OPINION

Pursuant to an order of investigation dated January 17, 1969, the Interstate Commerce Commission (hereinafter “ICC”) commenced a proceeding against IML SeaTransit, Ltd. (hereinafter “SeaTransit”) to determine whether SeaTransit was operating as a freight forwarder in interstate commerce without a permit from the ICC in violation of Section 410(a) of the Interstate Commerce Act, 49 U.S.C. § 1010 (a). The ICC’s Examiner found that SeaTransit’s operations fell within the definition of a freight forwarder in Section 402(a) (5) of the Act, 49 U.S.C. § 1002 (a) (5), and recommended issuance of a cease and desist order requiring SeaTransit to suspend its operations unless and until it obtained an appropriate permit from the ICC. By decision and order of October 14, 1970, a panel of the ICC acting as an appellate division directed SeaTransit to discontinue its operations by November 28, 1970. The ICC subsequently revised minor particulars of its decision and postponed the effective date of the compliance order to December 28, 1970.

On December 14, 1970, SeaTransit filed a complaint in this court seeking to suspend, enjoin, annul or set aside the ICC’s order and requesting the district judge to grant a temporary restraining order enjoining enforcement of the ICC’s order pending hearing and determination of this cause by a three-judge court. The district judge granted a temporary restraining order on January 18, 1971 based upon SeaTransit’s showing that plaintiff was likely to prevail on the merits of the case, that the order would preserve the status quo pending determination of the merits, that without a stay plaintiff would suffer irreparable injury, that no substantial harm would result to other interested parties from a stay, and that no public interest militated against issuance of such an order. IML SeaTransit Ltd. v. United States, 323 F.Supp. 562, 564 (N.D.Cal. 1971).

The sole question now before this court is whether plaintiff SeaTransit is a freight forwarder under Section 402(a) (5) of the Interstate Commerce Act, 49 U.S.C. § 1002 (a) (5) wherein a freight forwarder is defined as follows:

The parties agree that SeaTransit’s operations are within the ambit of subsections (A) and (B). SeaTransit challenges only the ICC’s finding that it “utilizes,” for the whole or any part of the transportation of its shipments, the services of a Part II motor carrier within the meaning of subsection (C).

SeaTransit is a Utah corporation classified by the Federal Maritime Commission (hereinafter the “FMC”) as a non-vessel operating common carrier by water (hereinafter “NVO”). During the times involved in the ICC’s investigation, SeaTransit had a tariff on file with the FMC listing port to port rates for movements of shipments from the Port of Oakland to the Port of Hawaii. SeaTransit received shipments destined for Hawaii at its San Leandro terminal from transcontinental motor carriers and from the public generally, although its principal volume of business came from shipments tendered by IML Freight, Inc., its parent corporation.

Upon receipt of shipments, SeaTransit issued its NVO bills of lading to the shippers covering movement of the traffic to Hawaii. SeaTransit would place the shipments in containers at its terminal and prepare a manifest indicating the details of each shipment. The containers which it utilized for this purpose belonged to the vessel operating water carrier which transported the shipments to Hawaii, Matson Navigation Company (hereinafter “Matson”). Matson employed a motor carrier to deliver the empty containers to SeaTransit and to 'transport the loaded containers to Mat-son’s jMer. The motor carrier gave SeaTransit a receipt from Matson for the containers and their contents as manifested. The receipt was one copy of a multicopy Matson bill of lading prepared by SeaTransit to cover the movement of the shipments from its San Leandro terminal to the Hawaiian ports of destination. Upon receipt of the containers, Matson signed the bill of lading listing SeaTransit ás consignor and consignee of the consolidated containerized shipments. Matson offered this service pursuant to a tariff on file with the FMC describing an all-water rate.

After Matson deposited the containerized shipments at its Hawaiian docks, SeaTransit employed local Hawaiian motor carriers to segregate the individual shipments from the containers for delivery to the Hawaiian consignees. Sea-Transit advanced the charges of the local carriers for the account of its shippers pursuant to the provisions of its tariff on file with the FMC. Sea-Transit billed its shippers its port to port charge for the movement of the shipments from its San Leandro terminal to the Hawaiian ports at its published FMC rates as an NVO. Added to the bill was any charge advanced by Sea-Transit to the local Hawaiian motor carriers for making delivery to the ultimate Hawaiian consignees.

