Arrow Transportation Co. v. United States, No. 961.

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Writing for the CourtRIVES, Circuit , and LYNNE and GROOMS
Citation176 F. Supp. 411
PartiesARROW TRANSPORTATION CO. et al., Plaintiffs v. UNITED STATES of America, Defendant and Interstate Commerce Commission et al., Intervening Defendants.
Decision Date20 July 1959
Docket NumberNo. 961.

176 F. Supp. 411

ARROW TRANSPORTATION CO. et al., Plaintiffs
v.
UNITED STATES of America, Defendant and Interstate Commerce Commission et al., Intervening Defendants.

No. 961.

United States District Court N. D. Alabama, N.W. D.

July 20, 1959.


176 F. Supp. 412

Donald Macleay, Washington, D. C.; MacDonald Gallion, Atty. Gen., State of Alabama, Thomas M. Stowers, Alabama Public Service Commission, Montgomery, Ala., George F. McCanless, Atty. Gen., Harold Seligman, Tennessee Public Service Commission, Nashville, Tenn., Joe Starnes, Guntersville, Ala., F. G. Asquith, Knoxville, Tenn., John A. Caddell, Decatur, Ala., John C. Lovett, Benton, Ky., Fenner Heathcock, Union City, Tenn., Charles J. McCarthy, General Counsel, Tennessee Valley Authority, Knoxville, Tenn., for the plaintiffs.

W. L. Longshore, U. S. Atty., and Malcolm L. Tanner, Asst. U. S. Atty., Birmingham, Ala., Earl E. Pollock, U. S. Department of Justice, Washington, D. C.; Robert W. Ginnane, General Counsel, Interstate Commerce Commission, Washington, D. C., and I. K. Hay, Associate General Counsel, Interstate Commerce Commission, Washington, D. C., for the defendants.

A. J. Dixon, Washington, D. C.; E. J. Zoll, Chicago, Ill., R. W. Henriott, Louisville, Ky., James A. Simpson, Birmingham, Ala., Russell B. James, Don C. McDevitt, J. M. Souby, Jr., Chicago, Ill., Robert H. Stahlheber, St. Louis, Mo., M. L. Cassell, Chicago, Ill., Byron M. Gray, Topeka, Kan., J. S. Chartrand, Chicago, Ill., and Freeman Bradford, Indianapolis, Ind., for the intervenors.

Before RIVES, Circuit Judge, and LYNNE and GROOMS, District Judges.

LYNNE, District Judge.

This action, authorized by the provisions of 28 U.S.C. § 1336 (1952), was brought by the Arrow Transportation Company1 and sixteen other plaintiffs2

176 F. Supp. 413
to enjoin, set aside, annul, and suspend orders of the Interstate Commerce Commission in a proceeding entitled American Barge Line Co. v. Alabama G. S. R. R., 296 I.C.C. 247 (1955), affd 303 I.C. C. 463 (1958), modified March 24, 1959, insofar as they relate to rates on ex-barge grain3 from the Tennessee River ports of Sheffield, Decatur, Guntersville, Chattanooga, and Knoxville. Impleaded as a statutory defendant, the United States has filed an answer in which it confesses error and joins the plaintiffs in their prayer for relief. The Interstate Commerce Commission, the Kansas State Corporation Commission, certain Kansas and Missouri milling interests, the Boards of Trade of Kansas City, Chicago, and Indianapolis, and the major southern and midwestern railroads have been granted leave to intervene and have filed answers to the complaint in support of the Commission

This controversy has had a long history. In its natural state the Tennessee River was a series of rapids and shoals and was unsuited for modern navigation. But with the construction of a series of dams by the Tennessee Valley Authority, it has now become a highly navigable waterway which provides a direct route for the movement of grain from the surplus producing areas of the Midwest to the deficit areas of the Southeast where the grain is needed to serve expanding livestock and poultry industries, as well as for human consumption. With the development of the Tennessee River came the need for ex-barge rates which would permit the grain to move over the Tennessee River and by rail beyond the river ports.

Under the existing rate structure the railroads charge their full local rates for the transshipment by rail of ex-barge grain from the Tennessee River ports while affording more favorable treatment to ex-rail grain transshipped from those ports, and also to ex-barge grain transshipped from the competing port of Memphis. This rate structure inhibits the movement of barge grain beyond the ports and the plaintiffs contend, and we think correctly, that this rate structure does not recognize and preserve the inherent advantages of barge transportation as required by the National Transportation Policy and is contrary to the requirements of various sections of the Interstate Commerce Act.

