Bud Antle, Inc. v. U.S.
| Decision Date | 21 March 1979 |
| Docket Number | No. 76-1777,76-1777 |
| Parties | BUD ANTLE, INC., Plaintiff-Appellant, v. UNITED STATES of America, Interstate Commerce Commission, Robert W. Meserve, Paul W. Cherington and Charles W. Bartlett, Trustees of the property of Boston& Maine Corporation, a corporation, debtor, Delaware & Hudson Railway Company, a corporation, Thomas F. Patton and Ralph S. Tyler, Jr., trustees of the property of Erie Lackawanna Railway Company, a corporation, debtor, George P. Baker, Richard C. Bond, Jervis Langdon, Jr., and Willard Wirtz, trustees of the property of Penn Central Transportation Company, a corporation, debtor, Southern Pacific Transportation Company, a corporation, and Atchison, Topeka & Santa Fe Railway Company, a corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard D. Maltzman (argued), of Titchell, Maltzman, Mark, Bass & Ohleyer, San Francisco, Cal., for plaintiff-appellant.
A. J. Thiemann (argued), Dept. of Justice, Washington, D. C., John A. Daily (argued), Philadelphia, Pa., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING, CARTER and ANDERSON, Circuit Judges.
Appellant Bud Antle, Inc. (Antle) appeals from a judgment of the district court affirming an order of the Interstate Commerce Commission (Commission) dismissing Antle's complaint for reparations and other relief against appellee railroads. 1 Jurisdiction existed in the district court under 49 U.S.C. § 17(9) and 28 U.S.C. § 1336. 2
Antle claims that both the Commission and the district court erred as a matter of law in denying its claim for reparations and must be reversed. For the reasons set forth below, we agree.
Antle is a large shipper of fresh produce from origins in California and Arizona to destinations in eastern states. Appellees Southern Pacific Transportation Company (SP) and Atchison, Topeka & Santa Fe Railway Company (Santa Fe), the "originating carriers," transport Antle's produce from the West for transfer to the remaining appellee railroads, 3 the "connecting carriers," at interchange points in the Midwest for continued transportation and delivery to the East.
During the period in question, Antle utilized refrigerated trailers on flatcars (TOFC), otherwise known as "piggyback" service, to ship large quantities of perishables on the through routes and at rates established and concurred in by the appellee railroads in Transcontinental Freight Bureau Tariff 64-N (Tariff 64-N). 4 Under In an effort to alleviate the impact of existing and anticipated shortages of refrigerated trailers, 6 Antle undertook to augment the carrier supply of trailers by the acquisition and operation of its own trailers. In October 1968, Antle and Southern Pacific, the principal originating carrier, entered into an agreement for the use of Antle's trailers on SP lines. 7 In accordance with the agreement, Southern Pacific published a per diem allowance, effective December 11, 1968, for the use of any trailers furnished, at the railroad's option, by shippers. 8 Santa Fe later established a similar allowance, effective March 1, 1970.
the applicable TOFC service plan, the trailers were to be supplied by the carrier from the point of origin. 5 Because the originating carriers furnished the trailers, the connecting carriers separately compensated those carriers for the use and possession of that equipment while on their respective lines.
Antle began shipping its produce in its own trailers (with its "reporting mark" BUDZ) in January 1969. Because the published allowances applied only to use of the trailers on the lines of the originating carriers, Antle endeavored to secure similar allowances from the connecting carriers. The connecting carriers accepted the Antle-supplied trailers at the interchange points at all relevant times, but delayed or refused to publish allowances for the use of the trailers. 9 Antle then requested the originating carriers to place their own "reporting marks" on the trailers and collect allowances from the connecting carriers on Antle's behalf. The originating carriers refused to do so, insisting that it was Antle's responsibility to make arrangements with the connecting carriers for compensation.
In October 1970, Antle filed a complaint with the Commission, alleging that the refusal or failure of the connecting carriers to publish an allowance for the use of its trailers constituted an unjust and unreasonable practice and resulted in an undue advantage to Antle's competitors in violation of certain sections of the Interstate Commerce Act. 10 Antle requested the Commission to require the connecting carriers to publish allowances and to reimburse Antle for the use of its trailers during the time when no allowance had been published. Alternatively, Antle asked that the originating carriers be required to place their reporting marks on Antle's trailers and be held liable for their failure to collect allowances from the connecting carriers on Antle's behalf.
