Roadway Express, Inc. v. United States

al., EXPRESS, INC., et ROADWAY Plaintiffs,

v. Inter- America

UNITED STATES of Commission, state Commerce Defendants, al., Carriers, Inc., et Tank Truck Intervening Defendants.

Civ. A. No. 2419. District Court

United States Delaware, D.

Jan. Wright,

Caleb M. Judge, Chief dis-

sented. commodities, manufacturer

eral shipper containers, collapsible rubber of car- and an of motor common association In- riers to orders of review certain Wilmington, Coulson, George Tyler terstate Commerce Commission. Ga., Atlanta, How- Postell, Guy Del., United Inter- H. States of America and the O. Ind., Indianapolis, William Ellis, formal state Commerce are ell C., Roland Washington, and Turney, Intervening D. defendants defendants. Rice, Car- Bradley, commodities, Rice and C. motor common John carriers of Washington, D. Carraway, bulk, penter trucks, in & in and tank or in other C., plaintiffs. similarly specialized vehicles, and an as- for sociation carriers. of such Atty., Greenfeld, Wil- U. S. Alexander Atty. Loevinger, multiple mington, Del., groups Asst. motor Lee Two Washing- Wigger, Gen., proceedings before the application and H. D. were John ton, groups, motor C., for States. numerous D. In both ICC.1 holding operating au common carriers Gin- Piper W. Robert Y. and James gen transport from the ICC to thorities Washington, C., Interstate nane, for D. commodity commodities, with certain eral Commerce Commission. infra, filed ceptions2 discussed ex Conaway, Jr., H. and Samuel James appli extension-of-service with Young Russell, Morford, & Cona R. way, Wilmington, 206(b) of Interstate under cations § Belnap Del., D. Nuel Act, 306(b), for 49 Commerce U.S.C. § Belnap, Spen Hardy, and Richard J. transport operating com authorities to Chicago, Ill., cer, Hardy Freeman, & previous not included in their modities Harry Stephen Ames, Jr., E. C. and certificates, pleas appropriate Washing Ames, Ames, Heisley, Hill & and ne convenience certificates cessity ton, C.,D. and Leonard A. Jaskiewicz 3 to issue for the extension Cobert, Dow, and Ronald N. Lohnes & sought. operations applications These C., Albertson, Washington, inter D. coupled motions, requests, or vening defendants. ICC, interpreting previ that the in Judge, BIGGS, Before Chief Circuit ously-issued certificates, ap dismiss WRIGHT, Judge, Chief District plications ground on the such outstand LEAHY, Judge. District Senior already had authorized certificates sought by of commodities Judge. LEAHY, District Senior applications. the extension group 14 brought Express by plaintiffs Western This action In the Way gen- cases, in the Best application commoncarriers of who are motor Extension — n any exceptions Express Company to the author Western Absent carrier, general Sealdtanks, 585, the carrier was decided to a 84 M.C.C. ization any commodity any 22, by in 1961, the entire Com- March transfer handling. any mission, equipment means of two dissent- commissioners Lines, Way Indiana, ing; Inc. v. Charlton Best Inc. Exten- Tank Coastal 297, Co., Containers, Transp. 84 M.C.C. was de- 86 M.C.C. Bros. sion — 5, 1948), April (Division sus order Commission on the entire cided Lines, tained, Inc. v. United Tank with the two commission- Coastal same 80,838 D.C., (D.C., solely par. concurring, upon 9 F.C.C. based ers Lines, majority previous 1953); Inc. —Pur Tank U C & Exp. Co., 55 M.C.C. Mtr. earlier case. Western chase —Comet 791, 4, 1949); (Division Friedman’s general-commodity descrip- typical 2. The Naugatuck, Conn., Exp., Inc., Ext. — appearing plaintiffs’ certificates tions 1, 1958); (Division M.C.C. except commodities, “General read: Lines, Inc. v. Pioneer Tank Coastal value, of unusual class A and class those Corp., (Di Trucking M.C.C. goods explosives, defined B household 1959). vision bulk, Commission, commodities 207(a), Act, equipment.” requiring special § Commerce Interstate and those 307(a). § U.S.C. 84 M.C.C. sought group applications, However, previously-issued all such certifi- specific authority excep- expressed the ICC trans- from cates contain certain port liquid dry respect flowable4 commodi- tions with com- newly-developed “collap- ties in certain transported, modities authorized to be including, sible” or typically, exceptions “stackable” rubber containers proscrib- (hereafter ing transportation referred C & to as S contain- of “commodities ers) they equip- over routes and territories “requiring special now bulk” and/or pursuant existing serve to their certifi- ment.” particular cates. are containers hearings Two sets held of were by plaintiffs, marketed one of before two of different Examiners Company, States Rubber who under sell In Interstate Commerce Commission.7 “Sealdtank”, trade names of “Seal- appli Express group the 14 Western of drum” and “Sealdbin”.5 The common cations, Hagerty Examiner recommended characteristic of these is their containers existing applicants, that the under their collapsibility emptied. Collapsed when general certificates, designed with Sealdrums, rubber commodities transpor- exceptions noted, authority liquids tation ranging quantities of had to trans in gallons port dry from only 1,000 liquid gallons, occupy and commodities in size; collapsed Sealdbin, their Sealdrum, of loaded and con other 20% designed Sealdbins, rubber portation involved, for trans- tainers here but not in dry of capacities gal flowable 1,000 commodities in Sealdtanks of quantities ranging thereof;8 from 70 cubic feet to lons or and, in excess he also feet, occupy cubic about applica of their denial recommended of the 14 11% size; loaded collapsed Sealdtanks, authority rubber tions for to extend be service designed transportation liquids present public of in “the con cause future quantities ranging gallons from 450 necessity require to venience and do not * * * 4,000 gallons, occupy by applicants about of operations their of 3% loaded size.6 pro- liquid dry commodities as posed.” applicants pro- Each of the in the ceedings ICC, including before the the 9 Way group applica 211 Best of plaintiffs, tions, motor carrier is holder rejected Examiner Pellerzi con public a certificate convenience and cept qucmtity of commodities as irrel necessity by issued ICC under Section elevant to the issue as to Act, 208(a) shipment of the Interstate Commerce bulk,” “in and made recom authorizing regular- 308(a), which, U.S.C. important § mendations in most re cases, irregular-route, route, some by and in ultimately adopted spects, were transportation commodities. noted, To Examiner Commission.10 non-liquid Dry by hearing flowable materials the two Ex- statements found being by which reason substances aminers from the evidence submitted grain pellet, granular, powdered, form were also considered the Commission capable being poured into arriving are thus Such decision. incor- poration containers. factual statements refer- reports ence to the Examiners’ type & dis- An additional C S container Georgia proper. been held Public Serv- in Western the Nest- cussed ice v. United Comm. product a-Bin, of Kaiser Industries. 