$5 (2). UNIFICATIONS, MERGERS, AND ACQUISITIONS OF CONTROL 5. Jurisdiction of the Commission.-Commission has jurisdiction under $5 (2) over involved transactions since applicant, a corporation formed by railroad employees to purchase the railroad, would acquire vendor's leases of, and trackage or joint use rights over, the line of other railroads. However, approval under $1(18) is also necessary since $5 (2) does not deal with licensing of a noncarrier applicant that has never performed common carrier service.-North Western Employees--Pur.-Chicago & N.W. Ry. Co., 342 I.C.c. 58 (64-65). Although $1(18) and $5 (2) are complementary in these circumstances, they are not mutually exclusive. Therefore, authorization herein is withheld until applicant complies with $1 (18) publication requirements prescribed in 49 CFR 1120.4.-Id., pp. 65-66. 48. Purchase.--Commission approved this novel transaction wherein a railroad was purchased by a corporation formed by its employees, subject to certain conditions (see pages 94-100), inasmuch as such transaction will keep the involved railroad operative as required by public necessity.--North Western Employees-Pur--Chicago & N.W. Ry. Co., 342 I.C.C. 58 (101-02). Conditions imposed: As conditions to its approval of involved transactions, Commission provided certain provisions as regards loan availability; protection of minority shareholders; future acquisitions; powers and limitations of trustees; payment of cash dividends; and contingent liability of vendor.-North Western Employees--Pur.--Chicago & N.W. Ry. Co., 342 I.C.C. 58 (73–93). $5 (11). ANTITRUST PROVISIONS, ETC. 1. Relief from antitrust laws, generally.--The Commission has no authority under $20a to grant immunity from the antitrust laws; however, when it approved securities issued in conjunction with carrier activity which has been approved under $5, and specifically finds such issuance necessary to carry out the approved activity, the issuance of securities will share the activity's immunization. Thus, antitrust exemption for REA's 1959 notes was granted by the Commission's order which approved issuance thereof to named creditor railroads without competitive bidding and, also, held that issuance of the notes as evidence of REA's nonnegotiable debt to owning railroads was necessary and appropriate for performance of carrier's services pursuant to joint venture to conduct railway express service, initially approved in 1929. Therefore, insofar as it challenges transactions involving the 1959 notes, REA's antitrust suit constitutes an attack on validity of the Commission's order which, under the Urgent Deficiencies Act, must be before a three-judge court; and to that extent, the complaint is dismissed for lack of subject matter jurisdiction.--REA Express, Inc. v. Alabama G. S. R. Co., 343 F. Supp. 851 (856, 858-59). But challenge of transactions involving the nonnegotiable debt to shareholding railroads does not attack a Commission order when the Commission at no time, directly or indirectly, approved that debt as necessary to railroads' joint venture. In its opinion approving initial operating agreement, the Commission emphasized that approval of the debt would be beyond its limited authority under $5(1); the opinion which approved REA's 1938 notes cannot be read as approving the method for financing repayment thereof when, apart from describir the nonnegotiable debt, the Commission nowhere indicated its views as to legality of the debt; also, absent clear language to that effect, order approving the 1959 notes cannot be taken as granting a broad retroactive antitrust exemption to that debt. Thus, as no Commission order specifically approved the nonnegotiable debt, REA's antitrust claim based on alleged necessity of the debt to the joint venture is not an attack on the Commission's orders. Insofar as the complaint alleges invalidity of the 1959 notes, due to premature termination of amended operating agreement, defendants' motion to dismiss is denied.--Id., pp. 857-58, 859-60. $5a. AGREEMENTS BETWEEN CARRIERS 18. Approval of agreements by Commission.--Carrier groups are not required to seek approval from this Commission of their concealed loss and damage claim rules unless they desire the protection from antitrust laws which $5a would afford for agreements within its scope.--Loss and Damage Claims, 340 I.C.C. 515 (535). Proposed amendment of previously approved ratemaking agreement providing procedures for expulsion of members who fail to furnish conference with requested information and data in support of collectively adopted changes in rates and related matters was not approved. Expulsion from membership is too drastic a penalty to exact for refusal, or perhaps, inability to supply data and information but it is hereby recommended that the Commission give further consideration to the problem encountered when data necessary to comply with established procedures are not voluntarily supplied by members to the bureaus upon request therefor.