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exclusive use of shippers obtains in a contract carrier proceeding, a determination should be made whether the shippers have need for a transportation service by an applicant because protestants cannot adequately serve such need, see Interstate Contract Carrier Corporation v. United States, 389 F. Supp. 1159 (D. Utah, 1974), cf. Midwest Truck Lines, Ltd v. Interstate Commerce Commission, 269 F. Supp. 554, 561 (D. D.C. 1967), and compare Royal Transports, Inc., Contr. Car. Applic., 120 M.C.C. 783, 790 (1974), and Meat Packers Express, Inc. v. United States, 244 F. Supp. 642, 648 (D. Nebr. 1965). Where dedication is not present, “distinct need” connotes a rather high threshold of specialized or unique need of shippers which must be met (and which is not shown to exist in this case), see J-T Transport, supra, 368 U.S. at page 90.
Having determined that the proposed operation fails to qualify as contract carriage, we will next consider the application as one for common carrier authority. Initially, we are of the opinion that protestant holds the requisite commodity authority to provide the bulk of the service proposed. Malba's pertinent certificate reads "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).” First, many types of glass are contained in appendix VI to the report in Descriptions in Motor Carrier Certificates, 61 M.C.C. 209, 281 (1952), and, as such, may be transported by a carrier holding authority to transport building materials, without specific inquiry as to end use, provided that at the time of the movement, the carrier does not have knowledge that the commodity is to be used for some other purpose, Contractors Transit; Inc.- Investigation and Revocation, 78 M.C.C. 347, 350 (1958). The glass to be used other than as a building material constitutes a minor portion of the involved traffic.
Secondly, the language contained within parentheses is to be considered as a self-contained unit. It is well established that a certificate means what it says and that we may not go behind it to determine what was intended by the description if it is clear on its face, cf. T.I. McCormack Trucking Co., Inc.-Investigation, 110 M.C.C. 499, 502 (1969). We find the certificate clearly allows protestant Malba to transport "building and construction equipment and materials” and the language in parentheses as to what is included in this commodity description must be regarded as
surplusage, compare Johnson Bros. Truckers, Inc., Ext.—Taylorsville, N.C., 96 M.C.C. 500, 505 (1964).
While it is not indispensable, an important ingredient in the determination of shipper need, and, hence, public convenience and necessity, is the adequacy of existing carriers to meet the present and future needs of the shipping public, cf. Nationwide Carriers, Inc. v. United States, 380 F. Supp. 1132, 1136 (D. Minn. 1974), and cases cited therein. Inasmuch as protestant operates suitable equipment, is experienced in handling glass, has solicited supporting shippers, and the record reveals no material defect in its services, we do not believe that the authorization of additional competing service is warranted. In this regard, Malba's inability to advance charges at the piers is unproved, and even if true, would be insufficient alone to justify an award of authority.
Protestant has only comparatively recently received authority to provide the proposed service. The evidence is persuasive that it should be afforded a reasonable opportunity to do so and that material inadequacies in its service should be shown before applicant's competitive motor service is authorized, cf. Truck Transport, Inc., Ext.-Jacksonville, Ark., 120 M.C.C. 449 (1974), and Nygren Transp. Co. Extension South Dakota, 61 M.C.C. 349, 351 (1952). Further, although applicant's operations under temporary authority create no presumption that permanent authority will be awarded, see Mobile Home Express, Ltd. v. United States, 354 F. Supp. 701, 706 (W.D. Okla. 1973), and cases cited therein, nevertheless, we have appraised the evidence of applicant's operations under temporary authority and have reached the conclusion that it is insufficient to show a need for permanent authority
We do not believe that the evidence establishes concretely or specifically that the “follow-the-traffic" principle, as exemplífied by Commission decisions in Patterson Extension-York, Pa., 111 M.C.C. 645 (1970), and Best and Wilcox Common Carrier Application, 120 M.C.C. 551 (1974), is actually extant here to the degree necessary to provide appreciable support for the applicant's proposal, cf. B & L Motor Freight, Inc., Ext.Frankenmuth, Mich., 120 M.C.C. 318, 321 (1974), and Theatres Service Co.
