Citation181 Ct. Cl. 719,387 F.2d 651
Decision Date15 December 1967
Docket NumberNo. 281-62.,281-62.
CourtCourt of Federal Claims

James L. Howe, III, Richmond, Va., attorney of record for plaintiff.

John C. Ranney, Washington, D. C., with whom was Acting Asst. Atty. Gen., Carl Eardley, for defendant.



This case involves the determination of the proper classification ratings to be applied to shipments of certain deicers and decontaminators and the proper charges to be collected by the carrier from the shipper for hauling such articles.

The plaintiff, Seaboard Airline Railroad Company, a private railroad corporation, hereinafter called plaintiff or Seaboard, filed its petition in this court seeking to collect freight charges in the sum of $11,952.40 from the defendant, the United States, for 24 shipments of deicers made by defendant over its lines from Dodson and Kansas City, Missouri, to Norfolk, Virginia, with storage in transit at McNair, North Carolina, and one shipment of deicers from Dodson to McNair, and nine shipments of decontaminators from Lansing, Michigan, to McNair, and two shipments of decontaminators from Lansing to Norfolk with storage in transit at McNair.

The deicers were shipped on bills of lading on which the deicers were described as a complete unit as "Sprayer, NOIBN,1" or "Sprayers, NOIBN W/Engines (Truck, Spray De-Icer) (UFC 410172)," or "Spray Outfit, Trk, Mtd. De-Icer & Decontaminating Fluid (De-Icer)."

Bills of lading on which the decontaminators were shipped described them as "1 sprayer, NOIBN, and 1 box," or "1 Sprayers, NOIBN (Decontaminating Apparatus Truck Mtd M-45)," or "1 Sprayers, NOIBN, W/Engines, SU3 (Apparatus, Decontaminating, Power Driven, Truck Mounted, M3A3)."

Freight charges on both the deicers and decontaminators were based on class 85 rating under rule 184 on the theory that both commodities were combination articles and not single articles.5 Upon audit by the General Accounting Office, it was determined that the charges should have been based on class 45 rating instead of class 85 rating on the theory that the articles shipped were single articles and not combinations of articles.6 Under authority of section 322 of the Transportation Act of 1940, 54 Stat. 955, 49 U.S.C. § 66 (1964), defendant has set off the alleged overcharges against other charges due and owing by it to Seaboard. Seaboard filed suit in this court to recover the deductions made by the defendant. A counterclaim was filed by defendant to recover $1,015.20, claiming it has overpaid Seaboard in that amount on the shipments involved in this case.

After this suit was filed, Seaboard filed a motion asking this court to refer the issues in the case to the Interstate Commerce Commission, hereinafter sometimes called Commission or I.C.C., for determination. The defendant opposed the motion. This court entered an order suspending proceedings herein and referring the case to such Commission for a determination by it of the proper charges to be applied on all shipments in issue in this case.7 The parties then filed pleadings before the I.C.C. and the case was referred to a hearing examiner, who proceeded to take evidence.

After hearing the evidence, the examiner found that the deicer was not specifically classified under that name in the governing classification. He also found that it was a combination of two commodities, a truck chasis and a spray outfit, and that both articles, if separated, were capable of performing their separate functions. Accordingly, it was his opinion that under rule 18, since there was no specific rating on the combination article, the applicable rating was class 85 published on an automobile chassis in item 43770, since that rating was the highest one on any of the combined or attached articles. The Interstate Commerce Commission, acting through its Division 2, disagreed and reversed the examiner. It found that the deicer, which is a spray outfit designed to deice parked aircraft, consisted of a truck chassis and a spray outfit that operates as a unit. It pointed out that if the truck chassis was to perform a useful function by itself, it would require considerable alteration, such as the installation of a body to permit it to carry freight. It concluded that the spray outfit, which weighs about 12,000 pounds, is useless unless it is mounted on a truck chassis for stability and mobility. Accordingly, it concluded that rule 18 was not applicable to a deicer because it is a single article and not a combination of independently usable articles, and that it was included in item 41017 as a sprayer, noibn, and should be rated under class 45.