75 L.Ed. 1397. developed were & S containers Other O tailing Hagerty’s Ex- of evidence Western after 8. Examiner Recommended Re- Separate press. port, p. 84 M.C.C. 587. dis- particular these containers cussion unnecessary. Ibid. 10. The chief variation of Examiner Pel- at 614. 6. 84 M.C.C. lerzi’s recommendations from the Com- upon rulings, infra, The facts which mission’s discussed were challenged reports ordinary acted in were former’s conclusion that completely detailed, equipped but the factual trailers with carrier-oxoneü C I-Iag by adopt shape the interior with Examiner Pellerzi concurred rejected; vehicle,” erty’s con such was recommendation surface of necessity not shown venience and were argument (2) carriers’ Tank by appl require service additional essence of was bulk .11 icants commodity was carried volume of the similarly rejected;14 groups were Both of recommendations (3) type provided appealed banc ICC, en sat general commodity shipper wheth- held determinative held: was against er it of “commodities was restrictions bulk”; requiring of commodities in bulk those special equipment authorized (4) C containers Utilization of & S fungible flowable, transport loose, held “to relative blur heretofore dismount tendered in ly when commodities the field clear distinction between freight placed general (i. e., or carrier ed C & not service S containers general mounted supplied commodity the carrier or in a carriers, vehicle), or shipper; with whether the ex that of ** (5) * is The distinction “between >> the carrier of bulk commodities packaged and “no above, and bulk service” basic held ceptions not author was were noted apply- justification” “shown for was held transport when such commodities ized to ing rule”;16 a different con premounted & SC into a tendered general commodity (6) carrier tainer; [In When a truck carriers tank tenders fills & container and then transport a C S authorized were tervenors] ordinary utilizing trailer carrier it to a in a tendered such commodities ingx'edients of equipment, the basic C & premounted contain S dismounted present; “package” was held service supplied carrier er, and whether might hence, trans- demand shipper. Plaintiffs’ alternative goods; finally, port the allowing authorization additional for “ * * shipper (7) a But when if such carry containers C & S them to fungible, tenders commodities flowable plaintiffs, already lie authority did uncontained, is, them loose and also denied.12 was pours which into a C & S container them Commerce Commis- The full Interstate placed previously and mounted has been way: put its ideas sion vehicle, upon the trans- in or the carrier’s argu- commodity (1) must, carriers’ portation General we involved transporta- beyond scope bulk think, the essence ment considered pumping pouring, general-commodity or direct re- tion authorizations transporting against dumping vehicle into the movement of com- stricted requiring * * such a manner “in of commodities in bulk or modities those transported equipment special commodities use of confined securely p. Brief, attached to Brief of & S containers cf. Plaintiffs' Inc., Transport, offered when vehicle Associated Commission, before tlie equipment” not “bulk” p. 3; “special but Brief of American Trucking p. equipment. Commission, Co. before Conclusions, Findings Examiner (sub- 30-40, Pellerzi, pp. MCC-82 No. position adopt- partially 14. This had been 5), al. et No. Hagerty ed Examiner in. his Recom- Report, p. mended with considerations 12. The Commission’s respect construction certificate 15. 84M.C.C. 600. Express; mainly in Western contained respect to addi- considerations 16. 84 M.C.C. 601. in Best is contained authorization tional Way. 17. 84 M.C.C. Commission, The Interstate Commerce “The [Interstate Commerce] reopening banc, expert transporta en denied reconsider- is the in the field of Ex- ation the Western judgment of the decisions in tion. And its is entitled Way groups great familiarity press of eases. and Best deference because of its industry the conditions in the permanent Now, plaintiffs, here, a seek regulates.” Freight East Texas Motor against injunction implementa- to issue Express, Lines v. Frozen Food 351 U.S. argue: (1) orders, and tion of ICC’s 100 L.Ed. 917.20 shippers their con- often fill own Since judicial “The when function is exhausted ir- tainers, decision is the Commission’s is found there to be a rational basis brings rational, differ- about because it approved by the conclusions [Com pre- provide results to carriers who Barge Mississippi Valley mission].” (2) shippers; cisely the same service to Co. v. Line erred, moreover, a matter ICC taking pos- 286-287, law, concluding 78 L.Ed. 1260. a carrier ten- filled receives session of a container function in matters of “[T]his court’s (3) commodity form; der of a in bulk this nature not to substitute its inde fact, shipper finding, as a erred pendent judgment for that of the Com provides trailer who conventional mission, for the Commission’s discretion provides shipper’s transport container to draw from all the' conclusions vehi- equivalent” of a tank “practical specific circumstances occur in which in findings of fact cle; (4) the ICC’s Freight stances.” Acme Fast v. United rulings ultimate with their inconsistent States, D.C.Del., 369, 372, F.Supp. 146 ignored man- (5) law; ICC Transportation Pol- dates of the Supreme kept Court has icy. boundary-line dividing judicial judicial scope re That one, functions a stark ing even revers- when Com of the Interstate decisions judgment. view is a Commission For “it too limited has been is merce Commission, courts, not the long recognized district18 and in this expertise brings prob- an to bear on the Supreme Court19 cases in numerous lem, findings, and that that makes the E.g., require articulation. further grants applications.” I. C. or denies the Corp. Schenley v. United States, Distillers D.C. S.S. v. United enbach Co. ; D.C.Del., F.Supp. (1943) States, 491 50 F.Supp. (1959), Del., aff’d 179 605 364 v. Lines United 1719; Frt. 280, 1611, Transamerican 4 80 L.Ed.2d U.S. S.Ct. ; D.C.Del., F.Supp. (1943) States, Corp. 51 405 Gas v. North Carolina Nat. United Tptn. City v. Co. States, D.C.Del., F.Supp. ; Leavenworth (1961) Kansas 200 745 D.C.Del., F.Supp. States, 916 Trucking 51 United Newton Lester C. Co. v. United Casale, States, (1943) ; v. United F.Supp. etc. States, D.C.Del., (1962). 