equipment with its own employees, and was not to carry the advertising of the railway on the vehicles. Its status is expressly described as that of an independent contractor. It furnishes publicliability, property-damage, and cargo insurance and a bond against fraud of its employees; and its liability to the railway is made that of an insurer. Its compensation is computed upon a mileage basis for both loaded and empty trailers. The question these facts present for determination is which applicant is entitled to the authority sought, there being no dispute as to the warehouse's actual operation pursuant to the contract continuously since prior to June 1, 1935. The situation here is substantially the same as that considered by division 5 in Missouri Pac. R. Co. Common Carrier Application, 22 M. C. C. 321. There, in similar circumstances, the applicant was found not entitled to rights under the "grandfather" clauses of the act on the basis of transportation performed for it under contract by an independent contractor. For reasons stated in that report, we conclude that the warehouse is entitled to the authority herein granted. The warehouse on exceptions takes the position that it should be granted authority as a contract carrier. We have previously found that where transportation begins and ends in common-carrier service all of the transportation is that of common carriage. Such is the situation here. In No. MC-69298, we find that applicant on June 1, 1935, was and continuously since has been in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities between Kansas City, Mo., and St. Joseph, Mo., over the routes hereinbefore described, and that it is entitled to a certificate authorizing continuance of such operations. In No. MC-48602, we find that applicant has failed to show that it was in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, between Kansas City, Mo., and St. Joseph, Mo., on June 1, 1935; that applicant has failed to establish that it is entitled to a certificate under the "grandfather" clause of section 206 (a) of the act by reason of operations conducted by Crooks Terminal Warehouse, Inc.; and that the application should be denied. Upon compliance by applicant in No. MC-69298 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 in No. MC-48602. COMMISSIONER LEE did not participate in the disposition of this proceeding. No. MC-89008 TOM STILL TRANSFER COMPANY, INCORPORATED, CONTRACT CARRIER APPLICATION Submitted May 18, 1939. Decided December 16, 1940 Operation by applicant as a contract carrier by motor vehicle, of special commodities, between Kingsport, Tenn., and points in Virginia, North Carolina, and South Carolina, over regular routes, found not consistent with the public interest and the policy declared in section 202 (a) of the Interstate Commerce Act. Application denied. S. S. Eisen and M. P. Bauman for applicant. E. Lynn Minter, J. F. Kirkman, J. H. Epps, Sr., J. H. Epps, Jr., C. A. Smith, G. M. Nolen, Leonard R. Hall, J. B. Dempsey, Reuben G. Crimm, and Edgar Watkins, Jr., for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: Exceptions were filed by applicant to the order recommended by the examiner, to which protestants replied. By application filed April 11, 1938, Tom Still Transfer Company, Incorporated, of Kingsport, Tenn., seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle of acetate yarn, empty spools, pads, packing, and other acetateyarn supplies, between Kingsport and Burlington, Central Falls, Cramerton, Drexel, Durham, Hemp, Hickory, High Point, Hildebran, Lowell, Marion, Mooresville, Morganton, Randleman, Red Springs, Shelby, Spindale, Spray, and Thomasville, N. C., Anderson, Greenville, and Laurens, S. C., and Danville, Galax, Orange, Roanoke, Rocky Mount, Vinton, and Waynesboro, Va., over regular routes, which, in view of our findings herein, need not be detailed. Motor and rail carriers operating in the same general territory opposed the application. Applicant was incorporated in 1938 under the laws of Tennessee. It and its predecessors have been engaged in the trucking business since 1928. On July 19, 1937, the Commission, division 5, in No. MC-2630, entered an order granting to applicant's predecessor a certificate as a common carrier of certain commodities, but not including those for which authority is here sought, between Kingsport and points in New Jersey, Pennsylvania, Virginia, Maryland, Ohio, and West Virginia. At the time of the hearing, applicant was operating six pieces of equipment and had made arrangements to purchase additional equipment if needed. This application was filed at the request of the Tennessee Eastman Corporation, hereinafter referred to as the shipper, a large manufacturer and shipper of acetate yarn, at Kingsport. Robinson Transfer Motor Lines, Inc., one of the protestants herein and hereinafter called Robinson, of Kingsport, at the time of the hearing was serving the shipper, and its services had been entirely satisfactory prior to the effective date of the order of the Commission, division 5, entered February 2, 1938,1 wherein Robinson was granted a certificate as a common carrier by motor vehicle. The shipper desires the services of a contract carrier and contends, first, that its product is susceptible to damage by a great number of commodities usually transported by common carriers and that for that reason it must have the services of a carrier who will transport its products exclusively; and, second, that a contract carrier would give more expeditious service on small rush orders than that usually afforded by common carriers. It