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No. MC-29642 (SUB-NO. 5)

FIVE TRANSPORTATION COMPANY EXTENSION—
SAVANNAH, GA.

Decided September 7, 1976

On reconsideration, findings in the prior decision and order (not printed), decided April 5, 1974, reversed. Public convenience and necessity found not shown to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of (1) general commodities (with exceptions), in cargo containers, and (2) empty cargo containers, between Savannah, Ga., on the one hand, and, on the other, points in Florida, restricted to the transportation of traffic having a prior or subsequent movement by water. Application denied.

Paul M. Daniell, Alan E. Serby, and K. Edward Wolcott for applicant.

R. Edwin Brady, Robert M. Glennon, William C. Martin III, Keith G. O'Brien, Gregory A. Presnell, Roland Rice and Richard R. Sigmon for protestants.

REPORT OF THE COMMISSION ON RECONSIDERATION

DIVISION 1, ACTING AS AN APPELLATE Division,
COMMISSIONERS MURPHY, HARDIN, AND GRESHAM

MURPHY, Commissioner:

The initial decision in this proceeding of the joint board, which recommended a partial grant of authority, was affirmed by decision and order of Review Board Number 1, decided April 5, 1974. Upon consideration of the joint petition for reconsideration of protestants Gateway Transportation Co., Inc. (Gateway), a motor common carrier, and the Regular Common Carrier Conference of American Trucking Associations, Inc. (RCCC), and the reply by applicant, the proceeding was reopened for reconsideration on the present record by order of July 21, 1975.

By application filed August 9, 1972, as amended, Five Transportation Company, a corporation, of Brunswick, Ga., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier

by motor vehicle, over irregular routes, (1) of general commodities (except those of unusual value, those which because of size or weight require the use of special equipment, dangerous explosives, household goods as defined by the Commission, and frozen foods), in cargo containers, mounted or not mounted, and (2) of empty cargo containers, mounted or not mounted, restricted to the transportation of shipments having a prior or subsequent movement by water, between Savannah, Ga., on the one hand, and, on the other, points in Florida. Gateway and RCCC oppose the application.'

The joint board recommended that applicant be granted authority substantially as sought, except that service was limited to operations between Savannah, on the one hand, and, on the other, those points in Florida south and east of Columbia, Alachua, and Levy Counties, Fla., restricted in (1) only to the transportation of traffic having a prior or subsequent movement by water. In affirming the initial decision, the review board granted the motion of protestants to strike appendixes A, B, and C of applicant's exhibit Number 2, which contained photographs of the port of Savannah, and which were not made available to counsel for protestants either at the oral hearing or subsequently.2

On petition, protestants jointly contend that because none of the supporting witnesses represents actual shippers and receivers of freight, their testimony as to a need for the proposed service is entitled to little probative weight; that the evidence fails to show that the movement of containerized freight in the involved territory will increase substantially in the near future so as to warrant an additional carrier service; that there has been no showing that existing service, including that of Gateway, is inadequate; that the evidence fails to prove a prima facie case; and that, therefore, the review board erred in affirming the recommended grant of authority. In its reply, applicant maintains that the evidence shows a critical need for the proposed service which protestant Gateway cannot provide; that the supporting witnesses are in a position to testify as to a need for the proposed service; and that, because the

'Protestant Ploof Transfer Co., Inc., withdrew its opposition during the course of the hearing. We otherwise construe the failure of protestant M. R. & R. Trucking Co., to file exceptions to the initial decision and to file a petition for reconsideration of the review board's decision and order as showing a lack of continuing interest in this proceeding. Compare Builders Transp. Co. Ext.-Iron and Steel Articles, 107 M.C.C. 365, 375 (1968).

'Such appendixes were properly stricken pursuant to rule 84(c) of the Commission's General Rules of Practice (49 CFR 1100.84(c)).

petition raises no new or material matters of fact or law not already properly disposed of by the review board, it should be denied.

The evidence, the initial decision, the review board's decision and order, the petition for reconsideration, and the reply have been considered.

APPLICANT

Applicant is a motor common carrier of general commodities (with the usual exceptions), operating, with one exception, wholly within Georgia. As pertinent, it holds regular-route generalcommodity authority between Savannah and Jacksonville, Fla., serving all intermediate points between Savannah and the GeorgiaFlorida State line and an off-route plantsite near Woodbine, Ga. Applicant maintains terminals at Savannah, Brunswick, and Jacksonville. Upon a grant of this application, it would establish agency stations at Miami and Tampa, Fla., and, eventually, a terminal at some point in mid-Florida. Applicant operates 25 tractors which are suitable for transporting those containers having their own undercarriage (or "bogey"). It submitted appropriate financial and operational feasibility data.

