For the reasons set forth in the examiner's report, the rail protestants are unable to satisfy the supporting shippers' needs with respect to the expeditious movement of a substantial portion of the banana traffic involved. The only motor carrier protestant, Morris Express, holds authority to transport bananas from Baltimore to points in West Virginia, Pennsylvania, and New Jersey. It has only one refrigerated vehicle and has never transported bananas. Neither the rail protestants nor the motor protestant showed that they would be materially and adversely affected by failure to impose a restriction against tacking. In the absence of such a showing, a restriction against tacking is not justified. Rawlings Extension-Emporia,78 M.C.C. 636.

Whether or not authority should be granted in the Sub-No. 66 proceeding to the extent indicated above depends upon applicant's fitness which presently is in issue in No. MC-F-8491, Midwest Emery Freight System, Inc., Control Interstate Truck Service, Inc., and No. MC-C-4201, Midwest Emery Freight System, Inc., Investigation and Revocation of Certificate. Accordingly, our findings will be limited to setting forth the authority for which need has been shown, and the proceeding will be held open for further consideration of applicant's fitness.

NO. MC-114019 (SUB-NO. 24)

The application in this proceeding was filed under the following provision of section 7(c) of the Transportation Act of 1958:

Any carrier which on the date this section takes effect is engaged in an operation of the character specified in the foregoing provisions of this paragraph, but was not engaged in such operation on May 1, 1958, may under such regulations as the Interstate Commerce Commission shall prescribe, if application for a certificate or permit is made to the said Commission within one hundred and twenty days after the date on which this section takes effect, continue such operation without a certificate or permit pending the determination of such application in accordance with the provisions of part II of the Interstate Commerce Act.

Section 7(c) became effective on August 12, 1958. Accordingly, any person who was engaged, subsequent to May 1 but prior to August 12, 1958, in bona fide operation in the transportation of commodities made subject to regulation on the latter date was authorized to continue such operations pending the disposition of a timely filed application. These so-called interim applications

must be determined on the basis of public convenience and necessity, but they differ from the typical section 207 application in that operations during the pendency of the application are authorized by law.

Midwest Emery filed its application under the above-quoted interim provisions of section 7(c) on December 10, 1958, seeking authority to transport frozen fruits, frozen berries, frozen vegetables, and bananas. Tea was not included in the application as originally filed, but was added by subsequent amendment. Both the original and amended applications were published in the Federal Register on June 24, 1959. Appended to the original application was an abstract of shipments of frozen fruits, frozen vegetables, and tea transported at various times subsequent to May 1 and prior to August 12, 1958.

The application was not heard until November 7 and 8, 1962. At the hearing, applicant was unable to produce shipper support for the transportation of the frozen commodities involved. Although applicant showed that nine such shipments were transported after May 1 and before August 12, 1958, the examiner denied this portion of the application for lack of shipper evidence. The examiner's conclusion was obviously correct and so recognized by the applicant.

There is likewise no doubt that applicant transported tea subsequent to May 1 and prior to August 12, 1958. At the hearing, however, the supporting shipper of tea testified that the point of origin had changed from Boston to Woburn, Mass. The examiner concluded that the amendment which added tea to the application should not have been accepted. We disagree. Applicant's failure to include tea in the application as originally filed was clearly an oversight because, as indicated, an abstract of shipments of tea was attached to the original application. The amendment respecting tea was properly received. Herrett Trucking Co. v. United States, 14 Fed Carr. Cas. #81 380 (E. D. Wash. 1961); Produce Transport Dispatch Common Carrier Application, 88 M.C.C. 198. Although tea moved from Boston, Mass., to Chicago and Detroit during the "interim" period, authority to transport that commodity cannot be granted in this proceeding. On or about April 1, 1959, the supporting shipper, Salada Foods, Inc., moved from Boston to Woburn, Mass., about 14 miles north of Boston, outside the Boston commercial zone. Since that date all of the traffic has originated at Woburn. Inasmuch as there is no evidence of a continuing need for transportation of

tea from Boston to the above destinations, we must deny that portion of the application. The present origin of this traffic is outside the scope of the application and no traffic moved from that origin during the "interim" period.

The record contains no evidence that applicant was engaged in the transportation of bananas between May 1 and August 12, 1958. Thus, no authority can be authorized herein notwithstanding shipper support for the proposed service, and we must conclude that applicant has failed to establish the right to a certificate under the provisions of section 7(c) of the Transportation Act of 1958. In this connection, we recognize that our termination of the "interim" application proceeding, while leaving open the Sub-No. 66 proceeding pending a determination of applicant's fitness, may cause an interruption in the service heretofore provided by applicant and for which a continuing need has here been found. However, where, as here, there is a need for service within a territory having no carrier service capable of meeting such need, an appropriate remedy is available under the provisions of section 210a (a) of the act.

FINDINGS

Authority herein granted to the extent it duplicates any authority now held by applicant is not to be construed as conferring more than a single operating right.

We find in No. MC-114019 (Sub-No. 24) that applicant has failed to establish that between May 1, 1958, and August 12, 1958, it was engaged in bona fide operations, in interstate or foreign commerce, as a common carrier of bananas and frozen berries between the points described in the application herein; that applicant has failed to prove that continuance of operations, in interstate or foreign commerce, as a common carrier of frozen fruit, frozen vegetables, and tea, performed during the aforesaid period is required by the present or future public convenience and necessity; and that the application, therefore, should be denied.

