Advance Bulletin of Interstate Commerce Acts Annotated

$1303, and $1306) governing the filing and posting of notice and furnishing of data to the general public of proposed general increases in freight rates and passenger fares by rail and motor carriers.-Notice of Increases in Frt. Rates and Pass. Fares, 341 I.C.C. 589 (590-94).

See also General Increase, East-South Territory, at $216 (g), n. 65.

126. Burden of proof.--See International Transport, Inc. v. United States, APA, 5 USC, Burden of proof.

250. Investigations by Commission.--While the Commission recognizes that it is prudent for a businessman engaged in bona fide lumber brokerage operations to use all legitimate means to enhance his profits and to minimize his losses, the virtual elimination of all risks through the rendition of a transportation service and the receipt of an assured return persuades us that the transportation service provided must be considered that of a for-hire carrier. Cease and desist order issued.--Boucher-Investigation of Operations, 117 M.C.C. 480 (486).

In an investigation instituted on the Commission's motion into former illegally performed operations, respondents were issued a cease and desist order even though there was no indication of bad faith or willful misconduct, or of any intention to resume participation in illegal operations. Cease and desist orders are corrective in nature, and are a necessary prerequisite for further enforcement action should the involved violations either continue or be resumed.Collins, Ford, Longacre, Patterson--Investigation, 117 M.C.C. 628 (631-32). $204 (e), (f). USE OF MOTOR VEHICLES NOT OWNED BY MOTOR CARRIERS

10. Leasing and interchange of vehicles.--While carriers may legitimately lease motor vehicle equipment from others in order to operate to the full extent of their authorities, it is illegal for them to enter into ostensible equipment leases under which the so-called equipment lessor, and not the lessee under whose operating authority the traffic purportedly moves, is actually the carrier performing the transportation service. In such instances, the lessor merely uses the operating rights of the purported equipment lessee and pays the lessee for such use.--Diamond Transp. System, Ext.--Wis. and Okla. Origin, 117 M.C.C. 706 (710).

Stated somewhat differently, a carrier leasing equipment from another must be the one that actually conducts the operation, provides the service, and assumes full responsibility therefor. See also, Lease and Interchange of Vehicles by Motor Carriers, 68 M.C.C. 553 (559) as codified at 49 CFR 1057.--Id. (710-11).

Applicant, in its insurance policy, provided to hold certain lessees free of liability. Thus, the parties have agreed, in effect, that the applicantlessor is to be responsible for the equipment. As a consequence, exclusive possession and control of the motor vehicles have not been transferred to the lessees, but remain vested in the lessor (applicant). Further, and though the Commission's lease and interchange regulations contain no specific prohibition against a flat rate or percentage of revenue method of compensation, this method

of compensation also is a factor to be considered in determining the validity of the purported interchange arrangements.--Id., (712-13).

While the regulations merely require that the compensation to be paid by the lessee for the use of the interchange equipment shall be specific (49 CFR 1057.5(a)), it is equally true that such a division of the revenues as is present here has been condemned as inimical to sound regulation for the reason that it plays a large part in the practice of carriers with extensive operating rights, but which are unable or unwilling to provide service thereunder, unlawfully leasing such rights to others under the guise of equipment leases (Lease and Interchange of Vehicles by Motor Carriers, 64 M.C.C. 361).-Id., (713).

$205 (g). COURT REVIEW OF COMMISSION'S ORDERS; COMPELLING COMMISSION TO TAKE JURISDICTION

5. Review of final orders.--Inasmuch as $205 (g) subjects a final order under part II to the same right of relief in court by an interested party as that provided with respect to orders made under part I, and $16 (2) permits a person for whose benefit an order for payment of money is made to bring suit for enforcement thereof, plaintiff shipper is entitled to sue motor carriers for recovery of refunds pursuant to a Commission order in increased-rate investigation proceeding. Order involved, granting carriers' request for postponement of the hearing on proposed rates and, as a quid pro quo, requiring carriers to make refund of increases not ultimately found just and reasonable, is a final order under part II; and though not a participant in the rate proceeding, plaintiff is a party in interest to order entered therein since, in effect, it is a third-party beneficiary of the refund provision. Thus, the court must look to part I of the Act to determine scope of plaintiff's right to sue for enforcement of the Commission refund order.--Aluminum Co. of America v. Admiral Merchants Motor Frt., Inc., 337 F. Supp. 674 (679-81).

