Baltimore & O.R. Co. v. United States

• Decision Date: 15 November 1912
• Docket Number: 38.
• Citation: 200 F. 779
• Parties: BALTIMORE & O.R. CO. et al. v. UNITED STATES.
• Court: United States Commerce Court

200 F. 779

BALTIMORE & O.R. CO. et al. v. UNITED STATES.

No. 38.

Commerce Court.

November 15, 1912

George F. Brownell and H. A. Taylor, both of New York City, for petitioners.

Henry B. Closson, of New York City, and William N. Dykman, of Brooklyn, N.Y., for intervening petitioners.

Winfred T. Denison, Asst. Atty. Gen., of Washington, D.C., and Blackburn Esterline, Sp. Asst. Atty. Gen., of Washington D.C., for the United States.

P. J Farrell, of Washington, D.C., for Interstate Commerce Commission.

Ernest A. Bigelow, of New York City, for Federal Sugar Refining Company.

Before KNAPP, Presiding Judge, and HUNT, CARLAND, and MACK Associate Judges.

CARLAND Judge.

The petition in this case was filed April 12, 1911, and seeks to have annulled and set aside an order of the Interstate Commerce Commission, dated March 6, 1911, the provisions of which are hereinafter stated. On April 19, 1911, upon its own petition, the Federal Sugar Refining Company was made a party defendant, with leave to appear and be represented by counsel. On May 11, 1911, the Interstate Commerce Commission and the Federal Sugar Refining Company filed a motion to dismiss the petition, for the reason that the facts set forth therein did not constitute a cause of action, and on the same day the Brooklyn Eastern District Terminal, upon leave granted, filed its intervening petition. On May 12, 1911, the United States filed a motion to dismiss, for the reason among others therein stated, that the petition did not show there was any equity therein upon which to grant the relief prayed or any part of the same. On the same day the Jay Street Terminal and Arbuckle Bros., upon leave granted, filed their intervening petition. On May 17, 1911, upon motion of Mr. Blackburn Esterline, assistant to the Attorney General, it was ordered that the motion to dismiss the petition filed by the United States be extended to and considered as a motion to dismiss the intervening petition of Arbuckle Bros. and Brooklyn Eastern District Terminal, and upon motion of Mr. P. J. Farrell, counsel for the Interstate Commerce Commission, it was ordered that the motion to dismiss the petition filed by the Interstate Commerce Commission and the Federal Sugar Refining Company be extended to and considered as a motion to dismiss the intervening petition of Arbuckle Bros. and the Brooklyn Eastern District Terminal.

On May 17, 1911, the motions for a temporary injunction, made by the petitioners and intervening petitioners, and the motions to dismiss, came on for hearing before the court; and thereafter, on May 22, 1911, the motions to dismiss were by the unanimous decision of this court denied, with leave to the respondents making said motions to answer the petition of the petitioners within 20 days from said date, if they should be so advised; and on the same day the motions made for a temporary injunction were granted, and an order entered suspending the order of the Interstate Commerce Commission complained of until the further order of the court.

On June 12, 1911, the Federal Sugar Refining Company and the Interstate Commerce Commission prayed an appeal to the Supreme Court of the United States from the order or decree of the Commerce Court rendered on May 22, 1911, and assigned as one of the errors committed by this court that it erred in not dismissing the petition for want of equity. The appeal prayed for was allowed by this court on June 13, 1911. On June 16, 1911, the United States prayed an appeal to the Supreme Court of the United States from the order or decree of this court entered May 22, 1911, and assigned as error, among others, that the Commerce Court erred in not sustaining the motion of the United States to dismiss the petition and the intervening petitions. The appeal prayed for was granted by this court on the same day. On June 10, 1912, the Supreme Court of the United States affirmed the decree of this court entered May 22, 1911. 225 U.S. 306, 32 Sup.Ct. 817, 56 L.Ed. 1100.

On June 9, 1911, the Federal Sugar Refining Company filed its answer to the original petition; and on the same day the United States filed its answer to the original petition and also to the intervening petitions of Arbuckle Bros. and Brooklyn Eastern District Terminal. The Interstate Commerce Commission has never answered either of the petitions.

