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.
Drum has authority to operate as a common carrier, over
transporting alcoholic liquors, in bulk, in tank vehicles, from
all ports of entry on the United States-Mexico border in Texas,
New Mexico, Arizona and California, except San Ysidro,
California, to points located in the 48 adjacent states of the
United States. Since 1959, its equipment has been used
exclusively for the transportation of alcohol and alcoholic
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
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,
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 ...