Civ. A. No. 2384 | S.D. Fla. | Apr 21, 1955
Lead Opinion
This is an action brought by the City of Tampa, Florida, the County of Hills-borough, and local non-profit traffic and port authorities interested in the favorable development of the port of Tampa, seeking a decree of this court setting aside certain reports and orders of the Interstate Commerce Commission, which the plaintiffs contend give “undue or unreasonable preference or advantage” to certain other Gulf and South Atlantic ports in respect of freight rates on export and import traffic, in violation of §§ 1 and 3 of the Interstate Commerce Act, 49 U.S.C.A. §§ 1, 3.
Although plaintiffs sought originally to challenge the jurisdiction of a three judge statutory court in the case by filing with the Court of Appeals for this Circuit their Motion for Leave to File Petitipn for Writ of Mandamus to require Judge Barker to take jurisdiction of the case sitting as the District Court, that motion was denied, and the jurisdiction of this court is not now challenged.
This case, like the proceedings before the Commission, arises from the competition between all of the important Gulf ports and the South Atlantic ports for the export and import shipping trade that might normally be expected to flow through any of them, depending upon whether freight rates to and from interi- or points in the United States are sufficiently favorable to make the combination of such rates with the ocean rates truly competitive.
As we view it, our duty in such a case is that exercised by appellate courts in any case of judicial review of the findings and conclusions of an administrative tribunal, as set out in the Administrative Procedure Act of 1946.
“ * * * We take it to be settled law that an order of the Commission is entitled to finality, and may not be set aside, modified or disturbed on judicial review, if such order of the Commission lies within the scope of the Interstate Commerce Statute, and is based upon adequate findings that are supported by substantial evidence.”
Plaintiffs call our attention to the fact that the examiner for the Commission who heard the major part of the original
Plaintiffs herein fall within the class ■of parties for whose benefit Section 3(1) •of the Interstate Commerce Act was .adopted. If they established to the satisfaction of the Commission that the carriers involved had subjected any of them to any “undue or unreasonable prejudice ■or disadvantage” (emphasis supplied) "then it was the duty of the Commission to take appropriate action to put an end to such evil. Moreover, if they established that the carriers had subjected them to such undue or unreasonable prejudice ¡or disadvantage by -such clear and con-wincing proof that the record, viewed as .a whole, would not support a contrary .finding or conclusion by the Commission, then, under the principles stated above, it would be our duty to set aside such contrary order of the Commission and return the case to the Commission with directions to take -such steps as would -eliminate the evil.
Here the evil complained of involves the several complicated and intricate functions of rate-making, concerning which the Supreme Court has said:
“The structure of a rate schedule calls in peculiar measure for the use ■of that enlightened judgment which "the [Interstate Commerce] commission by training and experience is -qualified to form. [State of] Florida v. United States, 292 U.S. 1" court="SCOTUS" date_filed="1934-04-02" href="https://app.midpage.ai/document/florida-v-united-states-102240?utm_source=webapp" opinion_id="102240">292 U.S. 1, 54 .S.Ct. 603, 78 L.Ed. [1077]”. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282" court="SCOTUS" date_filed="1934-04-30" href="https://app.midpage.ai/document/mississippi-valley-barge-line-co-v-united-states-102269?utm_source=webapp" opinion_id="102269">292 U.S. 282, 54 S.Ct. 692, 694, 695, 78 L. Ed. 1260" court="SCOTUS" date_filed="1934-04-30" href="https://app.midpage.ai/document/mississippi-valley-barge-line-co-v-united-states-102269?utm_source=webapp" opinion_id="102269">78 L.Ed. 1260.
It also involves the subject of “grouping” of ports and localities, another subject which lends itself to consideration ■^primarily by a body trained and experienced in the art. On this subject the Supreme Court said in State of New York v. United States, 331 U.S. 284" court="SCOTUS" date_filed="1947-06-09" href="https://app.midpage.ai/document/new-york-v-united-states-104428?utm_source=webapp" opinion_id="104428">331 U.S. 284, 67 S.Ct. 1207, 1230, 91 L.Ed. 1492:
“ * * * The choice of groupings is plainly a specialized problem in transportation economics upon which the Commission is peculiarly competent to pass. Its judgment that the differences in consists between the territories do not justify the present differences in interterritorial class rates is, indeed, an expert judgment entitled to great weight. We could not disturb its findings on the facts of this record without invading the province reserved for the expert administrative body.”
But, so say the plaintiffs, when all the presumptions of correctness are given to the action of the Commission and when we have paid due attention to the principle, that many of our complex problems can best be solved by giving especial deference to the expertise with which its members are endowed, nevertheless there was such a departure from the facts or such erroneous application of legal principles to the facts as to require us to overrule the action of the Commission in this instance.
We cannot agree. We are unable to find from a consideration of the record as a whole that the orders complained of are clearly erroneous.
Although we cannot summarize all of the pertinent facts, nor even all of those which are of substantial importance, an understanding of our conclusion requires that we state briefly the principal points urged upon us by the parties.
