$20(11). LIABILITY OF INITIAL CARRIER FOR LOSS; LIMITATION OF LIABILITY; NOTICE AND FILING OF CLAIM

Historical Note

The Commission notes that its recommendations (340 I.C.C. 515, 577), that the Commission be given jurisdiction to adjudicate loss and damage claims on their merits, have not been accorded favorable action in Congress.Annual Report, 1975, pp. 42.

4.

Effect.--Effect of the Carmack amendment is that, despite any contrary stipulation, a receiving carrier, when it receives property in one State to be transported to a point in another involving the use of a connecting carrier for some part of the way, is deemed to have adopted carrier as its agent, and to incur carrier liability throughout the entire route, with a right to reimbursement for a loss not due to its own negligence. (Citing 219 U.S. 186.) Thus, though defendant railroad claims it is not doing business in Massachusetts, when it received shipment of tomatoes in Florida for movement to Boston on a straight bill of lading covered by the Carmack amendment, it had contracted to supply services in destination State; and damage to the goods of which shipper complains presents a cause of action arising from that contract. Railroad's motion to dismiss denied.--Sarno v. Florida East Coast Ry. Co., 327 F. Supp. 506 (507).

Actions

115. In general; time for.--To establish a prima facie case in suit to recover from the carrier for damages to its shipment, the shipper must show delivery of goods to carrier in good condition, arrival in damaged condition, and amount of the damages. Plaintiff did not show delivery of cantaloupes in good condition by placing in evidence a certificate of inspection issued by Department of Agriculture 27 hours before the car was delivered to carrier. The inspection certificate in itself is not conclusive proof that commodity was in good condition on delivery; it is only prima facie evidence of truth of statements therein; and, while it may warrant, it does not compel a finding of good condition at the time of shipment, particularly when other evidence permits a different conclusion to be drawn. Other evidence of record shows that the cantaloupes were not sufficiently cooled at time of delivery to prevent natural development of soft fungus rot, and hence, when shipped, were not in a condition to assure against deterioration under normal transportation conditions. Delivery to carrier in good condition not proved; judgment for defendant.--S Strock & Co. v. Southern Pac. Co., 326 F. Supp. 695 (696-97).

117. Jurisdiction.-In shipper's action against railroad for damage to goods while in transit from Florida to Boston, defendant claims it is not subject to jurisdiction of the Massachusetts court because it is not doing business in the State, has no agent for service of process there, and does not fall within provisions of the State long-arm statute. However, the transportation involved is covered by the Carmack amendment; and under that law, when carrier receives goods in one State for movement to a point in another that involves use of a connecting carrier for any part of the way, receiving carrier is deemed to have adopted such other carrier as its agent,

and to incur carrier liability over the entire route. Inasmuch as carrier received in Florida a shipment to be transported to Boston on a straight bill of lading, it follows that defendant had contracted to supply services in the commonwealth; damage complained of presents a cause of action arising from that contract; thus, the Massachusetts "Long-Arm" statute is applicable. Defendant's motion to dismiss for lack of jurisdiction, denied.--Sarno v. Florida East Coast Ry. Co., 327 F. Supp. 506 (507).

PART II

§ 203 (a) (11). FOREIGN COMMERCE DEFINED

5. Foreign commerce, in general.-It has long been established that before a motor carrier certificate or permit be issued by this Commission to a Canadian-domiciled applicant authorizing operation in foreign commerce, between points in the International Boundary line between the United States and Canada, on the one hand, and, on the other, points in the United States, which operation is in fact a portion of the carrier's proposed through operation extending from and to points in Canada, the applicant shall first submit a sworn statement that it has obtained appropriate complimentary authority from the proper Canadian authorities. Nevertheless, at the time this Commission makes its initial determination as to whether the application to it for authority to operate within the United States should be granted, a Canadian-domiciled applicant need only show that it is diligently seeking complimentary authority from the proper Canadian authorites, if such be required for that part of the proposed operation to be conducted over Canadian soil, and that an appropriate application is then pending. Denial of applicant's first application for Canadian authority complementary to that sought from this Commission, is of no moment so long as there exists a (second) pending application for such authority since insincerity of prosecution of the pending application cannot be presumed.--Yelle Contract Carrier Application, 115 M.C.C. 408 (413)*.

