*1 cs LINE, BARRETT INC. v. UNITED STATES et al. Argued April 2, 630. No. 1945. Decided June 1945. Quirk appellant. Mr. Robert E. Cummings, Jr.,
Mr. Walter J. with whom Solicitor Fahy, General Messrs. Daniel W. Knowlton and Allen brief, Crenshaw were the United States and the Interstate Commerce and Mr. Commission; Harry C. Ames, with Roe, whom La Messrs. Wilbur Jr. and R. Curry Granville were on the American brief, Barge for the Line Co. appellees. et al.,
r-f oo © Rutledge opinion delivered
Mr. Justice *2 Court. appellant denied Commission Commerce
The Interstate under the carrier contract water a to act as permit a III 898, of the 1940, 54 Stat. Part Act of Transportation three-judge A District Court Act. Interstate Commerce that sought review of order. which complaint dismissed judgment. from this is appeal The applied permit carry for a 1941, appellant May, exceptions not now material, with commodities, general Mississippi River and its tribu- on points between an was to “continue sought opera- authority taries. 1940, continuously January 1, there- in existence tion over property irregular carrier contract after,” aas “grandfather rights” claimed under routes, pursuant grandfather A while the year later, Part III.1 (f) of 309§ filed another appellant was pending, applica- application measure. sought, This precautionary in the as a tion perform the leave to same alternative, service as new 1 part: (f) provides in 309 Section provided in this “Except section and otherwise section no engage by business of contract in the carrier shall water person permit, by an effective issued he it holds the Commission or unless operation: Provided, That, authorizing to section such predecessor interest was any opera- carrier or a bona fide if such January 1,1940, carrier water over the tion as a contract route respect ports application to which between the routes or operated (or, engaged furnishing time if made, so since that and has operation during fide only, was bona seasonal service seasonal date, including prior of the period, to or character event, except, interruptions in either question) service applicant predecessor or its had no control, which the interest over permit, proceedings, shall issue such the Commission without further application provided for such is made to the Commission as (g) . (f). . ." 49 U. C. 909 in subsection S. § operation dual Section relates to as common and contract car- rier, temporary operations. 311 to § operation “consistent with public interest and the national policy” (g) under .2 § Protests were filed other appli- carriers and the two cations were heard together Sep- before examiner in an tember, 1942. He concluded that did warrant granting of the grandfather application, rec- but ommended granting permit under. 309 (g). Divi- sion IV however denied both applications, that under 309§ (f) failure required to make the showing of actual operations on and after the date, crucial one under (g) ground § 309 on the had “failed to show that it proposing any operation, new or that oper- a new ation it would be the public consistent with interest or *3 transportation policy, the or present national that or fu- necessity require public ture convenience and such opera- A reconsideration petition tion.” the full the was denied and District Commission Court adopted in per conclusions curiam findings opinion. and its consisted of exhibits and the The evidence testimony of story The president, Barrett. is of an appellant's old-style (g) provides: 2 Section application 310, upon Subject to section the . . Commission applicant permit fit, if it finds that the is willing, shall issue such and proposed perform and properly to the service to conform able requirements, part rules, provisions regulations this and the and of thereunder, operation and such of Commission will be con- the public transportation interest and the national policy sistent with the scope Act. The business of the carrier and declared this the thereof specified and there shall shall be be attached thereto and from time to time thereafter at time of issuance such reasonable terms, conditions, limitations, consistent with the character of by water, necessary carrier carry the holder as a contract as are requirements part lawfully of this or those out the established pursuant Provided, however, terms, thereto: That no the Commission conditions, right or limitations shall restrict of the carrier to scope permit, or add within the of substitute contracts or to service, equipment, facilities, scope add his or within the permit, development of the business and the demands of (g). patrons require.” shall carrier’s U. C.S. [00] T—i <N had has generations, which, institution for four
family As told tributaries. Mississippi in life and its in the only pioneered Barrett, the line not by Captain of of inland water great development con- history been century. nineteenth Its has middle various century, pioneering one stantly, during inference thereby, And transportation. fields water age an justified, hangs the reason for its survival seems industry, like so much else of transportation, when water largely by corporate governmental been taken has over regulation been have enterprise. Now vicissitudes competition, appellant urges, to threaten added to those its continuance. in 1926 concern, incorporated as successor to indi- partnership operation, forms
vidual remains small. twenty-one hearing barges At the time of the owned towboats, two with two derrick boats equip- and other port of registration; Cairo, ment. Cincinnati Illi- fleet nois, the situs reason of accessibility many conjunctions of rivers. historically have been
Operations highly selective and any character. Since at rate, they varied have generally limited materials, to bulk the greater num- may subjected which to exposure ber of to weather .with- damage, scrap iron, pig iron, out such as fabricated steel, *4 ore, coal, paving bauxite piping, brick, and stone, exclud- furniture. At such items as one time ing another, or however, automobiles, sulphur, powder, grains, salt and products have been carried. petroleum So far as appears, held out period the line has not itself this a com- as mon carrier and does not now seek to become one. Its has been strictly special contract, negotiated business season, reference to with course re- river operation, loading for the times of quired and unloading, special is, and other factors. other an words, irregular what it operator performing “special characterizes and as under contracts sporadic special services and conditions.” well sporadic special The as character of the service important, appear, appellant’s position becomes will on the issues.