176 F. Supp. 414

On January 4, 1951, a complaint was filed with the Commission asking that it prescribe ex-barge rates on grain from the Tennessee River ports. After extensive hearings, briefs, and argument, the Commission dismissed the complaint on July 18, 1955. A petition for reconsideration was denied and the plaintiffs then commenced this action on March 6, 1956. Before filing an answer the Commission, by order dated May 4, 1956, reopened the ICC proceeding on its own motion for reconsideration in the light of the Supreme Court's decision in Dixie Carriers v. United States, 1956, 351 U.S. 56, 76 S.Ct. 578, 100 L.Ed. 934. With the consent of all parties, this court entered a stay of this action. After further argument and briefs the Commission kept the case under advisement until March 19, 1958, when it entered an order affirming its previous decision. Plaintiffs then filed an amended and supplemental complaint on May 29, 1958, asking this court to enjoin and set aside the Commission's order of March 19, 1958.

The complaint in the ICC proceeding was filed jointly by Arrow and two other barge lines, American Barge Line Company and Federal Barge Lines, Inc. The complaint also involved ex-barge rates from ports on other rivers as well as the Tennessee, but Arrow was interested only in the rates from the ports on the Tennessee River. On July 9, 1958, American and Federal filed a petition with the Commission seeking reconsideration of that part of the Commission's order of March 19, 1958, which related to ports on rivers other than the Tennessee. No party requested reconsideration of the Tennessee River phase of the ICC proceeding. By order dated August 27, 1958, the Commission granted American and Federal's petition and, on its own motion, reopened the proceeding for reconsideration and further oral hearing on all issues, including those before this court. On September 12, 1958, this court set down this case for hearing on October 27. On September 17 the Commission entered yet another order, vacating its order of March 19, 1958, and setting the case for further hearing before an Examiner on October 20.

A second supplemental complaint was filed herein on October 6, 1958, asking this court to set aside the Commission's orders of August 27 and September 17, 1958, and, in the alternative, for an order under section 10(e) of the Administrative Procedure Act4 compelling the Commission to take action "unlawfully withheld or unreasonably delayed." On October 14, 1958, this court granted a temporary restraining order enjoining the Commission from holding any further hearing in the ICC proceeding on the issues involved in this case pending a hearing and determination by this court.

A hearing before this court was held on October 27, 1958. In order to avoid the appearance of unseemly conflict between court and Commission, we dissolved the temporary restraining order on November 3, and ordered that the filing of an opinion and the entry of final judgment in this case would be withheld until March 2, 1959,

"* * * without prejudice to exercise by the Interstate Commerce Commission of its concurrent jurisdiction and to the entry by the Commission of a final, definitive order relating to the issues involved herein on or before such date * * *."

In response to a request from the Commission dated February 19, 1959, we agreed to withhold judgment for an additional thirty days and on March 24 the Commission issued an order and accompanying report containing its findings on reconsideration. In its latest decision the Commission has prescribed rates which, when put in effect, will cure the section 3(1) violation of which the plaintiffs complain, but it has failed to give Arrow relief as a connecting carrier. The report and order of March 24 denied relief under sections 1, 2 and 3(4) of the Interstate Commerce Act by reaffirming

176 F. Supp. 415
and incorporating by reference the Commission's prior findings on these issues. It cited no new evidence and made no new findings on these issues. On April 20 we set this case down for argument on the status of the section 3(4) issue in this action under the Commission's report and order of March 24, 1959. The Commission then on May 25 entered an order postponing the effective date for compliance with its order of March 24, 1959, "in view of the pendency of the action before the court." Argument was heard on June 17 and the plaintiffs filed a third supplemental complaint to bring before the court so much of the latest decision of the Commission as reaffirmed its previous findings on the sections 1, 2 and 3(4) issues at the Tennessee River ports. The case is now ripe for final disposition by this court

Two threshold contentions relating to the jurisdiction of the court must be resolved. The Commission denies the standing to sue of certain of the plaintiffs but does not question the standing of several of the plaintiffs, including Arrow. In view of the admitted right of these plaintiffs to maintain this action and the liberal statutory provisions for intervention,5 it is immaterial whether the challenged plaintiffs have standing to sue. Interstate Common Carrier Council of Md. v. United States, D.C.D. Md., 84 F.Supp. 414, affirmed 1949, 338 U.S. 843, 70 S.Ct. 91, 94 L.Ed. 516.