The I.C.C. examiner found that the decontaminator was similar to a gasoline or fuel oil tank truck that should be rated as a freight automobile, class 85, under item 437808 of the classification. The I.C.C. disagreed and reversed the examiner. It pointed out that a decontaminator, which is designed and used to neutralize noxious gases in wartime, consists in the main of a truck chassis which weighs 10,700 pounds, and a spray unit that weighs 6,075 when boxed. It has a 400 gallon steel tank, a high-pressure pump, power take-off, piping and hoses. The Commission concluded that a decontaminator is specifically constructed to operate as a unit, and that it is not intended for, nor is it suitable for, the transportation of property such as gasoline or fuel oil. Its main function is spraying, not carrying freight. The Commission held that it is a single article and should not be ratable as a freight automobile, but is included in item 41017 as a sprayer, noibn, and should be rated under class 45.

Seaboard contended before the Commission, in the alternative, that a decontaminator is a combination of articles and should be rated similar to a deicer under rule 18. The Commission rejected this theory and held that both the decontaminator and the deicer are included in item 41017 as sprayers, noibn, and the applicable rating for each article is class 45, as contended by defendant. The Commission ordered the case dismissed.

Seaboard filed a motion for reconsideration with the I.C.C. which was denied by the Commission, Division 2, acting as an Appellate Division.

Defendant now moves this court to vacate its order of June 23, 1964, which suspended proceedings in this case pending a determination by the I.C.C. as to the proper charges to be applied to all shipments in suit, and to enforce the decision and order of the I.C.C. in this case, to dismiss the petition herein and enter judgment for defendant on its counter-claim. Seaboard has filed a motion for a trial de novo in this court, including, but not limited to the right to introduce evidence to rebut the findings of the I.C.C., and alleging that the order of the I.C.C. is arbitrary and capricious and is not supported by substantial evidence. The plaintiff says that the issues referred to the I.C.C. by this court did not invoke the primary jurisdiction of the Commission, and, therefore, its findings are not binding on this court. It points out that the Commission stated in its order:

The critical issue in this proceeding is the determination of the applicable classification rating on the two commodities. This is strictly a matter of tariff interpretation.

The plaintiff contends that tariff interpretation is a question of law, and, therefore, is to be decided by this court. The defendant agrees that tariff interpretation is a question of law to be decided by this court. In fact, defendant says that this court could have tried all of the issues in the case without sending them to the I.C.C., because we have concurrent jurisdiction as to tariff interpretation with the I.C.C. However, defendant says that now that the matter has been heard and decided by the body of experts chosen by this court, it is our function to review the decision, decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the agency action. In so doing, defendant says that we must review the record as a whole to determine whether the action of the I.C.C. is arbitrary, capricious, or not supported by substantial evidence.9

Finally, the plaintiff says that this court should exercise its independent judgment on the issues of law in the case, either on the record made before the Commission (and now before this court) or on that record as supplemented by evidence adduced before this court de novo. Plaintiff urges its contention that it is entitled to a trial de novo with the right to introduce evidence in this court.

The I.C.C. has not been made a party to this suit, although it was given an opportunity to appear and participate in the proceedings. We are advised that it declined to do so, but that it adopts and approves the position taken by the defendant in the case.10

Both plaintiff and defendant agree that the basic question in the case is "whether the Interstate Commerce Commission has determined the proper charges to be applied on all shipments in issue in this case." Of course, there are other subsidiary issues raised by the parties, which are set forth in the foregoing paragraphs.

The parties both agree that the following statutes are involved in this proceeding:

28 U.S.C. § 1336 (1964)
* * * * * *
(b) When a district court or the Court of Claims refers a question or issue to the Interstate Commerce Commission for determination, the court which referred the question or issue shall have exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission arising out of such referral.
(c) Any action brought under subsection (b) of this section shall be filed within 90 days from the date that the order of

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  • International Transport, Inc. v. United States
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