consigned for export, from points in Colorado, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New York, North Dakota, South Dakota, Wisconsin, and Wyoming, to New Orleans, La. A hearing has been held. Acme Fast Freight, Inc., Universal Carloading and Distributing Co., Inc., and Pan Atlantic Carloading Dispatch Service, Inc., which are competitive freight forwarders, and Gordons Transports, Inc., a competitive motor carrier, oppose a grant of the application.

Applicant is a relatively small freight forwarder and maintains offices or station facilities only at New York, N. Y., Chicago, Minneapolis, Minn., Kansas City, Mo., and Denver, Colo. It specializes in the handling of traffic for export through the port of New York, but domestic traffic also is handled between points in the territory authorized. During the first 6 months of 1954, applicant handled to New York about 9,000,000 pounds of export traffic and about 1,636,000 pounds of domestic traffic.

Being a small forwarder, applicant claims that it gives a more specialized service than that of the larger forwarders in that it makes emergency pickups and deliveries, loads at night with its own crews, holds cars for late shipments and on Saturdays, and phones the shippers when shipments are en route for instructions as to delivery.

Among other things applicant seeks the instant extension of authority to New Orleans to protect its present export business. Strikes and threatened strikes at the port of New York have often caused shippers using applicant's service to New York to divert their traffic to other ports. Some of them having tried the port of New Orleans have continued using it principally on traffic to Central and South American countries. This is due, in part, to the fact that all shipments are accorded free shipside delivery at New Orleans whereas only shipments of 5,000 pounds and over are accorded free shipside delivery at New York.

Some 23 shippers of a substantial volume and variety of traffic from points in Illinois, Indiana, Wisconsin, Michigan, Minnesota, Iowa, and Colorado support a grant of the application. In general, these shippers have used applicant's service on export shipments to New York and have found it to be excellent; that due to strikes and other difficulties encountered at New York, they have diverted traffic to New Orleans, and thereafter have continued using that port particularly for traffic to South American countries. Their traffic to South American countries is increasing. Collectively they prefer applicant's service because it is very dependable, safe, and courteous; because applicant makes special efforts to give needed service on rush shipments by furnishing fast pickup or delivery, by keeping its receiving station

open after regular hours when requested, and by contacting the shipper for delivery instructions; and because applicant provides special service by holding and consolidating together different packages when requested, by picking up unusual shipments such as a large tank that weighed about 15,000 pounds, and by keeping the shippers informed as to the forwarding time at Chicago and the arrival time at New York. The shippers indicate that it would be advantageous to them if applicant could handle their export traffic through New Orleans as well as through New York.

On June 30, 1954, applicant's total assets amounted to $129,309.55, and its liabilities included accounts payable and accrued taxes of $44,638.68, leaving $84,670.87 for other reserves, deferred credits, capital stock, and surplus. Its net incomes in 1952 and 1953 were $17,238 and $9,816, respectively. The proposed service will require no new facilities except at New Orleans, and applicant has received assurances from two railroads that ample facilities are available there. Trained personnel will be transferred to New Orleans from other stations.

Protestants oppose a grant of the application on the ground that traffic will be diverted from their services to that of applicant. Their evidence consists primarily of a showing of existing services which indicates that freight-forwarding and motor-carrier services presently are offered to New Orleans from the territories under consideration.

Protestants Acme and Universal argue that any diversion of tonnage to applicant would result in a diminution of the volume of traffic offered to existing forwarders so as to impair the adequacy of their services to the general public. They insist that freight forwarders are now well established in transportation, that under the amendments of sections 402 and 409 of the act in December 1950 they are considered as common carriers, and as such, are entitled to protection against the inroads of wasteful and unnecessary duplication of services.

On this record the following conclusions appear warranted: Applicant has ample experience, finances, and personnel to carry on the proposed service. Shippers of a substantial volume and variety of traffic desire and will use the proposed service which is designed to meet their needs for a specialized export freight-forwarder service to the port of New Orleans in addition to that presently offered by applicant to the port of New York. The authority sought is needed by applicant to hold traffic to its service which is being diverted to the port of New Orleans, and to handle new and increased traffic being exported to

The phrase "as a common carrier" was inserted in the definition of the term "freight forwarder" as set forth in section 402 (a) and the amendment of section 409 deals with provisions relating to contracts between freight forwarders and motor common carriers with respect to compensation for the latter's services.

Central and South American countries through New Orleans. There is no showing that applicant's proposed service would result in any serious impairment of forwarder or motor-carrier services within the affected territory. That applicant would compete to some extent with the operations of existing freight is no grounds for denial of the application, as we are precluded under the provisions of section 410 (d) from denying authority to engage in the whole or any part of the proposed service solely on the ground that such service will be in competition with other freight-forwarder services.

