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WASHINGTON METRO. AREA TRANSIT COMMN. v. HOLIDAY T

March 28, 1980

WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Plaintiff,
v.
HOLIDAY TOURS, INC., et al., Defendants.



The opinion of the court was delivered by: ROBINSON, JR.

MEMORANDUM

This is an action for contempt of court and enforcement of an injunction pursuant to Rule 70 of the Federal Rules of Civil Procedure. The issue in this case is whether Defendants Holiday Tours, et al. (HT) violated the terms of this Court's injunction of March 15, 1977, as modified on July 5, 1978. That injunction stated in pertinent part:

 
Defendants Holiday Tours, Inc., Holiday Gift Shops, and Holiday Travel Club, Inc., individually and severally, are permanently enjoined from operating a sightseeing business by motor vehicles with seating capacities of more than eight (8) passengers, rented or otherwise, without a certificate of public convenience and necessity issued by the Washington Metropolitan Area Transportation Commission authorizing such operations, except as certificated coaches are chartered to accommodate occasional overbookings of Defendants' limousine tour service.

 The Order also provided that

 
Defendant Holiday Tours, Inc. deliver to Plaintiff Washington Metropolitan Area Transportation Commission the amount of Four Hundred Seventy-Six Dollars and Sixty Cents ($ 476.60), the fair cost of the 1976 shuttle service hearings.

 This case has a long and troubled history. Plaintiff Washington Metropolitan Area Transportation Commission (WMATC) was created in 1961 to regulate transportation in the Metropolitan District pursuant to the Washington Metropolitan Area Transit Regulation Compact (Compact). 1 D.C.Code § 1401, et seq. Section 4(a) of the Compact prohibits any person from engaging "in transportation subject to this Act unless there is in force a certificate of public convenience and necessity issued by the Commission authorizing such person to engage in such transportation." It is undisputed that the certification requirement applies to transportation for sightseeing purposes, and that Defendant is not entitled to any of the exceptions to the Compact. See Holiday Tours, Inc. v. Washington Metropolitan Area Transportation Commission, 125 U.S. App. D.C. 336, 372 F.2d 401 (D.C. Cir. 1967). Since 1967 WMATC has attempted to enforce the Compact's provisions against Defendant HT, *fn1" and, while prevailing in Court, *fn2" its efforts in obtaining compliance have been largely unsuccessful.

 It is clear from the manifests presented to this Court by Defendant HT that the use of coaches has pervaded the sightseeing operations. Manifests were presented covering four hundred and thirty-one (431) tours. Of these operations, the Vista Cruiser wagons (which accommodate less than nine (9) passengers) were used ninety-nine (99) times, coaches were used three hundred and twenty-nine (329) times, and a van which holds more than eight (8) passengers was used three times. Thus, over seventy-seven (77) percent of the tours were conducted in vehicles holding more than eight (8) passengers.

 The manifests also indicate that Blue Lines carried HT passengers seventy-seven (77) times. Blue Lines is a certified carrier, and its buses are certified. On two hundred and forty-nine (249) occasions, Holiday Tours conducted business using buses provided by Holiday Travel Club, an uncertified carrier. Thus, fifty-eight (58) percent of the vehicles used by HT were uncertified coaches. It is abundantly clear from the manifests that HT has persistently used uncertified coaches to conduct sightseeing tours. While the testimony of Walter Davis indicates that the manifests might not be completely accurate, they are the best evidence of Holiday Tours' modus operandi. The Court rests its conclusions primarily on these manifests.

 Finally, the manifests reveal that at no time did the use of Holiday Travel coaches result from occasional overbookings. Buses were employed in seventy-seven (77) percent of HT's sightseeing operations. In no way can this be considered an "occasional" use. Moreover, it is apparent from the arrangement between HT and Blue Lines that no overbookings within the meaning of the Order could possibly occur. This arrangement, outlined below, permits the Defendant to mingle its passengers with Blue Lines', and precludes the possibility of stranding sightseers due to overbooking. While the use of Blue Lines buses might be construed as resulting from overbooking, in no way can the use of Holiday Travel buses (amounting to fifty-eight (58) percent of Holiday Tours total operations) be so construed.

 Holiday Tours claims that it is an agent of Blue Lines, Inc., and that as such it may operate pursuant to Blue Lines' certificate of convenience and necessity. To scrutinize the scope of this agency the Court must look at both the relationship between Blue Lines and Holiday Tours and the limitations imposed by law on this relationship.

 The parameters of the Blue Line/Holiday Tours relationship are apparent from the contract between those parties. That contract provides that (1) HT will serve as ticket agent and organizer for Blue Lines, (2) HT must display Blue Lines' advertising material, (3) Blue Lines will lease five (5) buses from HT, and (4) HT shall carry public liability and property damage insurance on the buses leased to Blue Lines. The Court notes that Holiday Tours owns no buses; it therefore cannot lease buses to Blue Lines. The Court further notes that the contract only provides HT with the authority to act as ticket agent and organizer; it does not provide that Holiday Tours may operate sightseeing tours.

 The contract is not dispositive of the relationship between HT and Blue Lines, however. The behavior of the parties may be analyzed to ascertain the extent Blue Lines delegated its authority. According to Walter Davis, both HT and Blue Lines compete for sightseers. Depending on the traffic volume in a given day, however, Blue Lines and HT might commingle passengers. The decision to commingle is made on a day-to-day basis, and either a Blue Lines or a Holiday Travel Club bus will be utilized. According to Davis, there is no present agreement for division of revenues or responsibilities. Generally, however, HT will keep the revenue derived from ticket sales even if a Blue Lines bus is used; to compensate Blue Lines a Holiday Travel Club bus is made available to them when it is needed. This apparently causes little conflict for the bus drivers, who are hired on a daily basis (Davis refers to them as "independent contractors"). Often, the same driver will be employed by both Blue Lines and HT.

 The evidence further establishes that HT operates outside the framework of Blue Lines' certificate of convenience and necessity. That certificate does not permit Blue Lines to originate sightseeing tours in Fairfax County. Oral evidence and uncontested affidavits presented by WMATC reveal, however, that HT has been originating sightseeing tours, conducted in coaches, from Fairfax County. While the evidence does disclose a working relationship between Blue Lines and Holiday Tours, the vast majority of that evidence indicates that HT is only an ...


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