Roadway Express, Inc. v. United States

• Decision Date: 21 January 1963
• Docket Number: Civ. A. No. 2419.
• Citation: 213 F. Supp. 868
• Parties: ROADWAY EXPRESS, INC., et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and National Tank Truck Carriers, Inc., et al., Intervening Defendants.
• Court: U.S. District Court — District of Delaware

213 F. Supp. 868

ROADWAY EXPRESS, INC., et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and National Tank Truck Carriers, Inc., et al., Intervening Defendants.

Civ. A. No. 2419.

United States District Court D. Delaware,

January 21, 1963.

COPYRIGHT MATERIAL OMITTED

George Tyler Coulson, Wilmington, Del., Guy H. Postell, Atlanta, Ga., Howell Ellis, Indianapolis, Ind., William O. Turney, Washington, D. C., and Roland Rice and John C. Bradley, of Rice, Carpenter & Carraway, of Washington, D. C., for plaintiffs.

Alexander Greenfeld, U. S. Atty., Wilmington, Del., Lee Loevinger, Asst. Atty. Gen., and John H. D. Wigger, Washington, D. C., for United States.

James Y. Piper and Robert W. Ginnane, Washington, D. C., for Interstate Commerce Commission.

H. James Conaway, Jr., and Samuel R. Russell, of Morford, Young & Conaway, Wilmington, Del., Nuel D. Belnap and Richard J. Hardy, of Belnap, Spencer, Hardy & Freeman, Chicago, Ill., Harry C. Ames, Jr., and E. Stephen Heisley, of Ames, Hill & Ames, Washington, D. C., and Leonard A. Jaskiewicz and Ronald N. Cobert, of Dow, Lohnes & Albertson, Washington, D. C., for intervening defendants.

Before BIGGS, Chief Circuit Judge, WRIGHT, Chief District Judge, and LEAHY, Senior District Judge.

LEAHY, Senior District Judge.

This action is brought by 11 plaintiffs who are 9 motor common carriers of general commodities, a manufacturer and shipper of collapsible rubber containers, and an association of motor common carriers to review certain orders of the Interstate Commerce Commission. The United States of America and the Interstate Commerce Commission are formal defendants. Intervening defendants are motor common carriers of commodities, in bulk, in tank trucks, or in other and similarly specialized vehicles, and an association of such carriers.

Two groups of multiple motor carrier application proceedings were before the ICC.¹ In both groups, numerous motor common carriers holding operating authorities from the ICC to transport general commodities, with certain commodity exceptions² discussed infra, filed with the ICC extension-of-service applications under § 206(b) of the Interstate Commerce Act, 49 U.S.C. § 306(b), for operating authorities to transport commodities not included in their previous certificates, and pleas for appropriate certificates of public convenience and necessity to issue³ for the extension of the operations sought. These applications were coupled with requests, or motions, that the ICC, in interpreting the previously-issued certificates, dismiss the applications on the ground such outstanding certificates had already authorized transportation of commodities sought by the extension applications.

In the Western Express group of 14 application cases, and in the Best Way group of 211 applications, all sought specific authority from the ICC to transport liquid and dry flowable⁴ commodities in certain newly-developed "collapsible" or "stackable" rubber containers (hereafter referred to as C & S containers) over routes and territories they now serve pursuant to their existing certificates. The particular containers are marketed by one of the plaintiffs, United States Rubber Company, who sell under the trade names of "Sealdtank", "Sealdrum" and "Sealdbin".⁵ The common characteristic of these containers is their collapsibility when emptied. Collapsed rubber Sealdrums, designed for transportation of liquids in quantities ranging from 55 gallons to 1,000 gallons, occupy only 20% of their loaded size; collapsed rubber Sealdbins, designed for transportation of dry flowable commodities in quantities ranging from 70 cubic feet to 300 cubic feet, occupy about 11% of their loaded size; collapsed rubber Sealdtanks, designed for transportation of liquids in quantities ranging from 450 gallons to 4,000 gallons, occupy about 3% of their loaded size.⁶

Each of the 225 applicants in the proceedings before the ICC, including the 9 motor carrier plaintiffs, is the holder of a certificate of public convenience and necessity issued by the ICC under Section 208(a) of the Interstate Commerce Act, 49 U.S.C. § 308(a), authorizing regular-route, and in some cases, irregular-route, transportation of general commodities. However, such previously-issued certificates contain certain expressed exceptions with respect to the general commodities authorized to be transported, including, typically, exceptions proscribing transportation of "commodities in bulk" and/or "requiring special equipment."

