UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT Six Months Interim Report of THE TRUSTEES of THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY to THE HONORABLE ROBERT P. ANDERSON CHIEF JUDGE on the Operations of the Railroad March 5, 1962 In The UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT IN PROCEEDINGS FOR THE REORGANIZATION OF A RAILROAD SIX MONTHS INTERIM RE PORT OF TH E TRUSTEES COVERING PERIOD FROM AUGUST 3. 1961-FEBRUARY 3. 1962 In the Matter of THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, No. 30226 Debtor, Now come Richard Joyce Smith, William J. Kirk and Ha·r ry W. Dorigan, as the Trustees of the property of the Debtor (hereinafter "Debtor" or "New Haven") and respectfully present their Interim Report to this Court. PRELI MINARY STATEM ENT The Debtor filed in this Court its voluntary petition for reorganization under § 77 of the Bankruptcy Act on July 7, 1961. In the regular course of proceedings this Court appointed us as Trustees. We qualified and assumed office August 3, 1961. This Interim Report covers the six months period from August 3, 1961 to February 3, 1962.1 Purpose of Report Its purpose is two-fold: I. To report on the Trustees' stewardship; and II. To state the basis on which a plan of reorganization can be formulated. Nature and Charac:terisf ics of the New Haven Railroad The New Haven Railroad provides passenger and freight service in New York, Connecticut, Rhode Island, and Massachusetts. Passenger service is provided over 613 miles of road. Apart from the Long Island Railroad it has proportionately more passenger traffic than any other railroad in the 1. It also includes operation and accounts prior and subseque:J.t to their appointment in order to preserve the continuity of the annual records for comparative purposes. In a few instances it covers accomplishments of the Trustees subsequent to February 3, 1962 where this is helpful to an understanding of matters initiated before February 3. United States. 2 The bulk of these are short-haul passengerscommuters and other suburban riders in and out of New York City at the west end of the New Raven's line, and in and out of Boston at the east end. Yet mass transportation by the New Haven serves both national and local interests; is demanded by those served; and, although inherently unprofitable, the New Haven must presently continue to perform these deficit operations. The New Haven operates under franchises granted by public authority. It may not arbitrarily discontinue service even if the service is being provided at a loss . In this respect, it is unlike a manufacturing or other corporation not affected with a public interest. It cannot be contested that mass transportation of commuters by rail into New York City is a public interest. However, a railroad supported only by private capital cannot be expected to provide such needed public service unless it is properly compensated. Although the New H aven operates 1715 miles of railroad in freight service, much of this consists of branch lines. Almost 25% of its freight lines produce less than 3% of New Raven's freight revenues. Much of this mileage can and should be abandoned. Yet this is not a final solution. The New Haven is not a long-haul freight carrier. Primarily it is a terminating, rather than an originating carrier, subject to high terminal costs.a The New H aven is something of a large switchyard for inbound freight; and much of this is of the heavy, bulk type moving under low tariffs that produce only modest revenues for the New Haven. Southern New England as an originator of outbound traffic, on the other hand, produces many goods that are light, compact and lend themselves to truck movement, especially when 2. "An exhibit of record compares the percent of passenger service reve:~.ues with total operating revenues of other class I railroads having passenger revenues in excess of 10 million dollars. In 1958, with the exception of The Long Island Rail Road Company with a percentage of 80.6 the New Haven ranked the highest with 45.2 percent. The New York Ce:~.tral Railroad Company had 22.8 percent. The Pennsylvania Railroad Company 21.4 percent, and the other 13 carriers shown had less than 20 percent." Passenger Fares, New York, N.H. & H.R. Co . (1961) 314 I.C.C. 377, 380. 3. Per diem- the per day use rental payable by 0:1e carrier to another for cars of the latter while on the tracks of the formeris a contributor to the New Raven's high terminal costs. For some time the New Haven has resisted the per diem set by the Association of American Railroads and the matter is in litigation. For aspects of this and discussion, see Boston & Maine Railroad v. United States ( D.Mass. 1958) 162 F. Supp. 289 app. dism'd ( 1958) 358 U. S. 68, 79 S. Ct. 107, 3 L. ed. 2d 34; Baltirrwre & Ohio Rr. Co. v. New York, New Haven & Hartford Rr. Co. (S.D. N.Y. 1961) 196 F. Supp. 724. 1 this form of competition is heavily subsidized and abetted by the swift interstate thruways that parallel the New Raven's main line. Yet it cannot be doubted that much of the freight service performed by New Haven well serves both national and local interests. The financial position of the New Haven is serious. It is not, however, hopeless. We believe that rehabilitation and reorganization of the New Haven is practicable on the bases set forth in this report. Scope and Purpose of This Reorganization A brief resume of the scope and purpose of this reorganization under § 77 of the Bankruptcy Act will help in putting our problems in proper perspective for all interested parties. Under § 77 the reorganization court has "exclusive jurisdiction of the debtor and its property wherever located" and broad and plenary powers to effectuate that jurisdiction. The judge must appoint one or more disinterested trustees, subject to the ratification of the Interstate Commerce Commission. The trustee or trustees so appointed, upon filing bond-which in the present case was August 3, 1961-"shall have all the title and shall exercise, subject to the control of the judge and consistently with the provisions of this section, all of the powers of a [bankruptcy] trustee . . . and, to the extent not inconsistent with this section, if authorized by the judge, the powers of a receiver in an equity proceeding, 4 and, subject to the control of the judge and the jurisdiction of the Commission as provided by the Interstate Commerce Act as now or hereafter amended, the power to operate the business of the debtor." The trustee(s) may file a plan of reorganization. We intend to avail ourselves of this right if and when it becomes feasible to prepare a plan of reorganization under the criteria now to be set forth. The broad purpose of § 77 is to recapitalize a railroad which is a going concern, primarily upon the basis of net earnings. A railroad that has sufficient earning power, so that after paying all operating expenses there is a net