The nature of the service the character of the barges correlated. The equipment are are of steel con- designed carry dry liquid or the latter struction, cargo, fittings required. when At by adding piping and the time nine had converted in hearing, way in petroleum traffic, were used three by appellant and six charter to the Company under Oil Standard Ohm. Of those six were under remaining, charter, to be con- petroleum verted carriers; being two were used carriage coal; four were “available for such use to.” put Captain as we them Barrett testified that petroleum the movement of products should cease the tankers could be readily hauling reconverted dry cargo. freighting, service includes either appellant’s with barges and power towing barges
own or owned others. addition engages in- chartering, cluding leasing or of equipment, at times crew, to' The chartering, according others. to Cap- Barrett, tain involves “wide ramifications,” often with “just difficulty determining who is operator, it the shipper whether who responsible, and there- fore, operator, whether is the carrier, who the equipment.” furnishes right
To establish permit, “grand- whether father” or “new operation,” appellant offered evidence of an consisting exhibit all listing of its from January 1, 1936, to August 11, 1942, with information concerning the name of the customer, origin and desti- nation, and nature of cargo. No effort was made to specific prove operations in similar detail prior to the former date. But a written “Statement of the History, *5 The Bar- of and Services Scope Operations of
Type and Cap- of testimony the Line, substantiated rett Inc./’ character and general way in a Barrett, described tain movements. of such scope to show was of the historical evidence
The effect general from of the sporadic character and the varied might be appeared company that 1910. about of several for intervals or business contracts without activity in the nature of was a time. Much months at in demon- In brief this consisted trades.” “pioneering of for feasibility par- of water strating when the demonstration Generally, commodities. ticular the shipper was for or another the result made, had and then would await operation take over to opportunity.3 similar another or seek character, being general evidence, lacking to concerning specific operations in dates dur- large extent period; so that for some ten or latter ing the January 1,1936, gather it is difficult to prior years twelve of movements were being made, kinds for specific what and with reference points what whom, between what general However,' the inference would seem materials. equipment any and the suited rather justified testimony, line pioneered according the trans Thus, earlier; petroleum 1912 or of pipes steel water of from portation year; 1920; powder the same of of Pittsburgh in automobiles to Pittsburgh Cincinnati; and from of bauxite ore downstream points paving Company; Orleans; brick to Ore New the Aluminum for Engineer Corps paving banks, river used etc. stone riprap appellant's resulted in supplying Frequently demonstration shipper the latter when took over as, the business equipment Company purchased Oil instance, Standard Louisiana when the barges petroleum operation continue the demonstrated boats instances included sales to fleet. Other Atlas Cement Co. its own Carnegie Co. Steel carriers, rendered also were to other services before Miscellaneous including grounded vessels, raising or relief disabled after storage barges vessels, vessels, etc. sunken
185 taken negotiating contracts were criteria used indefinite fleet remained otherwise the opportunity offered; when idle. exhibit hand, supplied the evidence the other
On January 1, and movements between concerning In more all instances 1942, is much definite. August 11, mentioned, cargo character specific where the in piling shipment of fabricated steel except one including gasoline and products, petroleum either stone or A very mentioned. commodities, are oil, exempt furnace designate of items “Miscellaneous number considerable simply noted some instances and there were Cargo” character of the cargo, reference to “charter,” without was leased or chartered including equipment which the Act. A few not carriers items shippers “damaged barge,” steamer storage, specified vessel like services to other car- furnishing steam aground, was “towing” specified for In instances “U. two S. riers. Engineers.” cargo” largely items involved “miscellaneous tow-
