City of Philadelphia v. Civil Aeronautics Board, 15845.

• Decision Date: 23 March 1961
• Docket Number: No. 15845.,15845.
• Parties: CITY OF PHILADELPHIA, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, The Flying Tiger Line, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

289 F.2d 770 (1961)

CITY OF PHILADELPHIA, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, The Flying Tiger Line, Inc., Intervenor.

No. 15845.

United States Court of Appeals District of Columbia Circuit.

Argued January 3, 1961.

Decided March 23, 1961.

Mr. William J. Duiker, Washington, D. C., with whom Mr. David Berger, Philadelphia, Pa., was on the brief, for petitioner.

Mr. Robert L. Toomey, Attorney, Civil Aeronautics Board, with whom Messrs. Franklin M. Stone, General Counsel, Civil Aeronautics Board, John H. Wanner, Deputy General Counsel, Civil Aeronautics Board, O. D. Ozment, Associate General Counsel, Litigation and Research, Civil Aeronautics Board, and Richard A. Solomon, Attorney, Department of Justice, were on the brief, for respondent.

Mr. Elmer E. Batzell, Washington, D. C., with whom Mr. Norman L. Meyers, Washington, D. C., was on the brief, for intervenor. Mr. Ivan V. Kerno, Washington, D. C., also entered an appearance for intervenor.

Messrs. Bryce Rea, Jr., Thomas M. Knebel, Washington, D. C., and Frederick G. Freund, Washington, D. C., filed a brief on behalf of National Motor Freight Traffic Association, as amicus curiae, urging reversal.

Before WILBUR K. MILLER, Chief Judge, and BAZELON and FAHY, Circuit Judges.

WILBUR K. MILLER, Chief Judge.

The Flying Tiger Line, Inc., operates a transcontinental air freight service under the authority of a certificate issued by the Civil Aeronautics Board in 1949, 10 C.A.B. 572, 635, and renewed from time to time with alterations not relevant here. The certificate authorized Tiger "to engage in air transportation with respect to property" between the Pacific Coast terminal point of Los Angeles, various intermediate points, and the eastern terminal point of Portland, Maine. Philadelphia is one of the numerous intermediate points enumerated in the certificate. It follows that Tiger is authorized to engage in interstate air transportation of freight, including movements between Philadelphia and the Pacific Coast, as well as between Philadelphia and intermediate points.

For several years Tiger operated large aircraft between San Francisco and Detroit, Los Angeles and New York, and Los Angeles and Cleveland. Freight destined for or picked up at intermediate points such as Philadelphia was moved by smaller aircraft (C-46) scheduled to connect with the large transcontinental planes. Under this arrangement Philadelphia's outbound freight reached the Los Angeles area in time for second morning delivery; inbound freight was similarly timed. The maximum lift capacity in or out of Philadelphia in any one day was 13,000 pounds.

Having suffered financial loss in its transcontinental operations with feeder planes, which it attributed to the slow schedule, Tiger filed with the C. A. B. on September 30, 1957, a formal proposal to change its service pattern by providing larger, faster aircraft on its main route, by eliminating the C-46 feeder planes, and by furnishing truck deliveries between the landing places of the larger planes and the intermediate points. With respect to Philadelphia,¹ Tiger proposed service by truck to and from the Newark Airport (about 90 miles away) which would make available to Philadelphia shippers first morning delivery in San Francisco and first day delivery at other West Coast points. Under the proposed arrangement, lift capacity would be much larger than before. The City of Philadelphia, its Chamber of Commerce, and one air line protested.

On December 18, 1957, the Board set the application for formal hearing, but authorized Tiger to serve Philadelphia by truck through Newark until 60 days after its final decision on the application. Thereupon Tiger discontinued its feeder plane service to and from Philadelphia and instead began to move that city's freight by truck to and from the Newark Airport where the transcontinental air journey began or ended.

At a prehearing conference January 14, 1958, it was agreed that the case should proceed "on the basis that FTL Tiger is conducting its trucking operations under lawful authority." It was also stipulated, with respect to Philadelphia, that the issue is "Whether or not the Flying Tiger Line, Inc.'s proposed service to Philadelphia by truck through the Newark Airport would adversely affect the public interest." The prehearing order stated that, in addition to the stipulated issue concerning Philadelphia, that city "raised the question whether the substituted truck service to Philadelphia is adequate air service within the meaning of and as contemplated by FTL's certificate of public convenience and necessity."

A hearing was had at which a number of Philadelphia shippers testified. Without exception they said they were pleased with the new service by truck through Newark — which was already in effect — because their shipments to and from the West Coast were delivered sooner than, and just as safely as, under the old feeder plane arrangement. They were interested only in quick, safe delivery; they were not concerned whether the carrier flew the freight from Philadelphia to California or trucked it to Newark and then transported it by air to the Pacific Coast.

After the hearing, the Examiner filed an initial decision, holding that the proposed air-truck service to Philadelphia is adequate within the meaning of Tiger's certificate, that the substituted truck service between Philadelphia and Newark is not adverse to the public interest, and that Tiger's application should be approved. On November 12, 1959, the Board adopted the Examiner's findings, conclusions and recommendations, with slight modifications, and granted Tiger's application to serve Philadelphia by truck to and from the Newark Airport. Its petition for reconsideration having been denied, the City of Philadelphia petitions for review.

Philadelphia first contends that Tiger is not providing it "with direct air service as contemplated and required by its Certificate of Convenience and Necessity." The certificate authorizes Tiger "to engage in air transportation with respect to property" between points enumerated therein, including Philadelphia. The City assumes that this means Philadelphia must be served through its International Airport and, in so assuming, reads into the certificate the word "direct" which does not appear in it.

On the contrary, instead of providing that Philadelphia or any other point must be served through its own airport or that which is nearest to the city, the certificate provides as follows:

"Upon compliance with such procedure relating thereto as may be prescribed by the Board, the holder may regularly serve a point named herein through any airport convenient thereto; * * *."

Its prescribed procedures having been complied with, the Board authorized service to Philadelphia through the Newark Airport. If that airport is convenient to Philadelphia, the requirement of the certificate has been met. Service through the airport nearest to the city is not required by the certificate, nor is it provided that the city's own airport must be used.

The testimony of Philadelphia shippers that they like the Newark arrangement because it results in early delivery on the West Coast, and that they do not object to the incidental transportation by truck, makes it clear that the Newark Airport is...