shippers actually perform all four functions he is authorized to perform under Section 402(a)(5). This Court there held that as long as forwarders proffer all of these services, they have fulfilled their obligation under their certificate and do qualify as freight forwarders. In order for plaintiff here to have prevailed before the Commission, it must have been demonstrated to the Commission that Delaware does actually hold itself out to assemble, and consolidate, and break-bulk and distribute consignor-shippers' freight, and assume responsibility for the property from point of receipt to point of destination. "One who does all the things that a forwarder does is subject to regulation, no matter what he may choose to call himself." Freight Consolidators Cooperative, Inc. v. United States, 230 F.Supp. 692, 698 (S.D.N.Y., 1964).
With the entire record before it, this Court cannot say that the interpretation of the statute by the Commission was erroneous, or that the Commission's findings that Delaware's activities are confined to one terminal area and do not include assumption of responsibility from point of receipt to point of destination, were not supported by substantial evidence.
Plaintiffs urge, however, that the Commission erred in concluding that the burden was upon the plaintiffs to establish the material allegations of their complaint. They contend to the contrary that the burden was upon Delaware to prove that it came under the above-setout Section 402(c) -- that the Act is remedial in nature, and that therefore, 'exemptions' therefrom are to be strictly construed. Furthermore, they allege that one claiming to be embraced within such an exemption has the burden of proving such. They cite Freight Consolidators Cooperative, Inc. v. United States, supra, and other cases
in support of their argument.
This Court is not convinced by plaintiffs' arguments. First of all, all of the cited cases were ones in which the Government, not a private complainant, brought suit claiming a violation of law. Also, in each case, the specific facts which would exempt the defendant from liability were within the exclusive possession of the defendant. No such situation has been shown here. Furthermore, the procedural statutes involved place the burden of proof on the proponent of a rule or order.
And it is the general rule that '* * * the burden of proof lies upon him who affirms, not him who denies.' Philadelphia Co. v. Securities and Exchange Commission, 84 U.S.App.D.C. 73, 83, 175 F.2d 808, 818 (1949). There is no doubt that before the Commission, plaintiff here was the party who affirmed and Delaware the party who denied. In addition, the Commission, in other cases, including Freight Consolidators Cooperative, Inc., v. United States, supra, has treated Section 402(c) as a 'clarifying provision' rather than as a true exemption from Section 402(a)(5). The legislative history of the statute, as well as its language, clearly would justify such an interpretation.
Finally, though the findings of the Commission would seem to place Delaware under the provisions of Section 402(c)(2) of the Act, there was no such specific finding and thus, no finding of an exemption. There was merely the finding that there was a failure '* * * to adduce sufficient evidence upon which the examiner may properly reach a conclusion that the business of Delaware is a forwarder within the meaning of section 402(a)(5).'
The Court must conclude that the order appealed from is not arbitrary or capricious, and that the interpretation of the statute by the Commission was lawful, and that the findings adopted by the Commission are supported by substantial evidence.
In accordance with the above, it is by the Court this 23rd day of June, 1965,
Ordered, that the plaintiffs' action be, and it hereby is, dismissed, and the order of the Interstate Commerce Commission is affirmed.