The including carriers, barges of other American loaded ing Valley Barge In Mississippi Line. Line and Barge the specific cargoes, identified as, instances Barrett some company’s the former barges movement of example, a sugar iron, and molasses scrap and some of loaded freight. such bearing packaged cases, the latter’s how- only motive was power furnished, and ever, since carrier, appellant relying upon disclaimed another “to that he is a common establish movements carrier [it] commodities,” but them general put “to show the performed” character of the general sweep and service carrier. Barrett that appellant a contract testified did always know what that barges, not was the charges diem and it per were basis therefore made no differ- what appellant barges. ence was if The between this difference, any, towing and charter- when ing labelled as such is nebulous, somewhat indeed concerning at material. But the latter all witness
gave charges, that testimony: appellant’s similar whether both, power, barges per for motive were on diem basis, except specifying one instance a barrel rate; not with the concerned character of went, cargo although or where the boats company’s presented evidence, trip sheets, would show the latter. evidence, exhibit, from the only apart as to opera- *7 1940, consisted in January 1,
tions after Barrett’s testi- above, relating to appellant’s mony, equip- summarized use at time of the hearing. This, ment and its the may as to exclusively related recalled, petro- under directly or the products, charter; leum use of two the barges carrying availability four coal; others we to.” put “for use as them according be added that, evidence, It to the should one inducing the concentration upon petroleum factor prod- the effect of the war emergency after 1940 was upon ucts carriage products of these from produc- the southwestern eastern communities, together to central and ing fields encouragement line with received from officials of barges convert to its Government into tankers and in this business. seems engage that, obvious with of transportation return normal modes as the war passes, development and the emergency of new facilities span by it, the life of this concentration accelerated typical repeat appellant’s likely “pioneering” per- formance. and the are Commission at
Appellant upon odds made showing concerning effects of the movements on 1936, and January 1, after as to whether the Com- to take erroneously refused mission account of earlier prior the history to that time. ones shown The Com- thought that should mission disregard them, more particularly “grandfather” reference applica- the claim tion, being remote to substantiate as too (f) ;4 § 309 date within operation” fide crucial “bona January shown after that the movements found rights claimed were insufficient establish commodities, all, one, exempt because were of except ones only including petroleum which were products which also 1, 1940, except coal, after January carried exempt. millstones, so
Caught between the nether upper and “grandfather” rights of denial of speak, Commission’s new operations,5 appellant questions affecting to that to be considered limitation evidence January its of the evi- operations 1,1936; after evaluation relating that account, particularly dence taken into exempt commodi- chartering, showing transportation statutory provisions interpretation ties only; especially bearing upon issues, requiring their these showing nonexempt that include permit; commodities issuance of a its conclusion justify support not sufficient to applica- *8 “grandfather” rights; tion for and the further conclusions IV term opinion opera of Division stated: “The ‘bona 4The fide interpreted holding to mean a tions’ out substantiated has operations therewith. operations consistent Actual actual order holding January 1, 1940, out on have substantiate a claimed must to length of time from that date. con a reasonable What been within may length vary particular of time with the a reasonable stitutes shipment proceeding but one made in 1936 each circumstances prior entirely period time thereto are too indefinite an at others January operations 1, 1940, fide on bona to establish remote continuously since.” denied, course, rights in the were because grandfather The to sustain them were too far operations shown view, Commission’s hand, opera for permit new past. the other On in the removed “appellant according brief, proposed to its because denied, was tions doing business planned continue operation to mode but change in no past.” inas
[00] h-i OO concerning the to affecting application perform new operations.