209 600 (1944), F.Supp. D.C.Del., 1005 aff’d 52 Freight v. Pierce States Auto United 640, 752, L.Ed. 64 S.Ct. 88 321 U.S. 515, 535-536, Lines, 327 U.S. 66 S.Ct. Schenley Corp. 1052; Distillers v. Unit ; 687, (1946) 90 L.Ed. 821 Rochester Tel F.Supp. States, D.C.Del., 981 61 ed Corp. ephone States, v. United 307 U.S. 247, 432, (1945), 326 66 aff’d U.S. S.Ct. 138-140, 125, 754, 59 S.Ct. 83 L.Ed. 1147 181; Lines v. 90 L.Ed. Seatrain United ; Mississippi Valley (1939) Barge Line D.C.Del., F.Supp. States, (1946), 156 64 States, 282, v. 292 U.S. Co. United 286- 435, 424, S.Ct. 91 L.Ed. U.S. 67 aff’d 329 692, 287, (1934) ; 54 S.Ct. L.Ed. 78 1260 Rwy. 396; v. Northern United Great Interstate Commerce Commission v. Un D.C.Del., F.Supp. (1948), States, 921 81 Railroad, 541, 222 Pacific U.S. ion 547- 750, 933, 69 S.Ct. L.Ed. aff’d 336 U.S. 93 548, 108, (1912) ; S.Ct. L.Ed. 32 56 308 Freight 1093; v. Acme Fast Illinois Central Railroad v. Interstate D.C.Del., F.Supp. (1953) ; States, 97 116 Commission, 441, Commerce U.S. Freight Fast v. United D. Acme 700, 454-455, 27 S.Ct. 51 L.Ed. 1128 F.Supp. C.Del., (1956); Sea States, D.C.Del., Lines v. United train F.Supp. (1957), Trucking aff’d 355 U.S. Newton Co. 20. Cf. v. United States, D.C.Del., F.Supp. 2 L.Ed.2d 78 S.Ct. Luck- prac property-carrying Co., at Transport unit which is C. v. J-T hopper type equivalent tical of a tank L.Ed.2d at legitimate judicial But, ad inference ICC’s vehicle.” This was a deference findings competence particular -—one is not boundless. within its ministrative posed by “[Expertise as itself. a trier of the As is not sufficient facts. ICC, proceedings Findings supported by evi substantial final these issue ” * * analogy: g., required. C. & I. C. one e. were the C S dence are was Transport supra.21 packages Co., v. containers closer J-T holding stated, tanks.23 So of whether Determination package-like treat when containers were outstanding ICC’s construction (i. packages e., re ed tendered to involved here certificates and the statute filled) is when ceived from the carrier bottom, unreasonable, rest, is must unexceptionable. argue, how Plaintiffs rationality application concept ever, “package” itself ultimate rul to its of fact22 and carrier “all the is irrelevant because ings of law. providing and “a truck” conventional fact, Plaintiffs, limit their £4] temporar may not be conventional truck complaint the con where situation merely ily truck a tank converted into shipper-supplied and where tainer transport using a container.” toit loading nor un provides neither tempo- Nonetheless, such conclude we merely transports loading services, but rary occur for two conversion ordinary shipper’s vehi container cogent the ICC: stated reasons the ICC cles. fact-inference “ * * * being aggre First, by able “the from this evidence drew fungible, com- flowable gate provided tender constitutes facilities Company, Supreme port articu- Court 21. The most recent * 147; 211, 204, principles 7 L.Ed.2d : states of lation these States, Burlington United “Export Lines v. Truck lifeblood of is the discretion process, ‘unless we but 83 S.Ct. the administrative requirements for administrative the make Commis contest do not 22. Plaintiffs expertise, demanding, action strict findings facts. Pl.Pro of detailed sion’s government, strength can be of modern p. Findings, posed function It is the prac with no rules a which come monster Commission, find the not to of the facts, New York on its discretion.’ tical limits legitimate infer to draw but also States, 884, 882, 342 U.S. 72 v. United I. facts. C. C. v. Un from those ences (dissent 152, 153, 96 L.Ed. 602 S.Ct. 541, 547, Co., 222 32 R. U.S. Pacific ion ‘Congress purport ing opinion). did not Paper 108, 308; Western 56 L.Ed. S.Ct. legislative power transfer to States, United Chemical Co. v. Makers regulatory of the discretion unbounded 270-271, 500, 268, 70 46 S.Ct. 271 U.S. body.’ Comm’n Communications Federal 941; v. Merchants Warehouse Co. L.Ed. Communications, Inc., U.S. 346 v. RCA States, 501, 508, 51 United 1002, 998, 86, 90, L.Ed. 1470. 97 1227; 505, United States 75 L.Ed. S.Ct. must exercise its discre The Commission Petroleum, 304 U.S. v. Pan American 207(a) within the bounds § tion under 156, 771, 158, L.Ed. S.Ct. 82 58 ‘public by expressed standard con of Freight Lines v. United Transamerican States, necessity.’ Compare id., at venience F.Supp. 405, 410; D.C.Del., 1002, 97 L.Ed. 1470. And S.Ct. Freight States, v. D. Fast Acme for the courts determine whether the C.Del., F.Supp. 372-373. so, agency has done it must ‘disclose the ‘give clear indica of its order’ and basis claim that to so state is- 23. Plaintiffs’ it has exercised the discretion tion that ignore statutory command is to sue n Congress empowered has which it.’ rights may operating not be “taken” Corp. Dodge Phelps v. National Labor 212(a) Act, begs except of under § Board, 177, 197, U.S. S Relations plaintiffs question. If did not have agency 85 L.Ed. 1271. The .Ct. claimed, certificate authorization findings support must make its de of Commission does decision cision, sup and those must be any rights. existing “take” by ported substantial evidence. Inter Brief, p. 25. Commerce Comm’n v. J-T Trans- 24. Plaintiffs’ state any post-loading packaging modifies, packaging of of new elements minus fungible, shipper tradi type beforehand, is of commodities be- flowable by tionally is con provided of carried bulk carriers element an essential distinction, vincing. any transportation has not There is little if which bulk freight it, Hagerty phrased “from as Examiner been available from transporta Secondly, point practical when a past. view and in the placed and a mount- or tionwise between the tank truck & is a C container S fungible, upon mounted bed trailer upon a flat which is so that ed a vehicle ap poured, liquid.” commodity a filled It may be Sealdbin flowable * * * parent cetera, such dumped, into pumped, “when a [Sealdtank] et vehicle, aggregate facili- as container, mounted on or motor a property- provided aspects a all ties constitutes sumes and attributes practical carrying facility is the vehicle, providing unit a ex a tank type hopper equivalent or tank a actly comparable motor truck tank a vehicle; such vehicles and like utility exact a vehi of such has clearly within falls question unit stated, Differently cle. the Sealdtank equip- ‘special category when mounted a vehicle becomes ment’.” type spe of the medium cially adopted the tank service recognize, carriers, we General operators.” the car truck Where all they when physical act perform same provide ordi does is to an otherwise rier grain preloaded transport a sack of goods nary truck premounted transport Seald shipper unloading loading does subsequently no grain load bin container holding totality truck, But, of facts still result shipper. the ICC’s ed shippers opportunity becomes provided in the denial him substantively grant because goods.28 different transport of author Rwy. 25. 