Florida Citrus Commission v. United States, Civ. A. No. 597.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: STRUM, Circuit , and BARKER and DE VANE
• Citation: 114 F. Supp. 420
• Docket Number: Civ. A. No. 597.
• Decision Date: 31 August 1953
• Parties: FLORIDA CITRUS COMMISSION et al. v. UNITED STATES et al.

114 F. Supp. 420

FLORIDA CITRUS COMMISSION et al.
v.
UNITED STATES et al.

Civ. A. No. 597.

United States District Court S. D. Florida, Orlando Division.

August 31, 1953.

114 F. Supp. 421

Maguire, Voorhis & Wells, Orlando, Fla., for plaintiffs.

James E. Kilday and Kenneth R. Harkins, Sp. Assts. to the Atty. Gen., Dept. of Justice, Washington, D. C., for the United States.

Leo H. Pou, Asst. Chief Counsel, I. C. C., Washington, D. C., for Interstate Commerce Commission.

Before STRUM, Circuit Judge, and BARKER and DE VANE, District Judges.

STRUM, Circuit Judge.

The purpose of this suit is to set aside orders¹ of the Interstate Commerce Commission relating to unloading charges on fresh fruits and vegetables at New York and Philadelphia, entered pursuant to the Commission's report on rehearing, dated May 7, 1952, 286 I.C.C. 119. See also 272 I.C.C. 648.

Plaintiffs are shippers of said commodities, and others interested in the marketing thereof. The Secretary of Agriculture of the United States intervened, as did also many marketing, transportation and terminal organizations, and public Commissions. The cause is submitted as on final hearing.

114 F. Supp. 422

Substantially all carload shipments of fresh fruits and vegetables destined to New York City from the South and West are brought to the Jersey side of the Hudson River, and the freight cars, with their cargoes intact, are then ferried across the river on car floats. There are two methods of delivery on the New York side. One is to switch the railroad cars from the car floats to team tracks located on land in lower Manhattan, where the consignees unload the railroad cars and place the cargo directly onto trucks. There is no separate charge for these deliveries.

By the other method, with which we are here concerned, the railroad cars are not switched to land tracks, but remain on the car floats which are placed alongside unloading piers where the carriers unload the cars, placing the contents on the floor of the pier station, where they are picked up by the consignees. The consignees are not allowed to unload the freight cars themselves, as they do on the team tracks, as it is physically impossible to place the consignee's trucks alongside the car floats. The carriers therefore unload the cars, the consignees having access to shipments only after they have been unloaded and placed on the floor of the pier stations. Approximately 75% of the total traffic is handled in this manner, as the team tracks can accommodate only about 25% of the traffic, and it is not feasible to expand them.

For this unloading service the railroads, since November 1, 1948, have been authorized to make additional charges, over and above the line haul rates, at designated pier stations in Manhattan, first those proposed by the railroads and approved by the Commission, October 4, 1948, effective November 1, 1948, 272 I.C.C. 648, and later the lower rates approved by the Commission, May 7, 1952, 286 I.C.C. 119, here under attack. No delivery charges are imposed for other types of commodities unloaded at the pier stations in like manner as fresh fruits and vegetables. Prior to November 1, 1948, the carriers also unloaded fresh fruits and vegetables at pier stations without additional charges.

In Philadelphia, unloading operations are generally similar to those at New York, except that no car floatage is now performed, and the team tracks are more adequate, but there are designated stations at which the carrier performs the unloading before the consignee has access to the goods.

When certain carriers proposed to establish separate unloading charges at pier stations effective June 1, 1947, many shippers, including most of the plaintiffs here, protested. The Commission thereupon suspended operation of the schedules to December 31, 1947, and ordered an investigation to determine the lawfulness of the proposed charges. This proceeding is known as Investigation & Suspension Docket No. 5500, the final order in which, dated May 7, 1952, is one of the orders here under attack. See 286 I.C.C. 119.

Following a hearing before a Commission examiner, at which much evidence was presented by the carriers and opposing parties, and after oral argument and re-arguments, the Commission on October 4, 1948, issued its report in which it found that the proposed unloading charges were just and reasonable. 272 I.C.C. 648. The Commission thereupon vacated the suspension order and authorized unloading charges of $1.95, $2.28 and $2.60 per net ton, effective November 1, 1948, on designated groups of said commodities at designated pier stations, in addition to the through line haul rates.

The Commission concluded that these additional charges for unloading service are in substantially the same category as those for switching, transit, refrigeration, and other specific services for which charges are authorized, and that the then expense of unloading was such that the carriers should not longer be required to furnish the service without compensation.

Upon the petitions of many protestants, the Commission thereafter reopened the proceedings for a rehearing. Extensive further evidence was taken by two Commission examiners, who recommended that the charges be held unlawful, but the Commission overruled these recommendations, and entered its final report on May 7, 1952, in which it held that unloading costs should be borne in part by shippers and in part by the

114 F. Supp. 423

carriers, and that not exceeding $1.05, $1.35 and $1.65 per ton would be reasonable charges to be paid by shippers. The Commission thereupon cancelled the existing higher charges, "without prejudice to the establishment of charges in conformity with the views expressed" in the report of May 7, 1952. The charges thus approved represented only a portion of the actual unloading cost

On September 22, 1952, certain shippers again attacked the unloading charges approved on May 7, 1952, Docket No. 31105 referring to New York, and Docket No. 31106 referring to Philadelphia, asserting that the charges were unjust and unreasonable, enabling the carriers to make two charges for a single service. The Commission dismissed these proceedings by its order of December 15, 1952, which is also here under attack, holding that these petitions assailed the order on substantially the same grounds previously considered and overruled on May 7, 1952 in I. & S. Docket No. 5500.

In this action, brought pursuant to 28 U.S.C.A. §§ 1336, 1337, 1398, 2284 and 2321 to 2325, plaintiffs seek to enjoin and set aside the orders above mentioned. They contend that the line haul rate includes delivery to the consignee at destination, that no additional charge for unloading is justified when no additional service is rendered, and that none is rendered here. Plaintiffs further contend that in authorizing these charges, the Commission acted arbitrarily, unreasonably, unlawfully and contrary to the evidence; that the Commission could not consistently approve the additional unloading charges without first examining the line haul rates as to their adequacy to cover the unloading charges; that plaintiffs were denied an opportunity to be heard as to the justification for and reasonableness of the unloading charges of $1.05, $1.35, and $1.65, which were finally allowed; and that the Commission failed to give effect to section 15(7) of the Interstate Commerce Act, 49 U.S.C.A. § 15(7), which places the burden of proof in these matters upon the carriers.

The fact finding and policy making authority in these matters is the Interstate Commerce Commission, in whom Congress has reposed the duty and authority to determine whether charges of this character are appropriate, reasonable, and just. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348; Pennsylvania R. Co. v. International Coal Mining Co., 230 U.S. 184, 196, 33 S.Ct. 893, 57 L.Ed. 1446, 1451; Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260. It is not our function to review the Commission for mere error, nor are we...