is alleged that, if this application is not granted, the shipper will put on a fleet of trucks to transport its own commodities. The motor-carrier protestants render direct service between Kingsport and all points covered in the instant application, except Hemp and Red Springs, N. C., and Danville, Orange, Rocky Mount, and Waynesboro, Va. Of these, Hemp, Red Springs, and Danville are served as off-route points by one carrier, and Danville, Orange, Rocky Mount, and Waynesboro are served through one interchange affording next-day delivery. All of these protestants are willing to make pick-ups at the shipper's plant at any time of the day or night. They have made such pick-ups in the past. No traffic of the shipper has been damaged by Robinson since its alleged change of status, nor has the shipper had any claims for damage against other common carriers who make deliveries direct to its consignees as well as serve numerous points through interchange with other common carriers. One of the motor-carrier protestants previously handled the shipper's traffic but lost it to Robinson, allegedly due to lower rates. An exhibit of record shows substantially lower rates proposed by applicant than those in effect by Robinson to all points except Central Falls, Cramerton, Spray, Anderson, and Laurens. On the basis of this record, it is apparent that common carriers serving the territory sought in the instant application afford a service competent to suit the needs of this shipper. They afford next-day 1 This order was subsequently amended by orders entered April 11, 1938, and May 16, 1939. delivery on traffic which it is necessary to interchange with other carriers. They have had no damage claims filed by the shipper because of damage by lading which would contaminate shipper's product. Although it is denied by shipper's comptroller, it appears that one of the reasons for its support of this application is the proposed reduced rates which applicant has offered. In the event existing motor-carrier rates between Kingsport and the other points described above are believed to be too high, adequate remedy is provided by the Interstate Commerce Act. In the circumstances, we are of the opinion that existing motor carriers provide adequate and reasonably convenient service between Kingsport and the other points involved herein. It is true that such carriers are common carriers and that as such they are required to serve the general public within the limits of their facilities, at their published rates, without discrimination. A contract carrier, on the other hand, may pick and choose the shippers to be served and lawfully may discriminate in its service to them. No special or unusual service is to be offered by applicant which is not now available by other motor carriers serving the points in question, and it is not shown that the present transportation facilities are inadequate to meet the needs of the shipper. We have consistently adhered to the view that, in order to establish a sound transportation system, existing motor carriers should normally be accorded the right to transport all traffic which they can handle adequately, efficiently, and economically in the territory served by them, as against any person now seeking to enter the field. We find that applicant has failed to establish that the proposed operation would be consistent with the public interest and the national transportation policy, and that the application should be denied. An appropriate order will be entered. 27 M. C. C. INVESTIGATION AND SUSPENSION DOCKET NO. M-1044 FLOUR FROM FORT MORGAN, COLO., TO CHICAGO, ILL. Submitted July 9, 1940. Decided December 12, 1940 Proposed reduced commodity rate on edible flour from Fort Morgan, Colo., to Chicago, Ill., found unreasonable. Suspended schedules ordered canceled, and proceeding discontinued. D. C. Stone and Thos. J. Hurley for respondents. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2: By schedules filed to become effective May 8, 1940, respondents, certain motor common carriers engaged in operations between Colorado and Illinois, proposed to establish a new reduced commodity rate on edible flour from Fort Morgan, Colo., to Chicago, Ill. Upon protest of the Chicago, Burlington & Quincy Railroad Company operation of the schedules was suspended until November 4, 1940, and has been voluntarily postponed until February 2, 1941. The Union Pacific Railroad Company appeared at the hearing in opposition to the proposed reduction. Rates are stated in cents per 100 pounds. The suspended rate is 45 cents, minimum 20,000 pounds. It would yield truck-mile revenue of 9.3 cents for the short highway distance of 946 miles between these points. The respondents' present rate, subject to the same minimum, is 99 cents; and the rail rate is 43 cents, minimum 40,000 pounds. According to the sales manager of one of the respondents the volume of freight moved by that carrier from Chicago to Denver is 3 times that transported in the opposite direction. The experience of other respondents is said to be similar. As a result of this unbalanced movement this respondent's trucks frequently move empty from Denver to Chicago. Its costs of operation from and to these points, exclusive of insurance, bridge tolls, fines, and management expense, is claimed to average 7 cents a mile for empty trucks and 11 cents a mile for loaded trucks, and by hauling a 20,000-pound load of flour from Fort Morgan to Chicago at the suspended rate its net loss in moving the truck eastbound would be $20.36, compared with the cost of $72.52 for moving 321938m-41-vol. 27--5 |