interest since the existing service is at present adequate, and further that the existing carriers, under the national transportation policy, should be permitted to transport all the traffic they can handle adequately, efficiently, and economically before any additional service is authorized. These parties also assert that granting of the application would not particularly benefit the applicant, since under its present contract it must render service exclusively for Du Pont.

As noted, the two packaged chemicals move in substantial volume, and applicant desires the authority sought in order to provide Du Pont direct service in the transportation thereof along with liquid cargo. Applicant argues that shippers are entitled to water service as well as other media of transportation for the movement of their property; that existing water carriers do not now offer direct service between Orange and Cartaret-Bayway; and that no water carrier is at present equipped to provide service such as desired by Du Pont. While, as indicated, protestant water lines do not call at the specific ports here involved, Marine Transport Lines, Inc., holds authority to serve those ports and is able and willing to provide service adequate to meet the shipper's need for the transportation of both liquid cargo and packaged chemicals in the same vessel, or to provide service for the movement of the packaged chemicals without liquid cargo. As to common-carrier service for the transportation of the packaged chemicals, which is the only traffic that would be diverted to applicant's service, the record clearly indicates that existing carriers can provide transport facilities adequate to meet present and anticipated needs of the shipper.

We find that operation by applicant as a contract carrier in the transportation of chemicals, in bulk and in packages, from ports along the Gulf of Mexico coast to ports along the Atlantic coast is not consistent with the public interest and the national transportation policy, and that the application should be denied.

An appropriate order will be entered.

285 I. C. C.

No. W-103

JOSEPH R. HUTTON CONTRACT CARRIER APPLICATION

Submitted July 12, 1951. Decided October 18, 1951

Petitioner, The Callanan Road Improvement Company, found to be engaged in the performance of towage service without appropriate authority, and rates, charges, and allowances made by it to shippers for the use of their own scows in the performance of towage found to be unlawful and required to be canceled. Proceeding discontinued.

James E. Wilson for petitioner.

R. Granville Curry, Frederick M. Dolan, Paul L. Clugston, Reginald G. Narelle, Howard B. Harte, and Gerald M. McAllister for protestant and interveners.

Clemens F. Rauth for Interstate Commerce Commission.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS MAHAFFIE, ROGERS, AND MITCHELL

BY DIVISION 4:

Exceptions to the examiner's proposed report were filed by the petitioner, to which the protestant replied. Exceptions and requested findings not discussed in this report nor reflected in our findings or conclusions have been given consideration and found not justified.

This is a proceeding, pursuant to a petition of The Callanan Road Improvement Company, South Bethlehem, N. Y. (successor in interest to Joseph R. Hutton) called the petitioner, to determine whether certain of the petitioner's operations constitute freighting, a service which it is authorized to perform, or towing, a service which it is not specifically authorized to perform.

The Cornell Steamboat Company, Moran Towing & Transportation Company, Inc., McAllister Lighterage Line, Inc., and Card Towing Line, Inc., carriers that are authorized to perform towage on the Hudson River, and the Northeastern Inland Waterways Association, Inc., and the Canal Lakes Towing Company, Inc., intervened at the hearing in support of the complaint. The evidence in opposition to the petitioner was offered by the Cornell Steamboat Company, which will be referred to as the protestant.

In its exceptions to the examiner's report, the petitioner presents the following questions as determinative of the issue before us: (1) May a water carrier whose certificate specifies the service to be rendered by the use of non-self-propelled vessels with the use of separate towing

vessels publish allowances for the use of its shippers' equipment even though the carrier does not specifically hold towing rights? (2) May the Commission by interpretation establish a principle which has the effect of modifying, restricting, or partially revoking a water carrier's certificate? (3) Is a water-carrier certificate which specifies the service to be rendered by describing the type of equipment to be used a valid exercise of the Commission's authority under part III of the act? It is the position of the petitioner that we are without authority to specify the service to be rendered in a water-carrier certificate, and that any effort on our part to do so exceeds our authority. The disposition of these general questions will be confined to the facts before us in this proceeding.

A brief summary of the character of the service which Joseph R. Hutton was authorized to operate under his certificate, and the circumstances and conditions under which the transfer of such authority was made to the petitioner, appears necessary to a proper determination of the issue.

On December 31, 1940, Joseph R. Hutton filed his application for exemption from regulation under the terms of section 303 (e) of the act. Upon failure to establish such exemption, the application was denied on May 17, 1941. Upon his application for appropriate operating authority, it was found, after hearing, that applicant's operations were those of a common carrier by water in the transportation of commodities generally between points in New York Harbor, points on the Hudson River below its junction with the New York State Barge Canal, the New York State Barge Canal between the Hudson River and the Niagara River, including the Oswego branch, and the Niagara River. In accordance with the "grandfather" provisions of section 309 (a), the applicant on July 17, 1942, was issued a certificate of public convenience and necessity authorizing continuance of his operations described of record as of January 1, 1940, subject, however, to such terms, conditions, and limitations as were attached to the exercise of the authority granted. Hutton Contract Carrier Application, 250 I. C. C. 804.

