thence over U. S. Highway 5 to its junction with U. S. Highway 1, and thence over U. S. Highway 1 to Port Chester; serving no intermediate or off-route points except those specified above, and returning over the respective routes; and (2) over irregular routes-general commodities, with exceptions,1 between points in New Jersey within 30 miles of Columbus Circle, New York, N. Y., on the one hand, and, on the other, Peekskill, White Plains, and Port Chester, N. Y., and points in Westchester County, N. Y., south of, but not on, New York Highway 119, and steel wire from Trenton, N. J., to Port Chester, N. Y. Various rail and motor carriers opposed the application. On November 26, 1938, we entered an order in No. MC-44830, covering an application filed under the "grandfather" clause of section 206 (a) of part II of the Interstate Commerce Act, which recited that, upon compliance by applicant with certain requirements specified therein, a certificate would be issued to applicant authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities, with certain exceptions, between New York, N. Y., on the one hand, and points in New Jersey within 30 miles of Columbus Circle, New York, N. Y., on the other. It was stated that the Standard Electric Equipment Company, previously served by applicant out of New York City, moved to Port Chester, N. Y., in February 1939 and that applicant desired to render service for this shipper from and to the new point. The examiner recommended that the authority sought be denied. On exceptions, applicant contends that a need exists for its service and that the authority requested should be granted. Under section 207 (a) of the Interstate Commerce Act, we cannot grant the certificate sought herein unless we find that the proposed service, to the extent authorized by the certificate, is, or will be, required by the present or future public convenience and necessity, and that applicant is fit, willing, and able properly to perform the service proposed and to conform to our requirements, rules, and regulations thereunder. The traffic manager of the Standard Electric Equipment Company, the only shipper witness presented at the hearing, testified that from February 1939, when the company moved its plant to Port Chester, until May 1939, at which time this shipper began using its own equipment, motor-carrier service was used. Such motor-carrier service was alleged to be unsatisfactory because of delay in delivery, and Standard has been using its own tractor-trailer combination since that time. 1 Exceptions: Articles of unusual value, high explosives, household goods (when transported as a separate and distinct service in connection with so-called household movings), commodities in bulk, commodities requiring special equipment, and those injurious or contaminating to other lading. Standard receives wire and steel from Trenton, Worcester, Pawtucket, and Bridgeport for use in the manufacture of electrical supplies, such as cables, switch boxes, and steel conduit, and has need for motorcarrier service out-bound, from Port Chester, only for delivery of its finished products to New Jersey points and, possibly, to Bridgeport, Conn. No need was expressed for service from Port Chester to other points or for other than the few commodities specified. The shippers of the raw materials control the routing and selection of carriers and pay the transportation charges in all cases. For using its own equipment, Standard receives an allowance equal to the freight charges which the shippers of the raw materials would pay to motor carriers selected by them. When questioned as to the specific instances of unsatisfactory service during the period from February to May 1939, the witness could recall only a total of four shipments made from Trenton by a motor carrier selected by the shipper at Trenton, of which two were satisfactory and two arrived in the afternoon instead of in the morning. Except for general statements as to the lack of expedited service from other points, no other instances of unsatisfactory service were cited. As to existing motor-carrier service, the witness testified that no investigation had been made to determine whether other carriers could give Standard the service it requires and that at least two motor carriers had solicited the business, but that they were referred to the shippers of the materials since Standard does not control the selection of the carriers. Because of this lack of authority to hire a carrier of its own choice, it was admitted that, even if the authority sought were granted, it would be necessary for the shippers to agree to the selection. It was also stated that a motor carrier located in Mount Vernon, N. Y., had rendered some service for Standard on out-bound deliveries and that there was no reason to believe that this carrier or several others operating between the points described above and known to the witness could not render a satisfactory service. The matters of record indicate that applicant's service is desired by Standard because it already serves it in intrastate commerce and is familiar with Standard's products. Applicants proposal to charge lower than existing rates is also cited as a reason for preferring its service. The secretary of applicant corporation testified that several shippers had requested applicant's services between New York and New Jersey points, but the witness was unfamiliar with the present service available in the area around New York City, and no evidence was presented to show that the present transportation facilities are inadequate or unsatisfactory. The evidence of record is not convincing that there is any substantial demand or necessity for applicant's proposed service which cannot be satisfied by existing carriers. We have held in numerous cases that, to foster sound economic conditions in the motor-carrier industry, existing motor carriers should normally be accorded the right to transport all traffic they can handle adequately, efficiently, and economically in territories served by them without the competition of additional carriers who seek to enter the field. In view of our findings