45 F. Supp. 33 | D.N.J. | 1941
The complaint seeks to have this court set aside an order of the Interstate Com
The Commisison held that the transportation company was entitled to a common carrier certificate of convenience and necessity for all of the commodities listed below.
Assuming arguendo that the plainiff is entitled as common carrier and contract carrier to certificate and permit when its operations are considered separately in the light of the respectively applicable sections, see 49 U.S.C.A; §§ 306 and 309(b), nonetheless the Commission must find first whether or not the plaintiff may maintain dual operations. See 49 U.S.C.A. § 310. The determination of whether the transportation by the plaintiff as both common and contract carrier is “over the same route or within the same territory” within the terms of the statute must be decided by the Commission.
The plaintiff alleges that the Commission’s finding that it is a common carrier as to items (a) and (b) is erroneous in fact and not in accordance with law. This court has the power to determine whether the findings of the Commission as to the common carrier and contract statuses of the plaintiff are supported by evidence and are legally correct and to grant appropriate relief if they are not.
In determining the issues presented by the case at bar it is necessary of course to revert to the definitions contained in the act. See 49 U.S.C.A. § 303(a) (13) and (14). The changes made by the amendments of September 18, 1940 to subsections 14 and IS do not alter the essential meaning of the subsections
The definitions of the subsection are meaningless unless read against a background of fact. There are indeed extremes of facts which admit of no doubt as to the common or the contract status of a carrier. A classic example of contract carriage might be the transportation of explosives requiring special equipment for a single company. Common carriage might be the transportation of ordinary commodities in the ordinary way for a multitude of shippers though each entered into a special contract. In each case whether of common or contract carriage there is a contract. The nature of that contract is a most important element in determining whether the carriage under consideration be contract or common.
Applying what we have said to the facts of the case at bar we find that the plaintiff and its predecessors conducted the transportation in controversy for the Hurff Company and its predecessors and that the operations date from the latter part of 1934 when there was an oral understanding for
“That party of the first part (Hurff) agrees to tender for movement by party of the second part (Hunter) approximately 40 tons per month in the aggregate to one or more of the destinations named herein.”
“That party of second part (Hunter) agrees to transport such goods as are tendered to it for interstate motor truck transportation within the area herein indicated, promptly and safely and to deliver the same to such consignees as may be designated from time to time within such area by party of first part (Hurff).”
It will be noted that though Hurff agrees to tender Swedesboro no less than approximately forty tons of freight for carriage a month, Swedesboro agrees to transport “such goods as are tendered to it” by the shipper for carriage. The record made before the Commission contains little which proves the extent of Swedesboro’s business with Hurff or the background against which it was performed. The true contractual relationship between Swedesboro and Hurff cannot be ascertained from so little. The evidence does not even show for example how much the monthly quota of forty tons was exceeded by Hurff in any given period or if it was exceeded at all. Was there a bona fide bilateral contract? There are no appropriate findings by the Commission upon this, the primary phase of the case. Indeed, it is just to say that the Commission seems to have passed by this poinl without consideration. We are entitled to findings by the Commission, properly made and predicated upon adequate evidence. United States v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 294 U.S. 499, 510, 511, 55 S.Ct. 462, 79 L.Ed. 1023; Florida v. United States (Brooks-Scanlon Corporation v. United States, Wilson Lumber Company of Florida v. United States), 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291.
Accordingly, the order of the Commission in so far as it refuses a contract carrier permit to Swedesboro is annulled and set aside.
(a) Canned goods and pepper hulls from Swedesboro, New Jersey, to Baltimore, Maryland, and points in Pennsylvania, New York, North Carolina, and Virginia and of returned, rejected, or damaged shipments on return;
(b) Dried beans from points in Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Wayne, and Yates Counties, New York, to Swedesboro, New Jersey;
(c) Lime from Chester Valley, Plymouth Meeting, and Bellefonte, Pennsylvania, to points in Gloucester, Cumberland, Salem, Cape May, and Camden Counties, New Jersey;
(d) Fertilizer from Philadelphia, Pennsylvania, and Baltimore and Salisbury, Maryland, to points in Cumberland and Gloucester Counties, New Jersey;
(e) Lumber from Philadelphia to Swedesboro; and
(f) Coal from points in Schuylkill County, Pennsylvania, to Swedesboro.
The phrase “holds itself out” was substituted for the phrase “which undertakes” in subsection 14, and the words “special and” were stricken out of subsection 15 as modifying the phrase “individual contracts or agreements”. The legislative history of the amendments is not helpful. See Hearings before the Committee on Interstate Commerce, U. S. Senate, 76th Cong., 1st. Sess., on S. 2009, April 3 to 14, 1939, pp. 57, 84, 85.