made no effort to maintain the track on this line or that it has refused to provide service upon requests of shippers on the line, and avers, by way of affirmative defenses, (1) that this line is the subject of an abandonment proceeding filed with the Commission on September 10, 1971, in Finance Docket No. 26804, pursuant to section 1(18-20) of the act, in which the Administrative Law Judge has issued a report recommending that the abandonment be permitted, (2) that this line has lost money in recent years, is in poor physical condition, and requires an expenditure of at least $350,000 if it is to conform with the Federal Railroad Administration's minimum safety standards for class I track (maximum permissible speed: 10 miles per hour), (3) that to restore the Wakefield-Crofton branch line to service merely on an interim basis would require an expenditure of $109,000, (4) that, in view of the above circumstances, continuation of the embargo of the Wakefield-Crofton line is not an unreasonable practice under the act, and (5) that the issue of the condition of the Wakefield-Crofton line and the reasonableness of expending the sums required to rehabilitate it were raised in the abandonment proceeding, Finance Docket No. 26804, and should properly be decided by the Commission in that proceeding, to which complainant is a party.

Section 15(1) of the act does authorize the Commission to issue a cease and desist order whenever an unreasonable practice is found to exist. In attempting to define "practice" the Supreme Court, in B&O R.R. v. United States, 277 U.S. 291, 299-300 (1928), cautioned against a broad construction, as follows:

The word "practice," considered generally and without regard to context, is not capable of useful construction. If broadly used, it would cover everything carriers are accustomed to do. Its meaning varies so widely and depends so much upon the connection in which it is used that Congress will be deemed to have intended to confine its application to acts or things belonging to the same general class as those meant by the words associated with it.

Accordingly, the word "practice" as used in section 15(1) of the act must be interpreted as applying only to acts or things pertaining to rates, fares, charges, classifications, or regulations as those terms are used in this section of the act.

An effort to define these terms individually was made in Stopping of Cars in Transit to Complete Loading, 36 I.C.C. 130, 132 (1915), as follows:

348 I.C.C.

*** "Rate," "fare," and "charge," broadly speaking, denote the compensation of the carrier; "classification," "regulation," and "practice" are merely incidents of a rate, fare, or charge which serve to determine the amount, availability, or elasticity thereof, or of the value of the whole service rendered. ***

A total embargo of an entire branch line is hardly a mere incident of a rate, fare, or charge. Accordingly, the conduct complained of cannot be construed to be a practice and no relief is available under section 15(1) of the act.

In any event, what the complaint actually alleges is that North Western has unlawfully abandoned the Wakefield-Crofton line without obtaining authority therefor pursuant to section 1(18) of the act. An "embargo" issued by a common carrier is an emergency measure used when for some reason the carrier is unable to perform its duty as a common carrier. Froehling Supply Co. v. United States, 194 F. 2d 637, 641 (1952). An abandonment, unlike an embargo, implies an intention to permanently cease all service. Meyers v. Jay Street Connecting Railroad, 259 F. 2d 532 (1958); Wheeling & L.E. Ry. v. Pittsburgh & W.V. Ry., 33 F. 2d 390, 392 (1929). In Meyers v. Jay Street Connecting Railroad, supra, at 535, it was held that the purpose of section 1(18)(20) "permits of no distinction between discontinuing service permanently and suspending it indefinitely." Complainant here in complains that the embargo of the CroftonWakefield branch line has been used as a permanent means of ceasing service. Accordingly, it is apparent that complainant is actually alleging that an unlawful abandonment has occurred.

However, under section 1(20) of the act, a competent court is the only forum having jurisdiction to grant relief for a violation of section 1(18). As section 1(20) states, an unlawful abandonment "may be enjoined by any court of competent jurisdiction at the suit of the United States, the Commission, any commission or regulating body of the State or States affected or any party in interest." Thus, we have no jurisdiction to grant the relief sought by complainant for the alleged unlawful abandonment.

It should also be noted that in Duralite Co., Inc. v. Erie Lackawanna Ry. Co., 339 I.C.C. 312 (1971), it was determined that enforcement of the duty of a common carrier to "provide and furnish transportation upon reasonable request therefor" pursuant to section 1(4) of the act, except as entrusted to the Commission by other provisions of the act, rests with the courts.