Under its existing authority, applicant has transported empty or filled containers between Savannah and Jacksonville. From midNovember 1972 to mid-May 1973, it transported 124 empty containers, each weighing 10,000 pounds, from Jacksonville to Savannah, using (except for one movement) the leased equipment and drivers of Ryder Truck Lines (not a party to this proceeding). It derived over $21,000 in revenue from these operations. From January 1972 to March 1973, applicant transported 72 containers of ammonium nitrate fertilizer, each weighing 44,000 pounds (for an aggregate weight of over 3.2 million pounds), from Savannah to Jacksonville, deriving nearly $21,000 in transportation revenues.

The proposed service contemplates single-line operations from origin to destination without any break-bulk or cross-terminal handling of the involved freight. Applicant will provide the power equipment to move containers mounted on their own undercarriages, or will provide tractors and bogies to transport unmounted containers. Applicant owns no flat-bed trailers, but indicates it will lease or purchase five of them, as well as 20 additional tractors and 10 bogies to commence the proposed operations. If required, applicant will provide a multiple pickup and delivery service and conduct operations 24 hours a day every day.

Applicant asserts that the proposed service is necessary because of an increasing flow of container traffic in the involved territory, and because some of its competitors decline to handle such traffic, particularly when tendered in 20-foot containers, rather than the larger, easier to handle 45-foot containers. Applicant does not wish to participate in joint-line service because (a) certain carriers with which it interlines at Jacksonville hold only limited territorial authority from and to points in Florida, (b) certain carriers, as alleged above, resist handling 20-foot containers without the prior approval of their home offices, and (c) certain carriers do not conduct weekend or around-the-clock operations to permit the unscheduled interchange of the involved freight..

SUPPORTING FIRMS

The Georgia Ports Authority seeks to foster and stimulate the flow of foreign commerce through ports in Georgia such as Savannah. As a result of recent and ongoing capital improvements and additions, the port of Savannah has expanded its facilities and capacity to handle containerized freight. In just 2 years, the number of containers moving through the port has increased from 700 to 4,000 a month. Upon completion in late 1973 of additional container facilities, the port expected a 100-percent increase in the volume of such freight. Of the 50 steamship lines serving the port, 5 handle only containerized freight and make regularly scheduled calls. The trade areas served by the port encompass much of the Southeastern United States, the Missouri Valley, and the Central Plains States. Although the witness for the port indicated he regularly advised shippers and consignees using the port about available rail and truck service, he had no knowledge of the volume of container traffic moving between Savannah and points in Florida. The proposed service is said to be needed for the continued growth and development of the port of Savannah in handling containerized freight.

John S. James Co., and D. J. Powers Company, Inc., both of Savannah, are customhouse brokers and foreign freight forwarders apparently licensed by the Federal Maritime Commission to clear imported merchandise through United States Customs. Assertedly, both arrange for the inland transportation of this merchandise, although they never assume beneficial title of the goods actually transported. On cross-examination, the witnesses for both firms denied or declined to say whether these firms (in view of their

asserted participation in the inland transportation of freight) are properly licensed by this Commission as either brokers or freight forwarders, as respectively defined in sections 203(a)(18) and 402(a)(15) of the Interstate Commerce Act. In any event, neither firm sponsored traffic exhibits to document their asserted participation in the routing of the involved traffic, although it was said that 60 percent of the freight handled by the James Co. is containerized. Moreover, the James Co. assertedly will have as many as 10 containers some weeks for movement to Florida. Finally, the James Co. alleged that protestant Gateway refused to handle a tendered 20-foot container in September 1972 from Savannah to Tampa.

Strachan Shipping Company, Southeastern Maritime Co., and Stevens Shipping and Terminal Company are agents (not otherwise clarified) and stevedores for various ship lines serving the port of Savannah. None of the firms testified at the behest of the ship lines, but in their own behalf as observers of commercial activity at the port of Savannah. As such, each expressed, in general terms, concern about the ready availability of motor carrier service to position empty containers where needed in the involved territory. None presented specific evidence to document their general observations, and none asserted responsibility for the movement of any of the considered traffic.

United States Lines, Inc., is an oceangoing carrier operating specialized container ships, one of which visits the port of Savannah every 14 days, delivering and receiving between 150 and 200 freight-filled containers. Between 10 and 15 percent of this traffic moves to unspecified points in Florida. Although the supporting witness initially testified that United arranges and receives pay for the inland transportation of this traffic, he admitted on crossexamination that United holds no appropriate authority from this Commission to provide such services. The thrust of his testimony concerned the importance to United of having a carrier readily able to provide equipment for the repositioning (apparently within Florida) of its own empty containers and bogies leased by United to various carriers (both motor and rail) for the inland transportation of the involved freight. United, therefore, supports the application as a shipper of empty containers and bogies, but the witness provided no documentation or specific details concerning the nature and magnitude of this traffic.

The operations of protestants are adequately discussed in the initial decision and, in view of our conclusions herein, need not be repeated.

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