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DE BARDELEBEN COAL CORP. v. UNITED STATES

March 17, 1944

DE BARDELEBEN COAL CORPORATION et al.
v.
UNITED STATES et al.



The opinion of the court was delivered by: JONES

JONES, Circuit Judge.

This suit was brought by the plaintiffs (hereinafter referred to as the "Coyle Lines") under appropriate provisions of the Judicial Code, 28 U.S.C.A. § 41(28) and §§ 43-48, inc., to enjoin and set aside an order of the Interstate Commerce Commission in so far as the certificate of public convenience and necessity thereby granted to Union Barge Line Corporation (hereinafter referred to as "Union") permits the latter to operate as a common carrier by water on the Gulf Intercoastal Waterway (hereinafter referred to as "Waterway"). Answers to the plaintiffs' complaint were filed by the United States, by the Interstate Commerce Commission, and by Union, as an intervening defendant. The matter was heard on the pleadings by a three-judge court.

 The certificate in question was granted by the Commission under Sec. 309(a) of Part III of the Interstate Commerce Act, which provision was added to that Act by the Transportation Act of September 18, 1940, 54 Stat. 898, 929, 49 U.S.C.A. §§ 901-923, for the purpose of subjecting common carriers by water to more comprehensive regulation by the Commission.

 As in the case of Parts I, II and IV of the Interstate Commerce Act, 49 U.S.C.A. §§ 1 et seq., 301 et seq., and 1001 et seq., which have to do with the regulation of other transportational types of common carriers, Sec. 309(a) of Part III provides that no common carrier by water shall engage in interstate or foreign transportation within the purview of that chapter unless such carrier holds a certificate of public convenience and necessity issued by the Commission. The section also provides, by a so-called "grandfather" clause, that, if any common carrier by water was in bona fide operation on January 1, 1940, over the route or routes or between the ports with respect to which application for a certificate is made and has so operated since that time, the Commission shall issue a certificate without requiring further proof that public convenience and necessity will be served by the carrier's operation.

 Part III became effective upon its enactment. Within the time therein limited for the purpose, Union made application under the "grandfather" clause for a certificate permitting its operation as a common carrier on the Ohio, Mississippi and other tributary rivers and on the Gulf Intercoastal Waterway west of New Orleans and south of Placquemine, Louisiana. The Waterway now extends along the Gulf coast from a point near Apalachicola, Florida, through New Orleans, Louisiana, and Galveston, Texas, to Corpus Christi, Texas. There is an additional connecting link between the Waterway and the Mississippi River which extends southwardly from the Mississippi at Placquemine, Louisiana (north of New Orleans), to Morgan City, Louisiana, on the Waterway west of New Orleans. Thus New Orleans may be bypassed by vessels going to and from the Mississippi north of New Orleans and the Waterway west of that city. At Galveston, Texas, the Houston Ship Canal provides an extension from Galveston to Houston and is a part of the Waterway.

 At the hearing on Union's application for a certificate the Coyle Lines appeared and opposed the granting of so much of the application as related to Union's operations on the Waterway. The Commission's Examiner made a proposed report to which exceptions were filed, and after oral argument thereon a division of the Commission issued a report (250 I.C.C. 249) granting Union a certificate covering operations on the Ohio, Kanawha and Wolf Rivers and on the Mississippi River south of Cairo, Illinois, but denying authority to Union to operate on the Waterway. The report also dealt with two other applications by Union which are not involved in the present suit.

 Upon Union's petition, the full Commission granted a reargument and, in a report thereafter filed (250 I.C.C. 689), reversed the conclusion of the division regarding Union's operation on the Waterway and enlarged the certificate to Union so as to include authority for its operation thereon in connection with and in furtherance of its river transportation. The Commission also enlarged the certificate to Union by authorizing its operation as a common carrier on the Mississippi River north of Cairo, Illinois, as far as St. Louis, Missouri. This latter enlargement is not challenged.

 In the complaint filed in the present suit, the Coyle Lines, a common carrier on the Waterway, alleges that the Commission erred in granting authority to Union to operate on the Waterway, as a common carrier, on the ground that the traffic carried for Union on the Waterway, prior to the critical "grandfather" date, was not transported by Union but was delivered by it to the Coyle Lines at New Orleans and was transported by the latter, as the connecting carrier, on the Waterway westwardly beyond New Orleans. Coyle Lines further contends that, in any event, the certificate to Union is erroneous in so far as it authorizes Union's operations on the Waterway west of Galveston, Texas. We understood the plaintiffs at bar to abandon the latter contention. Whether or not it was then abandoned, we think it is so plainly without merit that we shall immediately dispose of it in passing.

 At the critical date fixed by the Act for determining whether an applicant is entitled to claim the benefits of the "grandfather" clause, the Waterway was completed only as far as Galveston and Houston, Texas. Consequently in granting authority to Union to operate as a common carrier to the end of the now completed westward construction of the Waterway, viz., from Galveston to Corpus Christi, Texas, the Commission did no more than give appropriate effect to the provisions of Sec. 309(d) of the Act, which provides:

 "That no terms, conditions, or limitations shall restrict * * * the right of the carrier to extend its services over uncompleted portions of waterway projects now or hereafter authorized by Congress, over the completed portions of which it already operates, as soon as such uncompleted portions are open for navigation."

 The extension of the Waterway from Galveston to Corpus Christi was a waterway project authorized by Congress so that if Union (or any other carrier for that matter) operated over the completed portion of the Waterway to Galveston and Houston existing on the critical date of the "grandfather" clause, it would have the right under the provision above quoted to operate over the extension of the Waterway as soon as it was open for navigation. The important question is as to Union's operation on the Waterway to Galveston on January 1, 1940, and its continuance of such operation thereafter.

 The Commission found that Union "was in bona fide operation in interstate commerce on January 1, 1940, as a common carrier by water of commodities [in general] by means of non-self-propelled vessels with the use of separate towing vessels, between points on the Gulf Intercoastal Waterway south and west of New Orleans and Placquemine, La., * * * [and] that such operation has been continued since that date; * * *." From these findings the Commission concluded that Union "is entitled to a certificate of public convenience and necessity, authorizing continuation of such operation, * * *." If the findings above referred to were competently made, it can hardly be questioned that the conclusion which the Commission drew as to Union's right to a certificate correctly followed as a matter of law.

 Our inquiry, therefore, is whether the findings set forth above are supported by substantial evidence. If they are, then they are final and binding here. Keller v. Potomac Electric Power Co., 261 U.S. 428, 441, 442, 43 S. Ct. 445, 67 L. Ed. 731; Interstate Commerce Commission v. Union Pacific R.R. Co., 222 U.S. 541, 547, 32 S. Ct. 108, 56 L. Ed. 308; Interstate Commerce Commission v. Delaware, L. & W.R.R. Co., 220 U.S. 235, 251-252, 31 S. Ct. 392, 55 L. Ed. 448. The basic facts are ...


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