(concurring).
I concur in the views expressed by my brother WRIGHT but I desire to add the following respecting the issue of co-loading or consolidation of Columbia’s freight with the freight of non-member, unaffiliated shippers.
The Commission’s position can, I think, be fairly summed up as follows: STS is the corporate “alter ego” of Barnes and is “under the effective control of the defendant association [Columbia] and * * * [it] cannot avoid responsibility in connection with the co-loading with member traffic for-profit shippers.* * * * ” But assuming that these conclusions are correct and fully supported by the record, I still cannot perceive how the Commission avoids the provisions of Section 402(a) (5) (A) which defines a “freight forwarder,” inter alia, as any person who “assembles and consolidates or provides for assembling and consolidating shipments of * * * property [for transportation], and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments * * (Emphasis added.) I can find no evidence in the record which demonstrates the performance of any “distributing operations”. This fact seems to me to destroy the Commission’s case. See the opinion of Commissioner STAFFORD, dissenting in part.
The Commission asserts quite correctly that Barnes “cannot do for * * * [Columbia] what * * * [it] cannot do for itself, and [that] * * * [Columbia] through its direction and control of Barnes, may not use STS as an instrument to expand the scope of its activities to embrace those which would be otherwise permissible under 402(c).” But assuming that Columbia itself performed the coloading services that are done by Barnes or STS, the Commission’s conclusion is still invalidated by the phrase of Section 402(a) (5) (A) previously quoted.
The Commission uses Section 402 (c), the “exception” section, as if it prohibited coloading for profit. But even if the coloading here was for profit the Commission is still faced with the same barrier that no break-bulk or distributing operations are demonstrated by the record. I cannot see how the provisions of Section 402(a) (7) are of aid to the Commission’s position, for, as stated by Commissioner STAFFORD in dissenting in part, “It is the transportation, not the shippers’ primary businesses, which must not be conducted for a profit.” True, Section 402(a) (7) provides that the term “ ‘service subject to this chapter’ ” means “any or all of the service in connection with the transportation in interstate commerce which any person undertakes to perform or provide as a freight forwarder * * * ” but as Commissioner STAFFORD stated, “[T]here is more to forwarding than mere coloading.” The Commissioner cites Part IV, Sections 402(a) (5) and (7), of the Interstate Commerce Act to demonstrate the need for complete “forwarding service”, which he defines as “break-bulk” and “forwarder responsibility for goods over the entire, journey”, i. e., from consignor to consignee. I agree.