The intervening defendants also contend that the effect of the Commission's orders of August 27 and September 17, 1958, was to oust this court of its jurisdiction to decide the case on the merits. All parties concede that at the time both the original and the first supplemental complaints were filed in this court, all the statutory requirements for judicial review had been fully satisfied and plaintiffs had completely exhausted their administrative remedy.6 It is settled law that the jurisdiction of this court depends upon the facts existing at the time the complaint is filed. Once jurisdiction has...

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12 practice notes
  • Arrow Transportation Company v. Southern Railway Company, No. 430
    • United States
    • United States Supreme Court
    • April 15, 1963
    ...Interstate Commerce Comm'n v. Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102 (1947). See also Arrow Transp. Co. v. United States, 176 F.Supp. 411 (D.C.N.D.Ala.1959). And just a few months ago there was filed here in No. 746, Mechling Barge Lines, Inc., v. United States, another case in......
  • Walker v. United States, Civ. A. No. 2864.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • August 10, 1962
    ...orders * * * as it may deem necessary or appropriate * * *" § 20a(3). Arrow Transportation Co. v. United States, N.D.Ala., 1959, 176 F.Supp. 411, affirmed 361 U.S. 353, 80 S.Ct. 406, 4 L.Ed.2d 362; and see cases in which the Commission has reopened proceedings pending review United States v......
  • Seatrain Lines, Inc. v. United States, Civ. A. No. 33-62.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 1, 1964
    ...Atchison, Topeka & Santa Fe Railway Co. v. United States, 218 F.Supp. 359 (N.D.Ill.1963); Arrow Transportation Co. v. United States, 176 F.Supp. 411 (N.D.Ala.1959), aff'd 361 U.S. 353, 80 S.Ct. 406, 4 L.Ed.2d 362; Georgia Public Service Commission v. Bush Terminal Railroad Company, 310 I.C.......
  • Templeton v. Dixie Color Printing Co., Civ. A. No. 68-115.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • April 20, 1970
    ...274 F.2d 794, (5th Cir. 1960); and the District Court of the Northern District of Alabama, Arrow Transportation Co. v. United States, 176 F.Supp. 411, 421 (N.D.Ala.1959). In Atlantic & Gulf Stevedores, Inc. v. Donovan, supra, Judge Brown "The APA provides categorically that `every agency sh......
  • Request a trial to view additional results
12 cases
  • Arrow Transportation Company v. Southern Railway Company, No. 430
    • United States
    • United States Supreme Court
    • April 15, 1963
    ...Interstate Commerce Comm'n v. Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102 (1947). See also Arrow Transp. Co. v. United States, 176 F.Supp. 411 (D.C.N.D.Ala.1959). And just a few months ago there was filed here in No. 746, Mechling Barge Lines, Inc., v. United States, another case in......
  • Walker v. United States, Civ. A. No. 2864.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • August 10, 1962
    ...orders * * * as it may deem necessary or appropriate * * *" § 20a(3). Arrow Transportation Co. v. United States, N.D.Ala., 1959, 176 F.Supp. 411, affirmed 361 U.S. 353, 80 S.Ct. 406, 4 L.Ed.2d 362; and see cases in which the Commission has reopened proceedings pending review United States v......
  • Seatrain Lines, Inc. v. United States, Civ. A. No. 33-62.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 1, 1964
    ...Atchison, Topeka & Santa Fe Railway Co. v. United States, 218 F.Supp. 359 (N.D.Ill.1963); Arrow Transportation Co. v. United States, 176 F.Supp. 411 (N.D.Ala.1959), aff'd 361 U.S. 353, 80 S.Ct. 406, 4 L.Ed.2d 362; Georgia Public Service Commission v. Bush Terminal Railroad Company, 310 I.C.......
  • Templeton v. Dixie Color Printing Co., Civ. A. No. 68-115.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • April 20, 1970
    ...274 F.2d 794, (5th Cir. 1960); and the District Court of the Northern District of Alabama, Arrow Transportation Co. v. United States, 176 F.Supp. 411, 421 (N.D.Ala.1959). In Atlantic & Gulf Stevedores, Inc. v. Donovan, supra, Judge Brown "The APA provides categorically that `every agency sh......
  • Request a trial to view additional results

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