--Middle Atlantic Conference-Agreement, 341 I.C.C. 164 (168). S6 (1). SCHEDULE OF RATES, FARES, AND CHARGES; FILING AND POSTING Rules and Regulations 84. Limitations upon liability.--Carriers' rules and practices governing the handling of loss and damage claims do affect the value of service rendered by carriers and should, therefore, be published in their tariffs.--Loss and Damage Claims, 340 I.C.C. 515 (536). $6 (5). COPIES OF TRAFFIC CONTRACTS TO BE FILED 2. Filing contracts, agreements, or arrangements as to traffic.--Rules and practices governing the handling of loss and damage claims affect both regulated traffic and adequate service so that, as there is no question that the adoption by the carrier groups involved of the concealed loss and damage claims rules constitutes an agreement among carriers, the agreements adopting such rules and practices should be filed with this Commission.--Loss and Damage Claims, 340 I.C.C. 515 (535-36). $12 (1). AUTHORITY, DUTIES AND PROCEEDINGS OF COMMISSION, WITNESSES Powers and Duties 15. In general.-Commission recommends that the Interstate Commerce Act be amended so as to incorporate the proposed legislation, contained in appendix F hereto as regards the adjudication of loss and damage claims by this Commission and requirements for cargo insurance.--Loss and Damage Claims, 340 I.C.C. 515 (588-97). Execution and Enforcement of Act 40. In general.--Commission may promulgate regulations governing the procedures which regulated carriers are to follow in processing loss and damage claims inasmuch as Congress conferred upon the Commission in this section broad regulatory power to administer and execute the provisions of the statute and to carry out the congressionally declared national transportation policy even in the absence of specific statute provisions conferring such authority (see American Trucking, 344 U.S. 298, 308-11). Commission reaffirmed herein its findings in Jumbo Pizza, 314 I.C.C. 467, that the Commission has no jurisdiction to determine the merits or measure of damages of any particular loss and damage claims, those being cognizable only in the courts.--Id., pp. 539. $13 (4). DUTY OF COMMISSION WHERE STATE REGULATIONS RESULT IN DISCRIMINATION 50. Revenue discriminations.--The Commission is obligated to assure itself that intrastate traffic is paying "a fair proportionate share" of rail costs. Rail witnesses demonstrated that overall costs are higher, that respondents' rate of return on net investment is depressed and inadequate, and that costs in relation to intrastate revenues are causing a net loss to carriers on intrastate freight. Generally speaking, to extent Arkansas intrastate rates do not reflect the Ex Parte Nos. 256 and 259 increases in interstate rates, they fail to provide a fair share of additional revenue need and cause unjust discrimination against and an undue burden on interstate commerce.--Arkansas Intrastate Freight Rates and Charges, 1970, 341 I.C.c. 872 (875-77). Intrastate rates on soybeans, rice hulls, pulpwood, and woodchips are not shown unlawful. It is not apparent that the disparity between interstate and intrastate rates on these commodities is substantial and operates as a real discrimination and obstruction to interstate commerce nor that injury to interstate shippers has resulted.--Id., pp. 877-83. Investigation-Procedure 62. Order prescribing intrastate rate or practice.--Commission found that unlawful discrimination in Arkansas interstate rates should be removed by application of the level of rates approved in Ex Parte No. 259. However, Commission will withhold an order effectuating this finding unless and until respondents show that the increases meet criteria for rate increases established by the Price Commission. See Mississippi, 341 I.C.C. 69.--Arkansas Intrastate Freight Rates and Charges, 1970, 341 I.C.C. 872 (873-74). $13a. DISCONTINUANCE OR CHANGE OF CERTAIN OPERATIONS OR SERVICES 2. Construction and interpretation.--Evidence of record shows that all trains considered herein are primarily commuter service as defined by criteria in Penn Central, 338 I.C.C. 621, especially as regards trip distances, equipment used, multiple stops, and peak period use, and are therefore within Commission's jurisdiction under §13a.--Chicago S.S. & S.B.R. Restructuring of Pass. Serv., 342 I.C.C. 154 (179-80). See also Illinois Commerce Commission v. United States, n. 30, below. 22. Continued service needed.--Commission held that approximately half the trains sought to be abandoned should be retained due to inadequacy of other modes of transportation, possible further erosion of patronage reduced schedules would cause, and probable detrimental impact on the environment.-Chicago S.S. & S.B.R. Restructuring of Pass. Serv., 342 I.C.C. 154 (186-96). 30. Employees.