Eastern Express, Inc. v. United States, No. TH 59-C-50.

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Writing for the CourtPER CURIAM
Citation198 F. Supp. 256
Docket NumberNo. TH 59-C-50.
Decision Date05 September 1961
PartiesEASTERN EXPRESS, INC. et al., v. UNITED STATES of America et al.

198 F. Supp. 256

EASTERN EXPRESS, INC. et al.,
v.
UNITED STATES of America et al.

No. TH 59-C-50.

United States District Court S. D. Indiana, Terre Haute Division.

September 5, 1961.


198 F. Supp. 257

David E. Rosenfeld, Rosenfeld & Wolfe, Thomas J. Hogan, Terre Haute, Ind., Bryce Rea, Jr., Watkins & Rea, Roland Rice and Homer S. Carpenter, Rice, Carpenter & Carraway, Washington, D. C., for plaintiffs.

Robert W. Ginnane, Gen. Counsel, B. Franklin Taylor, Jr., Associate Gen. Counsel, Interstate Commerce Commission, Washington, D. C., Robert A. Bicks, Acting Asst. Atty. Gen., Don A. Tabbert, U. S. Atty., Indianapolis, Ind., for defendants.

Kenneth F. Burgess, D. Robert Thomas, Chicago, Ill., Frank M. McHale, McHale, Cook, Welch & McKinney, William E. Jenner, Jenner & Brown, Indianapolis, Ind., Harry C. Ames, James L. Givan, Washington, D. C., S. S. Eisen, George H. Leonard, New York City, Theodore R. Schneider, St. Louis, Mo., for intervening defendants.

Before CASTLE, Circuit Judge, and STECKLER and HOLDER, District Judges.

PER CURIAM.

This is an action to set aside and annul an order of the Interstate Commerce Commission approving certain freight forwarder volume commodity rates in connection with trailer-on-flatcar service.1 The action was brought pursuant to 28 U.S.C. §§ 1336, 1398 and 2321 through 2325. The United States of America was made a party as required by Section 2322. The court's jurisdiction of the parties and the subject matter is not in issue. A three-judge court was convened pursuant to 28 U.S.C. § 2284, and the case was submitted upon the pleadings and a certified copy of the record of the proceedings before the Interstate Commerce Commission, including the evidence therein. Exhaustive briefs were filed, and the court has had the benefit of oral arguments of counsel.

For brevity, hereinafter the Interstate Commerce Commission will be referred to as "the Commission."

Plaintiffs were protestants before the Commission. Plaintiff Eastern Motor Express, Inc. is an Indiana corporation with its principal office in Terre Haute,

198 F. Supp. 258
Indiana. It is a common carrier by motor of general commodities in interstate and foreign commerce from New York City, New York, and other eastern cities to Chicago, Illinois, and St. Louis, Missouri, serving all intermediate points on most of its routes. Plaintiff The Eastern Central Motor Carriers Association, Inc. is an Ohio corporation, the membership of which is comprised of common carriers by motor which provide transportation of property in interstate commerce between eastern points, including Chicago and St. Louis. Plaintiff The National Motor Freight Traffic Association, Incorporated is a membership corporation of the District of Columbia, its members being common carriers by motor which are in competition for traffic with the freight forwarders whose operations and rates are the subject of the report and order of the Commission in this proceeding. Plaintiff The Regular Common Carrier Conference of the American Trucking Association, Inc. is a District of Columbia corporation, the membership of which comprises common carriers by motor which perform transportation in interstate or foreign commerce over regular routes under the jurisdiction of the Commission

By order of this court, the freight forwarders whose rates were approved by the Commission in the order which the plaintiffs seek to annul and the Freight Forwarders Institute, an association of freight forwarders, were permitted to intervene as defendants in this proceeding. The defendant freight forwarders are: A. B. C. Freight Forwarding Corporation; Acme Fast Freight, Inc.; Blue Ribbon Express, Inc.; Clipper Carloading Company, Inc.; International Forwarding Company, Inc.; Sidney B. Lifschultz, Bernice Brown, Rose Grossman, Nora Bergman and American National Bank and Trust Co. of Chicago, Trustee, a partnership, d/b/a Lifschultz Fast Freight; Midland Forwarding Corporation; National Carloading Corporation; Pacific and Atlantic Shippers, Inc.; Republic Carloading & Distributing Company, Inc.; Springmeier Shipping Company, Inc.; and Universal Carloading & Distributing Company, Inc. Each defendant freight forwarder is engaged in the transportation, or the providing of transportation, of property in interstate commerce subject to regulation by the Commission.

