No. MC-50757

ALBERT PAYNE WARNER COMMON CARRIER
APPLICATION

Submitted December 11, 1939. Decided February 21, 1941

Upon further hearing, public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, of agricultural commodities, from points in Suffolk County, Long Island, N. Y., situated east of New York Highway 112, to points in New Jersey within a radius of 30 miles of New York City (Columbus Circle), and of poultry and duck feed, from Jersey City and Weehawken, N. J., and of fertilizer and fertilizer material, from Carteret, N. J., to points in the described section of Suffolk County, over irregular routes. Findings in prior report, 9 M. C. C. 614, reversed. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. L. J. Walsh and Solomon Raffe for applicant. James W. Oram and R. W. Reich for protestants.

REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 5, COMMISSIONERS EASTMAN, LEE, AND ROGERS

BY DIVISION 5:

In the prior report herein, 9 M. C. C. 614, applicant was found to have failed to show that present or future public convenience and necessity require operation by him as a common carrier by motor vehicle, of farm produce, from Suffolk County, Long Island, N. Y., to points in New York, Massachusetts, Pennsylvania, Maryland, Connecticut, and New Jersey; and of fertilizer, bran, feed, grain, flour grain, and lubricating oil, from points in New Jersey to points in Suffolk County. An order denying the application was entered September 21, 1938. By the Commission's order, entered December 5, 1938, upon applicant's petition therefor, the proceeding was reopened for further hearing. The application is opposed by rail carriers in trunk-line and New England territories, and by the Suffolk County Truck Owners' Association. Exceptions were filed by applicant to the order recommended by the examiner upon further hearing. Our conclusions differ from those recommended.

Applicant amended his application at the further hearing so as to seek authority to transport (a) farm products, fish, and shellfish from the eastern section of Suffolk County to New York, N. Y.,

and points in New Jersey within a radius of 30 miles of New York City (Columbus Circle), and (b), in the reverse direction, poultry and duck feed, hay, straw, fertilizer, peat moss, crushed oyster shells, seed potatoes, and chemicals for fertilizer, all over irregular routes. Applicant, who is also engaged in the operation of a gasoline service station, began motor-carrier operations in interstate commerce in 1934. These operations were conducted by applicant and his brother as copartners from some time prior to June 1, 1935, until an undetermined date in 1936, and subsequently by applicant as an individual.

In support of his claim that public convenience and necessity require his services, applicant relies mainly, if not entirely, upon evidence descriptive of his operations as they have been conducted since before June 1, 1935. The evidence adduced is general in character and was submitted by applicant, his brother, and three shippers who have used his services.

The testimony of applicant discloses that his past operations have consisted of the transportation, in truckloads, of farm produce from points in the eastern section of Suffolk County to New York City and points in New Jersey, and, in the reverse direction, fertilizer from Carteret, N. J., feed from Jersey City and Weehawken, N. J., bran from Brooklyn and New York City, and grain from Jersey City, Weehawken, and New York City to points in the described section of Suffolk County. A shipper's testimony confirms applicant's transportation since before June 1, 1935, of fertilizer from New Jersey points to Long Island and of produce from Long Island to New York City. This witness ships produce and fertilizer in large quantities, and, although it uses other carriers in addition to applicant, it often finds difficulty in securing enough trucks to meet its needs during peak seasons.

Applicant's brother was able to describe a few shipments referred to in a memorandum or ledger kept by him while associated with, or employed by, his brother. Applicant's practice during peak seasons, however, has been to turn over excess traffic to other carriers; the record does not support a finding that he exercised any direction or control over these carriers, but to the contrary is convincing that they maintained a status independent of applicant. The witness in most instances was unable definitely to indicate which of the described shipments were handled by applicant and which were turned over to the other carriers. The only shipments which appear to have moved in applicant's own vehicles consisted of meat scrap from Jersey City to Suffolk County in April 1935; bran from Jersey City to Center Moriches and Eastport, N. Y., in April 1935; fertilizer from Carteret to Middle Island and Riverhead, N. Y., in

April 1935; chemicals from Carteret to Jamesport, N. Y., in September 1936; and potash from Carteret to Jamesport and fertilizer to Riverhead in April 1937.

Another shipper testifying in respect of applicant's operations began using his services sometime in 1938 in the transportation of feed, fertilizer, and peat moss, from New York City and points in Pennsylvania and northern New Jersey to the eastern section of Suffolk County. He testified to the need for equipment during peak seasons.

As stated, certain of the movements described above were between Suffolk County and New York City. In the absence of a showing that they actually were interstate in character, the contrary must be presumed.

It is not denied that there are other carriers by motor vehicle performing the same services which applicant seeks to continue. Applicant, however, has been in operation since 1934, and would have been entitled to a certificate under the "grandfather" provisions of the act had he seasonably made application therefor. In similar circumstances, we have heretofore expressed the view that operation over a long period of time is indicative of a demand for its continuance. Little, if any, diversion of traffic from other carriers should result from applicant's continued operation.

