Let us suppose that a European transporter desires to offer a less than container load (LCL) exporter a through (combined) containerised service from an interior origin in Europe to an inland destination in a foreign country. The transporter may issue a through bill of lading, point to point, he may assume responsibility for loss, damage or delay from origin to destination and he may quote a single factor (one charge) rate for the entire transportation.

The obvious advantage of this service is that the exporter need deal only with one transportation entity, instead of making separate contractual arrangements with the different modes involved in such a movement. If there is a loss or damage, the exporter will look to the transporter and need not be concerned in determining the exact location where such loss or damage occurred in order to fix liability.

Let us suppose that the same exporter desires a similar service to an interior point in the United States, say, Chicago, and the European transporter consolidates his LCL shipment into a container with the packages of other exporters for delivery to Chicago. The exporter is offered the same through bill of lading quoting a single factor rate and assuming liability for the entire journey.

The transporter seeking to move the container to Chicago would run foul of a U.S. regulatory agency known as the Interstate Commerce Commission (ICC). This agency was established by Congress under the Interstate Commerce Act (ICA) to regulate, inter alia, rail and motor carriers, barge operators and Part IV freight forwarders. The term “freight forwarder” is defined in s. 402 (a) of Part IV of the ICA as any person (other than an ICC certificated rail, motor or water carrier) who holds itself out to the general public as a common carrier to transport or provide transportation for compensation in interstate commerce and which (a) assembles and consolidates or provides for assembling and consolidating shipments of such property and performs break-bulk and distributing operations with respect to such consolidated shipments (b) assumes responsibility for the transportation of such property from point to receipt to point of destination, and (c) utilizes for the whole or any part of the transportation the services of underlying ICC regulated carriers. No person may engage in service as a Part IV forwarder under the ICA without first obtaining a permit which the Commission may issue if it finds that the applicant is ready, able and willing properly to perform the proposed service and that it will be consistent with the public interest and the national transportation policy.

The ICC maintains that with respect to that portion of the European transporter’s container moving from the U.S. port of unloading to Chicago the transporation must be pursuant to either a certificate issued by the ICC to the transporter either as a rail or motor carrier or a permit as a Part IV forwarder. The traditional ICC position is that the European exporter is being offered a complete service from origin to