Highway 25, and on the north by the property of the Pennsylvania Railroad Company.

Petitioner suggests no equivalent definition of the boundaries of Elizabeth-Port Authority piers, but has submitted maps and other exhibits from which the examiner developed a metes and bounds description reproduced in appendix B hereto. The latter is assailed by Jayne's Motor Freight, Inc., and Johnson Bros. Trucking Co. as inconsistent. Although we do not agree with this contention, we regard as preferable for this purpose a description which employs, so far as possible, natural boundaries and other easily ascertainable lines. With this in mind, we have concluded that certain lines of The Central Railroad Company of New Jersey and the property of The Pennsylvania Railroad Company furnish a sufficiently precise delineation of the area within which the exception should apply. The named motor carriers object to the examiner's proposed use of "the property of the Pennsylvania Railroad Company" as the northern boundary of Port Newark, implying that such a boundary cannot be easily ascertained. The designation has reference to the rail line which traverses the railroad's Garden Yard in Newark, and it is a part of the present. definition of the exempt area. In the absence of a more accurate designation of the line and having in mind that the phrase employed has served as part of the description of Port Newark's limits since 1951 without any question, we think it would be inadvisable to attempt to alter it at this time. Use of the rail lines of the Central Railroad Company of New Jersey as southern and western boundaries will include an undeveloped area south of Elizabeth-Port Authority piers and will also exclude Newark Airport. Although a portion of the latter is within the limits of Port Newark as presently defined, there are, of course, no pier facilities there; moreover, neither the present record nor that in the prior proceeding discloses any shipments of waterborne traffic to or from points in the original commercial zone. Inasmuch as the limitation of the exception to shipments having a prior or subsequent movement by water is to be retained, neither the elimination of Newark Airport nor slight geographical variances from exact pier area boundaries should have any effect upon the volume of shipments eligible for transportation to and from New York City by unregulated carriage.

FINDINGS

On further hearing in No. MC-C-2, and on reconsideration in Ex Parte No. MC-37, we find that in order to carry out the national transportation policy it is necessary to modify finding (2) in the prior report herein, 53 M.C.C. 451, so as to remove the exemption provided by section 203 (b) (8) of the Interstate Commerce Act as to all transportation by motor vehicle, in interstate or foreign commerce, per

formed wholly within the limits of the New York, N.Y., commercial zone as defined in finding (1) of said report, except (a) transportation which is performed wholly within the New York, N.Y., zone as heretofore defined in New York, N.Y., Commercial Zone, 1 M.C.C. 665, and which is described in appendix A attached, or (b) transportation which is performed in respect of a shipment which has had a prior, or will have a subsequent, movement by water carrier, and which is performed wholly between points in the New York, N.Y., exempt zone as described in (a) above, on the one hand, and, on the other, those points in the cities of Newark and Elizabeth, N.J., identified as follows: All points in that area within the corporate limits of the cities of Newark and Elizabeth, N.J., west of Newark Bay and bounded on the south by the main line of the Central Railroad Company of New Jersey, on the west by the Newark & Elizabeth Branch of The Central Railroad Company of New Jersey, and on the north by the property of The Pennsylvania Railroad Company.

An appropriate order will be entered.

APPENDIX A

Points within the zone adjacent to and commercially a part of New York, N.Y as defined by the Commission, division 5, in New York, N.Y., Commercial Zone, 1 M.C.C. 665, under section 203(b) (8) of the Interstate Commerce Act, within which the partial exemption applies:

The area within the corporate limits of the cities of New York, Yonkers, Mount Vernon, North Pelham, Pelham, Pelham Manor, Great Neck Estates, Floral Park, and Valley Stream, N.Y., and Englewood, N.J.; the area within the borough limits of Alpine, Tenafly, Englewood Cliffs, Leonia, Fort Lee, Edgewater, Cliffside Park, Fairview, Palisades Park, and Ridgefield Boroughs, Bergen County, N.J.; and that part of Hudson County, N.J., east of Newark Bay and the Hackensack River.