The four principal common carrier transportation agencies, namely the rail-roads, motor carriers, water carriers, and freight forwarders, are regulated in separate parts of the Interstate Commerce Act. The freight forwarders are regulated under Part IV of the act, which was adopted in 1942 (49 U.S.C.A. § 1001 et seq.) "Freight forwarder" is defined in Section 402(a) of the Act, as amended, 49 U.S.C.A. § 1002(a), which reads:

"(5) The term `freight forwarder' means any person which (otherwise than as a carrier subject to chapters 1, 8, or 12 of this title) holds itself out to the general public as a common carrier to transport or provide transportation of property, or any class or classes of property, for compensation, in interstate commerce, and which, in the ordinary and usual course of its undertaking, (A) assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments, and (B) assumes responsibility for the transportation of such property from point of receipt to point of destination, and (C) utilizes, for the whole or any part of the transportation of such shipments, the services of a carrier or carriers subject to chapters 1, 8, or 12 of this title."

In July, 1958, the railroads inaugurated a trailer-on-flatcar ("piggyback") service which requires the shipper to furnish the trailers and to transport them to and from the rail loading ramps. These rates, known as Plan III, to distinguish them from other types of "piggyback"

198 F. Supp. 259
service offered,2 provide for the transportation of not more than two trailers on one flatcar, the trailers to be empty or loaded with not more than 70,000 pounds of freight, no one commodity to exceed sixty per cent of the total carload weight

By tariff schedules filed with the Commission to become effective on August 20, 1958, and later dates, the defendant freight forwarders published a number of volume rates for the transportation of specified commodities between Chicago and the New York City area in shipments of the respective minimum weights specified in the tariffs, ranging from 10,000 to 30,000 pounds. The proposed rates were published on the same level as the corresponding rates for similar shipments between Chicago and New York maintained by the principal motor common carriers. Under the proposed rates, a shipper desiring to ship between Chicago and New York by freight forwarder a shipment of one of the specified commodities at the weight of 10,000 to 30,000 pounds specified in the tariff item would be enabled to do so at the same rate as that available to him by motor carrier, such rate being lower per hundred pounds than the rate for smaller shipments.

Upon protest of the plaintiff motor carrier associations, plaintiff Eastern Express, Inc., and certain other motor common carriers operating within official territory,3 the proposed forwarder rates reviewed by the Commission in its Investigation and Suspension Docket No. 6993, and supplements, were suspended until March 20, 1959, and later dates, when they became effective. Similar volume commodity rates of defendant International Forwarding Company, Inc. between Chicago and New York were not suspended and became effective prior to September 19, 1958, but were included in the Commission's investigation by order of the Commission on September 19, 1958, in Docket No. 32530.

Hearings were held before an examiner of the Commission, at which testimony and exhibits were received in evidence. An examiner's report was waived by the parties, briefs were submitted, and oral argument was heard by the entire Commission. On September 4, 1959, the Commission made and filed its report containing its findings and conclusions and entered its order,4 in which report and order the Commission, among other things, made the ultimate finding that the rates in question are just and reasonable and not otherwise unlawful, and discontinued the proceedings. After the plaintiffs filed their complaint in this court, the Commission, on its own motion, reopened the proceedings for reconsideration on the record, and this court stayed the present action pending final administrative action on the reopening. On April 8, 1960, the Commission made and filed its report on reconsideration5

198 F. Supp. 260
in which it made certain additional findings, adhered to the views which it had expressed in the prior report, and affirmed the findings therein

Plaintiffs state there is not before the court an issue involving administrative expertise; that the issues before the court are those which are familiar to judges — a question of statutory construction, and whether the administrative agency failed to perform the statutory obligation placed upon it by the statute. On the other hand, the defendants state that the general issue before the court is simply whether the Commission's conclusion that the rates at issue are just and reasonable, and not otherwise unlawful, is supported by adequate findings and is in accordance with statutory standards. In support, they say the rates in question are peculiarly for the decision of the Commission as the expert in the field; that the Commission, as the rate making body, is charged with determining the justness and reasonableness of rates and tariffs for interstate shipments under the Act, and if the conclusion of the Commission is in accordance with law, is not arbitrary, or an abuse of discretion, and is supported by adequate findings which reveal that the...

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