cies of its business may dictate. In such cases the crews are furnished by the owners of the towboats, except that the petitioner selects the pilots who are paid by the owners of the tugs. All of the scows chartered and used by the petitioner are chartered with a captain.

The petitioner, among other things, produces crushed stone at Kingston, N. Y., and transports such commodity down the Hudson River in its vessels for sale and delivery in the New York Harbor area. In the same tows in which the crushed stone is transported, it operates as a carrier for hire in the movement of brick loaded on its deck scows or chartered scows, and on scows of the shippers for which it makes allowances in accordance with its tariff I. C. C. No. 2. The shippers' scows are furnished with a captain on board who is responsible to the shipper or owner of the scow and is paid by him.

No question is raised concerning the right of the petitioner to transport its own crushed stone, or to operate under its certificate as a common carrier in the transportation of brick with scows chartered or provided by it and not by the shipper. The protestant on May 11, 1949, complained to the Commission that the petitioner's tariff I. C. C. No. 2, which became effective on April 17, 1949, embodies rates which contemplate the service of mere towage, and that the performance of such service violates the petitioner's certificate authorizing the transportation of property by non-self-propelled vessels with the use of separate towing vessels (commonly referred to as freighting). On September 19, 1950, the Commission's Bureau of Water Carriers and Freight Forwarders informed the petitioner that, in view of the findings of division 2 in Dixie Carriers, Inc., Rates and Allowances, 278 I. C. C. 417, hereinafter called the Dixie case, it appeared that the service contemplated under allowances provided in its tariff would constitute towage, and that inasmuch as it was not authorized to engage in such service, the performance thereof would be unlawful. The petitioner replied on September 25, 1950, that it would be its purpose to conduct its operations in conformity with the determination in the Dixie case when the order therein became effective. On January 5, 1951, and after that order became effective on December 26, 1950, the petitioner filed the instant petition, requesting a statement of the Commission's position in a formal proceeding and a finding that the petitioner's present tariff provisions with respect to allowances are just and reasonable and that, under its certificate, it is legally authorized to publish and observe such provisions in its relations with shippers. It asked particularly for an opportunity to distinguish the facts to be presented from those in the Dixie case. Such an opportunity has been afforded the petitioner.

At the same time that the instant petition was filed, the petitioner also filed (1) a request for temporary authority under section 311 (a) of the act, No. W-103 (Sub-No. 2), to perform general towage between

points along the Hudson River; (2) an application under section 5 of the act, Finance Docket No. 17202, to purchase the Hudson River towage rights of L. B. Shaw, Inc.; and (3) an application under section 309 (c) of the act, No. W-103 (Sub-No. 1), for a certificate of public convenience and necessity authorizing operation as a common carrier in the performance of general towage on the Hudson River. By order of January 31, 1951, the request for temporary authority was denied in that the petitioner had failed to show that there was no other carrier service capable of meeting the need for towage service between the points covered thereby. The remaining applications are pending.

The petitioner's tariff I. C. C. No. 2. among other things, names commodity rates applicable on standard and oversize brick by tug and scow from Catskill Point, Coeymans, Glasco, Malden, and Roseton, N. Y., on the Hudson River, to a point in New York Harbor adjacent to the Statute of Liberty. These rates do not include insurance. The same rates also apply on the movement of brick in scows furnished by shippers, for which so-called allowances are made and the demurrage rules are inapplicable. When the petitioner is not required to return the shipper's scow light to point of origin, a "credit" or additional allowance is made. For example, the tariff provides a rate of $2.24 per 1,000 standard brick, minimum cargo 350,000, from Coeymans to the designated point in New York Harbor. For the use of the shipper's scow, the petitioner makes an allowance of 93 cents per 1,000 brick, which results in a net rate of $1.31 to the shipper and owner of the scow. In the event the petitioner does not return the empty scow to Coeymans, it makes a flat allowance or gives a credit to the shipper of $65. The credit varies with the distance the scow is towed light. While the petitioner's rates in connection with the movement of brick have been reduced twice, the allowances or credits have remained unchanged.

There is no evidence that the petitioner transported any brick under the rates as originally published on April 17, 1949, or as reduced on June 26, 1949. Following the further reduction in the rates on March 26, 1950, in each month during the 1950 season of navigation on the Hudson River, from April to December, the petitioner moved a number of scowloads of brick from up-river points to New York Harbor, aggregating 407 scowloads for 7 shippers. Except for 28 shipments handled in scows furnished by the petitioner, the scows used in the performance of this transportation were furnished by shippers of brick to whom it made allowances.

The protestant has been engaged in general towage on the Hudson River for many years. See Cornell Steamboat Co. Contract Carrier Application, 250 I. C. C. 577. Its certificate to operate as a common carrier by water is limited to that service only, while the petitioner's

certificate, as above indicated, is limited to the performance of freighting service by self-propelled vessels and by non-self-propelled vessels with the use of separate towing vessels. The transportation of property by a water common carrier by non-self-propelled vessels with the use of separate towing vessels, for the purpose of the voyage, is in effect service by one vessel or unit under the contract of affreightment. The service performed by towers falls within a classification distinguishable from that just mentioned. They propel vessels from place to place and, unless the transportation is exempt, are subject to our jurisdiction under part III. See Cornell Steamboat Co. v. United States, 321 U. S. 634. The authority to perform such towage is not included in the authority granted to water carriers to engage in transportation of commodities by non-self-propelled vessels with the use of separate towing vessels.

