn, N.Y., Remington Aluminum of Hicksville, N.Y., and Flat Glass, of Newark, N.J.
All shippers except Remington and Merchants are importers or agents for foreign glass manufacturers. Merchants is a wholesale distributor and Remington is a manufacturer of storm doors, storm windows, and patio sliding doors. The importers, generally speaking, receive glass either in cartons or containers at the New York or New Jersey steamship piers for distribution throughout the involved territory. Merchants and Remington receive shipments at their warehouses at Hicksville and Lynbrook, respectively.
Sentinel testified that its annual volume approximates 450 truckloads of which 2,000, 3,500, 1,400, 250, 100, and 1,250 tons are destined to points in Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, and Massachusetts, respectively. Seaply ships annually 200 truckloads, or 100, 1,500, 1,000, 700, 200, and 500 tons to points in the same States, respectively. Amworth ships annually 326 truckloads, or 562, 1,125, 2,250, 1,350, 450, and 788 tons to points in the same States, respectively. Daniel DeGorter and John DeGorter, although they share the same facilities, are separate enterprises. John DeGorter ships 140, 200, 500, 140, 100, and 100 tons, while Daniel DeGorter ships 100, 150, 300, 100, 100, and 150 tons to points in the same States, respectively. The last-named shippers indicate that volume has been lower by 25 to 50 percent because of the dollar devaluation, but expect business to improve. Remington and Merchants receive from four to six truckloads monthly at their facilities.
The shippers testified that the bulk of the glass they import is utilized in the building trades and shipped to distributers, jobbers, and manufacturers of such items as windows and sliding doors; however, some of the glass has other applications, such as the manufacture of table tops and furniture. Most of the traffic is routed by shippers, although they will honor the request of their customers if the latter have preference as to a carrier. Some of the traffic requires low-bed trailers and must be mechanically loaded and unloaded. All shippers testified to a need for a carrier with drivers familiar with the handling of glass shipments. Most shippers have employed applicant for a number of years for the transportation of shipments from the New York piers, and/or from the New Jersey piers under temporary authority, and desire to continue its services.
All but two shippers have employed Malba or its predecessor at one time or another. Complaints against this carrier are that it apparently cannot or will not advance certain charges imposed at the piers, and that its invoicing practices are inaccurate. One shipper claims to have been overcharged by Malba, but had not filed a complaint at the date of testifying, and admitted that Malba's rates were the same as those charged by applicant. Another shipper asserted that Malba's service had become "slipshod.” No service complaints were documented. One shipper indicated that its experience with protestant had been satisfactory, while another stated that "it has nothing against" Malba, and would be willing to try its services. Other shippers, however, indicated that they would use Malba under no circumstances and if the instant application is denied would enter into private carriage.
Protestant is a motor common carrier, authorized to transport, as pertinent, building and construction equipment and materials (including those requiring special equipment, when transported to or from construction sites, or between such sites, on the one hand, and, on the other, buildings or yards used for the storage of construction equipment), (a) between points in Bronx, Kings, Nassau, New York, Queens, Richmond, Suffolk, and Westchester Counties, N.Y., on the one hand, and, on the other, points in Bergen, Essex, Hudson, Middlesex, Monmouth, Morris, Passaic, Somerset, Union, Atlantic, Ocean, and Warren Counties, N.J., and (b) between points in the New York and New Jersey counties in (a) on the one hand, and, on the other, points in New York on, south, and east of New York Highway 7 (except those in the New York counties in (a)), and those in Connecticut and Massachusetts.
Protestant maintains terminal facilities in New York City and operates 16 tractors, 1 pickup service car, I open-top, and 2 flatbody trucks, 13 flat-bed trailers, 2 straight trailers, and 2 low-bed trailers. It has been transporting glass for 25 years and it performs some transportation for certain supporting shippers. It acquired its authority April 27, 1973, through purchase at a price of $50,000 in order to be able to serve the New Jersey ports. It has solicited the freight of most, if not all, of the supporting shippers and expresses a willingness to perform service within the scope of its authority. Protestant also indicates that it does, in fact, advance charges at the piers, and denies that it has any credit problems.
DISCUSSION AND CONCLUSIONS
We are in agreement with the Administrative Law Judge that the proposed operation fails to qualify as contract carriage under section 203(a)(15) of the act. That section defines a contract carrier as any person which engages in the for-hire transportation by motor vehicle of passengers or property in interstate or foreign commerce, under a continuing contract or contracts with one or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person or persons .. served, or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.
Although applicant's permit is of the type which does not identify specific persons or concerns with which it may enter contracts, it is well settled that the “limited number of persons” (shippers) requirement applies, cf. Rau Cartage, Inc., Ext.-Tennessee, 120 M.C.C. 439 (1974); Signal Transport, Inc., Com. Car. Applic., 119 M.C.C. 1, 8-9 (1973); and Contractors Cargo Co.-Extension of Operations, 96 M.C.C. 306 (1964) and 105 M.C.C. 683 (1967), affirmed Contractors Cargo Company v. United States, 299 F. Supp. 297 (D. Calif. 1969).
While there is no arbitrary maximum number of shippers with which a carrier may enter contracts, prior Commission decisions recognize that, except with respect to rather unique types of contract carrier operations, such as the transportation of inherently valuable commodities under heavy security, the number of shippers served must be sufficiently small as to warrant the conclusion that the carrier holds itself aloof from serving the public generally. Generally speaking, between six and eight is considered to be the outer limit, absent special circumstances which are not shown to be
present here. cf. Umthun Trucking Co. Ext.-Phosphatic Feed Supplements, 91 M.C.C. 691, 696-697 (1962).
Even upon giving weight to the “class of shippers" concept and the fact that all the supporters here are shippers of the same commodity, we must conclude that the number of shippers sought to be served militates against a finding that the proposal is one of contract carriage. By applicant's own calculation the number of persons is seven or eight. (This Commission's records, as previously noted, indicate that applicant has contracts with substantially more shippers than this number; if any of these contracts are no longer active, it would behoove the applicant to notify immediately and directly the Tariff Examining Branch of this Commission's Bureau of Traffic.)
More importantly here, applicant has failed to meet either of the two alternative tests set forth in the contract carrier definition. No equipment will be dedicated to the exclusive use of any contracting shipper, and there is nothing so inherently specialized in the proposed operation as to bring it within the "distinct need” criterion. In this context, “distinct need” means “specialized” need, Interstate Commerce Commission v. J-T Transport Co., 368 U.S. 81, 90-91 (1961), and the only features that would even remotely differentiate the proposed operation from mere point-to-point transportation are the use of low-bed trailers (in some instances), and the employment of drivers assertedly familiar with the lading. Many common carrier operations exhibit
the same even specialized characteristics.
We should note that we do not find to be of major influence here the case of Eckley Contract Carrier Application, 112 M.C.C 753 (1971), cited by applicant in its exceptions for support that the service is designed to meet shippers' "distinct needs." The applicant, in Eckley, supra, had proposed to dedicate equipment to the exclusive use of the supporting shipper, and there was no question as to its status as a contract carrier. Utilization of drivers familiar with the lading was a factor considered by the Commission in considering the nature of the service proposed pursuant to section 209(b) of the act.? When assignment of vehicles to the
Section 209(b) of the act provides in pertinent part:
In determining whether issuance of a permit will be consistent with the public interest and the national transportation policy declared in this Act the Commission shall consider the number of shippers to be served by the applicant, the nature of the service proposed, the effect which granting the permit would have upon the services of the protesting carriers and the effect which denying the permit would have upon the applicant and/or its shipper and the changing character of that shipper's requirements.