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CLARK TRANSPORT COMPANY v. I.C.C.

August 10, 1964

CLARK TRANSPORT COMPANY, PLAINTIFF,
v.
INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, DEFENDANTS, AND K.W. MCKEE, INCORPORATED, INTERVENOR DEFENDANT, FORD MOTOR COMPANY, INTERVENOR.



Before Swygert, Circuit Judge, and Igoe and Perry, District Judges.

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:

FINDINGS OF FACT

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 distinct needs.

(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 ...


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