Refrigerated Transport Co. v. United States

• Decision Date: 07 January 1963
• Docket Number: Civ. A. No. 7967.
• Citation: 214 F. Supp. 536
• Parties: REFRIGERATED TRANSPORT CO., Inc., Watkins Motor Lines, Inc., Complainants, v. The UNITED STATES of America, and the Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Northern District of Georgia

214 F. Supp. 536

REFRIGERATED TRANSPORT CO., Inc., Watkins Motor Lines, Inc., Complainants, v. The UNITED STATES of America, and the Interstate Commerce Commission, Defendants.

Civ. A. No. 7967.

United States District Court N. D. Georgia, Atlanta Division.

January 7, 1963.

Watkins & Daniell, Atlanta, Ga., for plaintiffs.

R. J. Reynolds, Jr., Atlanta, Ga., James F. Miller, Kansas City, Mo., for intervenor.

Charles L. Goodson, U. S. Atty., Atlanta, Ga., for defendants.

Before BELL, Circuit Judge, and HOOPER and MORGAN, District Judges.

GRIFFIN B. BELL, Circuit Judge.

Refrigerated Transport Co., Inc. and Watkins Motor Lines, Inc., complainant corporations, operate as motor common carriers for hire in interstate commerce under and by virtue of various Certificates of Public Convenience and Necessity issued by the Interstate Commerce Commission. Their interest here is to protect their business of transporting frozen fruit juices and frozen fruit concentrates. They seek to set aside in whole or in part a final order of the Interstate Commerce Commission granting Barsh Truck Lines, Inc. authority to operate in interstate commerce as a common carrier by motor vehicle of frozen fruit juices and frozen fruit concentrates in mixed shipments with canned citrus products from points in Florida, to points in Arkansas, Iowa, Kansas, Missouri, Oklahoma, and Nebraska. Jurisdiction is based on 28 U.S.C.A. §§ 1336, 2284 and 2321-2325 and 49 U.S.C. § 305(g).

The authority was granted on two applications, No. MC-119450 and No. MC-119450 (Sub-No. 2). One application involves shipments from Bartow, Florida and points within fifty miles thereof to the designated six state area; while the other requested the same authority for all other points in Florida. Barsh had theretofore been authorized to transport canned citrus products from Bartow and points within fifty miles of Bartow but had no authority for other points in Florida.

The findings of the Examiner, on a consolidated hearing of the two applications were adopted by the Commission. The conclusions of the Examiner were adopted save in two important respects, to be discussed infra. The order of the Commission became administratively final upon denial of the petition of protestants, of whom two are complainants here, for reconsideration.

The evidence adduced before the Examiner showed that Barsh was transporting non-frozen canned citrus products from the Bartow, Florida area to the designated six state area, and was in the process of equipping itself to handle mixed shipments on the same vehicle of frozen and non-frozen commodities. Five of its trailers were refrigerated and five additional trailers of this type were on order. It was planned to equip all of the trailers with a track-mounted, insulated, plywood bulkhead suitable for moving to such position in the trailer as might be indicated by the load to separate the frozen and non-frozen commodities. Such equipment was available from the manufacturer.

The applications were supported by five shippers. The bulk of their shipments would continue to move through present channels but each proposed to use the new service sought from two to five times per month. The new service would be used in truckload volumes with the amounts of frozen and non-frozen items varying with the shipment. In this way, the items to be shipped could be consolidated more rapidly by drawing upon accumulated quantities of both frozen and non-frozen products, and in turn, provide faster delivery to customers. It was represented that the service was needed, would create new markets, and that the presently available less than truckload service was not satisfactory due to delay and damage.

The applications were opposed by complainants and other carriers engaged in transporting both frozen and non-frozen citrus products from Florida to the same six state area. None of these carriers offer mixed service, their authority being confined to either all frozen or all non-frozen service. The shippers were satisfied with the truckload service of these carriers to the extent that it is available, but it was undisputed that the mixed service for which authority was sought was a new service, and of a type not presently available in the involved area. The protesting carriers offered evidence to show that the present service was adequate, and that the Barsh theory of mixed shipments was not feasible. They also pointed out the adverse effect on their operations of any diversion of shipments to the new service.

The Examiner found that the present and future public convenience and necessity required the granting of the authority requested by Barsh, and that Barsh was fit, willing and able to perform such service and conform to the requirements of the Interstate Commerce Act. He recommended that Barsh be authorized to transport frozen fruits, frozen berries, frozen vegetables, frozen fruit juices, and frozen fruit juice concentrates in truckloads of mixed shipments with canned citrus products when moving at the same time and in the same vehicle from the point of final stop, if any, for loading to the initial stop, if any, for unloading of each vehicle. He rejected the offer of applicant that the proposed service be limited to mixed loads of which at least ten per cent should be constituted of frozen goods and the remainder of canned goods not requiring refrigeration, or vice versa, to insure that applicant would be prevented from transporting truckloads of either canned or frozen goods separately. His view was that it would be administratively impracticable and difficult of enforcement.

On a consideration of the exceptions of protestants to the report and recommended order of the Examiner, the Commission limited the scope of the authority granted to frozen fruit juices and frozen fruit concentrates in mixed shipments with canned citrus products. The restriction of "in truckloads of mixed shipments * * * when moving at the same time and in the same vehicle from the point of final stop, if any, for loading to the initial stop, if any, for unloading of each vehicle * * *" was eliminated. The certificate...