The applicant owned and managed one steam-power boat of about 240 horsepower, and four barges, all of which were operated as a unit. The power boat was used in towing the barges and constructed so as to carry also about 150 gross tons of freight. On occasions, other barges were rented or chartered for operation in the applicant's fleet. During the seasons of 1939 and 1940, waste paper, phosphate rock, wheat, corn, barley, flaxseed, sand, steel, billets, pig iron, scrap iron, fertilizer, and superphosphate were transported between points in New York Harbor, on the Hudson River below its junction with the New York State Barge Canal, and on the New York State Barge

Canal between Niagara River and the Hudson River, including the Oswego branch, and the Niagara River. As the applicant had been in bona fide operation as a common carrier on January 1, 1940, we were authorized to issue the certificate without requiring further proof that public convenience and necessity would be served thereby. Through inadvertence, the certificate and order did not define the conditions and limitations, including the nature of the services which would attach to and govern the carrier's operations. Section 304 (c), among other things, authorizes us to establish from time to time such just and reasonable classifications of groups of carriers included in the term "common carrier by water" as the special nature of the services performed by such carriers shall require, together with such just and reasonable rules, regulations, and requirements consistent with the provisions of part III, which must be observed by the carriers so classified or grouped, as after hearing we find to be necessary or desirable in the public interest. Our practice in this respect is described in Norfolk, Baltimore and Carolina Line, Inc., Ext.-James R., 265 I. C. C. 247, 253-4, affirmed, as to this matter, by the entire Commission, 265 I. C. C. 313, 314.

Subsequently, on reconsideration, the proceeding was reopened and division 4 modified the findings in the initial determination by specifying the types of vessels to be used, and issued an amended certificate and order effective May 29, 1944, which authorized Joseph R. Hutton to operate as a common carrier by self-propelled vessels and by nonself-propelled vessels with the use of separate towing vessels, between the same points as described in the certificate issued on July 17, 1942, which was superseded and canceled. Hutton Contract Carrier Application, 260 I. C. C. 804.

Joseph R. Hutton died in January 1945, and his widow was appointed administratrix of his estate with authority to dispose of the estate's operating rights. Hutton sold his powerboat in 1941, but continued operation with chartered tugs. In Finance Docket No. 15669, Hutton Certificate Transfer (not printed in full), 265 I. C. C. 813, decided August 18, 1947, division 4 authorized the transfer of the estate's operating rights from the transferor, the widow, to the transferee, the petitioner herein, through the cancellation of the rights previously granted to the transferor and the issuance of an amended certificate and order to the transferee upon the consummation of the sale of the transferor's operating rights to the transferee. All of the former operating rights held by Hutton were not transferred to the petitioner. The division authorized the transfer only of that part of the certificate covering operations on the Hudson River between Waterford, N. Y., and New York, N. Y., subject to all of the conditions and limitations which attached to the Hutton rights.

285 I. C. C.

In that proceeding the Northeastern Inland Waterways Association, intervener, contended that we erred in amending the certificate issued initially to Hutton by including self-propelled vessels in the types of equipment specified and that authority to use self-propelled vessels by Hutton should be eliminated from the certificate to be issued to the petitioner under the sale agreement. Counsel for the petitioner-applicant contended that the certificate could not be attacked collaterally in that proceeding, and further, that when a certificate is finally granted, and the time for rehearing has expired, the certificate is not subject to revocation in whole or in part, citing United States v. Seatrain Lines, Inc., 329 U. S. 424. The facts in the Seatrain case differ from those in the Hutton transfer proceeding, Finance Docket No. 15669. There was no consent of the parties in the Seatrain case. In the transfer proceeding the division stated its position in respect of the contentions there made in the following language, which we think is also pertinent here:

We think that any certificate may be revoked, canceled, or modified with the holder's consent. The present holder's interest in the amended certificate is to sell the operating rights thereby evidenced. Limitation of the certificate to authorize only the operation on the Hudson River will not defeat that transaction; and if the transfer is approved, the transferee will become the potential holder. The transferee does not object to limitation of the certificate to the river operation, and has no present intention of reselling the operating rights it has contracted to purchase. Since the transferee has no definite purpose to operate on the canals and Niagara River, we shall not authorize it to do so. Accordingly, the authority contained in the superseding certificate to be issued herein will be limited to the river operation.

On September 11, 1947, the transaction authorized in Finance Docket No. 15669 was consummated, and the bill of sale, properly notarized, was filed with us on September 19, 1947. On February 5, 1948, the transferor having assented to the partial cancellation of the amended certificate of March 7, 1944, and the transfer of her remaining operating rights to the transferee (petitioner herein), a second amended certificate and order were issued to The Callanan Road Improvement Company, under which the petitioner is authorized to operate as a common carrier by water, by self-propelled vessels and by non-self-propelled vessels with the use of separate towing vessels, in interstate or foreign commerce, in the transportation of commodities generally between points in the area defined by the order of division 4, entered on March 26, 1941, in Ex Parte No. 140, Determination of the Limits of New York Harbor and Harbors Contiguous Thereto, and points along the Hudson River below and including Waterford.

The petitioner owns two towboats, one of 700 horsepower and the other of 150 horsepower. It charters a towboat of 805 horsepower and engages other towboats under so-called short charters as the exigen