No. MC-92983 (SUB-No. 289) ELDON MILLER, INC., EXTENSION-ALCOHOLIC BEVERAGES Decided June 19, 1959 Upon reconsideration, findings in prior report, decided December 12, 1958, modified. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of specified commodities, in bulk, in tank vehicles, from Lawrenceburg, Ind., and points in Kentucky to points in five States. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. Carl L. Steiner for applicant. Charles W. Dobbins, A. E. Zadnichek, George H. Wolff, Stuart E. Alexander, and Robert O. Smith, Jr., for protestants. REPORT OF THE COMMISSION ON RECONSIDERATION DIVISION 1, COMMISSIONERS MURPHY, GOFF, AND WEBB BY DIVISION 1: In the prior report herein, decided December 12, 1958, division 1 found that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce as a common carrier by motor vehicle, over irregular routes, of alcoholic beverages and spirits to be used in alcoholic beverages, in bulk, in tank vehicles, from Lawrenceburg, Ind., and points in Kentucky, to points in Connecticut, Maryland, New Jersey, New York, and Pennsylvania, except whisky, in bulk, in tank vehicles, from Owensboro, Ky., to Peekskill, N.Y. Thereafter, on March 30, 1959, upon consideration of the record and the separate petitions filed by protestants New York Central Railroad Company and the Baltimore and Ohio Railroad Company, and of reply by applicant, we reopened the proceeding for reconsideration on the present record, solely with respect to whether the authority granted should be restricted against the transportation of alcohol, in bulk, in tank vehicle, from Lawrenceburg, Ind., to points in Connecticut, Maryland, New Jersey, New York, and Pennsylvania. In their separate petitions the rail protestants contend that they appeared at the scheduled hearing and withdrew their opposition to the application only when applicant moved, and the examiner granted, the amendment of the application by eliminating the request there from for authority to transport alcohol and liquid chemicals from Lawrenceburg to all of the proposed destination States; and that the grant of authority in the prior report would not restrict applicant from transporting alcohol to be used for alcoholic beverages from Lawrenceburg to points in the destination States and thereby might serve to divert traffic from the rail protestants which the aforementioned amendment was to protect. Applicant in reply says that it is willing to abide by the amendment made at the hearing. The facts of record are adequately set forth in the prior report. The prior report found that the proposed restriction requested by the applicant at the hearing would not be feasible from a regulatory standpoint, as it might produce an ambiguity and some confusion particularly by the exception of liquid chemicals and to a lesser degree as to alcohol. As a result thereof applicant was granted authority to transport, from Lawrenceburg, alcoholic beverages and spirits to be used in alcoholic beverages only. In so doing we intended the grant to conform to the evidence adduced, and to accomplish the result desired by the amendment by making it clear that no authority was being granted to haul alcohols intended for industrial purposes. However, in view of rail protestants' contention that the amendment was to apply to all alcohol transported from Lawrenceburg, and applicant's willingness for the requested authority to be so restricted, we believe that the authority granted applicant in this proceeding should be limited accordingly. In our opinion, the restriction set forth in our findings herein will satisfy protestants and will be agreeable to applicant. On reconsideration, we find that the present and future public convenience and neccessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, (1) of alcoholic beverages and spirits (except alcohol), in bulk, in tank vehicles, from Lawrenceburg, Ind., to points in Connecticut, Maryland, New Jersey, New York, and Pennsylvania, and (2) alcoholic beverages and spirits, in bulk, in tank vehicles, from points in Kentucky to points in the destination States in (1) above, except whisky, in bulk, in tank vehicles, from Owensboro, Ky., to Peekskill, N.Y.; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; that a certificate authorizing such operations should be granted; and that the application in all other respects should be denied. Upon compliance by applicant with the requirements of sections 215, 217, and 221 (c) of the Interstate Commerce Act, and with our rules and regulations thereunder, an appropriate certificate will be issued. An appropriate order will be entered. 81 M.C.C. No. MC-117538 SCHWERMAN TRUCKING CO. OF N. Y., INC., Decided June 24, 1959 Operation by applicant as a contract carrier by motor vehicle, over irregular routes, of cement, from plant sites of two named shippers, at or near Hudson, N.Y., to points in a number of States found consistent with the public interest and the national transportation policy. Issuance of a permit approved upon compliance by applicant with certain conditions and upon approval of application for common control and management in No. MC-F-6963, and application in all other respects denied. Adolph E. Solie and James R. Ziperski for applicant. Robert R. Wertz and Edward M. Boyne for intervener in support of the application. James G. Lane, Robert G. Bleakeny, Jr., Alfred A. Green, and Harold E. Levine for protestants. REPORT OF THE COMMISSION DIVISION 1, COMMISSIONERS MURPHY, GOFF, AND WEBB BY DIVISION 1: Exceptions were filed by rail protestants to the order recommended by the examiner, and applicant and the supporting intervener replied. Our conclusions differ slightly from those recommended. By application filed July 21, 1958, Schwerman Trucking Co., of N.Y., Inc., of Milwaukee, Wis., seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle, of cement, from the plant sites of the Universal Atlas Cement Division, United States Steel Corporation and the Lone Star Cement Company, both located in or near Hudson, N.Y., to points in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont, over irregular routes. The New York Central Railroad Company system, the Boston and Maine Railroad, the Central Vermont Railway, Inc., the Rutland Railway Corporation, The Pennsylvania Railroad Company, The New York, New Haven and Hartford Railroad Company, the Claremont and Concord Railway Company, Inc., the Sanford and Eastern Railroad Corporation and the Montpelier and Barre Railroad Company oppose the application; and the Universal Atlas Cement Division, United States Steel Corporation, hereinafter called Universal, intervened in support thereof. The examiner recommended that the application be granted subject to the condition that the application for approval of common control in No. MC-F-6963, Schwerman Trucking Co.