operating profit, may be reorganized. A railroad that does not have, or cannot be made to have, such capability must be liquidated. For there is no alchemy in a § 77 proceeding that will transmute an inherently unprofitable railroad into a golden corporation with net earnings. At the time the Trustees assumed office they were faced not only with large operating deficits but with a large cash attrition-the outlay of more cash than is taken in. Hence in the case of the New Haven two objectives must be accomplished before reorganization is feasible. The first is to stop the cash attrition. The second is then to proceed much further and put the railroad on a net earning basis. If the second objective can be achieved, then the process of formulating a fair, equitable and feasible plan of recapitalization can and will be undertaken. If both the first and second objectives cannot be accomplished, then the only alternative is liquidation, presumably by a liquidating receivership in this Court, unless prior to that time § 77 is amended to permit liquidation.~~ While, as subsequently pointed out, the Trustees were 4. Order No. 7 of this Court conferred these powers upon the Trustees herein. 5. Legislation now pending in Congress would amend § 77 to permit a bankruptcy liquidatio::J. of a railroad. See Fooshee and B1llyou, Amendments to Federal Railroad Reorganization Statutes Proposed by the American Bar Association ( 1961) 16 Business Lawyer 543. 2 initially faced with a huge cash attrition of about $1,500,000 per month, this has been reduced to less than $500,000 per month. The prospects are fairly good that this can be further reduced or completely eliminated before the end of 1962, barring exceptional occurrences or catastrophies. Forecast of possible elimination is partially predicated on a repeal of the 10% Federal excise tax on passenger fares and without any reduction of the fares now paid by the travelling public. Assumption by the appropriate governmental authorities of their responsibilities is almost a sine qua non to the achievement of the second objective. This assumption must, of course, be voluntary, for neither this Court nor the Trustees have any power to dictate governmental action. The Trustees have cooperated with and urged upon the governmental authorities assumption of public support for unprofitable public services which the New Haven is required to continue. The Trustees will earnestly continue this course of action. In this connection the Trustees' role must be borne in mind. Under § 77 they must remain independent and impartial at all times. They represent no single interest. As officers of this Court, and subject always tu its supervision, they must, to the best of their abilities, consider all interests; and harmonize these diverse interests in line with the stake that each has in this reorganization. These diverse interests are: creditors-secured and unsecured; stockholders; labor; and the public. No single interest can properly assert a dictatorial position. Labor, capital, and creditors must recognize that the New Haven is affected with a public interest and that this interest qualifies their rights. Yet the public interest is not supreme. Those who ride or ship on the New Haven are not entitled to a free ride at the expense of others who have interests in the railroad. As early as Sept. 28, 1961, in our petition to borrow under trustees' certificates, we pointed out that we could not and would not continue to operate indefinitely through continued borrowing; and that we were mindful of the creditors' interests. We adhere to that position. We presently believe on the facts before us and on the assumptions subsequently stated that reorganization will ~ecome feasible. If, however, at any time changing conditions l~ad us to a contra appraisal we shall promptly report th1s to the Court and ask for instructions. We are ever mindful that if the alternative to reorganization must be liquidation, the liquidation should be an orderly one. An orderly liquidation presupposes reasonable cash resources on hand of about $4 million at the outset of liquidation. Present and Prior Reorgan'izations Contrasted It must be emphasized that this reorganization is by no means similar to the previous reorganization of the New Haven Railroad. The basic cause of the prior reorganization,6 which was ?mnmenced in 1935, was the New Raven's inability to meet Its annual fixed charges of $17.5 million. The New Haven however, then had substantial income from operations: Moreover, as a result of World War II the New Raven's income increased to a point where it was able to buy new equipment, bring its maintenance up to a very high level and expand its facilities generally. Today the picture is the exact reverse. In the prior reorganization the problem was the classic . 6. Discussed by Sunderland, A Brief History of the Reorganization of the New York, New Haven a."ld Hartford Railroad Company (1948). reorganization one of recapitalizing an economically profitable corporation, by reducing, in the case of the New Haven, its fixed charges to less than $7 million annuallya level which could be met from the operations then conducted. Now, some fifteen years since the prior reorganization was completed, the New R aven's fixed charges are still only $7.6 million annually. But, as we point out, presently the New Haven not only has no profit from operations, but has been forced for some time to borrow money merely to remain operational. This cash attrition will be fatal unless eliminated within a reasonable time. The reasons for the differences between the prior and present reorganization are numerous and complex, but the basic reason is that revenues have not kept pace with rising costs. For example, while revenues of the New Haven today are twice what they were in 1935, the following increases in costs have occurred. Maintenance of way and equipment costs have doubled, from approximately $20 million to $40 million. Pay to supervisory employees has doubled from an average of $5,590 in 1935 to $ll,040 in 1961, with the aggregate payment of $1,062,000 in 1935 and $2,451,000 in 1961. For other employees, which account for most of the payroll, the average wage on the New Haven was 68; an hour in 1935. Today the average wage is $2.60 an hour, an increase of nearly 300%. Despite the fact that there has been a reduction in employees from 20,000 to ·less than ll,500, total labor costs have gone up from $33 million in 1935 to $76 million in 1961, an increase of nearly 133~%. Federal payrolJ taxes did not exist in 1935; today they total some $6 million. Total operating costs have increased from $63.7 million in 1935 to approximately $147.8 million in 1961. REPORT OF TRUSTEES" STEWARDSHIP FINANCIAL SITUATION Situation When Debtor Filed Its Petition for Reorganization The Debtor's financial collapse was almost total at the time reorganization proceedings were instituted.