--While the Commission gives consideration to the probable effect of a §13a train discontinuance on railroad employees in determining whether public convenience and necessity require continuance of such service, it has consistently held that, unlike powers granted in other sections of the Act, it has no statutory authority to condition a discontinuance under $13a (1) on labor protective conditions. Interpretation by an agency of a statute which it is charged with administering is entitled to great weight; and the Commission's interpretation of §13a (1) in its Great Northern decision, 307 I.C.C. 59, has a "reasonable basis in law;" therefore, for the reasons stated in that decision, the agency's interpretation of §13a (1) should be affirmed.--Illinois Commerce Commission v. United States, 347 F. Supp. 1217 (1219-20)*. 35. Orders of the Commission.--Action to set aside the Commission's findings that operation by the Milwaukee railroad of two passenger trains (the Afternoon Hiawathas) between Chicago, Ill., and Minneapolis, Minn., is not required by public convenience and necessity, and that continued operation of those trains will unduly burden interstate commerce, dismissed as moot because the railroad had entered into a contract with Amtrak prior to May 1, 1971, pursuant to the Rail Passenger Service Act of 1970, and the trains in issue were not made part of Amtrak's national network. Since the Milwaukee is no longer obligated to operate rail passenger service as a result of its contract with Amtrak, further proceedings in instant case would be purely academic. In such circumstances, the action must be dismissed, since the court has no power to decide moot questions or abstract propositions.-Illinois Commerce Commission v. United States, 347 F. Supp. 1217 (1219, 1220)*. $15 (7). COMMISSION TO DETERMINE LAWFULNESS OF NEW RATES; SUSPENSION; REFUNDS Procedure 35. Burden of proof upon the hearing; in general.-The burden of proof is on the respondents to prove that proposed rates are just and reasonable, and a minimum requirement in sustaining this burden is a convincing showing that the proposed rates will be reasonably compensatory for the service to be performed, such showing being necessary even if there is competitive justification for the proposal.--Paper, Central Territory to North Atlantic Ports, 329 I.C.C. 281 (289). $15a (2). RULE OF RATEMAKING 3. Adequate and efficient transportation service.--Proceeding herein was undertaken to determine whether Arkansas intrastate freight rates fail to contribute their fair share to revenues required by respondents to enable them to provide adequate and efficient transportation service at lowest cost consistent with furnishing of such service.-Arkansas Intrastate Freight Rates and Charges, 1970, 341 I.C.C. 872 (875). $15a (3). COMPETITIVE RATEMAKING 2. Construction and interpretation.-Any rate reduction will have competitive ramifications and alter previously existing relationships. This fact is insufficient to condemn an adjustment. Those protesting the proposed Baltimore rates have shown only that the proposed rates would be inimical to their interests. Without more, and bearing in mind the large amount of paper traffic moving through New York, the Commission views this adjustment rather as a step in restoring healthy carrier competition. Changes in rates are not unlaw ful merely because of possible, or even probable, additional rate charges.-Paper, Central Territory to North Atlantic Ports, 329 I.C.C. 281 (290). $17 (6). REHEARING, REARGUMENT, OR RECONSIDERATION OF DECISIONS, ORDERS, AND 10. Rehearing; reconsideration.--A petition for reopening or rehearing is addressed to the Commission's sound discretion and only a showing of the clearest abuse of discretion is sufficient to overturn its denial thereof; also, it is the Commission's concern that there be a point of finality in each of its proceedings. On the other hand, the Commission has full authority to reopen its proceedings and correct any order shown to have been issued through inadvertence or mistake. Under the peculiar circumstances in considered contract carrier application case, protestant's (plaintiff's) petition to reopen the record and modify authority granted, though filed more than 2 years later, sufficiently stated a prima facie claim and raised many factual issues that required determination, after evidentiary hearing, before a judicious decision could be made to reopen or not reopen the proceeding. Thus, the Commission's denial of plaintiff's petition to reopen, without a hearing, is reversed; case remanded to the Commission for purpose of conducting an evidentiary hearing on the factual issues raised by the petition.--Mercury Motor Exp., Inc. v. United States, 343 F. Supp. 516 (518-19)*. $20 (11). LIABILITY OF INITIAL CARRIER FOR LOSS; LIMITATION OF LIABILITY; NOTICE AND FILING OF CLAIM Application of Paragraph 8. Carriers, transportation, subject to paragraph.-Before the absolute liability of a common carrier attaches, shipper must have delivered the goods into carrier's exclusive possession, for immediate transportation, and must have given carrier shipping instructions. However, all necessary elements to comply with the law and effect delivery are absent in shipper's suit against railroad to recover damages, due to spoilage, on TOFC shipment of fresh meat. Facts show that plaintiff loaded and sealed trailer furnished by carrier and |