INVESTIGATION AND SUSPENSION DOCKET No. 8593 LIGHTERAGE AT NEW YORK HARBOR, B&O RR AND CNJ RR Decided August 25, 1971 Proposed schedules providing for curtailment of waterborne service in the New York Harbor area (1) by the Central Railroad Company of New Jersey, except on traffic handled in car float service, found just and reasonable and otherwise lawful; and (2) by the Baltimore and Ohio Railroad, except on traffic handled in car float service, found not shown to be just and reasonable. Schedules found not shown to be just and reasonable ordered canceled, without prejudice to the filing of new schedules consistent with findings made and views expressed. Proceeding held open for one year. Donald S. Burris, Martin J. Flynn, Albert W. Laisy, John J. Paylor for respondents. Douglass W. Binn, Daniel M. Cohen, Paul M. Donovan, S. S. Eisen, Sidney Goldstein, Edmund E. Harvey, James L. Highsaw, Ronald Kennedy, James Mahanna, William G. Mahoney, Anthony P. Mennella, Edward M. Miller, W. C. Mitchell, F. A. Mulhern, Dan Murphy, J. Lee Rankin, Martin S. Snitow, David J. Speert, Gerald H. Ullman, Arthur L. Winn, Jr., for protestants. REPORT AND ORDER OF THE COMMISSION Walrath, Commissioner: By schedules filed to become effective November 30, 1970, The Central Railroad Company of New Jersey (CNJ), party to the New York Harbor Tariff, proposed that the rates, rules, regulations, and conditions published in this tariff, as amended, on traffic originating at or destined to New York Harbor points (which is included in the port of New York) within the free lighterage limits and West 26th Street Station, New York, N.Y., would apply for CNJ's account only on domestic traffic handled in car float service,' and The Baltimore and Ohio Railroad Company (B&O), also a party to the New York Harbor Tariff, proposed that the provisions in this tariff would apply for the account of B&O only on traffic handled in car float service and on traffic to or from marine terminals, piers, docks, or wharves 'Car float service involves the movement of freight in railroad cars to and from points in the New York Harbor area on car floats equipped with rails. in direct rail service. These proposals, if they became effective, would result in the discontinuance of lighterage service by these carriers in the New York Harbor area. On the basis of various protests filed, the operation of the proposed schedules was suspended to and including June 29, 1971. The respondents have voluntarily extended the effective date to August 28, 1971. The parties submitted verified statements, in writing, under the special procedure adopted in this proceeding. The reater, oral hearing was held for the cross-examination of certain witnesses to complete the record. A number of the parties have filed briefs. Due and timely execution of our functions under section 15(7) of the Interstate Commerce Act imperatively requires the omission of an examiner's report and recommended order in this proceeding. Matters, including requested findings, not specifically discussed herein nor reflected in our findings or conclusions have been considered and found not warranted or necessary for a determination of the issues. One preliminary matter requires consideration at this point. Several of the protestants contend that the proposed discontinuance of lighterage service by respondents constitutes an abandonment under section 1(18) of the act. They point out, in this regard, that since the time of the New York Harbor Facilities Applications, 100 I.C.C. 383 (1925), the Commission has considered both lighterage and car float services at New York as necessary extensions of the rail lines of various rail carriers, such as the respondents herein; that car float service, however, differs somewhat from lighterage service and thus cannot be considered as a substitute for or an alternative to lighterage; and that in Finance Docket No. 25518, Erie-Lackawanna Railway Company Abandonment Between Jersey City, N.J., and New York, N. Y. (not printed), hereinafter referred to as the Erie case, Review Board Number 5 affirmed, in effect, the examiner's finding that the proposed discontinuance by the rail carrier there in of all its operations to Harlem Station located at 149th Street, Borough of the Bronx, New York, N. Y., constituted an abandonment of a portion of its branch line water route extending to New York City. It is their position that since the respondents propose to discontinue lighter service and the car float service which will be 'Lighterage service involves the movement of freight on lighters (barges or scows) across New York Harbor and adjacent waters to and from vessels and piers after the freight is unloaded from or before such freight is loaded into railroad cars. continued by them is not the same type of service, the discontinuance of these lighterage lines or service constitutes an abandonment of railroad lines within the meaning of section 1(18) of the act. Respondents maintain that their proposal will not result in a complete abandonment of a line or a portion of a line of railroad, but only a partial discontinuance of their New York Harbor waterborne services, citing Board of Public Utilities Com'rs of N.J. v. United States, 158 F. Supp. 98, and Board of Public Utilities Com'rs of N.J. v. United States, 158 F. Supp. 104, hereinafter called the Weehawken cases. It is the function of the courts to construe section 1(18) and apply the provision as construed to the facts de novo. Texas & Pacific Railway Company v. Gulf, Colorado & Santa Fe Railway Company, 270 U.S. 266, 272-73; Claiborne-Annapolis Ferry Co. v. United States, 285 U.S. 382, 391-92; Powell v. United States, 300 U.S. 276, 287-88; Thompson Trustee, et al. v. Texas Mexican Railway Co., 328 U.S. 134, 145. Where as here, in an investigation and suspension proceeding, the parties raise the issue of whether the proposal involves a partial discontinuance or curtailment of service, on the one hand, or an abandonment of service on the other, it is one that is appropriate for us to make an administrative determination based on the record before us. We agree with the statement of Judge Friendly in Long Island Railroad Co. v. New York Central R. Co., 281 F.2d 379, 384 (C.A. 2, 1960), that the Commission is not required to remain mute in an investigation and suspension proceeding when the tariff proposal contemplates action which may or may not constitute either an abandonment or a curtailment of service. The general rule is that if other services are to be continued, it does not amount to an abandonment. In the Weehawken cases cited above, each of the railroads operated a freight and passenger transportation service between their New Jersey rail terminals and New York City and it was held that the discontinuance of only the passenger service constituted a partial discontinuance of the freight and passenger operations over a line of railroad and not a complete abandonment. While the Erie case was distinguished from the Weehawken cases involving discontinuance of passenger ferry services between Weehawken, N.J. and New York on the ground that it involved the discontinuance of all operations to Harlem Station, the situation here differs from the Erie case in that respondents are not abandoning any trackage or closing any station. In fact, the matter |