Astron Forwarding Co. v. I.C.C., 82-2029
| Decision Date | 12 July 1983 |
| Docket Number | No. 82-2029,82-2029 |
| Citation | 711 F.2d 391 |
| Parties | ASTRON FORWARDING COMPANY, Cartwright International Van Lines, Inc., Delcher Intercontinental Moving Service, Inc., Dyer International, Inc., Express Forwarding and Storage Company, Inc., Four Winds Forwarding, Inc., Furniture Forwarding, Inc., Global International U.S.A., Inc., HC & D Forwarders International, Inc., Home-Pack Transport, Inc., Imperial Van Lines International, Inc., Ivory Forwarding, Inc., Ocean-Air International, Inc., and Towne International Forwarders, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Alan F. Wohlstetter, Washington, D.C., with whom Edward A. Ryan, Washington, D.C., was on the brief, for petitioners.
Cecelia E. Higgins, Atty., I.C.C., Washington, D.C., with whom John Broadley, Gen. Counsel, and Lawrence H. Richmond, Deputy Associate Gen. Counsel, I.C.C., and Robert B. Nicholson and Stephen F. Ross, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents. Evelyn G. Kitay, Atty., I.C.C., Washington, D.C., entered an appearance for respondents.
Before ROBINSON, Chief Judge, and WRIGHT and TAMM, Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Petitioners, a group of 14 freight forwarding companies, 1 challenge a decision of the Interstate Commerce Commission (ICC) to grant U.S. Express, Inc. (Express) authority to operate as a freight forwarder of general commodities, including household goods, between various points in the United States. 2 The principal legal issue presented by this appeal is whether ICC may grant an unrestricted forwarding permit without requiring separate evidence of the applicant's fitness to forward household, as well as general, commodities. We conclude that ICC can grant an unrestricted forwarding permit without requiring such evidence. We find, therefore, that ICC's decision to grant Express unrestricted authority is supported by substantial evidence, and we affirm.
Freight forwarders perform an intermediary function in the transportation industry. They hold themselves out to the general public to provide transportation of property, to consolidate small shipments, to distribute such shipments, and to assume responsibility for transportation from origin to destination. 49 U.S.C. § 10102(8) (Supp. V 1981). Freight forwarders, like most intermediaries, mainly provide administrative services: they consolidate small loads, hire common carriers to transport the consolidated loads, and redistribute the small loads at the points of destination. Freight forwarders principally serve corporations and military units--entities who ship loads of a size that do not justify direct contracting with actual carriers. The freight forwarders make their profits on the differential between the rates paid to carriers and the rates charged to such entities.
In November 1981 Express applied to ICC for authority to operate as a freight forwarder of general commodities, including household goods, 3 between points in the United States. See Application For Freight Forwarder Permit, Joint Appendix (JA) 1-5. Express had operated for many years as an international forwarder using air and ocean carriers, but this was its first application to forward freight by rail, motor, and other domestic carriers. See Verified Statement of Applicant, JA 36. Express supported its application with the statements of ten shippers, all of whom testified as to their need for, and Express' ability to provide, the proposed service. 4
Four freight forwarders of general commodities protested Express' application. In addition, petitioners protested the portion of the application that would allow Express to forward household goods. See Verified Statements and Protest, JA 42, 50-61. 5 Petitioners contended that the supporting shippers had not shown a need to move household goods and that Express had not specifically demonstrated that it was fit, willing, and able to forward such goods. Id. at 5-6, 7-10, JA 54-55, 56-59.
On March 8, 1982 a review board appointed by the Commission denied Express' application in its entirety. 6 See Decision of Review Board No. 1 (March 8, 1982), JA 85-88. The review board found that Express had not carried its burden of showing a need for or the ability to provide the proposed service. Id. at 3, JA 87. The board did not discuss or rule on the separate issues that petitioners raised concerning household goods.
On appeal a division of three Commissioners reversed the initial review board. See Decision of Appellate Division 2 (May 17, 1982), JA 135-139. The appellate division found that the evidence of record "is sufficiently representative to establish that the broad forwarding service that applicant proposes is required by the shipping public." Id. at 2-3, JA 136-137. Moreover, the division rejected petitioners' request that the grant be restricted against the forwarding of household goods. Id. at 3, JA 137. The appellate division found no ICC precedent or policy requiring such an imposition, and concluded that petitioners have not successfully established that they would be materially harmed by Express' added competition. Id. at 2-3, JA 136-137.