$203 (a) (15).

1.

CONTRACT CARRIER DEFINED

Contract carrier defined.-- Proposed operations for exempt shippers association with over 600 members found not to be transportation for "one person or a limited number of persons" and therefore, is held to be common carriage of general commodities rather than contract carriage.C-Line, Inc., Extension--Precious Jewelry, 114 M.C.C. 226 (232).

40.

Transportation incidental to aircraft transportation.-Common carrier operations performed on carrier's own bill of lading from consignor to a consolidator found not to have been within the incidentalto-aircraft exemption of $203(b) (7a) of the Interstate Commerce Act. Cease and desist order entered.--Buck's Express Service, Inc.--Investigation, 115 M.C.C. 353 (356).

45. Operation by or for agricultural cooperative association.-Commission found that neither the Act nor the national transportation

policy precludes the issuance of a certificate of public convenience and necessity authorizing operations as a common carrier by motor vehicle to an agricultural cooperative performing exempt transportation under $203(b) (5) of the Act. Based on this finding, and a demonstrated need of the proposed service, the Commission granted American Farm Lines certain common carrier authority, concluded that AFL and other respondents had not been operating unlawfully, and reopened the United Agricultural Transportation Association of America Marketing Co-Op proceeding for further hearing. The Commission has determined that this proceeding involves an issue of general transportation importance.--American Farm Lines Common Carrier Application, 114 M.C.C. 30 (41-42).

60. Commercial zones.

Boundaries: Extension of corporate limits of Compton, Calif., to include petitioner's industrial center does not remove such center from the Los Angeles Harbor commercial zone as the Commission previously held in Kansas City, 54 M.C.C. 288, that zone limits having been specifically fixed are not automatically changed by subsequent changes in a city's corporate limits.--Los Angeles, Calif., Commercial Zone, 114 M.C.C. 86 (88)*.

Hawaii, within: Removal of the partial exemption of $203(b)(8) of the Act found not warranted on interstate or foreign movements within Hawaii.--Motor Carrier Operation in the State of Hawaii, 115 M.C.C. 228 (251).

Indianapolis: The city of Indianapolis, which was abolished by the Legislature of Indiana on Jan. 1, 1970, in favor of the Consolidated City of Indianapolis (to include, with certain exceptions, all of Marion County, Ind.), was redefined to include the Consolidated City of Indianapolis, Ind., itself, and all of any municipality wholly surrounded, or so surrounded except for a water boundary, by the Consolidated City of Indianapolis. 49 CFR 1048.41 thus amended, effective Oct. 1, 1972.--Indianapolis, Ind., Commercial Zone, 115 M.C.C. 893 (895).

Population basis: A decrease in population of Wilmington, Del., to under 100,000 brought into question the continued authority of carrier to provide service within the established Wilmington commercial zone, since the population-mileage formula marks a population of 100,000 the dividing line between a commercial zone (and hence implied authority) measured 4 miles from a municipality's corporate limits and that measured 5 miles from such limits. It was held that the automatic expansion provision of the formula (in 54 M.C.C. 21, 1952), is sufficiently broad to include contraction of a commercial zone. Therefore, 49 CFR 1048.102 (b) was amended to the effect that the population of a municipality is the highest census figure since, and including, that of 1940.--Commercial Zones and Terminal Areas, 115 M.C.C. 882 (884, 889).

Wilmington, Del.: See above.

2. Construction and interpretation.--Complainants sought intervention of Commission based on alleged violation of $203(c). Defendant had substituted water for motor transportation when it was no long possible to utilize ferry service. Complaint dismissed.-Wold Storage & Transfer, Inc. v. Alaska Transfer, Inc., 115 M.C.C. 288 (292).

$204(a)(1).
$204 (a) (1). POWERS AND DUTIES OF COMMISSION, GENERALLY

1. Construction and interpretation.--Commission, citing Traffic, 110 M.C.C. 730, has jurisdiction to make a general finding of public convenience and necessity in an appropriate rulemaking proceeding, with interested persons thereafter taking advantage of such finding through individual applications and appropriate proof of fitness.-Motor Service on Shipments of New Furniture, 114 M.C.C. 144 (160).