84 M.C.C. Co. v. United 71 L.Ed. Hagerty’s Re- Recommended Examiner Mr. Jackson’s statement with Justice port, p. 14. major policy respect change of FCC Hagerty’s Re- Recommended 27. Examiner apposite. “The oth mild measures to port, p. 28. apparently and the unannounced ers previously ap change policy held that 28. The are considerations performed propriate functions where similar for the Commission in determin might transportation by one of units its in this two whether action case is too equivalent” “practical drastic, say of the other the but we cannot that the Com require legal by anything appears treatment. similar and thus mission is bound 196, Cars, I.C.C. Tank 104 of all Definition before us to deal with cases at all Tptn. (1925) ; P. B. Mutrie Motor 201 as it has dealt with times some that seem -Benzyl Chloride, comparable.” 83 M.C.C. Co. Federal Communication Ext.-— 123, (1960). WOKO, 223, of 227-228, decisions the Other 133 Comm. v. 329 U.S. “special 213, limited the have Commission 67 S.Ct. 91 L.Ed. 204. Cf. Western category equipment” Paper Corp. to situations where Makers’ Chemical v. United something provided States, more 500, than the carrier 271 U.S. ordinary ordinary 941; Georgia over-the- vehicle and an 70 L.Ed. Public Service Johnsbury transportation. States, 765, St. road Trucking Comm. v. United 775, Heavy Co., Inc., 619, 1397; 51 L.Ed. S.Ct. 75 North Extension — (1951) ; Ry. Hauling, States, 277 W. 53 M.C.C. J. ern Pacific Co. v. United D.C. Company Investigation Minn., F.Supp. 439, 446, Dillner Transfer aff’d 316 — (1959), 1166, Operations, 1521; 79 M.C.C. 335 and 86 L.Ed. M. & Inc., Forwarding Co., Tptn. States, Mavis D.C.Mass., Dallas & M. Co. v. United Galion, Ohio, F.Supp. 79 M.C.C. 285 aff’d 350 U.S. Extension — firmly 762; Commission bound 76 S.Ct. Fwdg. Corp. L.Ed. ABC Frt. by States, line of decision and S.D.N.Y., “This v. 403, neither United ** F.Supp. 405; concern with has no Court alleged Allen v. United inconsistency findings S.D.Fla., F.Supp. States, proceedings Lines, made in other before Ace Inc. v. [the and Brandéis, J., Virginian S.D.Ia., F.Supp. 591, Commission].” the na- blanche, to indicate ity the field bailments lim a carte to a carrier not alleged error solely by ture of the Commission’s determination ited worst, inapposite. ICC’s ve At are thus shipper loads the carrier or deci- example, not be carrier, should general semantic difficulties for A hicle. litigation. present sive of for trans offer his vehicle who wishes explosives, loaded portation to be 4. Unlike the issue of certificate in legal by shipper, denied unloaded opportunity plaintiffs’ terpretation, broader exten Too, the by certificate.29 his applications provoked sion-of-service no example, offer wishes, for who disagreement two between the Examiners transportation of stolen for his vehicle who applications; ruled on the and none solely goods, unloaded to be loaded and of the of the ICC dissent Commissioners opportunity shipper, by is denied judgment point. ed from its final on this statu federal by state every participating Both Examiners and upon imposes often A rule law tes.30 plaintiffs Commissioner33 concluded had consequences for parties different proving themet burden of that “the act. physical same commission proposed service, extent to be au independent by certificate, judgment of thorized is will be find, We as required present public package-tank or future significance, legal dif- ra- necessity.” convenience and The ICC found as ferentiation tional, prospective reasonable found “a definite need application part shipping the Interstate of the for motor found the facts transportation bmc common carrier en of flow- Commerce fungible able, in & S cont commodities C Examiners. two majority ainers;”35 and the “vast gen- objections 3. Other protestants [intervening tank truck de commodity reason- eral operate do not convention fendants] findings re- of the ICC’s ableness necessary equipment al or flat-bed are also interpretation spect certificate the efficient of C & S con argue, Plaintiffs foundation. without traffic;”36 excep also, tainer “with few “glaring mis- g., committed the ICC e. [existing published have tions carriers] taking finding carrier law” take 4,000 gallons 28,000 minima of tariff receives container a filled possession of applicable pounds to their commodity form. in bulk aof “tender” quantities of au of less-than-truckload “tender” word Maybe use the ICC’s commodities;” finally, thorized yet felicitous, did state then was less do tank not have benefit truckers limited word was operations.38 the use pay loads in their return rather provided “type motor incon these Plaintiffs believe legal responsibil- determining when than ity applications. of their sistent with denial property shifts* security of disagree. Finding lading pro trans- of a We to of the owner from 32 part shipping spective cited need on the Cases versa.” porter, or vice subject, represent law on the al- supra. 2,n. 29. See though * * conclusions dissent 2314. § 18 U.S.C. § Del.C. 11 30. * Express] continue Western [in interpretation represent to of what [our] “inci- to alleged is referred error 31. commodity rights * * carriers tho PI. erroneous.” but dental 77. be.” 86 M.C.C. should Brief, p. 21. (a) Act, Interstate Commerce § 34. 207 49 600, n. 6. M.C.C. 84 32. 307(a). § U.S.C. participate. not did Commissioners Two 33. 75. 35. 86 M.C.C. who dissented Commissioners two Express that their noted 36. M.C.C. 73. Western 86 from predicated report sole- is “approval Ibid. majority hold- ly upon that view Express case now Ibid. Western ings in the

