Florida Terminals & Trucking Co. v. United States

• Decision Date: 05 July 1972
• Docket Number: Civ. No. 70-241-ORL.
• Citation: 363 F. Supp. 1355
• Parties: FLORIDA TERMINALS & TRUCKING COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Middle District of Florida

363 F. Supp. 1355

FLORIDA TERMINALS & TRUCKING COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. No. 70-241-ORL.

United States District Court, M. D. Florida, Orlando Division.

July 5, 1972.

James E. Wharton and Gregory A. Presnell, Akerman, Senterfitt, Eidson & Wharton, Orlando, Fla., for plaintiff.

Alan C. Todd, Asst. U. S. Atty., Orlando, Fla., John H. D. Wigger, Dept. of Justice, Jerome Nelson, Associate Gen. Counsel, I. C. C., Washington, D. C., for defendants.

Richard J. Brooks, Altamonte Springs, Fla., Richard B. Austin, Miami, Fla., for Orlando Cartage, Inc.

Before RONEY, Circuit Judge, and YOUNG and KRENTZMAN, District Judges.

GEORGE C. YOUNG, District Judge:

Plaintiff, Florida Terminals and Trucking Company (Florida Terminals), protestant in the proceedings before the Interstate Commerce Commission, seeks judicial review of an order of the Commission granting a certificate of public convenience and necessity to Orlando Cartage, Inc. (Orlando Cartage), authorizing operation in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of general commodities (except those of unusual value, classes A and B explosives, household goods as defined by the Commission, commodities in bulk, and commodities requiring special equipment), which are at the time moving on bills of lading of freight forwarders from Orlando, Florida, to points in Orange, Lake, Marion, Volusia, Brevard, Seminole, Osceola, and Polk Counties, Florida; and to permanently enjoin and set aside the order of the Commission granting such certificate of convenience.

Application was made by Orlando Cartage in December 1967 for a certificate to handle freight forwarder traffic from Orlando to the eight surrounding Florida counties. A similar certificate was then held by George A. Dobbert, d/b/a Knollenberg's Motor Transfer (Knollenberg), which sought and received permission on March 7, 1968 to intervene before the Commission as protestant to Orlando Cartage's application. In May 1968 the Commission referred the matter of the application to modified procedure and directed all parties to submit their evidence in verified statements. Subsequently, Knollenberg's encountered financial problems culminating in the sale of the certificate of convenience held by Knollenberg's to plaintiff, Florida Terminals, on March 29, 1969. Florida Terminals then petitioned for and received temporary authority to operate over the routes and under the same limitations as specified in Knollenberg's certificate.

On May 12, 1969, the Commission referred the matter of Orlando Cartage's application to oral argument before Joint Board No. 205¹ composed of Robert Christ, at Orlando, Florida, on June 17, 1969. On May 30, 1969, Florida Terminals petitioned for leave to intervene in opposition to the application, which leave was granted on June 13, 1969. Hearings were held before the Joint Board in Orlando on June 17, 18, 19, 20 and 30, 1969, and on August 4, 5, and 6, 1969 in Winter Park. The Joint Board recommended approval of the application of Orlando Cartage; exceptions to the Joint Board's report were filed by Florida Terminals, and subsequently the Joint Board's report was affirmed as amended as to wording, by the Review Board No. 1. A petition for reconsideration was filed and denied by Division 1 of the Commission on November 5, 1970; suit was thereafter filed in this Court for temporary and permanent injunctions seeking to set aside the Commission's orders. This Court, after a hearing, found good cause for issuance of a temporary restraining order prohibiting the issuance of a certificate of convenience to Orlando Cartage until after the hearing in this cause scheduled before a three-judge court.

Florida Terminals is currently the sole carrier holding a certificate to handle freight forwarder traffic from Orlando to consignees in a surrounding eight county area, which is willing to enter into Section 409² contracts with the local forwarders. It seeks to annul the Commission's order granting a certificate of convenience to Orlando Cartage which would give Orlando Cartage identical authority to that now held by Florida Terminals and would place the two of them in direct competition with each other.