The mandate of the Supreme Court was filed in this court on June 24, 1912. On October 10, 1912, the United States and the Federal Sugar Refining Company, upon leave granted by the court, withdrew their several answers, and on the same day filed their motion to dismiss the petition of the petitioners, for the reason that the facts set forth in said petition did not constitute a cause of action or entitle said petitioners to the relief, or any of the relief, asked for by them in and by said petition. This action of the United States and the Federal Sugar Refining Company left the case standing upon the petitions of the petitioners, and the intervening petitioners, and the motions to dismiss of the respondent and intervening respondents Federal Sugar Refining Company and Interstate Commerce Commission. In this condition of the case the parties, by their counsel, appeared in open court and stipulated that the case be submitted to the court for final decision upon the merits on the petitions and motions to dismiss.

The material facts as they appear in the petitions are as follows:

The petitioning railroads are engaged in the transportation of passengers and property by railroad from one state to another, and all have rail termini upon the New Jersey shore of the harbor of New York, except the Baltimore & Ohio Railroad Company, whose rail terminus is at St. George, Staten Island, and the Pennsylvania Railroad Company, whose rail terminus for passenger traffic only is in the borough of Manhattan. In order to reach the shipping territory of Greater New York across the Hudson and East Rivers and other waters, petitioners have been compelled to serve the vast shipping interests of Greater New York by means of floats, lighters, and barges. Petitioners have established a lighterage zone, known as the 'lighterage limits,' which has been in effect for several years, and during that time has been and is now described in the tariffs of each of said petitioners, which tariffs have been and are duly filed with the Interstate Commerce Commission, as follows:

North River: New York side, Battery to 135th street; New Jersey side, Jersey City, N.J., to and including Ft. Lee, N.J.

East River and Harlem River: New York side, Battery to Jerome Avenue bridge, including Harlem River side of Ward's and Randall's Islands; Brooklyn side, from Pot Cove, Astoria, to and including Newtown and Dutch Kills creeks, and points in Wallabout Canal west of Washington Avenue bridge, and to Hamilton Avenue bridge, Gowanus Canal, to and including Sixty-ninth street, South Brooklyn (Bay Ridge).

New York Bay: Points on north and east shore of Staten Island between Bridge creek (Arlington) and Clifton, both inclusive, and include Shooter Island; points on the New Jersey shore of New York Bay and on the Kill von Kull, between Constable Hook and Avenue C, Bayonne City, opposite Port Richmond, Staten Island.

Within said lighterage limits petitioners perform, without additional charge, a lighterage service on east-bound shipments from their rail terminals upon the western shore of New York Harbor to points within those limits, and on west-bound shipments from points within those limits to their rail terminals upon the western shore of New York Harbor.

Within said lighterage limits and at various points within the boroughs of Manhattan and Brooklyn, city of New York, each petitioner has established, and for several years has maintained, and still maintains, freight terminal stations, at which it delivers east-bound freight and receives west-bound freight for transportation over its lines. Each petitioner has some freight terminal stations, as aforesaid, which it owns and directly operates, and others which are operated for it under and pursuant to the provisions of certain contracts between it and the owners of said terminal stations. In some instances a single terminal station is operated for and on behalf of two or more of said petitioners under and pursuant to certain contracts between them and the owner of said station, and in such instances said terminal station is a union terminal for two or more of said petitioners. It is impossible for petitioners to deliver and receive all freight, especially carload freight, at said terminals. A large part of it must of necessity be delivered and received at public and private docks within the said lighterage limits. Accordingly, petitioners have for several years received and delivered freight at all steamship piers, docks, and landings, and private piers or landings when shippers or consignees arrange for the receipt or delivery of freight within the lighterage limits, and have lightered it without additional charge from and to said points, and still do so receive, deliver, and lighter it. Petitioners transport between said terminal stations, piers, docks, and landings and their rail terminals on the western shore of New York Harbor, as a part of the transportation service from the points of shipment to the point of destination, and for the flat New York rate, by means of lighters, floats, and barges owned and directly operated by them, or operated for them under contracts between them and the owners of such equipment, freight received at or destined to said terminal stations, piers, docks, and landings.

Petitioners for several years past have held and now hold themselves out as common carriers to and from all said points within...