The short appellant’s position effect of is that the Com- mission’s action has it transportation exempt limited to only commodities if that, limited, grave injury will- so for result that, business. maintains view of its history and the facts properly interpreted, is entitled permit transportation a for the of commodities generally, throughout the Mississippi system, including its tribu- taries, permit and that the preferably should be under the grandfather clause; not, then for a “new operation.” controversy has become most crucial in relation to chartering. The Commission found that these activities related, in period the crucial and on the showing made, only exempt commodities, carriage of which author- ity required,6 is not and concluded that was engaged therefore not in chartering operations subject to Part III entitled them. The opinion only . . the transportation stated: might which be subject regulation under III was that of chartering However, of vessels shippers. no showing is made as to rendered, nature services the commodities car- in, ried or the served with points such vessels. On such meager showing we would warranted finding that applicant, January and continuously since, engaged to part III of the act.” 6Exemption by 303 provided for various kinds transportation
including, carriage specified, under limitations of bulk commodities transport three, the vessel is used not more (b); when than 303§ carriage liquid cargoes tankers, in certified (d); bulk §303 single solely within limits of harbor, (g). 303§ *9 uniformly permits The Commission has denied or certificates where only exempt transportation Upper Mississippi is involved. Cf. Tow ing Corp., Application, 292, 293; Common Carrier C. 2601. C. Galla gher Corp., Application, Bros. Sand & Gravel Carrier Contract 260 I. C. 225. C.
189 the conclusion as finding attacks this Appellant upon (e), § founded argument 302 to law. The is contrary provides water” and by carrier which defines “contract or to a charter lease vessel under of a furnishing that the Act, the subject to for use person than a carrier other be considered shall property, the latter’s transporting mean- transportation” within the “engaging constitute 7 by water.” “contract carrier definition of ing the required only that no Although permit it true vessels, carried chartered are commodities exempt if on it to a (e) entitle construes appellant fide engaged in bona date it was the crucial the commodities regard without whether operations, exempt nonexempt. or this view carried were actually chartering, far tO' concerned, so it relates as the isAct commodity, the but account character of takes the furnishing vessel; Commission, only of commodity, to the nature of the requiring by not included or authorized requirement by added statute. clearly the evidence nu-
Accordingly, disclosed since within the critical period, charter merous draws two conclusions: that was entitled (1) rights chartering, for to a such, and grandfather (e) pertinent follows: is as Section which, any person 'contract carrier water’ means term “The agreements, engages transporta- or individual contracts under paragraph transportation (d) (other than referred to tion therein) passengers property in interstate or exception by water of compensation. foreign commerce for charter, lease, furnishing compensation (under a or other “The person than a carrier vessel, other agreement) of a to a such vessel is furnished person to whom to be used Act, property, shall considered its own in the engaging in transportation furnished, constitute, as to the vessel so furnishing vessel, within compensation by person carrier water’.” ‘contract meaning foregoing definition of (e). C. 49U.S. §902
190 permit operations which would allow it charter carriage nonexempt vessels well exempt as as cargo, without reference to its character this respect; (2), so, and being “engaged this transportation” of both exempt nonexempt and commodities on the critical date therefore, rulings under the Commission's relating to such situations, was entitled to a au- thorizing only chartering but also generally. commodities
Appellant especially relies upon Commission’s Co., decision in C. F. Harms Contract Carrier Application, 260 I. January 4, 1944, C. C. rendered after the com- plaint had filed in cause;;8 emphasis also Case, Ricssell Bros. Towing upon 250 I. C. C. Transportation Towing Case, Moran & Co. 250 I. C. C. 541; I. C. 269. C. permits granted these cases were either to a “furnisher
of vessels” or to towers without limitation to com- modities, on basis of holding out, such a except that Moran case in the the tower no official had knowledge of loaded barges. contents of the Appellant regards these as inconsistent with decisions the Commission’s action in distinguishes this case. The Commission them, however, on the evidence basis disclosed affect- ing exempt nonexempt both goods. The intervening protestants appellant’s characterize “strategy,” particu- Bros, Russell upon reliance larly case, as follows: have hopes “It first to itself made to the act as and, having a 'furnisher of vessels’ established that finger- hold, bring to its aid the doctrine of the Russell Bros. case that both regulated and unregulated activities should in determining rights.” be considered were Three decisions rendered in Harms matter. The first gave authority scrap to furnish vessels limited to iron and specified ports, 513; the commodity 250 I. C. C. second limitation, removed 685; third, by Commission, 250 I. C. C. full removed limitation, “territorial” 2601. C. C. 171. that a furnisher valid,
