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DRUM TRANSPORT, INC. v. UNITED STATES

April 7, 1969

DRUM TRANSPORT, INC., A CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS, AND AYERS & MADDUX, INC., INTERVENOR.



Before Kerner, Circuit Judge, Poos and Morgan, District Judges.

The opinion of the court was delivered by: Per Curiam.

MEMORANDUM DECISION AND ORDER

Plaintiff, sometimes herein referred to as Drum, filed this action for judicial review of the final order of the Interstate Commerce Commission, hereinafter I.C.C., granting operating rights to intervenor, hereinafter Maddux, in Docket No. MC-129262, Ayers & Maddux, Inc., Common Carrier Application.

Maddux filed its application with the I.C.C., seeking authority to operate as a common carrier by motor vehicle, in interstate or foreign commerce, over irregular routes, transporting "alcoholic beverages or alcoholic liquors, in bulk, in tank vehicles * * * from all United States ports of entry on the International Boundary Line between the United States and Mexico, to points in California, Michigan, Illinois and Ohio." That application requested that the grant of authority contain the express restriction, "with no authorization to transfer property from one vehicle to another."*fn1

Drum and Ringsby-Pacific, Ltd., both motor carriers engaged in the transportation of alcoholic liquors, in bulk, in tank vehicles, from such ports of entry to points within the United States, opposed the Maddux application. Drum requested an oral hearing and the right to cross-examine witnesses supporting the Maddux application. The I.C.C. rejected that request. The application was considered under the Commission's rules for modified procedure upon the written pleadings and supporting written documents alone.

The I.C.C. report and order found that public convenience and necessity required that Maddux be granted authority to operate as a common carrier, and to undertake the requested transportation from ports of entry at Laredo and El Paso, Texas, and ports of entry in Arizona and California, to Los Angeles, Menlo Park and San Francisco, California, Detroit, Michigan, Peoria, Illinois, and Cincinnati, Ohio. The requested restriction against transfer of lading between vehicles was omitted from the order upon the Commission's statement that such a restriction would be "difficult of enforcement and administratively undesirable."

After the I.C.C. denied Drum's Petition for Reconsideration, the instant complaint was filed seeking judicial review.

Operating from its East Peoria, Illinois, home office, Drum transports, as here pertinent, tequila and kahlua of Mexican origin, in stainless steel tank vehicles, from such ports of entry to consignees throughout the 48 adjacent states. Liquor is transported by Mexican carriers in tank vehicles to the given International Border port. A Drum vehicle meets the Mexican carrier at the port of entry, and the liquor is pumped from the Mexican tanker to a Drum tanker for transport within the United States.

A like service, employing the same change of lading procedure, is provided by Ringsby from the port of entry at San Ysidro, California, to Los Angeles, Menlo Park, and San Francisco, California.

Neither Drum nor Ringsby has authority to operate as a common carrier within Mexico. Thus, a change of lading between connecting carriers, the one Mexican and the other domestic, is necessary in all transportation operations undertaken by both.

The I.C.C. found that Maddux owned six tractors and two stainless steel tank trailers, and that it had four additional stainless steel tank trailers on order. Its existing equipment is licensed for operation both in Mexico and the United States. The president of Maddux owns a substantial interest in Arrendadora "AMA", S.A., a Mexican corporation and common carrier by motor vehicle, located in Nogales, Sonora, Mexico.

The Maddux application proposed a through service, provided jointly by Maddux and AMA. The Maddux equipment would be operated in Mexico by AMA, thereby enabling shippers to load tequila and kahlua into the Maddux tankers at points of origin within Mexico for shipment to points within the United States without the necessity for a change of lading between vehicles. The loaded vehicle would be transported by AMA to a port of entry, at which point the equipment would be taken over by Maddux for the necessary transportation within the United States.

The I.C.C. found that neither Drum nor Ringsby was willing or able to provide a like through service. It further found that the service proposed by Maddux was a substantially better service than that provided by existing carriers, and a new and unique service not presently available ...


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