-ControlSchwerman Trucking Co., of N. Y., Inc., be approved before issuance of a permit herein. On exceptions rail protestants collectively contend (1) that the record contains only vague, speculative evidence of a need for the proposed service; (2) that a grant of authority would not be consistent with the public interest and the national transportation policy because it would result in a serious diversion of protestants' traffic; and (3) that the evidence totally fails to support a grant of authority to serve points in Pennsylvania, New Jersey, and Maine. In reply applicant says that the evidence establishes shippers' need for the advantages inherent in motorcarrier service; that even though a grant of authority would result in a diversion of traffic from rail carriers; the shippers are entitled to those advantages, and that a need does exist for motorcarrier service to points in Pennsylvania, New Jersey, and Maine. Universal, in its reply, contends that a need for the inherent advantages of motor-carrier service has been shown; and that a denial of the application would place it in a disadvantageous competitive position. The evidence adduced, the examiner's recommendation, the exceptions, and the replies have been considered. We find the examiner's statement of facts to be complete and accurate in all material respects; and, as supplemented herein, we adopt that statement as our own. Since no exception has been taken to the examiner's recommendation that a grant herein be subject to the condition that the application for common control and management in No. MC-F-6963, Schwerman Trucking Co.-Control-Schwerman Trucking Co. of N. Y., Inc., shall first be approved, and since this condition accords with established Commission policy in similar cases, it will not be further considered. Applicant is a wholly owned subsidiary of Schwerman Trucking Co., a Wisconsin corporation. It holds no interstate authority, but conducts intrastate operations in the State of New York. Other carriers whose stock is owned by the Wisconsin corporation serve both supporting shippers, as contract carriers, at other plants located in States outside the involved territory. Applicant owns 16 tractors, 8 flat-bed trailers, and 12 bulk cement trailers. If the authority sought is granted, it estimates that 55 tractors, 40 bulk cement trailers, and 15 flat-bed trailers will be required to serve the needs of the two shippers, and it intends to purchase such equipment. Applicant will station equipment and establish terminals at each of the shippers' plants. Universal manufactures 19 different kinds of cement at its Greenport, N.Y., plant, which is near Hudson. Several types of cement must meet rigid State requirements, and from the time of manufacture to the time of use they are sealed in bins and in the vehicle used to transport them in order to protect them from becoming mixed with any other cement or any impurity. Universal has nine other cement plants located east of the Rocky Mountains, two of which are in Pennsylvania. Its Hudson plant produces 4.2 million barrels of cement a year, of which 50 percent is shipped to points in New York, 48 percent to New England points, and 1 percent each to New Jersey and Pennsylvania. Of those shipments moving to points in New England, approximately 50 percent is destined to Massachusetts, 20 percent to Connecticut, 6 percent to New Hampshire, 6 percent to Vermont, and 1 percent to Maine. Although the States of Pennsylvania and New Jersey are normally served by the Pennsylvania plants, it requires service to those States in order to supply a type of cement not produced by those plants. It considers service to points in Maine, Pennsylvania, and New Jersey necessary in order to maintain and enlarge its markets. Its entire production now moves by rail, and this service has been found to be generally adequate. However, it is now experiencing for the first time in many years a decrease in business, and it seeks to increase sales by offering customers a choice of rail or motor service. It believes some cement users will prefer motor service because it can provide direct delivery from the shipper's plant to off-rail locations and jobsites not adjacent to rail sidings, thus eliminating costs attendant on further transportation from the railhead. In addition, it believes, that motor-carrier service will provide faster delivery in response to emergency requests and allow greater flexibility in diverting shipments from one destination to another when a customer is unable to accept delivery. Universal has also felt the effect of competition from imported cement which is being unloaded at ports in Massachusetts, Connecticut, and Rhode Island and delivered to customers by motor carrier. It represents that 30 percent of its production will move by motor carrier in the event this application is granted. It requires readily available equipment and also desires the equipment to be devoted to its exclusive use to avoid possible contamination from other commodities or even other cements, which might otherwise be transported in the same vehicle. Lone Star Cement Corporation also has a plant at Greenport, and produces 3 million barrels of different grades of cement a year, |
