McLean Trucking Company v. United States

• Decision Date: 13 October 1967
• Docket Number: No. 305-64.,305-64.
• Citation: 181 Ct. Cl. 170,387 F.2d 657
• Parties: McLEAN TRUCKING COMPANY, Inc., a Corporation v. The UNITED STATES.
• Court: U.S. Claims Court

181 Ct. Cl. 170, 387 F.2d 657 (1967)

McLEAN TRUCKING COMPANY, Inc., a Corporation v. The UNITED STATES.

No. 305-64.

United States Court of Claims.

October 13, 1967.

John Guandolo, Washington, D. C., attorney of record, for plaintiff. MacDonald & McInerny, Washington, D. C., of counsel.

John Charles Ranney, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant.

Raymond M. Zimmet, Washington, D. C., for the Interstate Commerce Commission. Robert W. Ginnane, Gen. Counsel, and Fritz R. Kahn, Washington, D. C., of counsel.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

COWEN, Chief Judge.

Plaintiff, a motor common carrier of freight, is the successor in interest of Hayes Freight Lines, Inc. Plaintiff sues to recover $4,858.27, allegedly due from defendant for the transportation of freight.

I

The facts are not in dispute. During the years 1961, 1962, and 1963, Hayes Freight Lines, Inc., in conjunction with other motor carriers, transported for the defendant eight less-than-truckload shipments of Class A or B explosives from various points in California and Arizona to various points in Maryland, Virginia, North Carolina, and Kentucky. The shipments were made under government bills of lading, and after delivery and payment of the charges originally assessed, plaintiff submitted supplemental bills to the General Accounting Office. Upon disallowance of the claims, plaintiff filed this action.

Through joint class rates between the points of origin and points of delivery of the shipments were inapplicable because the Hughes Transportation Company, which transported six of the shipments from Memphis to the points of delivery, and Hayes Freight Lines, Inc., which transported the remaining two shipments from Memphis to the points of delivery, did not participate in through rates from the origin of the shipments to the points of delivery, The parties have agreed that it is necessary to apply a combination rate and that the lowest combination rate is obtained by using the separately established rates from points of origin to Memphis, Tennessee, and from Memphis to the several delivery points. There is no issue regarding the applicable rate for the movement beyond Memphis. The sole controversy arises with respect to the charges from the points of origin to Memphis.

The applicable rates to Memphis are the class rates named in the Rocky Mountain Motor Tariff Bureau Tariff No. 21-B, MF-I.C.C. No. 117, which, in turn, is governed by Rocky Mountain Motor Tariff Bureau Tariff No. 20-C, MF-I.C.C. No. 123. The latter tariff contains a rule in Item 932, which reads as follows:

Minimum charge on shipments of Class A or B explosives

Except as provided in Note 1 below, the minimum charge on any shipment containing Class A or B explosives, as described in American Trucking Associations, Inc., Agent, Explosives and Dangerous Articles Tariff No. 10 MF-I.C.C. No. 11, supplements thereto or reissues thereof, moving under rates named in tariffs made subject to this tariff, will be the charge for 7,500 pounds at the LTL or AQ rate applying to the highest rated Class A or B explosive in the shipment.

Note 1: — On traffic which moves from origin to destination via any one of the carriers shown below, or via any combination of carriers shown belaw, the minimum charge on any shipment containing Class A or B explosives * * * moving under rates named in tariffs made subject to this tariff, will be the charge for 1,000 pounds at the LTL or AQ rate applying to the highest rated Class A or B explosive in the shipment.

The motor carriers which transported the explosives between points of origin and Memphis were among those named as subscribing to the provisions of Note 1, but the goods were carried from Memphis to the points of delivery by motor carriers who were not so named. The issue, therefore, is whether the "destination" referred to in the tariff is Memphis, in which case the correct charges to Memphis would be computed at actual weight or at a minimum weight of 1,000 pounds, or whether the "destination" is the place where, in each instance, the explosives were delivered to the consignee. In the latter event, the charges are to be computed on the 7,500-pound minimum basis. Defendant argues for the lower minimum, whereas plaintiff contends that rates based on a minimum weight of 7,500 pounds are applicable.

II

After this suit was commenced, defendant filed a motion stating that the term "destination", as used in the field of transportation, is a word of art, and requested that the question be referred to the Interstate Commerce Commission for its determination. Plaintiff concurred and the motion was granted. Thereafter, the United States filed a petition before the Interstate Commerce Commission seeking a determination of the issue requiring a construction of the tariff. A hearing was held before a hearing examiner who determined the question in favor of the carrier and issued his report and order. On appeal, the Rates and Practices Review Board of the Commission affirmed and adopted the report of the examiner and ordered the proceedings discontinued. Subsequently, the Government's petition for reconsideration was denied by Division 2 of the Commission, acting as an appellate division, and thus the prerequisites to judicial review have been met. 49 U.S.C. § 17(9) (1964). The question is now before us on the Government's motion to enjoin, set aside, annul and suspend the Commission's order.

III

On August 30, 1964, the Judicial Code was amended with respect to the jurisdiction and venue of actions brought to enforce, enjoin, set aside or annul orders of the Interstate Commerce Commission in judicial reference cases. 28 U.S.C. § 1336 (1964) was amended to provide that when a district court or the Court of Claims refers a question to the Interstate Commerce Commission for determination, the referring court shall have exclusive jurisdiction of a civil action to enforce, enjoin, set aside, or annul the order of the Commission arising out of the referral. 28 U.S.C. § 1398 (1964) was also amended in substantially the same way. The result was to provide a more streamlined procedure for judicial review of questions that involve the primary jurisdiction of the Interstate Commerce Commission and are referred to it for a preliminary determination. Since the statutes were amended, this is the first such case to come before the court and, in view of the conflicting contentions of the parties, we take occasion to state the procedure which should be followed.

Since the 1964 amendments made no changes in the substantive law, except to fix venue and jurisdiction in the referring court, the prerequisites for judicial review remain the same. Once an issue has been referred to the Commission, the matter must be prosecuted there until a final order is issued; only after administrative remedies have been exhausted may the case proceed to judgment in the court. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938).

Plaintiff argues that the words "civil action", as used in 28 U.S.C. § 1336 and 28 U.S. Co. § 1398, create a requirement that the party challenging the Commission's order institute an entirely new action by filing a separate petition against the Commission in this court and by pursuing the new action to a conclusion before the original case is reopened. Thus, plaintiff contends that defendant's use of a motion to attack the Commission's decision is a failure to comply with the law. The acceptance of plaintiff's view would require the adoption of a procedure almost as burdensome as that which the amended statutes were designed to supplant. Pointless duplication and needless expense would be entailed, because both the suspended action and the newly instituted one would be...