g77 ' ' hold-, ing utilization of & S C containers inconsistent ultimate with its unconvincing. ings, For a finding is likewise a tank is not inconsistent with long statutory shippers time have had equip- presently do utilize carriers remedies to tank determine if rates of required transportation &of C ment 41 high unreasonably truckers are Tank can and tank S containers —if may truckers minima lower their tariff prospective found need will meet pursuant specific provisions In of the record available the ICC.39 On the terstate Commerce Act.42 While us, cannot conclude tank carriers we high current truck minima of tank tariff unwilling that meet either or unable to presently ers limit the usefulness obviously need. The statement containers, the C & are not now S we sufficient that— prepared industry to find the tank truck renege “unequivocal will will from its “Although protes- the tank truck * * * ingness satisfy shippers’ group far en- has not thus tants so, needs.”43 do Should tank truckers gaged any substantial proceedings 206(a) new and under §§ pre- into commodities tendered (a) might Act be received containers, they ex- mounted C & S reviewing more favor the ICC or willingness ability press do and Court.44 so, right explic- and their to do so itly affirmed in the Western argument 5. Plaintiffs’ final sup- Moreover, generally case. place is that at no in either of the ICC’s admittedly porting shippers have not decisions, made to the Na- reference requested type from of service this Policy tional articu- protestant carriers.” lation made the mandates spe- being statute were followed. While argument Plaintiffs’ about policy” cific is unnec- reference to “the published of the ICC as to tariff essary,46 Supreme decisions recent Court minima protestants of the tank truck be subject of all modes of 39. Plaintiffs’ cited cases indicate provisions Act, present ability shipping tbe of this so administered to meet a need is recognize preserve as to advantages and inherent one factor to be considered in determin each; promote safe, pur ade- whether a certificate should issue qiMte, economical, (a) See, Hayes service and suant to § Act. efficient Lines, Freight Inc., Texas, sound economic conditions trans- foster portation Extension — ; among ; (1958) the several carriers Transpor M.C.C. Lahn ** developing, *—all tation end of Extension —Williamstown Junc tion, coordinating preserving (not a national Docket No. MC-75527 Sub. 13 full) transportation system reported by water, highway, ; Sys Diamond Transo. rail, tem, Inc., means, adequate Rockford, Ill., as well as other Extension — (1956) ; to meet the Wamsley needs M.C.C. commerce.of the Ex England, Service, the Postal tension —New 71 M.C.C. pro- of the national All of defense. visions of Act shall be administered 40. 86 M.C.C. carrying and enforced with a view to out n policy.” 216(e) I.C.A., above declaration of 316(e). § § U.S.C. [preceding] Stat. 49 U.S.C. § 1. 217(c) I.C.A., 817(e). § 49 U.S.C. § Judge Augustus 46. We concur with Hand’s Brief, Intervening Defendants, pp. 30, conclusion, “It is clear this ex- pressed policy guide must serve as a to the Commission in all its decisions. applica- These same considerations are * * * However, equally it seems plaintiffs’ ble respect to claims with to clear that the Commission can not and findings the Commission re mile- deadhead required should not be to discuss each age protestants. of tank carrier expressed consideration in the National Congress’ policy Policy every statement of is : concise in deci- hereby “It is declared to findings be the national sion it renders. ‘[T]he basic policy Congress transoortation provide validity given to to essential of a or- impartial regulation for fair and vary statutory authority der will with the development petition largely findings from “do not results if admonish the IOC's of trans provide for de- or refinement of the tools a basis Court with [the] manifestly, portation ; termining but, fairness de- Commission’s whether the — requires authoriza Trans- comports no blanche that carte cision with the National ap granted permit portation Policy, must be tion be would that decision which * * Transpor- plicants field established to invade the set aside Schaffer 83, when States, tation bulk motor Co. v. United advantage.” 117.47 to their L.Ed.2d ever or wherever it is S.Ct. 50 key The orders of the Act words charged administering more those It is manifest statutory safe, adequate, requirement of a promote than statute “to eco met policy. declared nomical foster national service and efficient implicit transporta bal sound sometimes economic in Commission’s conditions ancing among carriers.” tion and of factors to be observed the several may weighed Dissenting Policy in West under the National Commissioner Webb thought liking; plaintiffs’ made be had not Commis ern the ICC pro explicit each to the sion's failure make more its choice “without reference to- transpor may national consideration that have influenced visions of the declared policy.”48 provided was he it cannot tation think be said to have We might wrong. apparent position is Court with as total a record ICC’s pow respect in its to its have been desirable.51 Yet the record statement with rights: grant operating Schaffer, supra, “We where er sufficient. new any operating power deficient, record War have no issue Chief Justice rights except not here does in accordance ren “The record wrote: Act. com the factors standards disclose Section designed existing basically pared concluding rail that These standards are in against adequate.’ protect ‘reasonably For ex established carriers service is services, any competing ample, un not deter has institution the Commission unable that are there are benefits established carriers mined whether less the unwilling pub respond provide to a distinct would motor service proposed. being provided the rail car for the new services lic need now group Obviously, riers, of a motor of carriers certification no carrier whether ‘unduly prejudicial’ to from new insulation would be is entitled to blanket carriers, existing on bal competition especially com where such — 50. 85 M.C.C. of the situation context invoked and the * * * necessary presented.’ it [al- admonition Frankfurter’s Justice Commis basis of the essential that ap- dissenting] though in Schaffer report appear that so order sion’s posite : satisfy the Com can itself a court however, pertinent is, to add “It performed its function. mission has may a use- serve decision Court’s ” ** Co., v. S.S. Inc. Luckenbach purpose if it will lead the Interstate ful S.D.N.Y., F.Supp. Commission, despite enor- Commerce L. S.Ct. aff’d 347 U.S. business, de- to a more mous volume Ed. 1120 illuminating formulation tailed judgment Co., Transport reasons v. J-T Cf. ICC 81, 91-92, class cases where in that L.Ed.2d reaches even Congress relied on Commission’s M.C.C. 606. 48. 84 broadly enforcing the most discretion congressional policy. expressed was less oblivious Since That the Commission suggest plaintiffs such cases also fall under the existence the orders than scrutiny, policy judicial desirable to insist it is a national specific precision upon and the reference noted Express. policy the Commission’s actions.” text of Western in the reasons L.Ed. 84 M.C.C. 2d length weight public anee the would better interest be would add but not to the competitive service.” served additional decision. particular 5 the Under facts the Any sug sophisticated review however, bar, case at think the ICC we gests palpably the ICC decision was given factors has consideration to all the compromise;53 attempt it was an to just quoted. Moreover, no substantial insure, general present, for the both had aid would this Court have benefitted per and tank should continue to carriers directly the Commission verbalized what healthy competition. severe ICC clearly though implied present it —that the con took broad we find look—a look might use of the containers new C & S vincing. told We have been think we might be the curtailed decision enough; suggest may the de decision necessary protect presently tank be to bate, but do it we not think reversible Nor have been carriers. this Court would either as a matter of or law. fact spe assisted had the Commission stated injunction permanent 6. The though cifically that “more economical sought * * * by plaintiffs will denied and the be might provided be service” complaint dismissed, because the conclu general granting authoriza the interpretation and sions of the to ICC as requested, condi economic tion “sound necessity [and, and convenience industry transportation tions” in the Policy”] Transportation have “National might destroyed. be a rational basis and consistent with are short, it for this Court to submitted the by from the evidence returning ICC, issue a to mandate parties. findings, procedural for the case further Orders be submitted.* how to state Einsteinian exactness with much rubber of a contribution new WRIGHT, Chief District CALEB M. transportation containers make to the Judge (dissenting). required be field. Neither should damage respectfully to measure in dollars cents dissent from learned and I might if majority opinion done to tank truckers the Court on granted free issue carriers are here crucial but nevertheless the narrow technological de- rein to utilize the or not the Commission new of whether properly applied words of Additional Na- vice at this time. and considered amorphous Policy.1 areas in these tional services, transportation charges 2 L.Ed. 52. 355 able discriminations, unjust undue 2d 117. without advantages, preferences unfair or sacrosanctity thereupon en- 53. No air practices; competitive to co destructive velops decision; anything, de- if operate the several States and subject careful more to cision becomes thereof; duly and to oflieials authorized judicial scrutiny to insure the Commis- wages equitable encourage fair and work “performed properly function” sion conditions; end of devel —all See, 46, supra. n. coordinating preserving oping, and a na incorporates opinion find- such herein system by transportation water, tional required by ings conclusions as and rail, means, highway, as well as other and rule F.R.Civ.P. adequate to meet needs the com hereby declared to be the national Postal “It of the United merce Congress policy transportation Service, All to national defense. regula impartial provide provisions Act fair of this shall be sub all modes and enforced a view tion of administered provisions Act, carrying ject of this so ad out declaration of the above recognize preserve (1940), policy.” as 54 Stat. 899 49 Ü.S. ministered advantages each; pro preceding § inherent note O.A. adequate, appeared safe, economical, and ef mote The declaration was sound the declaration in foster economic the Motor ficient identical among pri- latter Act 1935. The conditions Carrier carriers; marily prevention, encourage directed towards several case with so much other New and maintenance of reason as was the establishment 880 matter, reviewing the of posture couiT at trative consider effect In this legal merger competitors on the and the basic the with three outset is faced genei’al Congressional competitive involving the in