Applicant operates three pieces of equipment. He carries public-liability, property-damage, and cargo insurance, and appears fit and able, financially and otherwise, to perform the operations herein authorized.

We find that public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, of agricultural commodities, from points in Suffolk County located east of New York Highway 112, to points in New Jersey within a 30-mile radius of Columbus Circle in New York City, of fertilizer and fertilizer material from Carteret, N. J., to points in the described section of Suffolk County, and of poultry and duck feed from Jersey City and Weehawken to points in said section of Suffolk County, all in truckloads and over irregular routes; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our requirements, rules, and regulations thereunder; that an appropriate certificate therefor should be issued; and that the application in all other respects should be denied.

Upon compliance by applicant with the requirements of sections 215 and 217 of the act and with our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the application except to the extent indicated.

No. MC-86423

CHARLES HINTON, SR., AND CHARLES HINTON, JR., COMMON CARRIER APPLICATION

Submitted April 25, 1989. Decided February 21, 1941

Public convenience and necessity found to require operation by applicants as a common carrier by motor vehicle, over irregular routes, of household goods, in foreign commerce, between points in Detroit, Mich., as part of a continuous carriage to or from points in Canada beyond Windsor, Ontario. Issuance of certificate approved on compliance by applicants with certain conditions. Charles Hinton, Jr., for applicants.

F. V. Slocum, F. B. Henderson, J. H. Miller, and Bernard L. Walsh for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5:

Exceptions were filed by protestants to the order recommended by the joint board.

By application filed December 17, 1936, Charles Hinton, Sr., and Charles Hinton, Jr., of Windsor, Ontario, Canada, copartners, doing business as C. Hinton & Company, seek a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, including household goods, from Detroit, Mich., to Windsor and points in Ontario, over irregular routes. Central Freight Association rail carriers, Martin Transports, Ltd., and Toronto & Direct Transport, Ltd., oppose the application.

Applicants have been engaged continuously in the trucking business since 1929. Residing in Canada, they were unaware of the passage of Federal legislation governing motor carriers until too late seasonably to file their application under the "grandfather" provisions of the act, and consequently they have lost any right to the certificate herein sought without proof that public convenience and necessity require continuance of their operations.

Applicants' transportation of general commodities, other than household goods, has been and will be limited to movements between Detroit and Windsor. The joint board, following Goyeau Contract Carrier Application, 8 M. C. C. 359, found these operations to be exempt under section 203 (b) (8) of the act from all provisions

thereof, other than those of section 204, pertaining to qualifications and maximum hours of service of employees and safety of operation or standards of equipment, Windsor being a municipality contiguous to Detroit, and applicants' transportation not being performed under a common control, management, or arrangement for a continuous carriage to or from a point without the two municipalities.

Protestants, upon exceptions, contend that this Commission has no jurisdiction over operations conducted beyond the borders of the United States; and, Windsor being so situated, that neither the Commission, division 5, in the Goyeau case nor the joint board in the instant case could make a finding in respect of the continuity of Windsor to Detroit. Protestants' argument admittedly is prompted by fear that applicants, and others similarly operating, might, without subjection to regulation, form a connecting link in the interstate or foreign transportation of other operators. The conclusion which they seek to deduce is, however, actually contrary to that which would follow were the logic of their major premise adhered to. For, if we have no right to consider the contiguity of Windsor to Detroit, by reason of its foreign situs, by the same token we have no right to consider the fact of any operation beyond the United States border, or the existence of any arrangement between applicants and other carriers in respect of the subsequent movement. Briefly, we would be jurisdictionally ignorant of, and incapable of being enlightened in respect of, the fact that applicants' own operations actually extend beyond the limits of Detroit itself; and in no case could we consider the existence of a common arrangement, management, or control for a continuous movement beyond Detroit, for that, too, would be in respect of operations beyond our borders, and consequently beyond our jurisdictional knowledge. As far as we would be aware, the operations would be conducted solely within the city of Detroit and should therefore be exempt under the section in question. Indeed, were this line of reasoning carried to its ultimate and logical conclusion, a question might even arise as to our power to determine whether a carrier is engaged in foreign commerce at all. Clearly, the situation which protestants seek to control would, by acceptance of their own position, be aggravated.

The finding objected to by protestants obviously does not operate, nor does it propose, to give this Commission jurisdiction over transportation in the city of Windsor, nor of operations conducted beyond the boundaries of the United States. The joint board was careful to point out that our jurisdiction over motor carriers engaged in foreign commerce extends only to their operations conducted within the United States, and that any authority granted in the instant case would necessarily be limited to specific routes or a definite territory