There is no question that SeaTransit is an NVO whose rates are properly on file with the FMC. The FMC’s statutory jurisdiction over NVO’s in the foreign and offshore commerce of the United States is established by Section 1 of the Shipping Act of 1916, 46 U.S.C. § 801 , which provides in pertinent part:

Sectii" 5 of the Intercoastal Shipping Act of 1933, 46 U.S.C. § 845b, provides: “The provisions of this Act are extended and shall apply to every common carrier by water in interstate commerce, as defined in Section 1 of the Shipping Act, 1916.” Section 2 of that Act, 46 U.S.C. § 844 , provides for filing with FMC “all the rates, fares, and charges for or in connection with transportation between intercoastal points on its own route. if

With the enactment of the Alaskan and Hawaiian Statehood Acts, certain forms of rail, motor and water transportation in these new states became subject to federal regulation. In furtherance thereof, Congress amended the Interstate Commerce Act to implement and effectuate the ICC’s jurisdiction over the previously unregulated transportation services of these states. However, the FMC’s continuing control over common carriers by water between the ports of these new states and other states was expressly set out in Section 27(b) of the Alaskan Statehood Act, 48 U.S.C. § 27 (b), and Section 18(a) of the Hawaiian Statehood Act, 48 U.S.C. § 18 (a), the latter section providing:

Even if SeaTransit is an NVO, however, the question remains whether Sea-Transit is also a freight forwarder under Section 402(5) (a). If it is, the ICC’s position is that Section 33 of the Shipping Act of 1916, 46 U.S.C. § 832 , deprives the FMC of any jurisdiction it might otherwise have. That section provides :

In the ICC’s view, SeaTransit is a freight forwarder subject to ICC jurisdiction no matter what it chooses to call itself. See Freight Consolidators Cooperative, Inc. v. United States, 230 F. Supp. 692, 698-699 (S.D.N.Y.1964).

The court turns at the outset to the issue of whether SeaTransit “utilizes” the local Hawaiian motor carriers. Section 204(a) (4a), 49 U.S.C. § 304 (a) (4a), provides that it shall be the ICC’s duty

In Motor Carrier Operation in the State of Hawaii, 84 M.C.C. 5 (1960), the ICC exempted Hawaiian motor carriers from Part II regulation under the Act:

Notwithstanding this exemption, the ICC’s Examiner in this investigation found that these carriers were subject to Part II of the Act within the meaning of Section 402(a) (5):

Although the ICC itself abandoned that position at the hearing before this court, the defendant intervenors argued that since the ICC granted the Hawaiian motor carriers certificates of exemption and retained the continuing power to revoke those certificates in whole or in part, the Hawaiian truckers were still subject to Part IT of the Act. The intervenors conceded that the ICC may exempt them from regulation under the Act, but contended that only Congress can exclude them from the purview of the Act itself. The court rejects this argument. Under Section 204(a) (4a), 49 U.S.C. § 304 (a) (4a), the ICC has the power either to “attach to such certificate [of exemption] such reasonable terms and conditions as the public interest may require” or to “revoke all or any part thereof.” The ICC has chosen to do neither. Until such time as the ICC actually exercises its power to condition or revoke the certificates of exemption it has granted to the Hawaiian motor carriers, they are not subject to the Act. Therefore, the court concludes that SeaTransit does not utilize a Hawaiian motor carrier subject to Part II of the Act within the meaning of Section 402(a) (5).

The basic issue before the court, the issue upon which resolution of this controversy turns, is whether SeaTransit “utilizes” the California motor carrier employed by Matson to transport the containers between SeaTransit’s terminal and Matson’s pier, which motor carrier is conceded by all parties to be subject to Part II of the Interstate Commerce Act. Central to this determination is whether Matson and the motor carrier it employs are moving Sea-Transit’s shipments pursuant to a “through route.” In 1962, Congress amended Section 216 of the Interstate Commerce Act by adding subsection (c), 49 U.S.C. § 316 (c), to permit water carriers under FMC jurisdiction and motor carriers under ICC jurisdiction to enter into through route and joint rate arrangements :

Because all parties rely to some extent on the provisions of this subsection as support for their respective positions, the court now considers its bearing on the question before it.

A through route, a concept which antedates the enactment of Section 216(c), is a continuous line of carriage formed by an arrangement, express or implied, between connecting carriers. The existence of a through route does not depend on the length of the respective hauls by the participating carriers, but rather on the nature of the arrangements between them and their commitments to their shippers. See Sea-Land Service, Inc. v. FMC, 131 U.S. App.D.C. 246, 404 F.2d 824, 828 , (1968) ; Alaska Steamship Co. v. FMC, 399 F.2d 623, 626 (9th Cir. 1968). “In short, the test of the existence of a ‘through route’ is whether the participating carriers hold themselves out as offering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.” Thompson v. United States, 343 U.S. 549, 557 , 72 S. Ct. 978, 983 , 96 L.Ed. 1134 (1952). Two recent cases, relied upon by the district judge in granting temporary relief, shed some light on the effect of Section 216(c) on the litigation at bar.