herein, it is unnecessary to give consideration to applicant's fitness and other qualifications to perform the proposed service. We find that applicant has failed to show that the present or future public convenience and necessity require, or will require, the proposed service; and that the application should be denied. An appropriate order will be entered. LEE, Commissioner, dissenting in part: I would grant authority so that applicant may continue the same sort of operation from Port Chester to points in New Jersey as applicant performed for Standard Electric Equipment Company prior to the latter's removal of its plant from New York City to Port Chester. No traffic is to be diverted from other carriers; the shipper and applicant may continue relationships which have proved satisfactory in the past; and applicant will not be injured because of the loss of a principal shipper. While a carrier does not have an absolute right to follow such traffic changes, the evidence in this case persuades me that authority should be granted. In other cases we have approved applications of this sort. See Cassens Transport Co. Extension of Operations, 18 M. C. C. 273; Petroleum Transp. Co. Extension of Operations-Umatilla, 19 M. C. C. 637; Petroleum Carrier Corp. Extension-North Carolina, 21 M. C. C. 124; and Lester Fellows Co. Extension-Burlington, N. J., 14 M. C. C. 641, 22 M. C. C. 131. 26 M. C. C. No. MC-20858 (SUB-NO. 2) JAMES P. HUNTER EXTENSION OF OPERATIONS- Submitted March 11, 1940. Decided November 22, 1940 Operation by applicant as a contract carrier by motor vehicle, of leather, from Elkland, Pa., to points in Massachusetts within 50 miles of Boston, Mass.,. and of quebracho, damaged leather, tanning oils, leather machinery and parts therefor, bags, and commodities used in the process of leather tanning, from Boston to Elkland, over regular and irregular routes, found consistent with the public interest and the national transportation policy. Issuance of a permit approved upon compliance by applicant with certain conditions, and application in all other respects denied. Richard S. Heller for applicant. Charles T. Landon and F. X. Masterson 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. Our conclusions differ somewhat from those recommended. By application filed April 7, 1939, as amended, James P. Hunter, of Elmira, N. Y., doing business as James P. Hunter Transportation Co., seeks a permit authorizing extension of operation as a contract carrier by motor vehicle, in interstate or foreign commerce, of leather from Elkland, Pa., to points in Massachusetts within 50 miles of Boston, Mass., and of quebracho, damaged leather, tanning oils, leather machinery and parts, bags, and commodities used in the process of leather tanning, from Boston and points in Massachusetts within 50 miles thereof to Elkland, over regular and irregular routes as described in the appendix hereto. Slocum Motor Freight Lines opposed the application but withdrew its protest at the hearing. Subsequent to the hearing, rail carriers in official-classification territory were allowed to intervene and file exceptions to the order recommended by the examiner. In No. MC-20858, the Commission, division 5, granted applicant authority to operate as a contract carrier by motor vehicle for the transportation of leather from Elkland to Boston and of glass receptacles from Corning, N. Y., to Hartford, Conn., with used cartons, knocked down, in the reverse direction to Corning over specified routes. Hunter Contract Carrier Application, 13 M. C. C. 109. The proposed operation will be conducted under a written contract with the Elkland Leather Co., Inc., of Elkland, the corporation for which applicant transports leather from Elkland to Boston under his hereinbefore-described authority. Applicant testified that he requires authority for the proposed operation in order that he may have a return haul from Boston to Elkland and to render the shipper a complete service. He transported leather from Elkland to points within 50 miles of Boston from August 19, 1935, until December 1938, when he received his authority, hereinbefore described, under his "grandfather" application. A representative of the tanning company testified in support of the application. He stated that applicant owns a warehouse in Boston in which quebracho, owned by the leather company, is stored. Quebracho is used in the leather-tanning industry and is shipped into Boston from South America. His company needs the proposed service for the transportation of quebracho, damaged leather, tanning oils, leather machinery and parts, bags, and commodities used in the process of leather tanning for less-than-carload lots in a direct expedited service from Boston to Elkland. Rail service has proven satisfactory for carload lots, and 75 percent of his company's traffic moves by rail. He stated that his company serves at points within 50 miles of Boston numerous customers which require expedited direct service on short notice for the transportation of leather from Elkland. Applicant has hauled the above-described commodities from Boston to Elkland for his firm. These operations were commenced in May 1937 and were discontinued in the first part of 1939 when applicant learned he needed authority from us to continue them. Applicant's past service as a carrier of leather and related commodities has been exclusively for this shipper and has been specialized to meet its peculiar needs. It has been satisfactory. The leather company has used the service of the protestant motor carrier which withdrew its opposition, but he was unfamiliar with its operation. No evidence was submitted to show a need for the proposed service from any point other than Boston as to commodities destined to Elkland. Applicant has adequate equipment and is financially and otherwise able to conduct the proposed operation. We find that operation by applicant as a contract carrier by motor vehicle, in interstate or foreign commerce, of leather from Elkland to points in Massachusetts within 50 miles of Boston (excluding Boston, to which applicant already has rights) and of quebracho, |