'See, for example, Powell v. United States, 300 U.S. 276 (1937); Meyers v. Famous Realty, Inc., 271 F.2d 811, 816-817 (1959); McGrody v. Baltimore & O. R. Co., 317 I.C.C. 253 (1962); Duralite Co., Inc. v. Erie Lackawanna Ry. Co., 339 I.C.C. 312 (1971).

The Commission shall of course continue to process the involved abandonment application in Finance Docket No. 26804 and will consider all of complainant's objections therein before determining whether abandonment should be permitted under section 1(18).

FINDINGS

Accordingly, we find that we are without jurisdiction to grant the relief sought by complainant, and, the complaint should be dismissed.

We also find that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. An appropriate order will be entered.

348 I.C.C.

FINANCE DOCKET NO. 21669

NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY REORGANIZATION (COMPENSATION-TYLER, COOPER, GRANT, BOWERMAN & KEEFE, COUNSEL TO SUCCESSOR INDENTURE TRUSTEE)

Decided February 5, 1975

Setting of maximum limits of allowance for interim compensation for services rendered and reimbursement for expenses incurred by certain counsel for successor indenture trustees found not justified on the present record.

Donald F. Keefe for petitioner.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS TUGGLE, O'NEAL, AND Clapp

BY DIVISION 3:

The modified procedure has been followed and the matter has been assigned to division 3 for disposition.

By petition filed in the United States District Court for the District of Connecticut in proceeding No. 30226, pending therein for the reorganization of the New York, New Haven and Hartford Railroad Company, debtor, Tyler, Cooper, Grant, Bowerman & Keefe, counsel to Lawrence W. Iannotti, Successor Trustee under the debtor's First and Refunding Mortgage dated July 1, 1947, requests that the court allow them interim compensation and reimbursement of expenses for the period July 1, 1971, through December 31, 1972, within such maximum limits as may be approved as reasonable by the Interstate Commerce Commission for services for and on behalf of the Successor Trustee of the debtor's First and Refunding Mortgage. The Reorganization Court by Order No. 691 dated March 27, 1973, directed that the petition be transmitted by the clerk of the court to the Interstate Commerce Commission for a determination of the maximum limits within which allowances for interim compensation for services rendered

and reimbursement of expenses incurred during the involved period may be made to petitioner.

By order dated November 9, 1973, the matter was designated for handling under the Commission's modified procedure as described in the Commission's General Rules of Practice (49 CFR 1100.45(b), 1100.46(b), and 1100.47-1100.54). A verified statement in support of the pending request for interim compensation and reimbursement of expenses supplementing the originally filed petition was filed by petitioner on December 26, 1973. No other pleadings were submitted pursuant to the Commission's order of November 9, 1973, and the petition stands unopposed.

Petitioner was appointed counsel to Lawrence W. Iannotti, Successor Trustee under the debtor's First and Refunding Mortgage dated July 1, 1947, by Reorganization Court Order No. 655 dated September 3, 1971. During the period July 1, 1971, through December 31, 1972, petitioner through three of its attorneys rendered 855 hours' of professional services on behalf of the Successor Trustee for which it seeks interim compensation in an amount not less than $42,450 and reimbursement of expenses in the amount of $1,850.91.

The services rendered were described by petitioner as falling into five general categories:

A. Matters relating generally to the debtor's reorganization and the duties of the Successor Trustee (162 hours).

Services included initial review of the First and Refunding Mortgage and Indenture; review of pertinent documents relating to debtor's reorganization; consultations with counsel for resigning Indenture Trustee; appearances before the Reorganization Court with regard to funds held by the Manufacturers Hanover Trust as Indenture Trustee, the sale of real property in New London, Conn., to the New London Redevelopment Agency, various settlement proposals involving the Penn Central Trustees, and various petitions. submitted by the New Haven Trustee for compensation and other relief; and various conferences with the New Haven Trustee, his counsel, and counsel for other New Haven creditor groups regarding the New Haven Estate.

'The originally filed petition indicated that 772 hours of professional services (including 380 hours provided by Lawrence W. Iannotti, one of petitioner's partners) had been rendered. Petitioner's subsequently filed verified statement revealed a corrected total of 855 hours. Petitioner described the error as clerical and noted that the dollar amount sought was not affected.