) Ext.-Duluth, Ga., 113 M.C.C. 744, 751 (1971). Unlike the situation where a shipper relocates its plant, a change which is more or less irreversible, the present record only indicates that many of the steamship lines patronized by these particular shippers currently prefer to use the New Jersey rather than the New York piers. Even if this is a permanent situation, it cannot incline the scales sufficiently in favor of a grant of authority. For the equivocal statements in this connection by applicant on this record do not show that applicant actually will have
cease operations upon denial of this application
One matter remains for consideration. There has been much argument over the scope of the section 203(b)(8) "commercial Zone" exemption as applied to New York, N.Y. In this regard, we are in complete accord with the Administrative Law Judge's indication that the "arrangement for continuous carriage" which voids the exemption of section 203(b)(8) is applicable only to agreements between carriers and does not apply in the case where the shipper makes its arrangements independently with each carrier involved in the movement, cf. Commercial Zones and Terminal Areas Detroit, 96 M.C.C. 709, 715-716 (1965), and compare Bigley Bros., Inc., Contract Carrier Application, 4 M.C.C. 711 (1938). The commercial zone exemption was specifically allowed with respect to operations conducted between the Newark, N.J., piers, and points within the remainder of the New York, N.Y., commercial zone as defined in Commercial Zones and Terminal Areas, 53 M.C.C. 451, 491-493 (1951), the “exempt" zone, when the involved traffic has had a prior or subsequent movement by water. We note further that the commercial zones of New Jersey points within 5 miles of New York, N.Y., are normally defined according to the population mileage formula with respect to transportation performed wholly between points in New Jersey. Compare Commercial Zones and Terminal Areas, supra. Thus, applicant does not require authority to handle the involved shipments (a) between the Newark piers and other points in the New York, N.Y., exempt zone, or (b) between the Newark piers and other points within the commercial zone of Newark if the shippers make independent arrangement with the separate carriers.
The situation is somewhat different, however, when applicant seeks to provide service between the Newark piers and other New Jersey points which lie outside the Newark commercial zone. Here, the issue is whether these ex-water shipments move in foreign or intrastate commerce, which, in turn, depends upon whether the shippers intend continuous transportation from the foreign origin to ultimate consignee, or whether the movement is sufficiently interrupted at the piers, so that the subsequent transportation within New Jersey is considered a separate and distinct movement in intrastate commerce. Compare Southern States Cooperative, Inc., v.
Baltimore & O. R. Co., 323 I.C.C. 400 (1964), and the cases cited therein. The record is not sufficiently detailed to permit a precise
a determination of that issue; suffice it to say that at least one shipper has indicated that the glass it imports is already sold before it reaches the piers, a fact which would tend to indicate that the transportation therefrom is in foreign commerce and, therefore, subject to this Commission's regulation.
We find that applicant has failed to establish that the proposed operations is that of a contract carrier by motor vehicle as defined in section 203(a)(15) of the Interstate Commerce Act, and that it is fit, willing, and able properly to perform the proposing service as a contract carrier as so defined; and that the application, insofar as it seeks authority to operate as a motor contract carrier, should be denied.
We further find that, viewing the subject of the application, the proposed operation is actually that of a common carrier by motor vehicle; that applicant has failed to establish that the present or future public convenience and necessity require the proposed operations, that the application, viewed as one seeking common carrier authority, should be denied; and that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. An appropriate order will be entered.
AAACON AUTO TRANSPORT, INC.-INVESTIGATION AND REVOCATION OF CERTIFICATE
Decided April 7, 1976
1. In No. MC-C-7287, respondent found to have engaged in unjust and unreasonable practices in violation of sections 20(11), 219, and 216(b) of the Interstate Commerce Act, and to have operated unlawfully beyond the scope of its authority set forth in certificate No. MC-125808 (Sub-N. 1), in violation of section 206(a) of the act. Cease and desist order entered.
2. In No. MC-C-7287 (Sub-No. 1), petition seeking an interpretation of a restriction contained in certificate No. MC-125808 (Sub-No. 1), denied.
3. Ia No. FF-359, on further consideration, applicant found to have failed to demonstrate that it is a qualified applicant, or that its proposed operation will be consistent with the public interest and the national transportation policy. Application denied.
Philip M. Browning, Jr., John J. Charuhas, John F. Curley, Stuart B. Robbins, and Joseph F. Walker for Bureau of Enforcement.
Morton E. Kiel, Paul Zola, and Ralph Zola for respondent, petitioner, and applicant.
Dellon E. Cooker, Eugene C. Ewald, Wilmer B. Hill, Daniel B. Johnson, Marshall Kragen, and Curtis L. Wagner for protestants and interveners.
REPORT OF THE COMMISSION
DIVISION 1, COMMISSIONERS MURPHY, GRESHAM. AND CLAPP
Exceptions to the initial decision and recommended order of the Administrative Law Judge, embracing a request for reopening the proceeding for further hearing and to receive new evidence, and for oral argument and/or hearing de novo, were filed jointly by respondent-petitioner and applicant, and replies thereto were filed
Also cimbraced are No. MC-C-7287 (Sub No. 1), AAA Con Auto Transport, Inc.. Petition for Declaratory Order and No FF 359, Auto Trip USA, Inc., Freight Forwarder Application. 124 M.C.C.