On May 17, 1982 petitioners requested that the full Commission reconsider Express' application. See Protestants' Petition for Administrative Review 1-17, JA 141-158. They argued that the division's decision was inconsistent with current ICC policy that restricts the certification of motor carriers against the carriage of household goods where there has been no separate showing of fitness to move such commodities. Id. at 5-6, JA 146-147. 7 They also noted that ICC had recently restricted the permit of a freight forwarder against the forwarding of household goods. Id. at 7-10, JA 148-151. 8
On July 7, 1982 the full Commission denied the request for discretionary review. See Commission Decision 1-2 (July 7, 1982), JA 170-171. The Commission stated that the policy restricting certificates of motor carriers against household goods transportation was properly limited to motor carriers and would not be extended to freight forwarders:
The [household goods] exclusion is premised on the fitness issues that might arise because of differences in the carriage of general commodities as opposed to the transporting of household goods. These are primarily operational rather than administrative and do not apply with equal force to the business of forwarding. * * *
Id. at 2, JA 171. Furthermore, it decided that the examination of the fitness of household goods forwarders is of "diminished importance in light of the statutory exemption for freight forwarder transportation of 'used household goods.' " Id. 9 Finally the Commission expressly overruled any past decisions in which it had restricted the permit of a freight forwarder against the forwarding of household goods:
Having considered the issue in full detail, we now believe that an extension of the [household goods exclusion] is unwarranted and inconsistent with a statutory mandate to promote competition and eliminate unproductive regulation.
Id. The Commission then concluded that restricting the permits of freight forwarders would unnecessarily "frustrate forwarders from holding out a full range of service to the public." Id. 10
Petitioners then filed this appeal.
To grant a freight forwarding permit ICC must find both that the public needs and that the applicant can provide the proposed forwarding service. 49 U.S.C. § 10923(a). In this case ICC determined that Express' application met these criteria and that it was "consistent with the public interest and the national transportation policy." See Decision of Appellate Division 2, supra, at 4, JA 138. The ten shippers' statements, together with the evidence in Express' application, adequately support this determination. 11 Therefore, ICC was justified in making the general grant of authority. 12
Petitioners' principal complaint is not with ICC's grant of "general" authority to Express, but rather with ICC's unwillingness to restrict that grant against the forwarding of household goods. They complain that ICC acts arbitrarily and capriciously when it allows a freight forwarder to forward household commodities without offering any specific evidence about the public's need for, or Express' ability to provide, the household goods service. See brief for petitioners at 12-13. But we think that ICC has permissibly determined and fully explained that a separate demonstration of this type is not essential to the granting of a freight forwarding permit. See Decision of Appellate Division 2, supra, at 2-3, JA 136-137.
To begin with, ICC has reasonably concluded that, in contrast to the actual transporting of household goods by common carriers, the forwarding of household goods does not require special skills or separate demonstrations of fitness. Freight forwarders do not provide the actual transportation of household goods; licensed motor carriers do. 13 Freight forwarders merely assume the role of shipper; at all times common carriers, subject to requisite fitness showings, provide the actual transportation. Apparently, the only special skill a freight forwarder must have is the ability to choose reputable common carriers. Express, a forwarder with years of experience in hiring the services of air and ocean carriers, clearly should know how to hire reputable common carriers. 14
Second, ICC has thoughtfully noted that freight forwarders, unlike household goods motor carriers, are not governed by special legislation or regulation. There are no special statutory requirements for freight forwarders of household goods, 15 whereas common carriers are subject to many. 16 Indeed, when Congress recently singled out...
To continue reading
Request your trial
-
Global Van Lines, Inc. v. I.C.C., 83-1938
... ... Contract Steel Carriers, Inc., supra note 9. ICC v. J-T Transp. Co., 368 U.S. 81, 87 & n. 4, 82 S.Ct. 204, 208 & n. 4, 7 ... ----, ----, 803 F.2d 1186, 1194, (D.C.Cir.1986); Astron Forwarding Co. v. ICC, 229 U.S.App.D.C. 113, 116 n. 10, 711 F.2d 391, 394 ... ...
-
Global Van Lines, Inc. v. I.C.C.
... ... U.S.A., Inc., Furniture Forwarding, Inc. & American Movers Conference ... John J. Powers, ... See also Astron Forwarding Co. v. ICC, 711 F.2d 391, 392 (D.C.Cir.1983) ... ...