Before Swygert, Circuit Judge, and Perry and Napoli,
The opinion of the court was delivered by: Perry, District Judge.
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,
(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
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
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
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 ...