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January 11, 1966

Aero Trucking, Inc., Plaintiff
United States of America and Interstate Commerce Commission, Defendant

The opinion of the court was delivered by: WEBER

This is an action to enjoin, set aside, annul and suspend in its entirety, an Order of the Interstate Commerce Commission directed against plaintiff in the proceedings designated as Aero Trucking, Inc., Extension - Aluminum, Docket No. MC 60014 (Sub. No. 10), reported at 99 M.C.C. 272, dated October 29, 1964. This action is brought in this Court under and pursuant to the provisions of Title 28 U.S.C. § 1336, 1398, 2284, 2321-2325, and of Title 5 U.S.C. § 1009.

Plaintiff, an Ohio corporation, with principal offices in Oakdale, Pennsylvania, is a common carrier holding certificate of Public Convenience and Necessity No. MC 60014, which authorized the transportation of commodities which, by reason of their size or weight, require the use of special equipment.

 Plaintiff has in the past under its existing authority hauled aluminum billets and ingots weighing from 6 to 50 pounds each, wrapped in bundles on pallets of an average weight of 2000 pounds each. When its authority to do this was questioned by a representative of the Interstate Commerce Commission, it filed an application with the Commission to obtain either (1) a declaration of its right to transport such commodities, or (2) an extension of its authority to permit it to transport such commodities within its existing territory. The hearing examiner concluded that the existing authority authorized such transportation and recommended that the application be dismissed in accordance with the Motion of the applicant. The hearing examiner's recommended report concluded that the plaintiff was authorized by its heavy hauler's certificate to transport all of the considered commodities and that therefore the application for the new authority be dismissed.

 The Commission agreed with and adopted the examiner's statement of facts, but disagreed with his interpretation of the plaintiff's certificate, and further found that the application for authority to transport the commodities in question should be denied for the reason that the facts of record did not show that such service was required by the public convenience and necessity.

 Plaintiff accepts the findings of fact of the Commission, but contends that its ultimate conclusion is erroneous and unreasonable. Plaintiff's argument is that the Commission's determination is contrary to the evidence that the inherent nature of the commodities requires aggregation, bundling and special packaging so that when the commodity is tendered to the applicant it is of such size and weight as to be within the scope of plaintiff's existing authority.

 The Commission applied a doctrine which has been set forth in W. J. Dillner Transfer Co. -- Investigation of Operations, reported in 79 M.C.C. 335, affirmed by this court in W. J. Dillner Transfer Co. v. Interstate Commerce Commission, 193 F. Supp. 823 (W.D. of Pa., 1961), aff'd per curiam 368 U.S. 6, 82 S. Ct. 16, 7 L. Ed. 2d 16 (1961).

 The Commission's interpretation of its standards as set forth in the Dillner case, 79 M.C.C. at 358, is:

"In bundling, aggregating, or palletizing, it should be the general rule of construction (1) that the individual 'commodity itself' is the controlling consideration as respects a carrier's authority; (2) that the limited exception which the Black case, 64 M.C.C. 443, represents, where commodities are bundled for protection or as otherwise required by their 'inherent nature,' must be maintained within its strictest limits; (3) that the minimum bundle which is required by the 'inherent nature' of the commodity is the size or type of bundle which must be considered in any determination whether necessity exists for the use of special equipment; and (4) that in order reasonably to maintain these limits it shall be presumed, in the absence of a sound basis for concluding to the contrary, that commodities tendered to carrier, in bundles or aggregations, are within the general rule and not within the limited exception thereto; * * *".

 The hearing examiner's statement of facts which was adopted by the Commission included the following:

(1) The ingots are produced in individual units in sizes from 6 to 50 pounds each.
(2) The shipper segregates its products according to their chemical composition in order to control the impurities and the various alloying constituents therein.
(3) It is necessary that the particular composition be readily ascertainable by both shipper and consignee as different compositions are required to meet the particular needs of various customers.
(4) The ingots are segregated and assembled in stacks on billets weighing an average of 2000 [pounds] each in accordance with ...

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