problems dic- situation in the objectives light dustry in of the of the tate : 6 policy.” the national all, (1) extent, the if at To what rates,7 involving legality a case the of trans- Commission must consider charged the Court “it said [the ICC] interpretative portation policy in seeing serv rates and that distinguished proceedings from ices and not un are l’easonable each applica- ordinary 207 Section duly they discriminatory, that but authority; tions for na coordinated with the in accordance (2) must explicit the ICC how * * 8 policy tional Congres- in consideration And, cases,9 Commission in several sional-objectives; and give consider was admonished to careful (3) should a court' to what extent part Trans ation the National to that holdings on the Commission’s review sought Policy preserve portation policy issues.2 advantages the different the inherent lan- Generally transportation. in solution rests modes of holdings Supreme guage Supreme in The issue before the Court man- Court, specifically in the Court’s Schaffer was “whether the Interstate Transp. expressed Schaffer date as in adequately Commerce Commission Co. v. United States.3 correctly applied of the the standards importance deny- Schaffer, Policy Transportation in Before National pro- de Congressional ing policies application Commission in a motor carrier’s ex emphasized. For points now served had been vide cisions service between 10 pas years exclusively Court, speak- Act’s ample, after three rail.” The Court, ing through Warren, involv sage, Supreme in a case held Chief Justice legality proposed ing consolida latter failed to in that the the ICC delict National- truckers,4 tion said factor ad- evaluate the critical of inherent Transportation Policy vantages Commis transportation. “is the of the modes of guide public conceding interest’ majority to ‘the Com- sion’s while (cid:127)>:(cid:127) -» 5 ]y[r, Rutledge, speak deciding Justice mission has wide discretion Court, ing noted also for the interest warrants immunity grant under the power service, pointed specifically particular out ICC’s “no sense relieves laws in discretion must be con- anti-trust “that exercised duty, adminis formity policies as an with the Commission declared competition. Trucking States, legislation, ruinous v. 4. Co. United Deal McLean Jones, 67, 370, and Economic Antitrust W. K. 321 U.S. 64 S.Ct. See L.Ed. Regulation: (1944). to Com- Introduction An Analysis, Antitrust parative A.B.A. 82, 64 S.Ct. at 378. 5. 321 U.S. at However, Section, 261, a read- 279-99. Policy 87, 64 at 6. 321 U.S. at S.Ct. Congress had to indicate seem would preven- goals Motor Carriers Assoc. Eastern-Central important beside the other States, competition v. 321 U.S. 64 S.Ct. mind United of cutthroat tion (1944). L.Ed. 668 Supreme so hold. See Court infra. 206, 64 at 8. 321 U.S. at S.Ct. scope the du- review of Court Carriers, Inc. v. Dixie course, are, of in- . ties 56, 76 S.Ct. 351 U.S 100 L.Ed. They concepts. stand direct tertwined Mechling, (1956); ICC v. 330 U.S. duty e., broader tile relation —i. (1947). 67 S.Ct. L.Ed. scope. broader 84-85, at L.Ed.2d 3. Congress up pointed requires that then the Commis- The Court Congress.”11 reviewing short, sion to court: the Court role recognize.15 reversed because the ICC failed to con- policies have those “To see whether advantage (lower sider an inherent implemented look to we been rates) applicant’s service and be- summary of the own Commission’s findings adequacy in- cause the on evidence, particularly find to the sufficient to Court to measure allow otherwise, ings, formal against yardstick opinion the ICC’s made. Just as we has Transportation of the National duty by overstep under Policy.16 our would