If were premise the Commission’s date, opera- that his show, must critical vessels opinion or, as its nonexempt tions included commodities *11 commodi- rendered, the “the stated, nature services vessels,” with such points ties carried or the served in, validity the concerning in we would nevertheless be doubt in this was made ruling that no sufficient case. chartering opera- or 44
Appellant’s exhibit disclosed 43 evidential, in the as period tions taken the Commission specified All but two designated “charter.” simply as In the Cairo, Illinois, origin both and destination. suggested exempt brief it therefore under these were single in harbor. relating to (g) of the uncontradicted suggestion flatly flies the face Barrett that Cairo was testimony given by Captain the designated in was situs these instances because leasing the chartering equip- the or fleet, appellant was not ment therefore interested per basis, on a diem was cargo or where the vessel the or character of the contents not confined to the that these were went, and designated because it was point harbor but that was Cairo the began equipment the movement place where The effect of this delivered when it ended. evidence in the nullified, suggested brief, to be not as seems the chartered also testified that vessels because the witness crews, the were appellant’s with masters handed were run cargoes carried, trip and the disclosing sheets manifests Any went. other than reveal where vessels would rigid regard would those facts as sup- construction most impairing, engaging than claim rather porting, chartering operations without limitation general particular points loading or exempt commodities unloading. jin drawn the brief restrictive inferences are
Similar “probable exemptions” nearly all the other in- support chartering, “too including stances of six remote” though within period considered. Of these, some 20, relating 19 or chartering to other carriers regulation, justified. But eliminated, seem them 23 instances of not shippers who were carriers remain to support the claim. are unable accept We they meager jus- view that constituted so a showing as to tify ground withholding chartering.
In the Moran case the Commission said: “We it unnecessary think in this case to determine performed whether the services were were actually subject to the act. The cargo nature the vessels usually determining towed is factor as to whether or applicant’s not the service is but exempt, towage service is performed regard without to the nature of cargo *12 in loaded the vessels towed it.” 269, 260 I. C. C. 272. Bros, In the Russell case the Commission stated, with reference to the definition a common carrier water in “grandfather” Part III and the requirement of fide bona critical operation date: “It will be noted that in neither instance any is there transportation reference to whether the performed by the subject regulation. carrier or not is is determining scope a status carrier’s of its during the ‘grandfather’ period, operation entire should be consid ered, merely and not that which Congress has seen regulation. fit to make To find ‘grand that rights may granted only father’ be to the extent that a showing performance made as to the of regulated is trans reading requires the into portation the law of language which, fact, is not there.” 250 I. C. C. 433-434.9 9 opinion particularly “This important continued: matter is present applicant seeking instances like the where an is a certificate covering commodities, general cargo. all Obviously no carrier actually transports commodities, all therefore bona fides of applicant’s operations depend an representative on the character of
193 Notwithstanding the Commission’s insistence that these distinguishable, resting upon different cases are show- accept if, difficult to that view ings, as the Moran opinion indicates, the crucial fact be perform- shown is regard “without the nature of cargo ance service loaded the vessels towed it.” The conclusion is even Bros, if, opinion more difficult as the Russell states, “To ‘grandfather’ rights may granted find only that to the performance that made extent requires the regulated transportation reading into the law not language which, fact, is there.” applies equally to the statement comparable This relating to statutory provisions contract carriers. Cf. Co., Application, Carrier C. F. Harms Contract 250 I. C. C. (f) I. C. C. 171. does not in Section terms 685; require carrier, “grandfather” that to be entitled to engaged must have rights, transportation which nonexempt. may commodities are be conceded that limitation properly may such a be implied from the requirement parity of substantial between operations on the critical date and those which a permit is sought, as to other than the forms furnishing of (e). vessels as defined Cf. Alton R. Co. v. United States, 15, 22; States, 315 U. S. Noble United v. 319 U. S. 92. itBut does follow the same limitation “the applies furnishing for compensation (under a charter, lease, or other agreement) of a vessel” under *13 transportation performed. may the well be that the carrier holds to, actually does, transport itself out and all traffic it offered to from points by application great and