Two sets of hearings were held before two different Examiners of the Interstate Commerce Commission.⁷ In the 14 Western Express group of applications, Examiner Hagerty recommended that the applicants, under their existing general commodities certificates, with the exceptions noted, had authority to transport liquid and dry commodities in the Sealdbin, the Sealdrum, and other containers here involved, but not in the Sealdtanks with capacities of 1,000 gallons or in excess thereof;⁸ and, he also recommended denial of the 14 applications for authority to extend service because "the present and future public convenience and necessity do not require operations by applicants * * * of liquid and dry commodities as proposed."⁹

In the 211 Best Way group of applications, Examiner Pellerzi rejected the concept of quantity of commodities as irrelelevant to the issue as to whether the shipment is "in bulk," and made recommendations which, in most important respects, were ultimately adopted by the Commission.¹⁰ To be noted, Examiner Pellerzi concurred with Examiner Hagerty's recommendation that public convenience and necessity were not shown to require additional service by applicants.¹¹

Both groups of recommendations were appealed to the ICC, which sat en banc and held: 1. general commodity carriers with restrictions against transportation of commodities in bulk or those requiring special equipment were authorized to transport loose, flowable, and fungible commodities when tendered in dismounted C & S containers (i. e., not placed or mounted on or in a vehicle), whether supplied by the carrier or shipper; 2. general commodity carriers, with the exceptions noted above, were not authorized to transport such commodities when tendered into a premounted C & S container; and 3. tank truck carriers Intervenors were authorized to transport such commodities whether tendered in a dismounted or premounted C & S container, and whether supplied by carrier or shipper. Plaintiffs' alternative demand for additional authorization allowing them to carry C & S containers if such authority did not already lie in plaintiffs, was also denied.¹²

The full Interstate Commerce Commission put its ideas this way:

(1) General commodity carriers' argument that the essence of bulk transportation was the pouring, pumping or direct dumping into the transporting vehicle of commodities "in such a manner that the commodities transported are confined by and adopt the shape of the interior surface of such vehicle,"¹³ was rejected;

(2) Tank carriers' argument that the essence of bulk transportation was the volume of the commodity carried was similarly rejected;¹⁴

(3) The type service provided by a shipper was held determinative of whether it was a carrier of "commodities in bulk";

(4) Utilization of C & S containers was held "to blur the heretofore relatively clear distinction between the field of service of the general freight carrier and that of the carrier of bulk commodities * * *;"¹⁵

(5) The distinction "between packaged and bulk service" was held basic and "no justification" was held "shown for applying a different rule";¹⁶

(6) When a general commodity carrier fills a C & S container and then tenders it to a carrier utilizing ordinary trailer equipment, the basic ingredients of "package" service was held present; hence, the general carrier might transport the goods; finally,

(7) But "* * * when a shipper of fungible, flowable commodities tenders them loose and uncontained, that is, pours them into a C & S container which has been previously placed and mounted in or upon the carrier's vehicle, the transportation service involved must, we think, be considered beyond the scope of general-commodity authorizations restricted against the movement of commodities in bulk or those requiring the use of special equipment * * *."¹⁷

The Interstate Commerce Commission, en banc, denied reopening and reconsideration of the decisions in the Western Express and Best Way groups of cases.

Now, plaintiffs, here, seek a permanent injunction to issue against implementation of the ICC's orders, and argue: (1) Since shippers often fill their own containers, the Commission's decision is irrational, because it brings about differing results to carriers who provide precisely the same service to shippers; (2) moreover, the ICC erred, as a matter of law, in concluding a carrier taking possession of a filled container receives tender of a commodity in bulk form; (3) the ICC erred in finding, as a fact, a shipper who provides a conventional trailer to transport a shipper's container provides the "practical equivalent" of a tank vehicle; (4) the ICC's findings of fact are inconsistent with their ultimate rulings of law; and (5) the ICC ignored the mandates of the National Transportation Policy.

1. That the scope of judicial review of decisions of the Interstate Commerce Commission is limited has been too long recognized in this district¹⁸ and in numerous cases in the Supreme Court¹⁹ to require further articulation. E.g., "The Interstate Commerce Commission is the expert in the field of transportation. And its judgment is entitled to great deference because of its familiarity with the conditions in the industry which it regulates." East Texas Motor Freight Lines v. Frozen Food Express, 351 U.S. 49, 54, 76 S.Ct. 574, 100 L.Ed. 917.²⁰ "The judicial function is exhausted when there is found to be a rational...