§204(a) (4a). EXEMPTION APPLICATION

5.

Hawaiian carriers.--Transportation of household goods as defined by the Commission by motor carriers in interstate or foreign commerce solely within the State of Hawaii found to be of such nature, character, or quantity that exemption of such carriers from regulation under part II of the Interstate Commerce Act would substantially affect or impair uniform regulation by the Commission in effectuating the national transportation policy. Modification of the regulation creating the exemption promulgated.-Motor Carrer Operation in the State of Hawaii, 115 M.C.C. 228 (255).

$204 (a) (6).

2.

ADMINISTRATION

Construction and interpretation. --Commission instituted special regulations for motor carrier licensing insofar as they relate to for-hire transportation of "waste" products for reuse under authority granted in Act to regulate transportation of property. Such products, as defined herein, are considered property as they will become vital elements in the manufacturing process in which they are to be utilized, thus becoming subject to Commission's economic regulation.--Transportation of "Waste" Products for Reuse, 114 M.C.C. 92 (104-05).

$204(b).

CLASSIFICATION OF MOTOR CARRIERS

7. Classification of carriers; commodity basis.

General commodities: In a decision of general transportation importance, an agricultural cooperative operating pursuant to provisions of $203(b) (5) of the Act was granted a certificate of convenience and necessity as a common carrier to transport general commodities, including explosives, for the Department of Defense.--American Farm Lines Common Carrier Application, 114 M.C.C. 30 (41-42).

Lumber: Commodity description "woodchips" in respondent's common carrier certificate found to authorize transportation of "woodshavings" as

the dictionary descriptions of "chips" warrants inclusion of shavings".-Puget Sound Truck Lines--Investigation & Revocation, 114 M.C.C. 25 (28-29).

Special equipment: Defendant (applicant) operated from 1946 under a "special equipment" authority, transporting iron and steel articles on specially designed flat-bed trailers. After Commission held in 1959 in 79 M.C.C. 335 that such flat-bed trailers should not be classified as special equipment, applicant applied for and received authority to transport iron and steel articles to the same points, since its past operation had been conducted openly under a misinterpretation of its authority, and since need was shown for continuance of the operation. Sustained.--Allard Express, Inc. v. United States, 263 F. Supp. 171 (172-74)*.

Waste products: Commission defined "waste" products as any product which has been or would ordinarily be discarded as worthless, defective, or of no use, including materials having undergone initial processing such as grinding, crushing, or compacting prior to involved transportation.--Transportation of "Waste" Products for Reuse, 114 M.C.C. 92 (107-09).

27.

General-revenue cases.--Commission prescribed new rules applying to proposals by member carriers of 10 named rate bureaus for general increases or general adjustments of rates where the proposal would result in an increase of $1 million or more in annual operating revenues. Included are rules requiring that carriers' supporting evidence be filed and served concurrently with filing of the proposed schedule; such schedules must have an effective date 45 days after filing; and service of evidential support must be made on all parties participating in last formal general rate increase proceeding in affected territory. Rules were also prescribed for development of cost and traffic data, revenue need information, and affiliate data as specified in appendix II.--New Procedures in Motor Carrier Rev. Proc., 339 I.C.C. 324 (326-40).

Commission affirmed conclusions in prior report, 339 I.C.C. 324, making the new procedures promulgated therein as to general revenue proceedings applicable to member carriers of 10 named rate bureaus. Many of these members are Instruction 27 carriers and they account for approximately 90 percent of all revenues earned by all Instruction 27 carriers nationwide. The action of these carriers determines prevailing rate level, including amount of general rate increases on general freight.--New Procedures in Motor Carrier Rev. Proc., 340 I.C.C. 1 (4-5)*.

Commission modified its regulations for development of carriers' traffic study. The study group of carriers shall consist of those Instruction 27 and 9002 carriers which earn $1 million or more in annual operating revenues from issue traffic, or 1 percent or more of the total annual operating revenues of all carriers from issue traffic. Updating is not required for every individual increase or reduction but only those changes having substantial effect on revenues.--Id., pp. 9-10.