Estes Express Lines v. United States
| Decision Date | 13 November 1968 |
| Docket Number | Civ. A. No. 4821-A. |
| Citation | 292 F. Supp. 842 |
| Parties | ESTES EXPRESS LINES et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Railway Express Agency, Incorporated, Intervenor Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Francis W. McInerny, Harry J. Jordan, MacDonald & McInerny, Washington, D. C., Linwood C. Major, Jr., Major, Sage, Vance & King, Alexandria, Va., for plaintiffs.
C. Vernon Spratley, Jr., U. S. Atty., Alexandria, Va., Edwin M. Zimmerman, Asst. Atty. Gen., Gregory B. Hovendon, Dept. of Justice, Washington, D. C., for the United States.
Robert W. Ginnane, Gen. Counsel, Raymond M. Zimmet, I. C. C., Washington, D. C., for the I. C. C H. Merrill Pasco, Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., John C. Ashton, Jr., William H. Marx, New York City, for Railway Express Agency, Inc.
Before BUTZNER, Circuit Judge, and LEWIS and KELLAM, District Judges.
The plaintiffs, motor carriers, seek to annul orders of the Interstate Commerce Commission granting the Railway Express Agency, Inc., temporary authority to operate as a motor carrier over regular routes transporting general commodities in express service between Washington, D. C., and Richmond, Virginia, including several intermediate off-route points.1 Finding the Commission did not abuse its discretion, we dismiss the complaint.
For many years, REA used the Richmond, Fredericksburg & Potomac Railroad for express shipments between Washington, D. C., and Richmond, Virginia. After receiving notice that the R. F. & P. would discontinue less than carload express shipments over this route, REA applied for "emergency" authority and "temporary" authority under § 210a(a) of the Interstate Commerce Act2 to continue its shipments by truck over highways that generally parallel the R. F. & P.'s tracks. The Commission ex parte allowed REA to operate under emergency authority. Later, the Commission granted REA temporary authority pending determination of its application for a permanent certificate.
In support of its application for emergency and temporary authority, REA filed an affidavit of one of its officers and statements from eleven shippers. In its statement REA alleged that it offers nationwide express service with air, motor, boat, and surface connections, and that the proposed route was a necessary link in this nationwide system. It proposed that inbound traffic arriving at Washington and Richmond throughout the day and night would be accumulated and then transported in the early morning hours in time for same day delivery. Outbound shipments would depart originating points in the afternoon, allowing prompt connection with through trains, trucks, and planes at Washington and Richmond. The statement further alleged that REA had no knowledge of any carrier in the territory which had nationwide surface, air, motor, and other connections providing co-ordinated express services.
The protesting carriers did not allege that they held themselves out to the public as providing the same co-ordinated, nationwide services for express as REA. They alleged that they move commodities similar to REA's, that they can handle express shipments between Washington and Richmond, and that they interline with other carriers. They recognize REA's dual capacity as a carrier and a "consumer" of carrier services, and they emphasize that by interlining with REA they can provide the same service that was previously available.
The carriers principally complain that the shippers' statements in support of REA's application lack the particularity required by Commission regulations. Title 49 C.F.R. § 1131.2(c) requires each supporting statement to contain detailed information on the shipper's needs, including answers to the following:
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...104 U.S.App.D.C. 50, 259 F.2d 780. We deal here with the grant of temporary authority similar to that granted in Estes Express Lines v. United States, D.C., 292 F.Supp. 842, aff'd, 394 U.S. 718, 89 S.Ct. 1469, 22 L.Ed.2d 673. There the grant of temporary authority was upheld even though the......
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