"I agree that applicant has not established a need for the proposed operation and that the application should be denied but for the reasons stated in my dissenting expression in James Atterholt and Elizabeth Atterholt Common Carrier Application, I do not agree that the proposed operation between Vandalia Airport on the one hand, and, on the other, Vandalia and Dayton, and points in the commercial zones of each, is partially exempt from the Act under provisions of Section 203 (b) (7a).”

Commissioner Lee dissented, stating:

"In my opinion, the operations for which applicant here seeks authority fall within the partial exemption provided in Section 203(b) (7a) of the Interstate Commerce Act. The application should be dismissed on that ground."

On August 10, 1949, Division 5 issued a report and order in Harry Lillien Common Carrier Application, MC-108665. This application sought a Certificate of Public Convenience and Necessity, authorizing general commodities confined to movements in furtherance of air transportation between New York and points in Connecticut, New Jersey and New York over irregular routes. Applicant was to serve two foreign air lines using La Guardia Airport located in the borough of Queens, New York. Evidence showed that, except for a movement of baggage from Hartford, Connecticut, three movements of airplane parts from Bridgeport, Connecticut, and one from Teterboro Airport in Bergen County, New Jersey, all of applicant's transportation for these companies had been confined to movements between La Guardia Airport and points in New York City. Applicant was, however, willing to perform this service for these air lines generally within a radius of 100 miles of New York, and, under the circumstances, the application was considered as amended. This application was opposed by several rail and motor carriers. In the performance of its operations the applicant was compensated by the air lines for all shipments moved on air line bills of lading at rates which provide for door-to-door service to and from points in New York City. In those instances where applicant performed transportation outside of New York City, the entire amount assessed and collected by the air line for additional service beyond city limits was turned over and paid to the applicant. In all instances, the traffic moved for, and under the primary responsibility of the air lines and on billings issued by them. The Division stated:

"Considering all these factors, we are convinced that the evidence of record indicates a proposal to engage only in operations which are incidental to transportation by air craft and hence are within the exemption in question, and accordingly that authority to perform them is not required."

The Division found that applicant's proposed motor vehicle operations in the transportation of property, between the points in the manner described, is transportation of property by motor vehicle which is inci

dental to transportation by air craft within the partial exemption provision in Section 203(b) (7a) of the Act. Commissioner Patterson dissented in this case.

Proposed Report Issued in the Determination of Exempt Agricultural Commodities

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In M. C. C. 968 which also embraced MC-107669, Norman E. Harwood Contract Carrier Application, Examiner C. Evans Brooks has recommended a reversal of the Harwood decision and finds that the term 'agricultural commodities (not including manufactured products thereof)" as used in Section 203 (b) (6) of the Interstate Commerce Act includes among other fresh fruits, berries, and such things as vegetables chopped up and mixed, irrespective of the processing performed in preparing the commodities for any market or in the manner in which they are packed so long as they are not placed in hermetically sealed containers; also, vegetables dried naturally and fruits and berries dried naturally or artificially, but not placed in hermetically sealed containers; redried tobacco leaves, hops and castor beans; raw peanuts shelled or unshelled and other nuts shelled or unshelled to which nothing has been added; chickens, turkeys, ducks, geese, squab, alive or killed, picked, drawn, cut up, frozen or unfrozen; milk, cream and skimmed milk, standard milk, milk, cream and skimmed milk which has been pasteurized or frozen, homogenized milk, cream, Vitamin D milk and skimmed milk; eggs, including whole eggs and oiled eggs, but excluding frozen or dried eggs, and frozen eggs or dried egg yolks and albumen; logs, pulp-wood, crude resin, maple sap, bark, leaves, Christmas trees and greenery, coated or uncoated, and Spanish moss; and, nursery stock, cut flowers and bulbs. Exceptions to this report are due on September 26.

Examiner Proposes Leasing Rules in Ex Parte MC-43

Examiner Harry C. Lawton has recommended a proposed report in Ex Parte MC-43, Lease and Interchange of Vehicles by Motor Carriers. In a 98 page report including appendices, Examiner Lawton reviews the testimony and finds that (1) it would be difficult to devise any uniform lease, as requested by the parties, to meet the requirements of the various states respecting attestation and other matters, and there is no more reason for prescribing a uniform lease than there is for prescribing a uniform contract for the use of motor contract carriers and shippers. (2) Every lease of motor carrier equipment should be in writing and contain essentials of a bilateral contract between parties, should include base requirements discussed in the report and should be filed with the Commission. (3) Certain rules should be promulgated by the Commission for augmenting equipment and the rules suggested in the report should be adopted by the Commission and become effective within 60 days after such adoption.