to all covered but that the bulk of transportation exempt regulation. is from It seems clear that eyes applicant’s except if we shut our to all of subject get incomplete regulation, which is we an and distorted to picture operations. place of the and extent of its To limitations nature upon 'grandfather’ unjust rights predicated upon that view would be contemplated by 250 I. C. C. unreasonable, and the law.” and is 429, 434. to furnishing, shippers the act of It defines that section. in carriers, “engaging transpor- regulated as than other carrier meaning of “contract water” the within tation” purpose If the in the section. that term is used as identically with operation others of water treat this form utility the definition, purpose general covered furnishing become concerning special provision of the wholly in does not fact become provision obscure ineffective. leasing equipment chartering or vessels
The actively identical with obviously similiar not so that, specific pro- without “engaging transportation” necessarily would included coverage, vision general provisions. the more definitions and that of within operation, physically modes of Quite different well as management, responsibilities, con- business give activity materially ceivably generally, if not also goods from the carrying different characteristics Congress obviously sought to sense. more conventional regulatory within the scheme bring these special provisions. think do not it had mind the purpose we doing so carry- line between furnishers of vessels sharp draw a exempt commodities and those only carrying non- ing true, notwithstanding That exempt ones. fact that chartering affecting only engaging former is one than one engaging more to secure required no transporting exempt forms commodities. other original that the legislative history shows counter- “furnishing” §of provision (e) extended another furnishing person” a vessel “to rather than a subject other carrier Act” “to a person than vigorous met with opposition, it now This stands. supplying another ground equipment that an owner Act, possibly thus become carrier would charges for the responsibility him imposing upon
195 operation, lessee, person performing per- or other for those over which of forming operations, it and course the owner would not have control. was feared this might destroy large amount of in- activity, waterway cluding business, both intercoastal and inland high degree flexibility. conducted then with a Cf. 84 Cong. id., Emphasis placed Rec. 9709; 9979. upon railroads, acting
discussion the freedom of under I, carriers, II, Part and of motor under Part to surplus lease equipment becoming without responsible regulated upon carriers its the common use; practice barge lines and other water carriers to equipment lease long and for time freely periods open short markets. Ibid. objections
To meet the an amendment was offered original the House to make the read: proposal “. . . a person which . . . . . shall itself furnishes a vessel . engaged. be considered . . Cong. .” Rec. 9979. finally Had adopted, chartering would been have wholly exempt. The final form of bill struck out the word “not” and the present provision. substituted Report states, in addition purpose Conference limit application cases where the vessel is furnished regulated other than a person carrier, to a the intention language “to make clarify sure that the person not, will furnishing simply by the vessel reason of furnish- vessel, become a carrier subject contract ing part III act as to that business not related to and use the vessel10 furnishing (Emphasis added.) obviously contemplate
This seems that chartering, furnishing equipment, regarded or the defined is to be category separate treated from other forms of engaging regulated activity and that one furnish- ; Cong., Sess., 3d 76th 77. H. R. No. *15 “contract car- would become a
ing by the vessel that act business, the to subject part III” as that rier This to another carrier. the were furnished unless vessel 302 (e) the that supported by further fact conclusion is of the property the character in terms takes account of the language in “to be used person the transported be so in furnished the to whom such vessel is property.” its own of the distinction limitation no account This takes nonexempt commodities. Had exempt between rigidly to require line to Congress intended that be drawn in nonexempt goods, carriage for chartering we grandfather rights, purpose, that order to establish concern expressed. have Its think, clearly would not with that line. obvious provision in this was regulation traffic, by full of the to secure purpose was lessee, if he provisions application of Act’s carrier, exempting be thus lessor regulated should to the lessor. situation; in that otherwise coverage, incidence of providing the alternative in recognized chartering, the character of Congress that, exempt commodity, being exempt, or not was more than or charterer. of the “lessee” lessor the concern furnishing of the concern was with vessel The latter’s regulated with whether “lessee” was as such regard imposing Act as the further To limita- carrier. regard lessor must have tion that also char- cargo activity, would cast that intended acter legislative shows, flexible, history as the into a kept rigid mold than other regulatory more forms trans- III I either Part Parts and II. covered portation in Accordingly we think the Commission conclud- erred engaged not opera- that ing Part III date, critical failure tions rendered, “the nature of the the commodities services show in, points or the served with such vessels.” This carried conclusion, be in moreover, seems to accord with its own harmony the Harms the prin- decision case and with Towing ciples followed the Moran case and that of Russell Bros.11 urges that