While there is no doubt that $16 (2) was designed originally to cover Commission orders in reparations situations, no reason appears why contested valid order for the payment of money, which clearly is covered under language thereof, should not also be deemed within the purview of that section. And contrary to defendants' argument, decision of the Supreme Court in the T.I.M.E., Inc. case, 359 U.S. 464, does not prevent granting the relief sought by plaintiff in instant case; that decision in no sense considered the question of whether, when the Commission issues a valid refund order under part II, shippers for whose benefit such order was issued can proceed under $16 (2) for enforcement thereof. Accordingly, based on $16 (2) and $205 (g), plaintiff is entitled to judgment for stipulated amount of the refunds due under the Commission's order.--Id., pp. 681-82, 685-86.

On motions for a new trial or to alter or amend judgment for shipper in its suit to recover refunds pursuant to the Commission order, defendants further claim that $205 (g) only provides for judicial review of orders made under part II and for relief from such orders and, thus, entitles plaintiff to review of the refund order to determine validity thereof but not to obtain its enforcement, and only if it desires relief from but not under such order; however, such a narrow reading of $205 (g) is neither logical nor persuasive.

Had

Congress intended that only injured parties seeking relief from a part II order were entitled to the scope of review provided in part I of the Act, it would have chosen language limiting such relief to any "party injured" or "aggrieved party" rather than to "any party in interest," the language it utilized. And 'any party in interest" includes all people affected by a Commission order, both those who are injured by it and those who, being benefitted, would not desire relief from such order but whose only interest would be to have the order entered and its specific benefit enforced.--Id., pp. 684-85; Proctor and Gam ble Co. v. Byers Transp. Co., Inc., 355 F. Supp. 547 (559-62).

See also Aluminum Co. of America v. Burlington Truck Lines, Inc.,

§16 (2), n. 8.

$206 (a) (1).

CERTIFICATE OF CONVENIENCE AND NECESSITY; NECESSITY FOR; CARRIERS
IN BONA FIDE OPERATION ON JUNE 1, 1935

25. Injunctions; operation without certificate.--Since defendants' operations involved utilization of nonsuperhighway "connecting" highways which constitute a significant portion (52 percent) of the total over-the-road distance traversed between the point of departure from and the point of return to the underlying authorized regular service route, the operations are not within the scope of or may they be performed under the Superhighway Rules. Defendants were therefore in violation of $203 (c) and §206 (a) (1) of the Act; cease and desist order entered--Great Lakes Exp. Co., et al. v. National Transit, 117 M.C.C. 735 (744-45).

57. Off-route points.--Inasmuch as defendant was serving certain off-route points which operations were found not to be permitted under the Superhighway Rules (49 CFR 1042.3, 117 M.C.C. 119), defendant was in violation of $203 (c) and $206 (a) (1) of the Act, and was required to cease and desist from the performance of such unlawful transportation. The defendant was specifically reminded of its obligation, as directed in the order entered, to comply with the provisions of rule 99 of the General Rules of Practice (49 CFR 1100.99) describing the manner of its compliance with such order requiring it to cease and desist from the performance of the operations found in this report to be unlawful.--Burggrabe Truck Lines, Inc. v. Beaufort Transfer, 117 M.C.C. 567

(579).

$206 (b). APPLICATION FOR CERTIFICATE; FORM AND CONTENTS

15. Filing and verifying application; parties; notice.--While the filing of successive applications is not prohibited, where there are clearly no changed circumstances such tactics by an applicant should be strongly discouraged. This method of costly harassment of a smaller competitor will not be condoned by the Commission. Applicant and its counsel were admonished that the Commission will not look favorably upon similar actions in the future.-United Parcel Service Ext.--Tenn., Ark. and Miss. Points, 117 M.C.C. 621 (626).

Applicant was found to have advertised in a trade publication of the transportation industry, setting forth the nature and scope of its proposed operation, the date on which supporting verified statements were due to be filed, and requesting interested shippers to contact applicant for verified

statement forms and for further information, in an apparent attempt to obtain support for its application. The director of the Office of Proceedings responded to an inquiry from an interested party, with a copy to the applicant, that this approach to solicitation was neither approved nor acceptable. This judgment was affirmed by the Commission in this proceeding, because of the unnecessary administrative litigation that such solicitation generates.-Transportes Azteca Extension--Eastern States, 117 M.C.C. 645 (651).