Essentially the case made by Tampa is that it has a well developed and well equipped port capable of handling deep sea shipping; that substantial war time shipping had contributed to the building up of the port, because expense was then no factor; that Tampa has a large volume of locally generated overseas cargo which is picked up as a bulk cargo, but
The Commission and the intervening railroads counter by saying that there is a historical basis, albeit not of very long duration, for the differential adjustment between the South Florida ports group and points in interior territory over Jacksonville and for the inclusion of Tampa in the South Florida group; that unquestionably additional transportation service must be provided on traffic to the South Florida ports and to Tampa individually, and that moreover transportation conditions in the Florida peninsula were less favorable than in the South generally; that elimination of the differential would result in an unnecessary sacrifice of railroad revenues; that there was insufficient evidence of competition between the port of Tampa and the South Florida ports on the one hand, and either the Gulf ports group or the South Atlantic group on the other.
While we recognize that the extension to or withholding from, a particular port of a particular rate structure on import and export traffic may have the effect of greatly aiding or disastrously hindering in the development of a port, there are many circumstances that enter into the determination as to, whether such rate structure shall or shall not be applied that are the subject of legitimate and proper concern of the rate making body. That is to say that not every differential, even though damage can be clearly shown to follow, amounts to “undue or ..unreasonable prejudice or disadvantage.”
The port of Tampa has many fine advantages, in its desire to compete in foreign trade, as disclosed by the record. It has a great bulk of locally generated freight for foreign shipment; it has a large and rapidly growing local demand for the products of foreign import; it has a natural and geographical affinity with certain Caribbean ports which contributes to its availability and value in the shipment of cargoes in small ships as well as in ocean-going vessels. On the other hand, Tampa suffers from one disadvantage in common with other Florida port cities that are south of the Jacksonville-Cha,ttahooehee line; it is more distant, by approximately 200 miles, from all the shipping points that ship through Jacksonville, and by some 150 miles or more if shipment travels to the west of Jacksonville. These distances, of course, are substantially increased if Tampa is. grouped with the South Florida ports, and the distances are averaged.
This factor of greater distance, when taken into consideration with all other circumstances disclosed by the record, many of which are not really in dispute, places upon the Commission the duty of' determining whether the grouping of Tampa with the other South Florida, ports was an acceptable element in deter
We do not consider that it would be beneficial to recite the pros and cons of the evidence.
The complaint will, therefore, be dismissed at plaintiffs’ cost.
. “§ 3. Preferences; interchange of traffic; terminal facilities — Undue preferences or prejudices prohibited
“(1) It shall be unlawful for any common carrier subject to the provisions of this chapter to make, give, or cause any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in, any respect whatsoever: Provided, however, That this paragraph shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.” 49 U.S.C.A. § 3.
. The record discloses that there is a substantial differential to Tampa and all other South Florida ports over Jacksonville and all other Gulf and South Atlantic ports, both as to class and commodity rates. As the example most discussed by the parties, the class rates for the South Florida group exceeded the Jacksonville rates by 35 cents per hundred for Class 1 freight. The differential for other classes were: Class 2, 30 cents; 3, 25 cents; 4, 18 cents; 5, 12 cents; 6, 10 cents. Defendants and the carrier intervenors on the side of defendants contend that the class rates are relatively unimportant, since most of the export-import traffic would normally move at commodity rates. Nevertheless both parties start from the common basis that there does exist a substantial differential in applicable rates.
. See 5 U.S.C.A. § 1001 et seq. Section 10(e) provides as follows: “ * * * the reviewing court shall * * * hold unlawful and set aside agency action, findings, and conclusions found to be * * * unsupported by substantial evidence. * * * In making the foregoing determinations the court shall review the whole record * * *
. 340 U.S. at page 488, 71 S.Ct. at page 464, the Court says: “ * * * The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. * * *
“To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. * * * ”
, As to the Commission’s function in the grouping of ports, see Ayshire Collieries Corp. v. United States, 335 U.S. 573" court="SCOTUS" date_filed="1949-01-03" href="https://app.midpage.ai/document/ayrshire-collieries-corp-v-united-states-104613?utm_source=webapp" opinion_id="104613">335 U.S. 573, 69 S.Ct. 278, 93 L.Ed. 243; State of New Fork v. United States, 331 U.S. 284, 326, 67 S.Ct. 1207, 91 L.Ed. 1492.
. For a further discussion of the evidence, findings and conclusions, which we need only find support the final order on the record as a whole, see 272 I.C.C. 277, 281 I.C.C. 483, 286 I.C.C. 455.
Dissenting Opinion
I cannot agree that the grouping of the Port of Tampa by the Interstate Commerce Commission with the South Florida ports and that the rate differentials applied to Tampa over Jacksonville and all other ports of the Gulf and South Atlantic grouping, are based on credible and substantial evidence and are within the scope of the applicable statutes; on the contrary it is my opinion that the action of the Commission is clearly erroneous and amounts to an arbitrary and unreasonable preference and advantage to the other ports involved, and subjects the Port of Tampa to undue and unreasonable prejudice and disadvantage in violation of Section 3(1) of the Interstate Commerce Act; I, therefore, respectfully dissent.