The Commission however we are con- cerned simply decisions, with inconsistencies since judgment evidence cases its informed varies and to confided the primary duty to make appropriate applica- tions of respect judgment the Act. We that obli- gation. goes But the matter involved beyond now mere apparent inconsistency the statute’s Seem- application. *16 ingly there has been a basic of opinion difference within the Commission itself the concerning necessity for proof show- of ing the character the commodity, as exempt non- exempt, grandfather rights to establish to chartering also operations and as to the character of proof re- from fact quired. appears This that two of the three in who participated Commissioners the decision by Divi- in dissented from sion IV this case the full Commission’s one decision the Harms case and of them in the Moran case. respect
With full for the think dissenting judgment, we eventually by view reached the majority in those deci- sions with the statutory purpose accords and provision.12 emphasize The dissenting Commissioners requirement 11 W-764, See, however, Upper Mississippi Towing Corp., Common Applications, 260 I. Carrier C. C. 292. 12 by protesting suggested, intervenors, It is has remedy by to exhaust its neglecting failed administrative apply second time reconsideration Commission after the final decision, 8, although note Harms cf. it was rendered after the com this plaint suggestion, was filed in case. The generally, followed conceivably keeping applicants running could result and back forth commission, if interminably, between court and not then to an extent certainly contemplated by Appellant not the exhaustion doctrine. requirements application fulfilled the of that doctrine for recon petition. sideration made entire and its to the Commission denial of the 198 (g) that a of the specify shall the business § regard scope thereof; carrier and the
contract qualifying “furnishing” provision (e) so as substantially specific the same as to char- require operations scope and territorial acter commodities other required has deemed forms they say, the transportation. this, Without substantial prior bona opera- between future fide parity grandfather provisions contemplated by cannot tions maintained. be maintaining, that parity by adequate policy although sound, “the Act is remedial proof
standards liberally.” McDonald v. Thompson, be construed and to Express Crescent Lines v. 266; S. United 305 U. policy, however, 409. The States, may U. S. application particular an cases, too strict defeated in relation to water it would seem especially carriers more carriage any in contract at operations, rate, are whose irregular spasmodic than generally more case said, The Court has even carriers1. relation of other may “The Commission atomize latter: his so by product, as to service, product restrict prior there is where substantial operations, of his evi scope *17 out that he in holding to his in addition ‘bona dence of large carrier’ as a 'common operation’ group of fide or of a whole class of property. or classes commodities of evidence an might be substantial under There any as one article the evidence taking though was not Carolina Corp., United States v. Carriers substantial.” 483, 484. U. S. appropriate application has language particularly This case, any at rate relation made in this proof may far as proof be chartering operations, so re- requirements (g). of 309 compliance quired upon the extent to which those bears also this, it Beyond To (e). § 302 qualifying taken are be as requirements t-H doing require consider them as manner to so in a chartering specific carrier to of prove nonexempt instances commodity carriage atomize, if not molecularize, would threaten, accomplish, and business the destruction anticipated congressional debates. That result, tending it, or as strongly one toward would such a hardly can be taken to be consistent construction, with the “to transportation policy pro- declared national impartial regulation vide fair and all of of modes transportation subject of provisions Act, this so recognize preserve administered the inherent as advantages of each” or the further declaration that policy applied enforcing is to be provi- all of the Act’s Spasmodic sions.13 be operation hardly regarded would advantage rail as an inherent or of motor perhaps serv- in general. may be, ice It is, or inherent most valuable advantage of a water contract carrier. judgment follows that the must reversed as to the
chartering phase operations. of appellant’s been said, particularly view what has with refer- spasmodic ence to the varied of appellant’s character operations, policy maintaining these an in- herent advantage water transportation, judgment our might differ from the sufficiency Commission’s as to the made related other than chartering and, in of that view showing, as to the necessity propriety limiting period of operations consid- ered, relation to the claim of grandfather rights, to that following January 1936.
