230 F. Supp. 852 | N.D. Cal. | 1964
This is an action brought under the Judicial Code, Sections 1336, 1398, 2284
“All carriers subject to the provisions of this part shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this part or any common carrier by water subject to part III.”
Several issues were ruled on by the Commission which are challenged here
The factual background of this case is as follows: The two routes considered herein are called the Bieber route and the Southern Pacific route. The former was created by an order of the Commission in 1931 and was designed to be a competitor with the Southern Pacific route. See Great Northern Ry. Co. Construction, 166 I.C.C. 3, 170 I.C.C. 399. For purposes of this case, the Bieber route consists of the Santa Fe from points in southern California to Stockton, California, thence Western Pacific to Bieber, California, and thence Great Northern to Portland, Oregon. This line extends along the eastern side of northern California through eastern Oregon to Wishram on the Columbia; from Wish-ram the line runs to Vancouver, Washington and thence to Portland, Oregon. The Southern Pacific route extends from points in southern California by either Santa Fe or Southern Pacific, through the central part of northern California and central Oregon to Portland. Southern Pacific and defendants have maintained a system of through routes and rates at the Portland interchange for over 50 years. With the exception of a few commodities, defendants have refused to establish a similar system of through routes and rates with Western Pacific.
A connecting line within the meaning of Section 3(4) is one which has either a direct physical connection at the common interchange or is one which makes up a “through route” through the interchange point. Atlantic Coast Line R. Co. v. United States, 284 U.S. 288 at 293, 52 S.Ct. 171, 76 L.Ed. 298 (1932). Because Western Pacific terminates at Bieber, California and is therefore the middle link in a three line route, it does not have a direct physical connection with the defendant at Portland, Oregon.
The criteria for the determination of whether a through route exists are set forth in Thompson v. United States, 343 U.S. 549, 557, 72 S.Ct. 978, 983, 96 L.Ed. 1134, as follows:
“Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one-carrier to another, the collection and division of transportation charges, or the use of a proportional rate-to or from junction points or basing-points. These incidents named are not to be regarded as exclusive of others which may tend to establish-a carrier’s course of business with: respect to through shipments. “In short, the test of the existence of a ‘through route’ is whether the-participating carriers hold themselves out as offering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.” (Emphasis added.)
Plaintiff properly concedes that it does not meet the above test
It is therefore ordered that the petition to enjoin, annul and set aside the order of the Commission is denied, and the complaint is dismissed.
. The Sacramento Northern Railway and tire Tidewater Southern Railway Company.
. The defendants named in the complaint filed in the Commission action were: The Atchison, Topeka & Santa Fe Railway Company; The Great Northern Railway Company; The Northern Pacific Railway Company; The Union Pacific Company; The Camas Prairie Railroad Company, jointly owned by Northern Pacific and Union Pacific; The Pacific Coast R. R. Co; The Spokane International Railroad Company, a subsidiary of the Union Pacific; and the Washington, Idaho and Montana Railway Company. The Northern Pacific and Union Pacific and their subsidiaries denied the allegations of the complaint. The Great Northern, Pacific Coast, Santa Fe and the Washington, Idaho and Montana answered the complaint with expressions of willingness to establish and maintain the routes and rates sought. The Southern Pacific Company intervened in opposition to the complaint.
. The Commission noted that although plaintiffs had “indicated a willingness to rely alone on the alleged violation of Section 3(4)”, they had not withdrawn their Section 1(4) [Title 49 U.S.C. § 1(4)] allegations nor their request for “prescription of through routes”, a remedy related to a Section 1(4), rather than a Section 3(4) violation (316 I.C.C. at 810). The Commission ruled on both issues. On the Section 3(4) issue, after a lengthy discussion of the law and the facts, the Commission found (316 I.C.C. at 810):
“There is, therefore, no basis for a finding that the carriers are connecting lines within the meaning of section 3(4).” It then went on to say: “Even if the complainants were connecting carriers, the evidence of record does not establish the similarity of circumstances and conditions which justifies equality of treatment.” This last quoted issue this Court need not and does not reach. On the section 1(4) issue, which plaintiffs do not now urge, the Commission found (316 I.C.C. at 811) : “On the basis of this record, we cannot find that the public interest would be served by requiring the establishment of joint rates and through routes which are substantially slower and costlier than the present route.” The Commission ordered plaintiffs’ complaint dismissed because (316 I.C.C. 811) :
“We find that the failure and refusal of the defendants to establish through routes and joint rates with the complainants through Bieber and Portland, between points in California, on the one hand, and points in Oregon, AVasliington, and Idaho, on the other, on the same basis as those published in connection with the Southern Pacific through Portland, is not shown to be unjust or unreasonable, nor to result in discrimination against the complainants in violation of section 3(4) of the act; and that the establishment of through routes and joint rates in connection with the complainants, through Bieber and Portland, is not shown to be necessary or desirable in the public interest.”
Other issues raised in the complaint before this Court, and which this Court need neither reach nor resolve, relate to the evidence, testimony rejected and findings of fact that the Commission is alleged to have either failed to make or erroneously found.
. Plaintiffs’ opening brief, page 8, states: “There is little doubt that, under the doctrine of the Thompson case, supra, there are not, as yet, a full line of through routes over the Bieber route to or from Northern or Union Pacific points.”