We find in No. MC-114019 (Sub-No. 66) that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of bananas (1) from Baltimore, Md., to Chicago, Ill., Indianapolis, Fort Wayne, and South Bend, Ind., Louisville, Ky., Madison and Milwaukee,

Wis., and points in Michigan, New Jersey, New York, Ohio, Pennsylvania, and West Virginia, and (2) from port facilities in the New York, N. Y., harbor area, as defined by the Commission in Ex Parte No. MC-140, Determination of the Limits of New York Harbor and Harbors Contiguous Thereto, 49 C.F.R. 303, to Louisville, Ky., Madison, Milwaukee, and Butler, Wis., and points in Michigan, New Jersey, and West Virginia; and that the application in all other respects should be denied. An order will be entered denying the application in No. MC114019 (Sub-No. 24). In No. MC-114019 (Sub-No. 66), an order will be entered denying the application except to the extent to which a need for service has been found. In other respects

the proceeding will be held open for further consideration of applicant's fitness after the decisions in Nos. MC-F-8491 and No. MC-C-4201.

APPENDIX A

Examiner's statement of facts in No. MC-114019 (Sub-No. 66)

Applicant holds authority to operate as a motor common carrier of specified commodities from and to points in a number of States. Of pertinence, is its authority to transport (1) foodstuffs, raw and manufactured, between points in Ohio, Indiana, Illinois, Pennsylvania, New York, and points in New Jersey in the New York City and Philadelphia, Pa., commercial zones, as defined by the Commission, subject to the restriction that no service may be performed between New York City and points in New Jersey in the Philadelphia commercial zone, and between Philadelphia and points in New Jersey in the New York City commercial zone, and (2) general commodities with exceptions, over regular routes, from Chicago, Ill., through Madison, Milwaukee, and Eau Claire, Wis., to St. Paul and Minneapolis, Minn., serving the named intermediate points among others. It has terminals at a number of points including Jersey City, N. J., Baltimore, and Harrisburg, Pa., and Streetsboro, Ohio, and operates about 80 mechanically refrigerated trailers. As of December 31, 1961, it had assets of $3,489,537 and net worth of $1,837,137. In the year ended December 31, 1961, it had a net income of $277,467. Applicant appears financially fit to conduct the proposed operation.

Applicant is presently transporting bananas for the supporting shippers herein from New York City to various destinations under its certificated authority, and from Baltimore and New York City to various other destinations pursuant to an interim application filed by it. The rail carrier protestants contend that applicant's right to transport bananas to the extent that it does, is highly questionable. In order to determine this issue, which relates to applicant's fitness, it is necessary to examine certain background material. On December 10, 1958, applicant filed an application in No. MC-114019 (Sub-No. 23) under the "grandfather" provisions of section 7 of the Transportation Act of 1958. In the latter proceeding, applicant requested authority to continue

operations as a motor common carrier of frozen fruits and certain other commodities between points in a number of States including those involved in the instant Sub-No. 66 application. On the same date, it filed another application in No. MC-114019 (Sub-No. 24) under the "interim" provisions of section 7 of the Transportation Act of 1958 for authority to continue operations as a motor common carrier of the same commodities from and to the same points sought in its "grandfather" application. The "grandfather" application has been finally determined and a certificate has been issued authorizing applicant to transport frozen fruits and vegetables, tea, coffee beans, and cocoa beans from and to specified points. The frozen fruit authority does not authorize service from either New York City or Baltimore. The interim Sub-No. 24 application is still pending and is scheduled to be heard at an early date. At the time applicant filed its interim application, it submitted a list of representative shipments handled by it. No shipments of bananas are listed and no shipments of frozen fruit are shown to have been transported by it from either New York City or Baltimore during the critical period.

Prior to September 1961, applicant did not transport bananas, except on infrequent occasions, as it had neither the experience nor the reputation of being a banana hauler. Sometime during that year, it acquired the equipment, facilities, and personnel of Quickway, Inc., hereinafter called Quickway, and began serving the latter's customers, which included, among others, the shippers supporting the instant Sub-No. 66 application, Quickway was a substantial hauler of bananas, and had so operated for a number of years pursuant to the exemption provided by section 203(b)(6) of the act. On December 1, 1958, Quickway filed a "grandfather" application in No. MC-117962, under section 7 of the Transportation Act of 1958, for authority to continue operations as a motor common carrier of bananas between points in a number of States including those involved in the instant Sub-No. 66 application. By report and order in No. MC-117962, entered December 29, 1960, the Commission, division 1, found that Quickway was in bona fide operation, on May 1, 1958, as a motor common carrier of bananas, (1) from points in New York and New Jersey within the New York City harbor area as defined by the Commission in Ex Parte No. MC-140, Determination of the Limits of New York Harbor and Harbors Contiguous Thereto, 49 CFR 303, to Detroit, Flint, and Grand Rapids, Mich., Wilmington, Del., Chicago, Indianapolis, and Muncie, Ind., Madison and Syracuse, N. Y., Baltimore and Providence, R. I., and points in Ohio, Pennsylvania, and West Virginia; (2) from Baltimore to Pittsburgh and Erie, Pa., and points in Ohio; and (3) from Cleveland, Ohio, to Detroit, and had so operated since that time; and that a certificate authorizing the continuance of such operations should be granted. Quickway filed a petition for reconsideration which was denied by order of the Commission entered June 6, 1961. The effective date of the order was postponed pending consideration of a subsequent petition by Quickway for reconsideration and further hearing. Thereafter, by letters of August 14 and August 23, 1961, Quickway requested that the latter petition be withdrawn and that its application in No. MC-117962 be dismissed. By order of September 15, 1961, the Commission dismissed the application. Thereafter by letter of September 18, 1961, Quickway notified the Commission that on August 16, 1961, it had ceased operations as a motor carrier.

There is no probative evidence in the instant proceeding indicating when the assets, facilities, and personnel of Quickway were transferred to applicant.