In Alaska Steamship Co. v. FMC, supra, the Ninth Circuit held that upon cancelling its tariff on file with the FMC and filing through route and joint rate tariffs with the ICC, the Alaska Steamship Company, a common carrier by water, properly became subject to ICC regulation. The FMC attacked this supersedure as a “sham, serving to mask an effort at agency-forum shopping,” and contended that what was involved was solely pick up and delivery services which were properly included in the water carrier’s FMC tariff as “terminal charges.”

In rejecting this argument, the court of appeals incorporated into its reasoning the language which plaintiffs cite as controlling and which defendants dismiss as dicta:

However, the Ninth Circuit concluded that when arrangements were entered into which did in fact constitute through routes and joint rates and the carriers involved filed appropriate tariffs with the ICC, as in the ease before it, Congress intended the ICC to regulate those arrangements.

Similarly, in Sea-Land Service, Inc. v. FMC, 131 U.S.App.D.C. 246 , 404 F.2d 824 (1968), the FMC challenged Sea-Land’s “redesignation” of its activities from “a port-to-port service, including local motor pick-up and delivery,” regulated by the FMC to “joint through water and motor services and rates,” jointly performed with a motor common carrier, to be regulated by the ICC. After reviewing the legislative history of section 216(e), the court noted that there was no “mileage limitation” on the ICC’s authority to regulate through route arrangements: “The language of the statute makes no distinction between motor carrier participation of line-haul dimensions and motor carrier participation of merely pickup and delivery in the port areas; no distinction between a thousand miles and a few blocks, as long as both motor and water carriers are performing a joint through service.” 404 F.2d at 827 . Moreover, the fact that the terminal area motor pick-up and delivery was merely “incidental” to the line-haul water transportation was not determinative: “What is required is that both motor and water carriers hold themselves out to the public as participants in a joint transportation endeavor and file appropriate tariff schedules reflecting these joint rates and through services.” Id.

The court of appeals emphasized that its decision caused no diminution of FMC jurisdiction:

In resolving the competing claims of regulatory jurisdiction against the FMC, the court of appeals rejected the FMC’s argument that there had been no “change” in Sea-Land’s activities, which is, in slightly different form, the same argument the ICC makes here:

The crucial factor in both of these recent decisions, and the crucial factor in the case before this court, is whether the carriers hold themselves out to the public as joint participants in a through route.

Neither of the decisions the court has discussed holds, and the court declines to hold here, that the FMC no longer has jurisdiction over water carrier tariffs which include motor carrier pick-up and delivery services. In the case now before the court, SeaTransit is not a participant in a through route arrangement. SeaTransit contracts with Matson to utilize its all-water service, including pick-up and delivery, between its San Leandro terminal and Matson’s docks in Hawaii. This service is offered pursuant to a tariff on file with the FMC, not a through route tariff on file with the ICC. In short, neither Sea-Transit nor Matson has entered into any joint rate or through route arrangement with the motor carrier employed by Mat-son to provide terminal pick-up and delivery services. In reaching this conclusion, the court adheres to the view of the courts in Sea-Land and Alaska Steamship, as well as the single district judge who granted a temporary restraining order against the ICC in this case, that the type type of rate the water carrier and the motor carrier use to move a shipment is determinative. If Matson and the motor carrier it employs for terminal pick-up and delivery entered into through route and joint rate arrangements, and filed an appropriate tariff with the ICC, SeaTransit might then “utilize” a Part II motor carrier within the meaning of Section 402(a) (5). This is a question the court need not and does not now decide. However, so long as Matson offers an all-water service pursuant to a tariff on file with the FMC, the mere fact that it employs a Part II motor carrier for terminal pick-up and delivery does not satisfy the requirements of a through route.

The court cannot find any other basis on which to conclude that SeaTransit utilizes a Part II motor carrier within the meaning of Section 402(a) (5). The ICC makes an elaborate argument that even if there is no through route SeaTransit still utilizes a Part II motor carrier because it must then contract separately with the trucker, pay the trucker its individual rate, and hold the trucker responsible for its own acts. The difficulties with this position are obvious: First, SeaTransit does not contract separately with the trucker; it contracts exclusively with Matson. Second, SeaTransit does not pay the trucker its individual rate; it pays Matson its all-water rate, which includes the trucker’s terminal pick-up and delivery charges. Third, notwithstanding whatever legal rights SeaTransit may have against the Part II motor carrier Matson employs, the court cannot conclude that the mere existence of such rights is determinative on the issue of whether SeaTransit utilizes the motor carrier. In the court's view, the word “utilize” in Section 402 (a) (5) contemplates a more substantial commercial connection between Sea-Transit and the Part II motor carrier than the tenuous legal relationship the ICC urges is sufficient.

