*1 3H upon deciding motion this case had be in effect. All-out economic war jurisdic- summary “for gun, replacements lack were Eastern’s subject matter.” over the such tion answer to FEIA’s strike. Under circumstances, not under an Eastern was Affirmed. obligation System Board to maintain the disputes so that of this could hear Manning

sort.2 Cf. lines, Inc., Air v. American F.Supp. (S.D.N.Y.

221 301 aff’d, (2d Cir.),

1963), 329 F.2d 32 cert. denied, L. U.S. & ARKANSAS RAILWAY LOUISIANA COMPANY, Appellant, Ed.2d 29 summary, ap FEIA bases its Inc., COMPANY, EXPORT DRUM largely peal upon theory there Appellee. genuine issues material facts 21899. relating (1) discharge FEIA engineers replacement Appeals and their United Court of States pilots; Fifth Circuit. (2) ALPA Eastern’s refusal to good bargain faith; (3) April Eastern’s 1966. promote bargain efforts ALPA as the Rehearing Denied June 1966. ing agent However, instead of FEIA. found, trial court “since the agreement FEIA between Eastern and longer force, was no Eastern un obligation re-employ der no all (243 708). F.Supp. strikers”

court concluded that the “additional change

claims advanced FEIA do not controversy nature as found Appeals”

the Court to be one for non- 708). (p.

curial rein treatment As to damages,

statement and fol

low, held, as the trial court “since jurisdiction

the Court is without

subject matter, equally jur it is without

isdiction to direct the reinstatement damages” (p.

the strikers or to award

708).

Although interesting there fac- might tual issues which FEIA desire explore, previous in view of the decisions

they qualify do not as “material” facts. court, therefore, justified

The trial Machinists, members, longer represented International Ass’n of etc. v. no a ma- Services, jority International Aircraft F.2d Apart of the work force. from the (4th 1962), on which FEIA obvious differences between the breadth relies, readily distinguishable. In that ques- of the arbitration clause there in case, arising Railway jurisdiction under Labor tion and the of the boards adjustment Act but under the National Labor Rela- Labor Act, Act, tions held em- the court employer the union and the there ployer duty could not avoid arbitrate bargain- had entered into a new collective grievances grounds ing agreement with a union on the explicitly which was made union, employer’s because retroactive to the termination date of the allegedly replacement agreement. unlawful of union old *2 recovery on

error the the Texas denial shipments denial of interest from the dates Tennessee judgment. the date regard shipments, With to the Texas *3 shipper, the district court held that the Export Drum, preferen- to a was entitled tial rate since it met the 18, Supplement Item 9552 of 3 Freight Classification Uniform No. provides which as follows: Ratings (a) apply only when the im- preceding transportation mediate the filled or containers cores to the shipping point empty contain- by freight or ers cores railroad by joint freight service or railroad service in connection with water service, subject paragraph (c), OR; empty.

