Louisiana & Arkansas Railway Co. v. Export Drum Co.
| Decision Date | 06 June 1966 |
| Docket Number | No. 21899.,21899. |
| Citation | 359 F.2d 311 |
| Parties | LOUISIANA & ARKANSAS RAILWAY COMPANY, Appellant, v. EXPORT DRUM COMPANY, Inc., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
COPYRIGHT MATERIAL OMITTED
Guy C. Lyman, Jr., W. E. Davis, Elizabeth R. Haak, New Orleans, La., for appellant, Milling, Saal, Saunders, Benson & Woodward, New Orleans, La., of counsel.
Raymond H. Kierr, New Orleans, La., for appellee.
Before GEWIN and COLEMAN, Circuit Judges, and McRAE, District Judge.
This action was brought under the provisions of the Interstate Commerce Act by the Louisiana & Arkansas Railway Company ("Railway Company"), which sought to recover portions of freight charges that Export Drum Company, Inc. ("Export Drum"), had refused to pay. Involved were twenty-two shipments of old, used steel drums from points in Texas and Tennessee to Baton Rouge, Louisiana.
The district court found that the Railway Company was entitled to the higher rate on the Tennessee shipments and awarded it $1,918.34, together with interest from the date of judgment, but the court did not allow recovery on the Texas shipments. From that judgment, the Railway Company appeals, alleging as error the denial of recovery on the Texas shipments and the denial of interest on the Tennessee shipments from the dates of shipment to the date of judgment.
With regard to the Texas shipments, the district court held that the shipper, Export Drum, was entitled to a preferential rate since it met the requirements of Note 18, Item 9552 of Supplement 3 to Uniform Freight Classification No. 3, which provides as follows:
It was stipulated by the parties that the empty drums transported from Dallas, Texas, had been shipped to Texas in a filled state by railroad freight service, but shipment had been to a GMC plant at Arlington, Texas, some 12 to 25 miles from Miller Yard, the Dallas shipping place. Export Drum transported the drums in its trucks from the GMC plant to Miller Yard.
It was stipulated further that the only records kept by Export Drum in connection with the requirements of Note 18(b) were bills of lading for each shipment of empty drums. These bills of lading bore the following inscription: "This certifies that these steel drums were received filled in railroad freight service."
On the basis of these uncontested facts, the Railway Company alleges noncompliance with all three parts of Note 18: it urges that Miller Yard in Dallas is not within the same "shipping point" as Arlington, Texas, that Export Drum failed to maintain adequate records, and that the certifications of prior railroad shipment on the bills of lading were not sufficient.
Before reaching the merits of these contentions, however, we are faced with the problem whether, under the doctrine of primary jurisdiction, we first must allow the Interstate Commerce Commission to construe the tariffs in dispute. Although this issue apparently was not raised by counsel for either party at any stage in the proceedings, we must apply the doctrine if it is applicable, for, being a question of the proper allocation of business between the courts and administrative agencies, it is not subject to waiver.
Until recently, the doctrine of primary jurisdiction rarely would be invoked in a case involving the construction of a railroad tariff. "What construction shall be given to a railroad tariff presents ordinarily a question of law which does not differ in character from those presented when the construction of any other document is in dispute." Great No. Ry. v. Merchants' Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 479, 66 L.Ed. 943 (1922). Only when the words in dispute are used in a technical sense, requiring extrinsic evidence to determine their meaning, would initial resort to the Commission be required. Id. at 291-92, 42 S.Ct. 477.
In 1956, however, the Supreme Court seemed to expand the category of cases where primary jurisdiction would be applicable. Although purporting to adhere to the distinction drawn in Great No. Ry., supra, the Court held that where the construction of a tariff requires an "examination of the underlying cost-allocation which went into the making of the tariff in the first instance" and therefore where "the questions of construction and reasonableness of the tariff are so intertwined that the same factors are determinative on both issues, then it is the Commission which must first pass on them." United States v. Western Pac. R.R., 352 U.S. 59, 69, 77 S.Ct. 161, 168, 1 L.Ed.2d 126 (1956). Because all tariffs rest to some extent on cost factors and most tariff interpretations imply some question of reasonableness, and in light of the decision in a companion case to Western Pac. R.R., supra, one commentator has expressed great alarm at the trend that he believes is indicated by the case. See Jaffe, Primary Jurisdiction, 77 Harv.L.Rev. 1037, 1043-47 (1964).