point out the defects in the opinion record without taking in accordance agency’s public Congress.” The Court then duty were we cording Commission’s interest, to evaluate evaluation proceedings. our own summarily to with the proceeded determining that the we evaluation would had notions of evidence mandate The ICC had Commission’s been shirk specifically approve made our ac admonition: National set of tively And we do not inevitably point merous considerations ity Commission faces of the task the interest The “We do not evaluating Supreme self-executing determine where the lies in a Transportation Policy Court concluded with this minimize particular suggest balancing way principles that collec- to a clear situation. that complex- public that is a nu- principal first contrary, conclusion terms result in cast each case. On the adequacy principles overlap service. While this con- those con- relevant, flict, and, occurs, was it was defective clusion where this resolu- agency “The record here does not dis- tion is because the task of the that expert the factors the Commission com- close the field. But there is concluding existing pared in that rail no here indication in the Commis- ”13 ‘reasonably adequate.’ poli- service sion’s of a conflict of reject Clearly, application Shippers this cies. and receivers now ground fatally exclusively by alone would be to disre- served rail have testi- gard portions advantages of the Declaration they relevant fied to the would Policy, gain proposed and this alone from a warrants re- motor carrier finding ICC’s second basic conclu- service. There is no that versal.14 mainly supported proposed sion was witnesses the authorization of the application to impair op- obtain reduced would sound rates. service Thus, testimony disregarded. already their eration the carriers cer- approach The Court concluded that this Nor tificated. has the Commission Transporta- advantages properly counter to the runs National evaluated the Policy; “precisely urged by supporting tion lower rates are witnesses ” * * * advantage’ the sort ‘inherent determine whether the standard majority language 11. 355 U.S. at 78 S.Ct. at 176. treats this the “standard” Schaffer. This seems 12. at S.Ct. at only exemplification be an to me to 13. 355 U.S. at at 177. At e., principle, i. a broader the ICO point, continued, saying: the Court findings, make formal or other- must wise, example, “For the Commission which allow the courts to see that not determined opinion whether there comports the Commission’s benefits motor Policy. would provide being pro- which are not now U.S. at at See 355 78 S.Ct. carriers, vided the rail certification of a motor carrier would U.S. at ‘unduly prejudicial’ existing carriers, and whether on balance the 355 U.S. at 78 S.Ct. at See public interest would be better served competitive additional service.” necessity transported kind in containers one convenience shipped in bulk. another are has been met.” now Many fungible, commodities flowable abundantly under Schaffer It is clear only in tank trucks heretofore movable only con- must the Commission that not transported in Policy or tank cars can be Transportation now sider the National through that, the flat-bed trucks conventional proceedings,18 than in its but more collapsible similar ignore policy use of sealed tanks or any part of cannot impact of containers. The by economic operative fac- of the is reason technological developments these may The new pattern particular case.19 of the tual of seriously findings, elements affect vital formal must make reviewing transportation system. re- our Another otherwise, allow a that will transpor- may sult well be reduction com- ICC decision see that to court ports many varied commodi- Congressional objectives.20 tation costs of categorized as easily ties as heretofore expertise” exists still to “Deference only transportable by on carriers common issues,21 National but when most by special car- conventional beds or defer- truck Transportation Policy involved is ex- riers in tank contracted—scope trucks. of review ence panded. only see must not The Courts importance The economic of this case performed duties ICC has reading makes it clear that of the mere judgment with substitute but also parties the words the certificate of the broad, slightly when the hand freer enough. is not To con- do so would be definable, Pre- of the judicially standards trary Congressional spirit of the play.22 amble provisions mandate that “All of duty The ICC was under consider this Act shall be administered and en- Transportation apply the National and Policy carrying forced with a out the view interpretative type pro- in this policy.”23 above declaration Added ceeding—i. e., had this Express. the Commission by needed, supplied emphasis, if refer- duty in Western affirmative Supreme the numerous de- ence to Court op- involve two under review The cases stressing applicability cisions highly segments competitive posing of a Transportation many Policy regulated industry. National although Commodi- formerly proceedings.24 as manufactured so to be ties diverse at 178. 17. In tentative draft the Admin- tion. Conference, Licensing entitled istrative clear from the Court’s is also 18. This by Operations of Truck Interstate proceedings rate-mak- in. such stress Commission, Professor W. Commerce K. certification, ing, consolidation of the Columbia Law School Jones dis- inexorably from the last sentence follows the tremendous workload of cusses of the Preamble. 4,482 application ICC. cases accompanying notes 15 text See closed. The time for each were case average ranged courts should not substi- from an federal 5.5 months Congress. prior (for for that of the dismissal tute its wisdom examiner’s ac- Basically, apply principles (for tion) reopened it should neu- to 31.7 months Wechsler, completely trally. cases). Toward Of. Neutral This Court cannot efficiency Law, Principles of Constitutional set data on out ICC. However, typo But, of information I have Harv.L.Rev. importance noted ensuring explicitness ponder make the above should courts part expertise. cannot be underestimated. ICC’s Commission’s Congress way, the and the In this is the tenor of This Chief Justice War- clearly the nature will see of the Inter- opinion. ren’s And, they wish, Act. if state Commerce repealed last sentence This of the Na- could be the Act affirmed. Transportation Policy This, course, tional which is set would not or would opinion. unlikely policies footnote one out in of this to occur if the be ambivalent an hidden cloud. 24. The correctness these conclusions wonders whether One time-worn is admitted Commission. See concept is in need of critical reexamina- Brief Joint the United States gleaned portion operative from service facts as Trans the National Way portation Policy.29 Western evidence in Best & containers C S efficiently play elements call several can used on flat-bed into Policy. Un trucks.30 The tanktruckers will have buy supply C & containers trucks the servi restricted use of the S flat-bed general commodity will di ce.31 would still them in This leave tanktruckers;25 being position at a dead- vert business from anomalous disadvantage. here, haul economic certificates the clause —“foster sound Their transportation” rele would of flat-bed in allow use conditions them —is interpreted (it trucks ve These have been should noted that these vant. words be against protecting represent in substantial as hicles will a established indeed, purpose. vestment) competition very this for a limited ruinous Congress They Inter mind.26 call had in These facts are what the record. amply es operation that twined with the evidence into effi the “economical and facts that at were policy.32 tablished need the cient service” element of rate or more the miles distances to one lead of these considerations Some freight general structure the Express', to an result in Western some shipper.27 to the in lower costs results other. reflects rate structure tank carrier seeking to determine mileage. empty high return incidence of a evaluated considered and Commission has Supreme Court decision Under by portions policy reason of all Co.,28 rela Transport v. J-T C. I. C. facts, in the find little comfort I to be are a factor structures findings. rate tive These ICC’s discussions * * * 1) “economical under the considered basic were conclusions:33 the ICC’s Roadway ICC, p. 39, and the America 86 M.O.O. It there- Express, States. v. United Inc. 73; 84 M.O.O. 596-597. 31. 86 M.O.O. that: in states portion course, the National must 32. While this “Of Policy Transportation cognizance has not been em- all elements take others, phasized it is much as clear in. as factors embraced Policy, fall the literal render- facts within before these Surely, importance no ing words. court intent of these decisions Congress imply window- Ex- in the should Western involved those using phrase Way dresses; groups above press of cases. and Best Policy spe- these must intended that facts be of that have The last sentence provides cifically such adminis- for considered. Commission.” tration 33. This member the court will read sure, issue was whether be if To opinions Way and Western both —Best prob- vegetable, peanut a different oil Express -together. I do this because — presented. be would lem “adopted” Western the ICO Way g. Best and because the two are chal- e. 84 M.C.C. 595-597. 25. See lenged together proceeding in the before supra. note 26. See noted, It should be how- court. ever, 86 M.C.C. 84 M.C.C. 27. See the IOO’s basic conclusions with reference the National Trans- Policy, appear portation Way. in Best L.Ed.2d 147 28. 368 Express may in Western The decision be appears no summarized reason 91-92, justify “applying S.Ct. at 210- different rule 29. See [for talking slightly Court, differentiating types in a dif- between two “ * ** context, establishing, arbitrarily, said: contract for service] ferent * * carriage more ‘economical’ than by newa one 84 M.O.O. at 600. justifications carriage motor rail within There are several common read- They opinions separately. of the national trans- framework policy, apart portation as it is defined month decided a and there is guide’ explicit no Commission’s indication that reasoning Act—-‘The public ICO in- Way interest.” tended its in Best ship- public need distinct is a there FOSTER, Plaintiff, John Carl 2) containers; reason by & ment C S v. commodity car- of its decisions generate ORE- The FIRST NATIONAL BANK OF opportunity have an riers will GON, PORTLAND, national bank- traffic; 3) tank- amount of a substantial ing association, Defendant. willing ready, they truckers, who aver service, Civ. No. 62-217. should supply able impair- get a serious first lest chance United States District Court occur; capital structure of their ment Oregon. D. over concern 4) apart from their Sept. 28, 1962. express no shippers factor, deadhaul present over dissatisfaction material service. ignored worst, certain

