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unloading and other terminal services and privileges applying on the Alaska Railroad wharves at Seward, Alaska."
This tariff was not on file with the Federal Maritime Board on March 15, 1961, at least, in complete disregard of the fact that such terminal services performed are subject to the provisions of the Shipping Act of 1916, as amended, and related acts.
The Alaska Railroad terminal tariff 34-L, issued by F. W. Hoefler, traffic manager (rates and tariffs), ARR No. 52, effective May 14, 1960, naming charges for wharfage and berthage at Anchorage, Alaska, in item No. 5 thereof, provides, "Application: The rates, rules and regulations named herein apply on all traffic moving by water, handled over the docks and wharves owned by the Alaska Railroad at Anchorage, Alaska." Tariff 34-L is believed to not have been filed with the Federal Maritime Board.
Such failure to file such tariffs named above in connection with an "other person" subject to the Shipping Act of 1916, as amended (as the term "other person" is defined in sec 1. of the act) violates a notice dated October 24, 1944, by the U.S. Maritime Commission (such notice was subsequently adopted by the Federal Maritime Board) which requires the filing of tariffs by "other persons" subject to the act in connection with terminal services performed for common carriers; and such failure violates section 17 and other provisions of the act.
The Railroad also publishes the Alaska Railroad freight tariff 5-N, issued by E. J. Kunz, general traffic manager, ARR 38, effective November 9, 1958, which covers "class and commodity rates which include delivery of less than carload freight and any quantity freight *** also rules and charges for delivery of carload freight ***"
Tariff 5-N names no participating carriers, as such; but, section 4; Routing therein shows route numbers for Alaska Steamship Co. and another carrier. Item 300-C of supplement 21 to tariff 5-N provides, in effect, that the tariff "endeavors" to aggregate connecting water carriers' rates with its own to arrive at the through rates named therein (Alaska Steamhsip Co. is named as a connecting carrier) and "that the rates named herein are published for information purposes only and solely for the convenience of the public. The rates and charges named herein are not intended to supersede or otherwise affect the rates and charges lawfully published and filed with the Federal Maritime Board by Alaska Steamship Co."
Notwithstanding such misleading statement, item 440-C in supplement 21 to tariff 5-N provides that the rates named in tariff 5-N include wharfage, handling, and loading to or unloading from railroad cars at Seward, Alaska.
In billing northbound shipments moving in the through connecting service of the railroad and Alaska Steamship Co., no "destination terminal charges" are assessed (at Seward) while "Seattle terminal charges" are assessed. The railroad is performing terminal services which are subject to the act but it is not assessing charges for such services if the shipments move on the lines of the railroad. In addition to its failure merely to assess charges for the performance of terminal services, performed, in violation of the act, the act of so doing creates the following facts and circumstances:
A. The railroad and Alaska Steamship Co., jointly, give unjust and unreasonable preference to shipments and to shippers whose shipments are routed via the railroad to the prejudice and disadvantage of shipments and shippers whose shipments are routed via truck, or other means other than via the railroad, in respect of the terminal services performed by the railroad.
B. Unjust and unreasonable preference is given to shipments and to shippers whose shipments are routed via port of Seward to or from points on the rail
road to the prejudice and disadvantage of shipments and shippers whose shipments are routed via port of Anchorage to or from points on the railroad. C. An unauthorized and unlawful operating subsidy is allowed Alaska Steamship Co. at the expense of the United States of America, the owner of the railroad, by virtue of the railroad absorption of its terminal charges at Seward which, in effect, allows Alaska Steamship Co. to compete in the transportation market at a higher division of rates than could prevail if the through-landed cost of shipments were required to reflect the terminal charges absorbed by the railroad. During the fiscal year 1960, the railroad reported an operating income loss of $367,138.
Such practices are unjust and unreasonable and are unjustly and unreasonably discriminatory in respect of persons and places. Such practices are monopolistic and are destructive to the railroad; the United States; Alaska Steamship Co.; other modes of transportation competing with the railroad; water carriers operating in competition with Alaska Steamship Co. and Alaska Steamship Co. and the railroad, jointly; and the port of Anchorage.
The railroad competes in the open transportation market against carrier services financed by private enterprise. It advertises "One Package Transportation via Alaska Railroad Containers" (italics supplied for emphasis) in connection with Alaska Steamship Co. and Puget Sound-Alaska Van Lines, such as its advertisement which appeared at page 7 of the Daily Journal of Commerce, published at Seattle, Wash., on April 10, 1961. Again, the railroad allows certain water carriers serving port of Seward an unauthorized and unlawful subsidy at the expense of the United States of America, its owners, by furnishing equipment for use in certain privately owned carrier operations, reducing the costs of such privately owned carriers and the capital requirement for and cost of such containers by such privately owned carriers.