APPENDIX B

Description of the Port Newark and Elizabeth-Port Authority Piers area as recommended by the examiner :

Those points in Newark and Elizabeth, N.J., identified as follows: All points in that area within the corporate limits of the cities of Newark and Elizabeth, N.J. west of Newark Bay and bounded by a line beginning at a point 1 mile south of Bound Creek on Newark Bay and extending northwest from Newark Bay to McLester Street, thence northeast along McLester Street to Bay Avenue, thence northwest along Bay Avenue to Terminal Street, thence northeast along Terminal Street to boundary line between the city of Newark and the city of Elizabeth, N.J., thence west along such boundary line to New Jersey Highway 25, thence north along New Jersey Highway 25 to the property of The Pennsylvania Railroad Company; and thence along such railroad to Newark Bay.

84 M.C.C.

LESTER C. NEWTON TRUCKING CO. COMMON CARRIER "GRANDFATHER" APPLICATION

Decided April 28, 1961

1. In No. MC-113388 (Sub-No. 26), applicant found entitled to continue operations as a common carrier by motor vehicle, over irregular routes, of frozen fruits, frozen berries, and frozen vegetables, from and to numerous specified points in seven States and the District of Columbia, by reason of having been engaged in such operations on and continuously since May 1, 1958. 2. In No. MC-113388 (Sub-No. 27), public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of frozen fruits, frozen berries, and frozen vegetables, from and to points in 11 States and the District of Columbia.

3. Issuance of a single certificate embracing the authority granted in both proceedings approved upon compliance by applicant with certain conditions, and applications in all other respects denied.

H. Charles Ephraim for applicant in both proceedings.

John M. Musselman, F. Steele Langford, Clayton J. Logan, Francis P. Barrett, John T. Collins, James W. Lawson, Edwin H. Gehring, Frank B. Hand, Jr., and Chester E. King for protestants in one or both proceedings.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS WALRATH, WEBB, AND TUCKER BY DIVISION 1:

These proceedings involve related issues, were heard on a consolidated record, were the subject of a single report and recommended order by the examiner, and will be disposed of here in one report. Exceptions to the order recommended by the examiner were filed in both proceedings by applicant and certain protestants, and applicant and certain protestants replied. Our conclusions differ in part from those recommended in both proceedings.

In No. MC-113388 (Sub-No. 26), hereinafter called the sub 26 or "grandfather" proceeding, by application filed December 8, 1958, as amended, under the "grandfather" provisions of section 7(c) of the Transportation Act of 1958, Lester C. Newton Trucking Co., a corporation, of Bridgeville, Del., hereinafter sometimes called Newton, seeks a certificate of public convenience and necessity authorizing the

1 This report also embraces No. MC-113388 (Sub-No. 27), Lester C. Newton Trucking Co. Extension-Frozen Fruits, Vegetables, and Berries.

continuance of operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of frozen fruits, frozen berries, and frozen vegetables (1) between points in New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, and the District of Columbia, (2) between the points described above, on the one hand, and, on the other, points in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, North Carolina, South Carolina, Georgia, and Florida, and (3) between points in Maine, Massachusetts, and Connecticut, on the one hand, and, on the other, points in North Carolina, South Carolina, Florida and Georgia, and (4) empty containers and rejected or damaged shipments on

return.

2

In No. MC-113388 (Sub-No. 27), hereinafter sometimes called the sub 27 proceeding, by application filed November 17, 1959, as amended, Newton 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, of the same commodities, and in the same manner as described in its sub 26 application. Both applications are opposed by 12 motor carriers and by 3 rail carriers. In addition, The Adley Express Company, Capitol Motor Transportation Company, Hunnewell Trucking Co., hereinafter sometimes called Adley, Capitol, and Hunnewell, respectively, and the Maine Central Railroad Company oppose the sub 26 application, and H. F. Campbell & Son and Lahn Transportation Co., hereinafter called Campbell and Lahn, respectively, oppose the sub 27 application.*

3

STATEMENTS OF FACTS

Newton is a motor common carrier authorized, as here pertinent, to transport general commodities, with exceptions, over irregular routes, between specified points in Maryland, Delaware, Pennsylvania, New Jersey, and New York, and frozen foods, over irregular routes, from, to, and between points in 13 of the involved States and the District of Columbia, as more specifically set forth in appendix A

T. M. Zimmerman Company, Victor Lynn Lines, Inc., Preston Trucking Company, Inc. Clay Hyder Trucking Lines, Inc., Border Express, Inc., Refrigerated Food Express, Inc., Cole's Express, Hemingway Brothers Interstate Trucking Co., M & M Transportation Company, St. Johnsbury Trucking Co., Inc., Service Trucking Co., Inc., and W. T. Cowan, Inc., hereinafter sometimes called Zimmerman, Lynn, Preston, Hyder, Border, Refrigerated, Cole's, Hemingway, M & M, St. Johnsbury, Service, and Cowan, respectively.