When the destination of the point or containers cores is a from which filled containers or cores Guy Jr., Lyman, Davis, C. W. Eliza- E. by freight moved by railroad or service Haak, Orleans, La., ap- beth R. pellant, New joint freight railroad service Saal, Saunders, Milling, Benson service, connection with water sub- Woodward, La., Orleans, & coun- New ject paragraph (c); sel. (b) Identity of containers or cores Raymond Kierr, Orleans, La., H. New required record, will not be but appellee. subject to verification authorized COLEMAN, Before Cir- GEWIN and representative carriers, Judge. Judges, McRAE, cuit District be maintained of the filled contain- ers or cores received or forwarded Judge: McRAE, District empty containers or cores brought pro- action was This returned. visions by the Interstate Commerce Act consignee empty (c) Consignor or the Louisiana Arkansas & must furnish containers cores Company (“Railway Company”), which agent carriers’ certificate sought freight portions recover form below: charges Company, Drum Inc. (“Export pay. Drum”), had refused to CERTIFICATE twenty-two shipments Involved certify This is con- that the filled old, points used steel drums from (or cores) tainers which are re- Rouge, Texas and Tennessee to Baton empty turned consist more of not Louisiana. equal than an number of kind (or The district court found that Rail- filled containers and size of the way Company higher cores) ; (or entitled filled that the containers cores) rate on the Tennessee were received railroad together $1,918.34, freight by joint awarded it with in- service or railroad judgment, freight terest the date of wa- but seviee in connection with recovery service, the court did not allow ter or the destination shipments. judgment, empty (or From cores) containers Railway Companyappeals, alleging point contain- which the filled (or cores) presented ers the construction when moved railroad dispute.” freight Great by joint other document service or railroad Co., freight Ry. Merchants’ Elevator service in connection with 477, 479, L.Ed. water S.Ct. service. U.S. Only in dis- the words when stipulated by parties It was sense, re- pute a technical are used in transported drums from Dal- quiring to determine evidence extrinsic las,. Texas, shipped had been to Texas meaning, resort to initial their in a filled state serv- required. 291- Id. at ice, Commission but had to a been 92, 42 plant Arlington, Texas, 12 to some Yard, 25 miles from Miller Supreme the Dallas however, Court *4 shipping place. Export transport- category Drum of cases expand the seemed ed the ap- drums in its trucks from the jurisdiction would be primary where plant to Miller Yard. Although purporting adhere plicable. By., in Great drawn the distinction stipulated It was further that on- the con- where ly supra, held that the Court kept Export Drum in requires “exami- of a tariff struction requirements connection with underlying cost-allocation 18(b) lading nation of were ship- bills of for each making tariff of the which went into ment of drums. These bills of where therefore instance” and lading the first following in inscription: bore the rea- questions construction “the “This certifies that these steel drums inter- so are tariff] [of sonableness received filled in railroad are deter- factors the same twined service.” issues, then it is on minative both On facts, the basis of these uncontested pass first must Commission which alleges Company noneompli- Pac. Western them.” United States ance with all three of Note 18: 168, 59, 69, R.R., 352 U.S. urges that Miller Yard in Dallas is not all tar- (1956). Because 1 L.Ed.2d 126 “shipping point” within the same as Ar- cost factors extent on iffs rest to some lington, Texas, Drum failed imply interpretations and most tariff adequate to maintain records, and that reasonableness, question some prior ship- certifications of companion light case in a of the decision lading ment on the bills of were not suf- B.B., supra, com- one Pac. to Western ficient. great expressed at alarm mentator has reaching Before the merits of is indicated that he believes the trend contentions, these however, we are faced Primary Jaffe, Juris- See the case. problem whether, with the under the doc diction, 1043-47 77 Harv.L.Rev. primary trine of jurisdiction, we first must allow the Interstate Commerce Commission to jus construe the tariffs is or not this alarm Whether dispute. Although apparently this say; issue tified, if the for even we need not was not raised initially par counsel for category either decided of cases to be ty stage any at proceedings, expanded, we has been the Commission apply applicable, doctrine it is falls this case do not we believe being for, question proper major dispute group. alloca within tion of meaning business between the words courts and here over the is agencies, administrative subject is is point” not It “shipping and “a record.” to waiver. previously has Commission true that the provisions in recently, Until nor primary construed these doctrine of neither jurisdiction parties, rarely fur purpose. Both dicated their be invoked in involving necessary thermore, a case believed construction of a testify experts mean railroad tariff. trial to have “[W]hat construction given ing “shipping point.” But shall be pre- of the words railroad tariff ordinarily question sents is not of the rates the reasonableness of law which does question; of the tariff differ in character from those laymen; any clear, Akron, even to