Furthermore, in an article headlined "No 'Cousin John' Rates From ARR, Official Asserts," which appeared in the April 14, 1961, edition of the Anchorage Daily Times, published at Anchorage, Alaska, Mr. John Manley, Assistant General Manager of the Railroad was publicly quoted as stating that should the port of Anchorage be able to offer a rate from Seattle to Anchorage lower than the present combined ocean-rail rate, "we would have to attempt to meet it." The Railroad reaches far beyond the scope of its authority by aggressively and unfairly competing with private enterprise in an apparent effort to kill off its competition represented by private and/or municipal capital, and by furnishing certain private enterprise carriers physical facilities and absorption of charges to offset losses of revenues to them. These acts are contrary and repugnant to the intent of Congress and to the public interest. They are detrimental to the economy of Alaska and destructive to free competition in free enterprise.
Alaska Steamship Co. is a water common carrier serving between Seattle and Tacoma, Wash., on the one hand and Seward, Alaska, on the other hand, in addition to certain other points in Alaska including Ketchikan, Wrangell, Sitka, Juneau, Skagway, Haines, Cordova, Valez, Whittier, Seldovia, Kodiak, Chignik, King Cove, King Salmon, Clark's Point, Platinum, Bethel, Dutch Harbor, St. Michael, Unalakleet, Nome, Teller, and Kotzebue.
While Alaska Steamship Co. gives lip service to the matter of establishing service direct between Seattle and Tacoma, Wash,. on the one hand, and port of Anchorage, on the other hand, it has produced no tangible evidence after a reasonable time of actually establishing such direct service. The Board should, on its own motion, investigate and determine whether Alaska Steamship Co. and the Railroad are conspiring to a joint effort to continue to monopolize and restrain interstate trade between the points named in the State of Washington and Seward, or, if Alaska Steamship Co. would, in fact, lose its unauthorized and unlawful subsidies as a result of serving the port of Anchorage direct rather than the Railroad-owned port of Seward and, as a result of such loss, it could no longer survive as a privately owned water common carrier in the Alaskan trade.
Furthermore, after due investigation, the Board should, upon its own motion, and in the public interest, compel Alaska Steamship Co. to establish direct, regular, frequent, common carrier water service between Tacoma and Seattle, Wash., and port of Anchorage at reasonable rates to afford the public the economic benefits of such service at a municipally financed port, thereby eliminating an
uneconomic overland haul by Government-owned railroad between Seward and Anchorage and, in so doing, effecting a sound natural economic advantage inherent in direct service at port of Anchorage resulting from its geographical location. Such direct service would not require that an unauthorized and unlawful subsidy be "arbitrarily dispensed" through and by the railroad.
Puget Sound-Alaska Van Lines, Inc., hereinafter referred to as P.S.A.V.L., is a water common carrier operating tug and barge equipment between Seattle and Tacoma, Wash., and San Francisco Bay, Calif., and Long Beach-Los Angeles Harbor, Calif., on the one hand, and Seward or Valdez, Alaska on the other hand.
Like Alaska Steamship Company, P.S.A.V.L. published its tariffs, as follows: (a) Puget Sound-Alaska Van Lines, Inc., local and joint proportional freight tariff No. 4, issued by Wilbur J. Thompson, traffic manager, FMB-F No. 4, effective April 12, 1960, naming commodity and class rates between California ports and Seward and Valdez, Alaska; and
(b) Puget Sound-Alaska Van Lines, Inc., local and joint freight tariff No. 1, issued by William F. Boush, manager, rates and tariffs, FMB-F No. 1, effective May 21, 1961, naming class and commodity rates between Seattle and Tacoma, Wash., and Seward and Valdez, Alaska. Like Alaska Steamship Co., P.S.A.V.L. enjoys the benefits of the existence of a through water-rail tariff published by the Railroad under which the Railroad absorbs the Seward terminal charges on shipments routed beyond Seward via the Railroad.
Substantially all of the charges named against the Railroad in its relationship with Alaska Steamship Co. exist likewise, in the relationship between the Railroad and P.S.A.V.L. All actions requested of the Board in respect of the relationship between the Railroad and Alaska Steamship Co. and such requests as were made relative to Alaska Steamship Co., individually, are hereby made of the Board in respect of the relationship between the Railroad and P.S.A.V.L., jointly, and in respect of P.S.A.V.L., individually.
The Alaska Railroad freight tariff 63-A, issued by F. W. Hoefler, Traffic Manager (rates and tariffs), A.R.R. 55, effective April 22, 1961, names class and commodity rates which include pickup and delivery (in Alaska) between Seattle, Tacoma, Wash.; Oakland, Long Beach, Calif.; and points taking same rates or arbitraries over and stations in Alaska on the Alaska Railroad and certain other points in Alaska.
