Before Swygert, Circuit Judge, and Igoe and Perry, District
The opinion of the court was delivered by: Swygert, Circuit Judge, Igoe, District Judge, concurring.
This action to set aside an order of the Interstate Commerce
Commission issued on September 11, 1963, having been heard by
this court as a three-judge district court pursuant to
28 U.S.C. § 2284, the court makes the following findings of fact and
conclusions of law:
1. On September 28, 1962, an application was filed with the
Commission by K.W. McKee, Inc., of St. Paul, Minnesota, for a
permit authorizing operation in interstate or foreign commerce as
a contract carrier by motor vehicle of automobiles and trucks in
secondary movements in truckaway service from St. Paul,
Minnesota, to points in North Dakota.
2. Pursuant to statutory authority and the rules of the
Commission, the application was referred to the Commission's
joint board No. 24 for a hearing and recommendation of an
appropriate order thereon.
3. Clark Transport Company, an Illinois corporation, opposed
the application and participated in the hearings as a protestant.
4. Ford Motor Company intervened in the proceedings and
participated therein in support of the application.
5. On June 6, 1963, the joint board filed its report and
recommended order. The report found that McKee is a contract
carrier within the provisions of section 49 U.S.C. § 303(a) (15),
considered the statutory criteria set forth in 49 U.S.C. § 309(b)
as interpreted in ICC v. J-T Transport Co., 368 U.S. 81, 82 S.Ct.
204, 7 L.Ed.2d 147 (1961); made findings and conclusions based
thereon and concluded that upon consideration of all evidence of
record, operation in interstate or foreign commerce by McKee as a
contract carrier, under a continuing contract with Ford, of
automobiles and trucks, in secondary movements in truckaway
service from St. Paul, Minnesota, to points in North Dakota would
be consistent with the public interest and the national
transportation policy; that McKee is fit to perform such service;
and that McKee's application should be granted.
6. In addition the joint board found that:
(a) The only shipper which applicant, McKee, proposes to serve
is Ford Motor Company.
(c) Ford, however, has not been able to realize fully the
advantages inherent in this integrated system since it has had to
utilize two carriers to effectuate deliveries from St. Paul.
McKee has both initial and secondary authority to all states
serviced from Ford's St. Paul plant with the exception of North
Dakota where it has only initial authority. Thus, there is a gap
in McKee's authority which has necessitated using Clark for
secondary movements into this state, which is the only state
where Clark has both initial and secondary authority.
(d) McKee meets Ford's distinct need for a carrier whose
operations are integrated with those of Ford. McKee has a loading
yard adjacent to Ford's plant. Vehicles arriving by rail, with
the exception of those destined for North Dakota, are immediately
parked in McKee's yard for mixing with vehicles manufactured at
St. Paul and transportation to their ultimate destination. Ford
can plot the destination of every vehicle and plan the most
economical load mixture. McKee's billing system is adapted to
Ford's punch-card system.
(e) Clark's service is primarily designed to meet the
requirements of shippers who do not have their own railhead
facilities. There is additional handling of the vehicles Clark
delivers since Clark must pick up the vehicles at Ford's plant
and truck them across town where they are unloaded and reloaded
for shipment. This requires Clark to travel through Ford's plant
area, and it necessitates separate inspection of the vehicles
handled by Clark. Moreover, Clark determines the composition of
the loads, not Ford, and Ford must provide additional handling
and facilities at its plant for vehicles set aside for Clark.
Clark has not shown that its service is tailored to meet Ford's
(f) Although Clark would be adversely affected by a grant of
this application, the disadvantage Clark would suffer would be
outweighed by the advantages to the supporting shipper resulting
from a grant of the application.
(g) If the application were denied, McKee would lose the
opportunity to increase the efficiency of its operations which
would result from a grant of authority. Ford, however, would be
adversely affected since it would not ...