At portions of the National Trans-

relevant portation Policy. to con- It is reasonable failed to that the has

clude under the rate and others

evaluate factor service” efficient

the “economical and heading. though ap- best, At conflict contrary parent be to and decision extremely interest, diffi- public it is

cult, impossible, follow the ICC’s to if justify reasoning. re- alternatives Both

versal. my

It is view that in a case of this clear,

importance perhaps it must be point explicitness, the ICC considered, weighed, resolved and result consistent with

reasoned Policy. Transportation great rely majority would ato extent on they implicit in believe to be

what requisite opinion find considera-

tion; rule concomitant their is a expertise” It notion. “deference judgment reviewing that a

my considered confidently ascer- able to should be court that, of Mr. in the words Justice tain Rutledge,34 “guide to the in- reasonably followed.

terest” allow the ICC to remand to would I interpretations of the reconsider exceptions “commodities certificate equipment” “requiring special

bulk” and articu- it to reconsider to allow reasoning Nation- relative late Policy.35 al cases 35. Both cases would be remanded in their apply If Western. entirety interpretation separately different since Western treated any certificates could render the Sec- consideration barren would applications tion 207 moot. policy. 5, supra. note 34. See

Case Details

Case Name: Roadway Express, Inc. v. United States

Court Name: District Court, D. Delaware

Date Published: Jan 21, 1963

Citation: 213 F. Supp. 868

Docket Number: Civ. A. 2419

Court Abbreviation: D. Del.