Garrison Fast Freight, Division of Consolidated Freightways, Inc., hereinafter referred to as Garrison, publishes its Garrison Fast Freight, Division of Consolidated Freightways, Inc., in connection with Alaska Steamship Co. (MXF-1 No. 4), local and joint freight tariff No. 1, issued by John F. Douglass, traffic manager, FMB-F No. 1, effective June 10, 1959, naming class and commodity rates between Seattle, Wash., and "Destinations in Alaska Listed Herein," including such inland, interior points as Fairbanks, Palmer, Big Delta, Alaska, and other Alaskan points.
Garrison provides service in its own containers, vans, or truck trailers, over the lines of Alaska Steamship Co., the Railroad, and by its own motor carrier over-the-highway service.
Rule 10 of the tariff named last above, at fourth revised page No. 11, states, in part, that rates named therein apply * * via vessel, railroad, and/or motor vehicle or any combination thereof at carrier's option and include all charges for transfer at intermediate interchange points and charges for transportation service by motor vehicle and/or railroad in Alaska."
The Railroad assesses its trailer-on-flat-car rates in connection with such motor carrier freight in motor carrier owned or controlled vans, containers, or truck trailers, under its through water-rail tariffs named hereinabove and takes its division of the through water-rail transportation on the basis of its division sheets.
The service within the purview of Garrison's tariff by water common carrier (Alaska Steamship Co.) is purported to be "legal and lawful" by virtue of a section 15 (Shipping Act) agreement between Garrison and Alaska Steamship Co. However, section 15 of the Shipping Act of 1916, as amended, is not in any manner applicable to overland railroad or truck line-haul operations. The Railroad, to repeat, is free of regulation and the motor common carrier service
is subject to either the Interstate Commerce Act, or, in cases in which the Interstate Commerce Act or the Interstate Commerce Commission has exempted such motor common carrier operations, to the Alaska Motor Freight Carrier Act. The Federal Maritime Board has exercised jurisdiction that it is not empowered with. Section 33 of the Shipping Act of 1916, as amended (46 U.S.C. 832), provides:
"That this Act shall not be construed to affect the power or jurisdiction of the Interstate Commerce Commission, nor to confer upon the board concurrent power or jurisdiction over any matter within the power or jurisdiction of such commission; nor shall this Act be construed to apply to intrastate commerce." | Italics supplied for emphasis.]
In other words, the Board has encroached upon the jurisdiction of the Interstate Commerce Commission; and by virtue of such encroachment, the Board is, itself, in violation of section 33. Moreover, the Board has, by virtue of its failure to refuse to accept and file Garrison's section 15 agreement and its tariff, misled and aided and abetted Garrison in violations of the Shipping Act of 1916, as amended, and of the Interstate Commerce Act. And, Alaska Steamship Co. is a party to such violations.
Further, a motor common carrier subject to part II of the Interstate Commerce Act, as is the Garrison's motor common carrier service, is precluded under the jurisdiction and regulations of the Interstate Commerce Commission from substituting the service of a carrier which is not under the jurisdiction of that Commission, such as the Railroad, for its own motor common carrier service.
In encroaching upon the jurisdiction of the Commission, the Board has so beclouded the issues that it has impeded and obstructed the Commission in carrying out its duties and meeting its responsibilities.
Further, the Railroad publishes, assesses, and charges, and has in the past assessed and charged rates and charges to motor common carriers for the service of transporting motor common carrier's containers, vans, and trailers laden with the motor carrier's freight at the Railroad's tariff rates. Such acts violate the Interstate Commerce Act since the Railroad is not a common carrier, subject to the Interstate Commerce Act (1924, 34 Op. Atty. Gen. 232, as cited in 48 U.S.C. 301), and, more specifically, the Railroad is not a motor common carrier subject to part II of the Interstate Commerce Act as an underlying carrier is required to be in substituting rail service for motor common carrier service (see Stone's Express, Inc., Common Carrier Application; No. MC 45263, 32 M.C.C. 525 as reported at 3 CCH Fed. Car. Cases 30, 199).
Weaver Bros., Inc., holds itself out as a water carrier, having a section 15 agreement (Shipping Act) between it and P.S.A.V.L. applying between Seattle, Wash., and numerous inland points in Alaska, which is filed with the Board. And, Weaver Bros., Inc., recently filed a new section 15 agreement between it and Puget Sound Tug & Barge Co., the parent company of P.S.A.V.L., which is quoted in part as follows from pages 4005 and 4006 of the May 19, 1961, issue of the Federal Register (vol. 26, No. 88):
"DEPARTMENT OF COMMERCE
"FEDERAL MARITIME BOARD
"WEAVER BROS., INC., ET AL.