We find that an extension of applicant's service as a freight forwarder of commodities generally, when consigned for export, from points in Colorado, Indiana, Illinois, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New York, North Dakota, South Dakota, Wisconsin, and Wyoming to New Orleans will be consistent with the public interest and the national transportation policy; that applicant is ready, able, and willing properly to perform such service; and that a third amended permit should be issued authorizing applicant to perform such service in addition to the service which it presently is authorized to perform.

An appropriate third amended permit and order will be issued.

ELLIOTT, Commissioner, dissenting in part:

I agree with the results reached in the report herein except to the extent that service would be authorized from points in New Jersey and New York to New Orleans.

285 I. C. C.

No. W-732 (SUB-No. 1)

NICHOLSON TRANSIT COMPANY EXEMPTION

APPLICATION

Submitted January 17, 1955. Decided May 16, 1955

Found that applicant, when engaged in the transportation of grain from United States ports on Lake Superior to lower Great Lakes ports in the same vessels with automobiles for a portion of the voyage, is not entitled to an exemption under section 303 (e) (2) of the Interstate Commerce Act. Application denied in part and dismissed in part.

Sparkman D. Foster for applicant.

F. C. McCarthy and Harry C. Ames, Jr., for interveners in opposition.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS JOHNSON, ELLIOTT, AND TUGGLE BY DIVISION 4:

The parties waived service of a proposed report, and briefs have been filed by interveners in opposition.

By application filed August 23, 1954, Nicholson Transit Company seeks an order under the provisions of section 303 (e) (2) of the Interstate Commerce Act exempting from the provisions of part III of the act its transportation of grain from origins on Lake Superior, principally Duluth, Minn., Superior, Wis., and Port Arthur and Fort William, Ontario, Canada, to Detroit, Mich., and destinations on Lake Erie, principally Buffalo, N. Y. T. J. McCarthy Steamship Company, Mississippi Valley Barge Line Company, and the American Barge Line Company intervened in opposition to the issuance of an order of exemption as sought by applicant.

Applicant is authorized to operate as a common carrier by selfpropelled 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 ports and points on Lake Superior, Lake Michigan, Lake Huron, Lake Erie, Lake Ontario, and the St. Lawrence River as far east as Ogdensburg, N. Y., and interconnecting waterways, not including the New York State Canal System. It operates 13 self-propelled vessels, 3 of which are specially constructed for and used in the transportation of automobiles. Such transportation is generally from Detroit to Cleveland, Ohio, and Buffalo. The other vessels are used in part, in the transportation of

285 I. C. C.

not more than 3 types of bulk grain in 1 vessel, from Duluth to Buffalo, sometimes stopping for partial unloading at Detroit. Under the provisions of section 303 (b) of the act, the transportation of bulk commodities is exempt from regulation by this Commission.

On occasion, the vessels carrying grain from Duluth, consigned to Buffalo, stop at Detroit for the loading of automobiles on the decks thereof, from which point the vessels proceed to Buffalo with cargoes of automobiles and grain. Proportional rates applicable on the movement of grain from Detroit to Buffalo are published in applicant's tariff I. C. C. No. 16. These rates are restricted in their application to grain transported in vessels which at the same time are also carrying nonbulk commodities, the transportation of which is subject to the requirements of part III. This practice of handling grain as an exempt commodity from Duluth to Detroit and as a regulated commodity when transported with automobiles from the latter point to Buffalo arises from applicant's interpretation of the provisions of section 303 (b) of the act that such provisions authorize exemption of the movement to Detroit but not after the movement becomes one of grain and automobiles. However, the exemption provided by section 303 (b) does not apply to any part of the movement when the vessel on the same voyage also is used for the transportation of a commodity not in bulk. The loading of automobiles at Detroit, and their transportation beyond to Buffalo, subjects the grain moved in the same vessel to the provisions of part III of the act for the entire movement from Duluth to Buffalo. Compare Water Carrier Service on Great Lakes, Nonowned Vessels, 285 I. C. C. 52, 59, where the Commission, division 4, stated

With respect to the rate on coal which is published and applied only for the portion of the journey from Detroit to Duluth, it is our opinion that a shipment of coal, in bulk, from a Lake Erie port to Duluth is subject to the regulatory provisions of part III for the entire journey if a commodity, not in bulk, is handled on the same vessel at the same time during any part of the journey.

The so-called proportional rates maintained for the transportation of grain from Detroit to Buffalo under the above circumstances are unlawful. It is further stated in the same proceeding that—

Section 305 requires the establishment of rates for transportation subject to the act. The transportation of coal performed by respondent is not from Detroit to Duluth, but is from a Lake Erie port to Duluth. Therefore, a rate maintained only for that portion of the trip from Detroit to Duluth is in effect no rate at all because the nonpublished factor may be changed at will and the public and this Commission have no knowledge of the rate to be charged and collected for such transportation. To comply with the statute, respondent should establish rates on coal that conform with its transportation agreements, or, conversely, agreements to carry coal should be made only in accordance with published rates.