* Boston & Maine Railroad, New York, New Haven and Hartford Railroad Company, and the Bangor & Aroostoock Railroad Company.

4 Campbell and Lahn each filed pleadings in No. MC-113388 (Sub-No. 26). However, inasmuch as neither filed a notice of protest in that proceeding, pursuant to our rules of practice, nor appeared in protest. therein, they are not parties of record in No. MC-113388 (Sub-No. 26), and their pleadings relative thereto shall be disregarded. Similarly, J. M. Blyth, doing business as J. M. Blyth Motor Lines, filed pleadings, but failed to establish its position as a protestant party of record in either, and its pleadings shall not be considered.

hereto. It is also authorized to transport agricultural commodities and farm produce from and to numerous points in the involved area. Newton proceeds in both applications on the theory that it may transport frozen fruits, berries, and vegetables under its existing authority to transport general commodities, frozen foods, agricultural commodities, and farm produce, and that, both under its existing individual certificates, and by tacking certain of the authorities contained therein, it may now perform a substantial portion of the service which it seeks authority to perform in these proceedings. Newton desires (1) to ascertain whether it may, in fact, transport the involved commodities under its existing authority; (2) to acquire supplemental authority in areas which it now serves, particularly with respect to backhauls; (3) to eliminate alleged circuity resulting from the tacking of authority; (4) to receive authority to transport certain frozen food commodities without regard to the freezing process involved as distinguished in Frozen Cooked Vegetables-Status, 81 M.C.C. 649; and (5), in general, to acquire simplified, comprehensive authority for the transportation of frozen fruits, berries, and vegetables throughout the involved area.

Newton maintains a terminal at Bridgeville, Del., and operates 16 tractors and 16 trailers, 15 of which are refrigerated. It is willing to obtain additional equipment as available traffic requires. In support of the operations claimed in the "grandfather" proceeding it submitted representative abstracts of shipments of the involved commodities transported by it, as here pertinent, from January 1957 to November 1959. The abstracts are summarized in appendix B hereto. In brief, these abstracts show that Newton transported all of the involved commodities, both on and after May 1, 1958, from Exmore, Va., to Sunbury, Carnegie, York, and Williamsport, Pa., Landover and Hagerstown, Md., Wallingford, Conn., Lewiston, Maine, and Binghamton, Newburgh, and New York, N.Y., and from Bridgeville, Del., to Exmore. It transported frozen vegetables, both on and after May 1, 1958, from the District of Columbia to Exmore and Bridgeville; from Cambridge and Hagerstown, Md., New York City, Lancaster, Pa., and Clayton, Del., to Exmore; from Exmore to Exeter, Pa.; from Caribou, Maine, and Houston, Del., to New York City; from Caribou to Carnegie, Pa.; and from Houston to Hartford, Conn. It performed similar transportation of frozen berries from New York City to Exmore and from Exmore to Exeter. Many of the shipments shown

This agricultural commodity authority is evidenced in No. MC-113388, acquired by it April 15, 1952, pursuant to No. MC-FC-54127; in No. MC-113388 (Sub-No. 2), acquired April 15, 1952, pursuant to No. MC-FC-54127; in No. MC-113388 (Sub-No. 15), issued August 20, 1958, canceling No. MC-113388 (Sub-No. 15), issued March 29, 1956; and in No. MC-113388 (Sub-No. 16), issued May 10, 1956, canceling No. MC-71831, issued June 7, 1950. Its No. MC-113388 (Sub-No. 15) certificate also authorizes the transportation of farm produce.

84 M.C.C.