"NOTICE OF AGREEMENTS FILED FOR APPROVAL
"Notice is hereby given that the following described agreements have been filed with the Board for approval pursuant to section 15 of the Shipping Act, 1916 (39 Stat. 733, 46 U.S.C. 814):
'Agreement No. 8501-2, between Weaver Bros., Inc., and Puget Sound Tug & Barge Co., modifies approved Agreement No. 8501, as amended, of the parties, covering a through billing arrangement on cargo between Seattle, Wash., and places in the interior of Alaska, with transshipment at Seward, Alaska. The purpose of the modification is to amend the provision of the agreement covering the understanding of the parties with respect to claims and insurance."
Weaver Bros., Inc., hereafter referred to as Weaver, operates under its Weaver Bros., Inc., in connection with Puget Sound-Alaska Van Lines, Inc. (MXF-1 No. 1), Freight Tariff No. 7-A, issued by Edward R. Sanders, General Traffic Manager, FMB-F No. 3, effective June 17, 1960, which names local, joint, and proportional class and commodity rates between Seattle, Wash., and "Destinations in Alaska listed herein."
All of the charges stated herein in respect of Garrison are hereby made in respect of Weaver.
Additional relevant facts relative to Weaver are in the record in "Common Carriers by Water-Status of Express Companies, Truck Lines, and Other NonVessel Carriers," docket No. 815, before the Federal Maritime Board.
Anderson Terminal Co. (and Cook Inlet Tug & Barge Co., Inc., its affiliate which operates the tug Northwind and several non-self-propelled barges) is located at Anchorage, Alaska.
It leases a barge terminal in the tidelands area of Anchorage to Alaska Freight Lines, Inc., in connection with the latter's interstate common carrier barge service under a lease agreement executed in 1953. The lease agreement which could be within the purview of section 15 of the Shipping Act of 1916, as amended, had not been filed with your Board, at least by March 15, 1961.
Neither Anderson Terminal Co., nor Alaska Freight Lines, Inc., has filed a terminal tariff covering the operation of such terminal with the Board, at least by April 27, 1961, even though the terminal has been in service since about July 1953.
Alaska Freight Lines, Inc., operates simultaneously as a motor common carrier and a water common carrier by tug and barge between Seattle, Tacoma, Longview, Vancouver, Wash.; Portland, Oreg.; Oakland, San Francisco, Long Beach, Los Angeles Harbor, Calif.; and certain other irregular ports, on the one hand, and Anchorage, Fairbanks, Palmer, Seward, Valdez, Big Delta, Eielson AFB, Alaska, on the other hand, according to Alaska Northern Express, Inc., local freight tariff No. 1, issued by William M. Hamilton, traffic manager, FMB-F No. 1, effective October 10, 1958, which was adopted by Alaska Freight Lines, Inc., adoption notice issued by Alaska Freight Lines, Inc., by: Errol D. Anderson, traffic manager, FMB-F No. 9, effective June 1, 1960. Alaska Freight Lines, Inc., was also a predecessor to Alaska Northern Express, Inc.
The tariff named last above is purported to be filed with Board; and it names rates and service from and to inland points which are beyond the scope of the Board's jurisdiction.
We have in our possession a copy of a ditto sheet entitled "Alaska Freight Lines, Inc., Traffic Information Bulletin No. 26," dated March 26, 1957, which states:
"At our leased dock facilities at Seward and Anchorage, should other accounts wish to use the facility at any time, and we are willing and able to accommodate them, the following charges would be applicable: ***"
The bulletin then names rates and charges for berthage, wharfage, handling charge, and equipment rental. This bulletin is not a published tariff.
We also possess an Alaskan Freight Lines, Inc., "Traffic Information Bulletin No. 28," dated March 26, 1957, which covers "Equipment Rental" for "Seattle Area" and "Alaska Area."
Alaska Aggregate Corp. has an old ship hull beached in the tidelands mud at Anchorage, Alaska. A crane is mounted on the deck of the hull. Alaska Aggregate Corp., hereinafter referred to as Aggregate, stores bulk cement in the hull after discharging the cement from barges brought alongside the hull at high tide and beached.
The hull is referred to as Alagco Dock and is also used as a terminal facility in connection with water common carrier cargo moving on barges.
Aggregate publishes its tariff to cover such terminal operations, known as Alaska Aggregate Corp. Alagco Dock Terminal, Tariff No. I, issued by Ken Hinchey, president, FMB-F No. 1, effective December 28, 1960, which names charges for wharfage, handling, rail and truck loading or unloading, and charges for equipment rental on freight traffic handled over Alagco Dock.