Unless and until SeaTransit actually utilizes a Part II motor carrier, it is not a freight forwarder. As long as Sea-Transit conducts its operations in the manner described herein, it does not fall within the ambit of Section 402(a) (5) (C): It utilizes a Part II motor carrier neither indirectly, by using a water carrier which files a tariff describing a through route with the ICC, nor directly, by itself employing a Part II motor carrier to perform transportation services for its customers

What is at issue here is fundamentally a jurisdictional dispute between two agencies of the United States Government. The court recognizes that what it decides today may foster some disparity in the regulation of transportation entities offering substantially similar services to mainland shippers and Hawaiian consignees, but it does not perceive the sort of jurisdictional conflict which Section 33 of the Shipping Act resolves in favor of the ICC. Non-vessel operating water carriers, like SeaTransit, are subject to regulation by the FMC; freight forwarders are subject to regulation by the ICC. To the extent that this scheme causes any lack of efficiency or uniformity in the complementary regulatory activities of the ICC and the FMC, the solution is for Congress to decide. It is not for this court to arrogate to itself the responsibility for apportioning jurisdiction between these two agencies.

It is hereby ordered that defendant Interstate Commerce Commission and its agents and employees are permanently enjoined from entering or enforcing any order directing plaintiff IML SeaTransit, Ltd. to cease and desist from conducting operations as a non-vessel operating water carrier between San Leandro, California and Hawaii so long as such operations are conducted in the manner described in this opinion.

. The Federal Maritime Commission, which did not participate in the administrative proceedings before the Commission, has intervened in this action as a plaintiff. Four freight forwarders — Hawaiian Express Service, Inc., Aloha Consolidators & Freight Forwarders, D. C. Andrews International, Inc., and Star Forwarders, Inc. — have intervened in this action to defend the Commission’s final order. . SeaTransit formerly operated from Oakland, but relocated its operations in San Leandro shortly before the Commission hearings. The service it offered from both locations was identical. For convenience, the court will refer solely to San Leandro since that is where SeaTransit presently conducts its business. . The Commission’s opinion made it clear that because of the particular nature of the Hawaiian motor carriers’ insular operations, the Commission should not subject them to its jurisdiction: “Considering all factors, we are persuaded that the exercise of our jurisdiction in the regulation of Hawaiian motor carriers, whose operations in large part might well be characterized as in the nature of pickup and delivery . . . would amount to unwarranted federal regulation of a stub ended, essentially local, operation for no useful purpose.” 84 M.C.C. at 31. . The Commission may have limited its argument in this court because of the Commission’s primary reliance in its decision on the involvement of the California motor carrier in SeaTransit’s operations. The court treats the question of the Hawaiian motor carriers both because the Commission adopted the Hearing Examiner’s Report, wherein the question is decided adversely to SeaTransit, and because the defendant intervenors press it. . The 1962 amendment of Section 216 of the Interstate Commerce Act did not abolish such jurisdiction sub silemtio. See Matson Navigation Co. — Container Freight Tariffs, 7 F.M.C. 480, 491-92 (1963) : “A part of this containerized operation is a pickup and delivery service which is physically performed by common carriers by motor vehicle who act as agents for Matson. Throughout the entire operation Matson is the principal charged with the direction of and liability for the services performed. The service is offered by Matson in its capacity as a common carrier by water and it is in this capacity that Matson is subject to the regulatory jurisdiction of this Commission . . . , We are not saying, nor do we mean to imply, that through their contractual relations with Matson the motor carriers operating as Matson’s agents somehow remove themselves from the jurisdiction of the Interstate Commerce Commission. They remain subject to the Interstate Commerce Act and all its requirements applicable to such carrier-. Nor are we attempting to exercise any concurrent jurisdiction over these motor carriers such as is precluded by section 33 of the Shipping Act. We are merely subjecting to regulation a service authorized by the provisions of the Shipping Act offered by a common carrier subject to that Act. If a portion of that service is conducted by a carrier subject to another agency’s regulation and the carrier performs that service in violation of the laws administered by that agency, that is a matter for the agency concerned. Practical difficulties and problems may arise but jurisdictional conflicts should not.” . The court in Hawaiian Express Service, Inc. v. Pacific Hawaiian Terminals, Inc., Civ. No. 47963 (N.D.Cal.1971), also relies on Judge Zirpoli’s earlier opinion in this case: 323 F.Supp. 562 (N.D.Cal. 1971). . See Star Forwarders, Inc. v. Intermountain Fast Freight, dba Hawaiian Cargo Expediters, Docket No. FF-C-31 (1970) and Star Forwarders, Inc. v. Hawaiian Freight Lines, Inc., Docket No. FF-C-33 (1970). In both eases, the transportation entities the ICC found to be freight forwarders arranged for the motor transportation of the shipper’s cargo from the shipper’s premises to the forwarder’s assembly station. The fact that SeaTransit does not itself employ a Part II motor carrier to provide sncli a service to its customers is a crucial difference between SeaTransit’s operations and a freight forwarder’s. If SeaTransit did provide such a service, it would “utilize” a Part II motor carrier within the meaning of Section 402(a) (5).