Nevertheless, our views these are respects not to be substituted for the Commission’s which not only spe- cially informed broadly but discretionary and controlling except in case departure of clear from statutory require- ments. Apart from the chartering, we are unable to say *18 13 Oppenheim, Cf. Transportation Policy The National and Inter- Competitive (1945) Carrier 27 Rates ff.
200 policy case. this departure such a there was more a somewhat recognized that has the Commission carriers of water in the case required liberal attitude is to- length period of the in the respect to others than with fide opera- of bona establishing the claim be considered relating the evidence Moreover, stated, has been tion.14 was rather prior 1936 period latter earlier and later affecting than that both vague more say cannot that In facts we view of these periods. that findings appel- in its conclusion erred Commission showing permit to a made, on the entitled, lant not involving than those grandfather operations other for chartering. necessary that, add only of the case it is phase statement in the specific view contained Con Report
ference not quoted above,15 appellant entitled rights grandfather transportation to found other than chartering upon showing only of chartering operations. think
We too that it the prov- would be an invasion of of the Commission ince for us interfere action that finding appellant upon made was at the time of the entitled not, application, to a It operation. new is true its confinement, since 1940, operations substantially, exclusively, about petroleum has products been induced, proof, by the war according emergency, and that will probability this business all terminate with the is likewise emergency’s end. true that appellant’s readily can converted equipment other uses when Towing Transp. Co., Applications, Compare Moran & 260 I. C.C. Line, Thames River Common Carrier 269, 273; Application, 260 245; pp. 117, volume 106, cases in the latter at C. C. other I. with, States, 599, g., Jack Co. United 179, 353, 370 e. Cole v. Supp. 822; per curiam, affirmed 59 F. 324 U. S. 41 M. C. C. States, Gregg Cartage 74. United U. S. Co. v. note Cf. at 10. text *19 and, occurs unless authority is obtained to conduct operations upon a scale sufficient to enable employ it profitably, may business be forced to close required operate Nevertheless, in view uneconomical^. of the failure to make specific showing of immediate some prospect of entering upon new and nonexempt operations, and of the range weight of the discretion Commission’s in relation to applications, we are not liberty at interfere with its action. suggested,
The Commission has in brief, that upon application, another accompanied by a sufficient of intended “new operations,” the permit may desired be granted. doubt, No event, application such an will light considered injunction Act’s of “fair impartial regulation ... so administered as to rec- ognize preserve the inherent advantages” type in which the Barrett Line has been en- gaged through generations four of river life. judgment
The affirmed as to other than chartering; them, as to it is reversed, and the cause is this remanded further proceedings conformity with opinion.
The Justice, Chief Me. Justice Roberts, Me. Justice Frankfurter, and Mr. Justice Jackson, dissenting. Court, rejecting the refusal of the Interstate
Commerce Commission grant as a contract carrier water charter purposes, greatly influenced alleged by an conflict the Commission’s determinations. Co., F. Compare C. Harms Contract Carrier Application, 260 I. C. Russell 171; Co., C. Bros. Towing Common Car Application, rier 250 I. C. C. 429; Moran Towing & Co., Transportation Applications, 260 I. C. C. with Upper Mississippi Towing Corp., Common Carrier Ap plications, 260 I. C. C. 292. Assuming such a conflict, it is our business to deal with the case now here and not in admin- inconsistencies apparent
to be concerned kept If Commission has istrative determinations. case, order this within the bounds the statute the interpretation think that should be sustained. We Cer- proper. §of made the Commission was (e) consid- tainly, provision the construction of involves *20 subject matter up erations bound technical so that, though per- the neutral language even statute mits, English, matter the construction which as a makes, experience Court now Commission Powell, should prevail. Compare Gray S. 402. v. U.