Four freight forwarders and representatives of three business users of Florida Terminals appeared on behalf of Orlando Cartage. Two of those, International Forwarding Company (International) and Universal Carloading and Distributing Company (Universal), are commonly owned by United States Freight Company and co-load their freight carried into the area involved in this action.

International has its own Orlando terminal facilities and currently uses Florida Terminals for traffic outside the Orlando commercial zone and Orlando Cartage within the zone. From past performance it found the service of Florida Terminals' predecessor, Knollenberg's, to be sporadic and Florida Terminals' subsequent service less than satisfactory, constituting a continuing problem to obtain prompt and proper distribution (Tr. 28). International, however, found Orlando Cartage's local cartage service within the commercial zone to be prompt and satisfactory, but difficulty was experienced in obtaining proper and prompt distribution as well for suburban traffic (Tr. 128).

Universal found Florida Terminals' past service satisfactory and stated that it would continue to send a portion of its business to Florida Terminals even if Orlando Cartage's application was granted. Universal, however, felt that an additional carrier to serve the six freight forwarders in this area was necessary. International stated that if granted a certificate, Orlando Cartage would not be permitted to consolidate or co-load traffic from other local forwarders from its terminal facilities except Universal's. Universal stated the same intention.

Republic Carloading and Distribution Co., Inc. (Republic) found Florida Terminals' predecessor's service to be unsatisfactory because of delays in delivery of Republic traffic and supported Orlando Cartage's application and stated that it would give its off-line traffic to Orlando Cartage.

Florida Texas Freight, Inc. (Florida-Texas), which expressed dissatisfaction with service from Knollenberg's and Florida Terminals, complained specifically about Knollenberg's deliveries to Morse Shoe Co., Fern Park, Florida. Morse Shoe Co., in addition to Barker Sound & Music, Inc., and A. S. Beck Shoes, Inc., appearing on applicant's behalf, complained of what each held to be Florida Terminals' unsatisfactory service in holding and consolidating separate shipments.

The Joint Board found that:

". . . The evidence establishes that the carrier now being used by them Florida Terminals and its predecessor have provided satisfactory service on over half of all the shipments they have transported, but that the service provided on the remainder has not generally been as desired. Since at least some of the forwarders have received complaints from their customers and have been threatened with loss of traffic because of the unsatisfactory service, the forwarders are compelled to require a very high quality service from the underlying carriers. Therefore, the service by the existing carriers must be found not to meet the needs of the forwarders in all respects and it must be concluded that they are entitled to the service of an additional carrier, . . . ."

Plaintiff's four basic objections to the report of the Joint Board are:

1. Failure of the Joint Board to make a finding of inadequacy of plaintiff's transportation services as a condition precedent to recommending issuance of another similar certificate of convenience and necessity to Orlando Cartage;

2. The Joint Board's finding that present and future convenience and necessity required certifying an additional motor carrier is not supported by substantial evidence, which evidence is credible and uncontroverted;

3. That the findings are a departure from the Commission's policy to let a present carrier handle all the traffic it can handle in an adequate and efficient manner.

4. Where there is no reasoned determination by the Joint Board that the existing carrier's services are inadequate and less than totally satisfactory there is no rational basis for recommending certification of an additional carrier.

Plaintiff's first objection that no finding of inadequacy of plaintiff's services was made as a condition precedent to recommending issuance of an additional certificate is without actual support from the written findings. The Joint Board found that:

". . ., the services provided by the existing carriers must be found not to meet the needs of the forwarders in all respects."

This statement is construed by this Court under the circumstances of this case to be a finding by the Joint Board that Florida Terminal's and its predecessor's services had been and were inadequate. 49 U.S.C. § 304(a), Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). Although not specifically stated, as such, this Court finds that the Board did find an inadequacy of services by plaintiff. Further, this Court has previously held in Petroleum Carrier Corporation v. United States, 258 F.Supp. 611 (M.D. Fla.1966) that a demonstrated need for more than one carrier may satisfy legal standards of public convenience and necessity even though no specific finding of inadequacy of existing service is found.

Plaintiff's...