The rules suggested by the Examiner, which will probably be the subject of further controversy, are that the contract, lease or other

arrangement for the use of equipment shall apply for a period of not less than thirty days, unless entered into between authorized carriers or in an emergency as defined in later Rule 3. The contract shall provide for the exclusive possession, control and use of the equipment during the full period of the lease; there shall not be any sub-letting or sub-leasing of equipment in whole or in part, and a copy of the lease shall be filed with the Interstate Commerce Commission. Compensation for the use of the equipment shall not be computed on the basis of any division or percentage of any applicable rate or rates on any commodity or commodities transported in such vehicle during the period of the lease. The authorized carrier utilizing equipment leased or rented shall prepare and preserve for one year a truck or load manifest covering each load or trip for which the equipment is used in its service containing: the name and address of the lawful operator of the equipment, registration numbers, name and address of driver, description and weight of commodities transported, point and place of origin, and time and date of departure, point and place of final destination and the time and date of arrival and the carrier's serial number or identification device affixed to the equipment. The rules provide that, except where equipment operated is "(1) leased or rented from another authorized carrier and operated between points over the route or routes, or within the territory such other authorized carrier is authorized to serve, or (2) is utilized in the transportation of railway express traffic, or in substituted motor-for-rail transportation of railroad freight moving between railroad stations on railroad billings; the person assigned to drive such equipment shall be an employee of the lessee carrier, and his wages shall be kept separate and distinct from any charges made for the use of equipment and shall not be made part of the terms or conditions of the contract, lease, or other arrangement covering the use of equipment." There is a provision for emergency trip-leasing, but this requires full reporting to the Bureau of Motor Carriers upon the termination of the emergency. The rule states that:

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'An emergency exists, which, as used herein, means: Any situation in which the property of a shipper or shippers is in imminent danger of immediate loss or destruction by any means not within the control of the shipper or shippers, and other adequate transportation than that of the authorized carrier which augments its equipment under this rule, is not immediately available.

The rules provide for interchange of equipment except tractors, but each carrier must assign its own driver to operate the equipment that is proposed to be operated from and to the point of interchange and over the route or routes authorized in the participating carriers' respective certificates. Such traffic must move on through bills of lading issued by the originating carrier. Any rental charges for the use of the equipment shall be kept separate and distinct from divisions of the joint rates or the proportions accruing to the carriers by the application of local or proportionate rates. Rule 5 deals with the rental of motor vehicles and

equipment to private carriers and provides that unless such a service is specified in the operating authority, authorized carriers are prohibited from renting equipment with drivers to non-carriers, and shall not directly or indirectly assist such non-carriers to select or obtain drivers for equipment rented to them. Any lease by an authorized carrier to a noncarrier providing for the rental of equipment without drivers shall be transmitted to the Bureau of Motor Carriers. Where authorized carriers lease equipment to non-carriers, there must be removed from the equipment all marks of identification that indicate that the equipment is utilized in the authorized carrier's operation.

Forwarder

By GILES MORROW, Editor

General Counsel, Freight Forwarders Institute

Motor Carrier Agreements Case In Federal Court

The Freight Forwarders Institute and eleven individual forwarders filed a complaint, in July, 1949, in the District Court of the United States for the District of Delaware, asking for an injunction and seeking to set aside that portion of the Commission's order of September 24, 1948, in Docket 29493 (272 I. C. C. 413) which deals with so-called "terminal to terminal" service. The Complaint is docketed as Civil Action 1236, and is scheduled to be heard by the Court the latter part of September, 1949. Upon request of the District Judge with whom the complaint was filed the Commission has postponed the effective date of its order in Docket 29493 from August 1, to October 1, 1949.

Proposed Legislation Changing Definition of a Freight Forwarder and Provisions Governing Relationship with Motor Carriers

Chairmen Johnson and Crosser, of the Senate and House Committees on Interstate and Foreign Commerce, have introduced companion bills S. 2113 and H. R. 5967, respectively, amending sections 402 (a) (5) and 409 of part IV of the Interstate Commerce Act. Under the bills the definition of a freight forwarder would be modified by adding the words "as a common carrier" to the present wording, and section 409 would be superseded by new provisions authorizing contracts between freight forwarders and motor common carriers.

Hearings on the Senate bill were conducted by the full Committee on July 28 and 29 and August 11, 1949. No announcement respecting House hearings has been issued.

Complaint Against Forwarder Charges Dismissed for Lack of

Jurisdiction

In Docket No. 30078, Colgate-Palmolive-Peet Co. v. Pacific and Atlantic Shippers Association, Inc., the Commission, Division 3, dismissed a complaint involving a rate charged by defendant forwarder on two carloads of freight, on the grounds that the matter was not within the jurisdiction of the Commission.

The report states that the freight forwarder neither publishes rates for carload shipments nor holds itself out to render service in connection with straight carloads. It was admitted that the shipments were handled through error. The forwarder applied its less-than-carload rates to the shipments. As the result of a prehearing conference the parties stipulated that a lesser charge than the published forwarder rate should apply, and sought approval of such reduced charges.