and if tariff Iron ican & Mach. Works v. C. R., (1955); can be underlying Y. construed without reference the & R. 296 I.C.C. factors, cost-allocation Charles Dixon Livestock Comm’n Co. v. facts, Chicago, R., one. competent Under these courts are R. I. & Pac. R. 288 I.C.C. interpret as the Commission to 109 (1953); cf. United States v. Benjamin Express, Inc., the tariff. Motor 147 F. Supp. aff’d, (D.Mass.1957), 251 F.2d Having decided that this Court (1st 1958) (trucking industry). may initially consider construction, of tariff now turn to we similarly A broad definition of controversy. previ the merits of the As phrase “shipping point” in the tariff ously stated, con under consideration here would be entire tends that Drum to meet failed ly purpose. consistent with the tariff’s of Note 18. Ex Indeed, city to limit it to limits port rate, Drum is entitled to lower Dallas too would be The ob narrow. course, only if all of them were met. vious of the tariff is to shippers incentive to use the railroad regard requirement With trucking industry. rather than the If of Note 18 that the shipment by rail, in is then *5 prior must furnish a certificate of rail by out rail obtained at a be reduced freight service, road Com unloading When, here, rate. as and pany concedes that Drum’s cer loading platforms are the same within tificate contained the substance of the and commercial area so close to each language suggest pur Note’s and can no applicable other that same rate is pose by requiring that would be served designated place from either to the des precise language of the In Note. tination, platforms both deem should be language, Export clear Drum certified “shipping ed to within the be same being shipped that the drums now had long-distance by point.” All travel been freight received filled in railroad rail, very tariff, and, purpose of the required. service. No more is long are as as the rates identical ei (a) present (b) Parts and more place, financially ther the railroad is problems. pertinent difficult The lan- position. the same guage part (a) “Ratings of is as follows: only possible harm to the apply only preceding when the immediate adopting railroad in “shipping point” definition of this transportation of the filled containers * * * trucking in is that the shipping point of the * * * dustry may having benefited, be obtained empty by containers rail- * * some business on the short-haul transfer freight road service In other unloading loading plat from the words, the container must full be when case, this Ex form. port In transfer was transported shipping point of the trucks, if an Drum’s own but even empty containers, transportation and the hired, outside trucker had been the same freight must be railroad service. Any conclusion would reached. bene be Thus, since the filled containers involved be minimal no more than fit would and dispute shipped Arling- from transfer between received a ton, Texas, empty but the containers were city. places two within same shipped Yard, Dallas, Texas, from Miller key question Arlington case, therefore, is whether Under the facts of this part Arlington, platform shipping point of the same at we hold that as Miller “shipping Texas, Yard. We think it is. within the same lies Texas; Although Dallas, point” Yard, having as Miller never construed the part (a) requirements of of Note 18 any analogous tariff one, or are satisfied. Interstate Commerce Commission has held purposes for rate deter- railroad can order that the term “point” easily more means than a street mine more that the address shipper’s (c) or platform; fulfilled, part rather, part re- (a) it have encom- been passes prior city. quires least the entire See certification of railroad Amer- a freight service, part (b) requires and containers empty and a received record, subject “a re- verification containers consisted of drums carriers, representative (and many companies authorized of the not ceived from just case), present maintained the filled con- be one in the consuming quite tainers or or forwarded cores received difficult and time empty containers cores return- of the the railroad to the offices visit companies ed.” the office various as well as only shipper. is the Not Export Drum maintained on 18(b) by requir- best satisfied lading empty file the con bills ing rec- maintain all the shipped from Dallas. But tainers had language tariff, ords, us- but the Drum did not maintain rec ing “rec- the word “record” rather than ord of containers unless filled received conclusion, ords,” supports same part (c) placed certifications on these a Assuming, arguendo, lading bills of also can constitute such (c) be ef could (b) waiver of fected, They provision record. cannot. Each maintaining requirement of contract, tariff, provision as each of a adequate waived record was given logical should be effect if it stipulated when part reasonable to do so. To allow the shipped drums that the certification also to constitute prior railroad received filled in were freight (or, case, possibly all) in another seen, part have service. As we required by part (b) would read whereby (b) provide means seeks provision the latter out of the tariff. easily the valid determine can the carrier important, part (b) More prior ity shipper’s certificate objective evidence, easily is to ob with the But service. tainable, of the conclusions stated *6 shipper, being kept by the records required by Thus, part (c). certificate although may have had the the ultimate of two the