Baker v. Riss & Company

• Decision Date: 29 June 1971
• Docket Number: No. 71-1025.,71-1025.
• Citation: 444 F.2d 257
• Parties: George P. BAKER et al., Appellees, v. RISS & COMPANY, Inc., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

444 F.2d 257 (1971)

George P. BAKER et al., Appellees, v. RISS & COMPANY, Inc., Appellant.

No. 71-1025.

United States Court of Appeals, Eighth Circuit.

June 29, 1971.

Rodger J. Walsh, Kansas City, Mo., for appellant.

Bruce C. Houdek, James & McCanse, Kansas City, Mo., for appellees.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The Pennsylvania Central Railroad Company brought this action against Riss & Company, Inc. (hereinafter Riss) for storage and detention charges incurred in connection with joint transportation of freight in the amount of $1,848.06. By orders entered by the United States District Court for the Eastern District of Pennsylvania pursuant to § 77 of the Bankruptcy Act, 11 U.S.C.A. § 205, George P. Baker, et al., have been appointed and have qualified as trustees and as such are authorized to manage and operate the plaintiff railroad. Such trustees have by order of this court been substituted as plaintiff-appellee. For convenience, we shall refer to the plaintiff railroad and its successor trustees as Penn.

Riss is a motor carrier regulated by the Interstate Commerce Commission (ICC). Riss had authority to transport by truck the merchandise involved in this action from its point of origin to destination and had tariffs on file with the ICC covering such transportation. In the transactions here pertinent, Riss collected its full tariff charges from the shipper for the entire trip. It utilized Penn for piggyback services under contract between Penn and Riss providing for joint transportation services and for a division of the Riss tariffs between Riss and Penn. The present controversy arises over Penn's right to collect storage and detention charges provided for in the division agreement entered into between Penn and Riss.

The trial court held that the doctrine of primary jurisdiction of the ICC should be invoked with respect to the issue of whether the trucker's tariff carried with it the right of Penn to make storage and detention charges without having an appropriate tariff of its own on file. The trial court in its opinion states:

"Item 40 of the division agreement containing the rate sought to be collected by plaintiff for storage charges is admittedly not on file with the ICC. Unless Item 10(A), supra, trucker\'s tariff can be construed to make Item 40 effective without such filing, as it cannot be under ordinary rules of judicial construction, then plaintiff\'s complaint should be dismissed. It is only in liberally viewing the parties\' contentions that Item 10(A) does indeed permit plaintiff to make storage charges without having an appropriate tariff on file with the ICC that this Court has concluded that, construed in the light of the expertise of the ICC, Item 10(A) may dictate this result. Apart from such expertise, certainly, no such construction can exist. The doctrine of `primary jurisdiction\' of the ICC should thus be invoked as the alternative to dismissing plaintiff\'s complaint. * * *"

The primary issue raised upon this appeal is whether the court erred in submitting the issue involved in this case to the ICC under the primary jurisdiction doctrine. For reasons hereinafter stated, we hold the trial court lacked subject matter jurisdiction and that this action should be dismissed for want of jurisdiction.

Considerable confusion was created in the trial court by Penn's contention in its complaint that its claim is based on a tariff on file with the ICC. No applicable railroad tariff was specifically pleaded although the trial court made repeated efforts to require Penn to set out the tariff it relied upon. Both parties now agree that there is no Penn tariff on file which authorizes or requires the collection of storage and detention charges here claimed. The only provision for storage charges is to be found in the agreement for division of joint transportation charges entered into between Penn and Riss. It is agreed that such division agreements are not tariffs and are not treated as such by the ICC.

Riss has on file a tariff which governs the rate to be charged its shippers for transportation from the point of origin to destination. Item 10 relating to substitution of rail carrier service reads:

"SUBSTITUTION OF SERVICE.

"(A) Unless the shipper directs that the rail carrier service shall not be performed the motor carriers parties hereto may, at their option, substitute rail service between the points and via the rail carriers shown herein, for their actually available service via highways for which such motor carriers have lawful operating rights as common carriers via motor vehicle."

The joint truck-rail service here provided for under Plan I described in American Trucking Ass'ns v. Atchison, T. & S.F.R. Co., 387 U.S. 397, 403, 87 S. Ct. 1608, 1612, 18...