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ATCHISON, TOPEKA & SANTA FE RY. v. UNITED STATES

June 19, 1969

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, GREAT NORTHERN RAILWAY COMPANY, NORTHERN PACIFIC RAILWAY COMPANY, SOUTHERN PACIFIC COMPANY, SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY, UNION PACIFIC RAILROAD COMPANY, AND WESTERN PACIFIC RAILROAD COMPANY, PLAINTIFFS,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS. SEA-LAND SERVICE, INC., INTERVENING DEFENDANT.



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

The opinion of the court was delivered by: Perry, District Judge.

MEMORANDUM OPINION

Sea-Land Service, Inc., (hereinafter "Sea-Land"), a common carrier of freight by water, transporting property between points in the United States, on December 28, 1964 filed its application (later amended) with the Interstate Commerce Commission seeking a certificate of public convenience and necessity authorizing the transportation, in interstate or foreign commerce, of general commodities, over regular routes —

  (1) by self-propelled vessels, from Los Angeles
  Harbor, (including Long Beach) California, to
  Portland, Oregon, and Seattle and Vancouver,
  Washington;
  (2) by self-propelled vessels, between San
  Francisco, Oakland, Alameda, and Richmond,
  California (called the "San Francisco Bay ports"
  by the Commission in its Report) and Stockton,
  California, on the one hand, and Portland,
  Seattle and Vancouver, on the other, and
  (3) in containers, by non-self-propelled vessels
  with separate towing vessels, between the San
  Francisco Bay ports and Stockton, on the one
  hand, and Portland, Seattle, and Vancouver, on
  the other.

Sea-Land's application was opposed by each of the eight plaintiff railroads as well as by nine motor common carriers and four certificated water carriers. At the conclusion of the hearings and proceedings on the application, the Hearing Examiner filed his Report containing his findings of fact and conclusions recommending that an order be entered denying the application.

Applicant Sea-Land filed exceptions and on February 20, 1967, the Interstate Commerce Commission, by Division 1, (in its decision reported as Sea-Land Service, Inc., Extension-Pacific Coast-wise, 329 I.C.C. 447) reversed the Hearing Examiner and granted Sea-Land's application except as to service by non-self-propelled vessels.

Petitions for reconsideration of the Commission's order were denied on June 23, 1967 by the Commission, Division 1, acting as an appellate division.

In this action, which was instituted by only the railroad protestants in the proceeding before the Commission, the plaintiffs seek to enjoin, set aside, annul and suspend the Commission's said orders of February 20, 1967 and June 23, 1967. Sea-Land has intervened as defendant.

At the hearing in the instant proceeding, certified copies of the record and proceedings had before the Interstate Commerce Commission were introduced as exhibits.

This cause came on to be heard before a duly designated three-judge statutory court which finds that it has jurisdiction of the subject matter hereof and of the parties hereto.

It appears that Sea-Land provides a containership-type of transportation. The shipper, at his plant, packs the shipment into a large demountable container, resembling a van, which is then placed on a highway trailer chassis for transportation to the port. At the port, the container is lifted intact to the ship for carriage by water. Finally, at its port of destination, the container is lifted from the ship, placed on a motor vehicle and, still intact, is conveyed to the consignee. The Hearing Examiner, in his report, likened the operation to trailer-on-flatcar service, saying, "Except for the use of water-borne vessels, the service is very similar to the railroad trailer-on-flatcar (TOFC) service, the deck of the vessel being similar to the flatcar."

It further appears that the newer containership-type of operation is faster and less expensive than the so-called break-bulk service and ...


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