expend determine effort to considerable same, they be the do serve course, once Of case. the facts in this require different functions and differ only determined, was it the facts were papers. ent stipulation to entered for a be natural conclusion, however, This does not set- prac into, the normal federal Although part (b) tle the matter. re- rights of in this tice. To find a waiver quires maintained, a record be only tend to defeat the cause not would does not state who shall rec- maintain the (b), part tend of but also would plant ord. The the that received cases, stipulations a to limit highly in future quite possibly filled drums has sufficient result. undesirable incoming shipments; on the By re the its failure to meet along does, records, these with bills (b) ship quirements part on the Texas of lading kept by Export of Drum on the ments, Export Drum is not entitled empty drums, of would Judgment for rate under Note 18. lower enough objective to enable the evidence plus should an additional interest $564.95 verify part certifi- therefore, entered, in favor of be cates furnished Drum. Railway Company. believe, procedure, would But this we remaining problem is The us before relatively place on the a unfair burden the date from which interest should start shipper’s railroads. It is to benefit running. appeal on interest was The rates, and it to receive the lower ruling regarding on taken the court’s shipper for not be burdensome course, shipments; now, Tennessee of but from receiver of the to obtain records holding apply equally our will maintain them if the filled drums and shipments. made on the award advantage shipper of wished to take hand, argument major if the On other lower rate. Drum’s ruling shipper re- drums was not in lowing favor the district court’s al only quired a of the filled to maintain record interest from the date here, judgment provisions sue, of 28 and the carrier is forced rests pertinent pays state whether and then U.S.C. which § overcharge. for part allow- “Interest shall sues as follows: be any money judgment ed on in a civil case Existing supports case law * * * court. recovered in district position. Supreme long ago Court Such interest shall be calculated recognized the Interstate Commerce Com judgment, entry date at the general including practice mission’s in settled, rate allowed law.” It is State payment rep terest date in a however, only in- relates § charges unlawfully aration award on ex judgment terest on recoverable itself. upheld propriety acted and of such nothing question It has do with the practice. See Louisville & N. R. R. v. judgment pre of whether interest shall Co., Sloss-Sheffield Steel & Iron 269 U.S. compensation part be allowed as 217, 238-240, 46 S.Ct. 70 L.Ed. 242 party injured awarded to make the whole. (1925). Whether or not the Commission Corp. Waller, Oil Midstates 207 F.2d might in its discretion be able to refuse (5th 1953); Cir. Moore-McCormack interest, to award such we hold that Lines, Amirault, Inc. v. 202 F.2d 893 actions initiated in the federal district 1953). (1st Cir. undercharges courts ship on ments, money interest from the time the Both the Interstate Commerce (the is due date of shipment) a manda regulations Act and I.C.C. are silent tory damages. Accord, element of question pre judgment in whether Fawley Poultry Motor Lines v. Nevertheless, Cavalier terest should allowed. Corp., (4th 1956); F.2d initially Cir. T. one of federal Transp. & law, being M. Co. S.v. W. Shattuck Chem. of the determination of Co., (10th 1947). 158 F.2d 909 proper remedy enforcement by authority tariffs established Accordingly, compensatory pre judg- Moore, Interstate Commerce Act. Cf. 1A ment interest should be awarded the Rail- jfO.323 Federal [22], Practice way at 3755 Company ship- from the dates of (2d 1959). Moreover, ed. since at the judgment ment to the date of the on both problem implementa bottom of the is the shipments, and, the Texas and Tennessee transportation tion of an overall national accordance with 28 U.S.C. in- § policy concerning shipments, interstate terest also should be awarded on the policies with no state involved or inter *7 from the date thereof. with, fered federal law should not refer judgment entered below is re- to state law for a determination of the versed and this cause is remanded for en- Rather, issue. one rule of federal deci try appellant of a for not in- sional law should be established for all opinion. consistent with this regardless they of where occur. ON MOTION FOR FILE LEAVE TO requires If prejudg federal rule TYPEWRITTEN PETITION FOR interest, ment resort then should be had AND PETI- REHEARING ON law, state a matter of convenience TION FOR REHEARING practicality (as 1961), does § the amount of PER the interest. CURIAM: Appellee’s 1. motion for leave to file prejudgment We believe that typewritten petition rehearing case, interest should be allowed. In this granted. controversy. a sum certain is in As the recognizes analogous Appellee’s rehearing common law motion for situ ations, only way wronged denied. party The Court takes note signed stipulation parties can made whole is to award incor- him inter porated Judge’s findings est from he time should District have received money. argu- appellee’s At of fact the conclusion of which refutes the the dis pute, parties kept adequate should be in ment that it records before same position regardless destroyed ship keep such records as it whether the did per pay disputed amount, does not fire.