Whether or not this alarm is justified, we need not say; for even if the category of cases to be initially decided by the Commission has been expanded, we do not believe that this case falls within that group. The major dispute here is over the meaning of the words "shipping point" and "a record." It is true that the Commission previously has neither construed these provisions nor indicated their purpose. Both parties, furthermore, believed it necessary at the trial to have experts testify to the meaning of the words "shipping point." But the reasonableness of the rates is not in question; the purpose of the tariff is clear, even to laymen; and if any tariff can be construed without reference to the underlying cost-allocation factors, this is one. Under these facts, courts are as competent as the Commission to interpret the tariff.
Having decided that this Court may initially consider the question of tariff construction, we now turn to the merits of the controversy. As previously stated, the Railway Company contends that Export Drum failed to meet any of the requirements of Note 18. Export Drum is entitled to the lower rate, of course, only if all of them were met.
With regard to the requirement of part (c) of Note 18 that the shipper must furnish a certificate of prior railroad freight service, the Railway Company concedes that Export Drum's certificate contained the substance of the Note's language and can suggest no purpose that would be served by requiring the precise language of the Note. In clear language, Export Drum certified that the drums now being shipped had been received filled in railroad freight service. No more is required.
Parts (a) and (b) present more difficult problems. The pertinent language of part (a) is as follows: "Ratings apply only when the immediate preceding transportation of the filled containers * * * to the shipping point of the empty containers * * * was by railroad freight service * * *." In other words, the container must be full when transported to the shipping point of the empty containers, and the transportation must be by railroad freight service. Thus, since the filled containers involved in this dispute were shipped to Arlington, Texas, but the empty containers were shipped from Miller Yard, Dallas, Texas, the key question is whether Arlington is part of the same shipping point as Miller Yard. We think it is.
Although never having construed the tariff in question or any analogous one, the Interstate Commerce Commission has held that for rate purposes the term "point" means more than a street address or shipper's platform; rather, it encompasses at least the entire city. See American Iron & Mach. Works v. Akron, C. & Y. R. R., 296 I.C.C. 737, 741 (1955); Charles Dixon Livestock Comm'n Co. v. Chicago, R. I. & Pac. R. R., 288 I.C.C. 107, 109 (1953); cf. United States v. Benjamin Motor Express, Inc., 147 F. Supp. 15 (D.Mass.1957), aff'd, 251 F.2d 547 (1st Cir. 1958) (trucking industry).
A similarly broad definition of the phrase "shipping point" in the tariff under consideration here would be entirely consistent with the tariff's purpose. Indeed, to limit it to the city limits of Dallas would be too narrow. The obvious purpose of the tariff is to provide incentive to shippers to use the railroad rather than the trucking industry. If shipment in is by rail, then shipment out by rail may be obtained at a reduced rate. When, as here, the unloading and loading platforms are within the same commercial area and so close to each other that...
To continue reading
Request your trial
-
Travelers Ins. Co. v. Detroit Edison Co.
...n. 37, 512 F.2d 527 (1975), rev'd on other grounds 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976); Louisiana & Arkansas R Co. v. Export Drum Co., 359 F.2d 311, 314 (C.A.5, 1966); Locust Cartage Co. v. Transamerican Freight Lines Inc., 430 F.2d 334 (C.A.1, 1970). Indeed, it has been note......
-
Alberti v. Sheriff of Harris County
...him interest from the time he should have received the money'" Gates, 616 F.2d at 1276, (quoting Louisiana & Arkansas Railway Co. v. Export Drum Co., 359 F.2d 311, 317 (5th Cir. 1966)); see also Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1096 n. 26 (5th Cir.1982). The Fifth Cir......
-
Lodges 743 and 1746, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO v. United Aircraft Corp.
...judgment itself and says nothing whatever about whether prejudgment interest is appropriate in a given case. Louisiana & A. Ry. Co. v. Export Drum Co., 359 F.2d 311 (5th Cir. 1966). 43 A variation of this approach has been taken in the one case of which we are aware that deals expressly wit......
-
U.S. for Use of C.J.C., Inc. v. Western States Mechanical Contractors, Inc.
...Supply Co., v. U.S. Fidelity and Guar. Co., 656 F.2d 993, 997 (5th Cir. Unit B 1981) (quoting in part, Louisiana & Arkansas Ry. Co. v. Export Drum Co., 359 F.2d 311, 317 (5th Cir.1966)); 6 see also United States ex rel Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 677-78 (11th Cir.19......