Provost Cartage Inc. v. I. C. C., 81-4512
| Decision Date | 27 July 1982 |
| Docket Number | No. 81-4512,81-4512 |
| Citation | 686 F.2d 221 |
| Parties | PROVOST CARTAGE INC. and Coastal Tank Lines, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allan C. Zuckerman, Chicago, Ill., for Coastal Tank Lines.
Linda J. Joachim, I. C. C., Robert B. Nicholson, Dept. of Justice, Neil R. Ellis, Washington, D. C., for respondents.
Robert D. Schuler, Bloomfield Hills, for Norcros Industries Ltd.
Petition for Review of Orders of the Interstate Commerce Commission.
Before CLARK, Chief Judge, RANDALL and JOHNSON, Circuit Judges.
Petitioners appeal the grant of a certificate by the Interstate Commerce Commission authorizing Norcros Industries Ltd. to operate as a common carrier, by motor vehicle, in foreign commerce only, transporting commodities in bulk, between points in the United States in and east of North Dakota South Dakota, Nebraska, Colorado, Oklahoma, and Texas. Rejecting petitioners' contention that the decision was not supported by "substantial evidence," we affirm the decision.
On March 9, 1981, Norcros Industries Ltd., d/b/a The Bulk Carriers Co. (Norcros), filed an application with the Interstate Commerce Commission (the Commission) seeking a certificate authorizing it to provide transportation as a motor common carrier of "commodities in bulk, between points in the United States in and east of North Dakota, South Dakota, Nebraska, Colorado, Oklahoma, and Texas." 1 Norcros held numerous certificates authorizing the transportation of various specified commodities in bulk between points in Canada and points in all states in the continental United States. The certificates held by Norcros preponderantly authorized only one way transportation from North to South, and the authorization sought by Norcros was intended to round out its existing authority and allow it to provide a complete two way bulk transportation service in foreign commerce within the thirty-eight states east of the Rocky Mountains. Notice of the application was published in the Federal Register on March 30, 1981. 46 Fed.Reg. 19341 (1981). Five competing carriers (Protestants)-Provost Cartage, Inc., Coastal Tank Lines, Inc., Steere Tank Lines, Inc., Port Norris Express, Inc., and Liquid Cargo Lines, Ltd. 2-filed opposition statements. Norcros responded to Protestants on May 28, 1981.
The Commission's Review Board 1, in a decision dated July 20, 1981, and served August 5, 1981, granted Norcros the entire authority it had sought. The Commission first noted Norcros' extensive operations under existing authority. It then pointed out that the application was supported by twenty-five public witnesses who testified to the movement of a wide variety of bulk freight within the scope of the application and to their support of the application for several reasons, but primarily on account of their desire to have available Norcros' proposed single-line United States-Canadian bulk freight service. After discussing the position of the Protestants, the Commission concluded that a public need had been shown for the operations sought to be authorized and that Norcros had established that it was fit, willing, and able to provide the proposed service. It further found that the Protestants had not established that authorization of the additional service would harm them in any manner inconsistent with the public convenience and necessity.
Provost Cartage, Inc., Coastal Tank Lines, Inc., and Steere Tank Lines, Inc., appealed the Review Board's decision. Norcros replied to those appeals on September 9, 1981. By decision dated October 13, 1981, and served October 16, 1981, the Commission, Division 1, 3 rejected the appeals and affirmed the Review Board decision.
On or about December 15, 1981, Provost, Coastal and Steere filed a petition for judicial review. Steere subsequently requested, and was granted, leave to withdraw its participation in this appeal. On appeal, Provost and Coastal (Petitioners) contend that the Commission decision was not supported by "substantial evidence." They argue that the evidence presented in support of the application was not sufficient to support the broad grant of authority, with respect to both the category of service authorized and the territory to be serviced. The sufficiency of the evidentiary basis of the Commission decision is governed by the "substantial evidence" test. Alamo Express, Inc. v. Interstate Commerce Commission, 673 F.2d 852, 856 (5th Cir. 1982); Refrigerated Transport Co., Inc. v. Interstate Commerce Commission, 616 F.2d 748, 751 (5th Cir. 1980). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938).
Petitioners first focus on the grant of authority to transport "commodities in bulk." 4 They argue that this umbrella commodity description includes a vast array of freight with widely differing characteristics and that evidence of fitness to transport one commodity in bulk is not evidence of fitness to carry some other commodity in bulk. They point to our language in American Trucking Association v. Interstate Commerce Commission, 659 F.2d 452 (5th Cir. 1981), that the Commission may not "assume that an applicant fit, willing, and able to carry one commodity in an STCC 5 classification, is fit, willing, and able to carry all commodities in that classification." Id. at 472. While we remanded in Steere Tank Lines, Inc. v. Interstate Commerce Commission, 666 F.2d 255 (5th Cir. 1982), an authorization to transport "commodities in bulk," where the record contained no evidence to support a conclusion that the carrier was fit, willing, and able to provide the transportation authorized by the certificate, there is substantial evidence in the record of this case to support the finding that Norcros...
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Port Norris Express Company, Inc. v. Interstate Commerce Commission
...evidence that it provided intrastate bulk services under existing authority, and that it had bulk equipment), and Provost Cartage Inc. v. ICC, 686 F.2d 221 (5th Cir.1982) (applicant specifically requested bulk authority, under existing certificates it had transported over 1000 bulk commodit......
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Steere Tank Lines, Inc. v. I.C.C.
...and--at least on this issue--we can see no principled basis for distinguishing section 5 from section 6. See Provost Cartage, Inc. v. ICC, 686 F.2d 221, 224 (5th Cir.1982) (examining all of carrier's "numerous existing certificates" in Sec. 5 case). See also Baggett Transportation Co. v. Un......