Prior to the 1950 season of navigation, the protestant provided towage for six of the brick shippers served by the petitioner in that year by the movement of their scows, loaded and light, on the Hudson River. The only other shipper served by the petitioner, Athens Brick Company, entered the business of manufacturing brick in September 1950, as successor in interest to the Mayone Brick Company for whom the protestant had also provided towage service. The protestant's rates, like those of the petitioner, are in cents per 1,000 brick, and include the return of light scows to points of origin. Also, the petitioner's net rates, after the allowances made by it for the shippers' scows, are the same as the towage rates of the protestant. Within the period of a year, the rates of the two carriers were reduced an average of 21.5 cents per 1,000 brick. For example, in April 1949 the protestant's rate and the rate of the petitioner, after an allowance for the shipper's scow, from Glasco to New York Harbor, were $1.11. By April 13, 1950, both carriers had reduced these rates to 90 cents. No bills of lading or shipping orders were or are issued by the petitioner in connection with the transportation of the shippers' scows loaded with brick. Nor are there any written agreements between the parties bearing on the use of such scows by the petitioner. Under the arrangements by which the scows are used the petitioner may not transport thereon the property of any shipper other than the one furnishing the vessel. More specifically, the petitioner may not load cargo on a shipper's scow for the return movement up the Hudson River after a shipment of brick has been discharged in New York Harbor.

The facts related do not differ materially from those in the Dixie case, wherein it was found that the transportation concerned was a towage service. The petitioner, while contrasting the circumstances in the two proceedings by an erroneous interpretation of the facts and findings in the Dixie case, contends that by reason of section 314

of the act it is permitted to make allowances for the use of the shippers' scows in the performance of a freighting service, citing Campbell Transp. Co. Common Carrier Application, 260 I. C. C. 107, 110. Therein, division 4 found that a carrier authorized to engage in the transportation of commodities generally by non-self-propelled vessels with the use of separate towing vessels is not prohibited from using shippers' barges as a part of its equipment in performing a complete freighting service, provided the arrangements for such use are reasonable and otherwise lawful.

In applying the principle laid down in the Campbell case to the facts in the instant proceeding, the present issue must be resolved by the test of whether shippers' scows are used as a part of petitioner's equipment or are received by it as a part of the consignment to be towed. On this point the record is clear. Petitioner's rates applicable to the movement of brick from up-river points to New York Harbor provide for the return of shippers' scows light to points of origin, and as hereinbefore stated, its published rules with respect to free time and demurrage are inapplicable when scows are furnished by shippers. In addition, petitioner admits that it may not load a shipper's scow at New York for an up-stream movement in lieu of returning the vessel light to its owner at origin. The fact that a charge is made for return of the empty scow to point of origin indicates that its original tender to the carrier was as a part of the consignment to be towed. From these facts the conclusion is inescapable that the petitioner does not and may not utilize shippers' scows as a part of its own equipment, from which it follows that the transportation performed by the petitioner in connection with the movement of freight in shippers' scows constitutes a towage service.

As stated by division 2 in the Dixie case, the carriers whose certificates or permits do not specifically authorize them to perform the service of towage are without authority to engage in such service. On the record before us, we must find that since the petitioner has no authority for the maintenance of rates, charges, or allowances, such as those published in its tariff I. C. C. No. 2, applicable to towage, such rates, charges, and allowances should be canceled.

We conclude that the petitioner has been and is performing the service of towage without appropriate authority therefor under section 309 of the act, and that the rates, charges, and allowances in its tariff I. C. C. No. 2, to the extent that they cover such service as is herein found to be towage, are published without authority, and therefore are unlawful.

An order will be entered requiring the cancellation of the rates, charges, and allowances described, and discontinuing the proceeding.

No. W-543 (SUB-No. 2)

SEATRAIN LINES, INC., TEMPORARY AUTHORITY

APPLICATION

Decided November 13, 1951

Found that there is an immediate and urgent need for applicant's proposed service as a common carrier by water in the transportation of commodities generally between New York, N. Y., and Savannah, Ga. Application granted.

Wilbur LaRoe, Jr. and S. S. Eisen for applicant.

B. J. Tarbutton, E. F. Bidez, and Henry K. Norton for parties supporting application.

E. L. Cochrane for Federal Maritime Board, intervener.

Harry C. Ames, Jr. for an interested party, and Charles T. Abeles, James A. Bistline, Joseph F. Eshelman, Richard B. Gwathmey, James L. Huegel, J. Edgar McDonald, Paul V. Miller, and Clarence Raymond for southern and eastern railroads, protestants.

BY THE COMMISSION:

REPORT OF THE COMMISSION

By application filed October 15, 1951, under the provisions of section 311 (a) of the Interstate Commerce Act, Seatrain Lines, Inc., of New York, N. Y., seeks temporary authority to operate as a common carrier by water by self-propelled vessels in the transportation of commodities generally between the ports of New York and Savannah, Ga. The Central of Georgia Railway Company and the New York, Susquehanna and Western Railroad Company (Henry K. Norton, trustee) support the application. The Federal Maritime Board intervened in favor of a restoration of water service between New York and Savannah. C. G. Willis, a common carrier by water, and southern and eastern railroads,1 oppose the application.

Pursuant to certificate issued July 2, 1942, under the "grandfather" provisions of part III of the act, applicant is authorized to operate as a common carrier by self-propelled vessels in the transportation of commodities generally between the ports of New York, New Orleans,

'Except the Central of Georgia; Savannah & Atlanta; New York, Susquehanna and Western; Akron, Canton & Youngstown; The Ann Arbor; Bangor & Aroostook; and The Detroit & Toledo Shore Line.