Omissions: Supporting shipper did not mention or identify other applications which it supported, nor did it make cross-reference to any of the five embraced proceedings. Shipper's apparent lack of candor, in part, misled the Commission into separate consideration of related matters without regard to other similar applications supported by it, and without knowledge of the complete, overall transportation picture, including the scope of shipper's transportation needs and the transportation situation in the considered areas. Not only is this approach inconsistent with the effective performance of the Commission's administrative functions, but it also leaves such contradictions of record that rational conclusions may not be reached regarding any possible real need for additional service to some particular areas. Applications denied.--Jenkins Truck Line, Inc. Extension--Gentry, 117 M.C.C. 725 (730).

18. Burden of proof.-

Public convenience and necessity: Applicant held not to have met requisite burden of proof, based on failure to supply essential details. Specifically, applicant supplied no identification of the origin points of the involved traffic with any degree of certainty, and offered no showing that protestant was unable to handle adequately the traffic involved, or that protestant's service within the territorial scope of its authority was in any way inadequate. Application denied in part.--Graham Extension--Port Huron, Mich., 117 M.C.C. 412 (416-17)*.

22. Evidence.

Admissibility: Almost half of supporting shipper's statements were submitted by Mexicans, in the Spanish language, and applicant offered no translation or even any summary or digest of the contents of many of the statements. Due process of law does not permit the Commission unilaterally to interpret such statements in the first instance without the benefit of party-sponsored interpretations, nor is it incumbent upon the Commission to provide interpreting services for the parties. In the circumstances, the entire testimony made solely in the Spanish language was given no weight in the determinations.--Transportes Azteca Extension--Eastern States, 117 M.C.C. 645 (649).

Self-serving, indefinite, unsupported statements: Applicant's failure to substantiate its claim of increased economy and needed improvements to be derived from proposed modification of authority resulted in denial of application. See also, $207 (a), n. 25 economy and efficiency.--Salem Transp. Co., Inc. Ext.--Additional Passengers, 117 M.C.C. 405 (409) *.

Weight of evidence:

The Commission cannot base a grant of authority on evidence which is vague and couched in general terms leaving the Commission to hypothesize as to the volume of traffic to be tendered applicant of what, if any, deficiency there is in existing service.--Jenkins Truck Line, Inc., Extension--Gentry, 117 M.C.C. 725 (728).

$207 (a). ISSUANCE AUTHORIZED TO QUALIFIED APPLICANTS FOR REGULAR ROUTES AND BETWEEN FIXED TERMINI

6. Restriction of operation.--On review of the record in carrier's suit to enjoin Commission order on rehearing which substituted a "single plant site," in lieu of the "mixed load," restriction in the certificate issued to it 5 years earlier, imposition of the new restriction after years of operations under the "mixed load" certificate was not inequitable, as plaintiff claims, in that such added restriction of its authority will cause it an extreme financial hardship. Undoubtedly the new restriction will adversely affect plaintiff's operations which, under certificate issued, were expanded to probably require additional investments in equipment and personnel; however, interstate operating authority is not granted pursuant to the doctrine of estoppel but, rather, on a determination of the public need. Moreover, plaintiff's expanded operations to some extent appear to result from its own questionable compliance with the "mixed load" restriction. Record shows that the authority granted on rehearing is consistent with evidence presented in support of original application; injunctive relief, denied.--Greenstein Trucking Co. v. United States, 343 F. Supp. 194 (200)*.

In general: Any consideration of an application by a rail motor common carrier affiliate to eliminate restrictions binding it to operations auxiliary and supplementary to rail service must begin and end with consideration of what constitutes the "special circumstances" necessary to warrant a grant of functionally unrestricted operating authority (63 M.C.C. 91, 355 U.S. 149).--Southern Pac. Transp. Ext.--Elimination of Restrictions, 117 M.C.C. 224

(325).

Books

Advance Bulletin of Interstate Commerce Acts Annotated, Volume 2, Issue 1