The Hearing Examiner concluded that Antle was entitled to reparations from the connecting carriers, but not to other relief sought. His decision was approved by Review Board 4, but was subsequently reversed in pertinent part by Division 2 of the Commission. The district court affirmed the Commission's order dismissing Antle's complaint.
Antle now requests this court to set aside the Commission's decision and remand this case to the Commission with appropriate directions. Primarily at issue here is the application and effect of § 15(13), now § 15(15), of the Interstate Commerce Act. 11 That section provides in relevant part as follows:
5 U.S.C. § 706. See Bowman Transp. v. Arkansas-Best Freight, 419 U.S. 281, 284, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Widing Transp., Inc. v. Interstate Commerce Commission, 545 F.2d 652, 658 (9th Cir. 1976).
The reviewing court ought not to weigh the evidence and should "inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported." United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 749, 92 S.Ct. 1941, 1946, 32 L.Ed.2d 453 (1972). But we are not precluded from intervening if the Commission has failed to exercise its authority or discretion by an improper application Because of its construction of § 15(13) of the Act, the Commission maintains it was not empowered to require the payment of past allowances or the publication of future allowances. Antle contends that § 15(13) presents no such obstacle. Our principal concern in this case, therefore, is the application of the proper legal standard to the factual circumstances.
of the law to the established facts. United States v. Interstate Commerce Commission, 91 U.S.App.D.C. 178, 188, 198 F.2d 958, 968 (1951); United States ex rel. Members of Waste Merchants' Ass'n of New York v. Interstate Commerce Commission, 51 App.D.C. 136, 140, 277 F. 538, 542 (1921), Rev'd on other grounds, 260 U.S. 32, 43 S.Ct. 6, 67 L.Ed. 112 (1922).
Upon submission of the evidence by modified procedure, 12 the Hearing Examiner found that the Commission could not direct a carrier to publish an allowance under § 15(13), but that in appropriate circumstances, it may so order as an implicit part of its power to enforce the railroad's duty to furnish adequate car service. He declined, however, to issue a formal order requiring publication because of practical problems involved in leaving the carriers the option to furnish the equipment and because such remedial action did not appear necessary at that time.
With respect to compensation for the past use of Antle's trailers, the Hearing Examiner determined that § 15(13) of the Act did not authorize reparations or "retroactive allowances" because it was intended only to prevent payment of excessive allowances. He noted, however, that in spite of § 15(13), the Commission had awarded reparations in the past to shippers and concluded that the basis for such orders could be found in § 1 of the Act.
In resolving the question whether the connecting carriers had acted unreasonably, the Hearing Examiner took particular notice of Erie's assertion that it had a supply of trailers available, that it had never been advised by the originating carriers of their inability to supply trailers, and that it had not received any request from Antle to provide railroad-owned trailers. But the Hearing Examiner questioned the availability of the trailers because of the practical difficulties geographically in providing a dependable supply of trailers to a West Coast shipper and because there was no evidence that any of the connecting carriers had ever furnished trailers under Tariff 64-N. Finally, although recognizing mitigating circumstances for the refusal of the connecting carriers to provide...
To continue reading
Request your trial
-
Southern Pacific Transp. Co. v. I.C.C., 88-7009
...weigh the evidence ourselves, but must inquire into whether the agency's conclusions are rationally supported. Bud Antle, Inc. v. United States, 593 F.2d 865, 869 (9th Cir.1979). III SPT makes several specific objections to the ICC's decision. 2 SPT first questions how the ICC could rationa......
-
Consolidated Rail Corp. v. I. C. C.
...that "slack wax" was not within the Uniform Freight Classification definition of "lubricating oil"), and Bud Antle, Inc. v. United States, 593 F.2d 865, 867, 870-871 (9th Cir. 1979) (District Court had jurisdiction to review denial of reparations based on Commission's interpretation of its ......
-
Engelhard Corp. v. Springfield Terminal Ry. Co.
...jurisdiction. 8. Section 10745 is modeled on section 10747 of the pre-amendment Interstate Commerce Act. See Bud Antle, Inc. v. United States, 593 F.2d 865, 869 (9th Cir. 1979). 9. Engelhard's principal argument against preemption is that Conrail and Springfield Terminal, by entering into t......
-
North America Freight Car Ass'n v. Surface Transp.
...10475] appears on the surface to be precatory, the case law establishes that it is actually mandatory," quoting Bud Antle, Inc. v. United States, 593 F.2d 865, 872 (9th Cir.1979) ("If a `shipper legitimately performs a service, it is entitled, under the plain terms of [then-49 U.S.C.App. § ......