Totem Ocean Trailer Exp., Inc. v. Federal Maritime Commission
| Citation | 662 F.2d 563 |
| Decision Date | 23 November 1981 |
| Docket Number | No. 80-7721,80-7721 |
| Parties | TOTEM OCEAN TRAILER EXPRESS, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Jacob P. Billig, Billig, Sher & Jones, Washington, D.C., for petitioner.
Gordon M. Shaw, Washington, D.C. (argued), for respondents; Edward G. Gruis, Deputy Gen. Counsel, Barry Grossman, Robert J. Wiggers, Washington, D.C., on brief.
Petition for review of an Order of the Federal Maritime Commission.
Before SKOPIL, FLETCHER and FARRIS, Circuit Judges.
Totem Ocean Trailer Express, Inc. ("TOTE") is a common carrier by water operating between the States of Washington, Oregon and Alaska. TOTE petitioned the Federal Maritime Commission for an order declaring: in connection with motor-water through transportation of agricultural and other ICC-exempt 1 commodities between Alaska and the lower 48 states, (a) joint through rates 2 are impermissible, and (b) water carriers must file with the FMC their rates for the intercoastal portions of the transportation. The FMC denied the petition. TOTE seeks review under 28 U.S.C. § 2342 (1976).
Two issues are presented for our review:
(1) Are joint through rates for motor-water transportation of ICC-exempt commodities in the Alaska trades permissible?
(2) If permissible, does the FMC have jurisdiction over all or any portion of such joint through rate activity?
We address the second issue first.
The only language in the Intercoastal Shipping Act helpful on this point appears in § 2:
Every common carrier by water in intercoastal commerce shall file with the Federal Maritime Commission and keep open to public inspection schedules showing all the rates, fares, and charges for or in connection with transportation between intercoastal points on its own route; and, if a through route has been established, all the rates, fares, and charges for or in connection with transportation between intercoastal points on its own route and points on the route of any other carrier by water.
46 U.S.C. § 844 (1976). The FMC has interpreted this language to mean that the FMC does not have jurisdiction over motor-water joint through rates. See Sea-Land Service, Inc. Cancellation of Rates, 11 F.M.C. 137, 142 n.6 (1967), rev'd on other grounds sub nom. Sea-Land Service, Inc. v. F.M.C., 404 F.2d 824 (D.C.Cir.1968). This interpretation of the Intercoastal Shipping Act by the agency charged with its administration is entitled to considerable deference. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Takazato v. F.M.C., 633 F.2d 1276, 1278 (9th Cir. 1980). The D.C. Circuit also has interpreted § 2 as restricting FMC through route jurisdiction in interstate commerce to "those through routes that extend in their entirety from the coastal points on one water carrier's route to the coastal points on another water carrier's route, i. e., that extend no further than from port to port." Trailer Marine Transport Corp. v. F.M.C., 602 F.2d 379, 394 (D.C.Cir.1979). The D.C. Circuit has concluded that the FMC has no jurisdiction over the marine segment of an interstate through route where that route begins or ends at an inland point. Id. at 394-95; Puerto Rico Maritime Shipping Authority v. I.C.C., 645 F.2d 1102, 1113 (D.C.Cir.1981) (citing and quoting Trailer Marine Transport ). Insofar as joint rates are concerned, we agree with the FMC and the D.C. Circuit, for the reasons set forth in Trailer Marine Transport, 602 F.2d at 393-97. The FMC does not have jurisdiction over any part of a joint through rate offered in connection with combined motor-water transportation of ICC-exempt commodities in the Alaska trades.
We are concerned here only with motor-water transportation of ICC-exempt commodities in the Alaska trades. Motor-water joint through transportation of ICC-regulated commodities in the Alaska trades was authorized, and placed under exclusive ICC jurisdiction, by the Rivers Act in 1962. 3
TOTE contends that the joint through rates at issue are impermissible because not specifically authorized by statute. However, the authorities relied upon by TOTE neither suggest nor hold that joint through rates require specific statutory authority. In Petition of Matson Navigation Co. for an Order To Show Cause, 11 S.R.R. 256 (1969), the offending carrier voluntarily ceased filing with the ICC joint through rates for motor-water transportation of ICC-exempt commodities in the Hawaii trades, and then chose to file only port-to-port rates with the FMC; the issue raised here was not addressed by the FMC. Sea-Land Service, Inc. Cancellation of Rates, 11 F.M.C. at 142 n.6, indicates only that the FMC has no jurisdiction over motor-water joint through transportation; the case does not hold that such activity is impermissible. The absence of specific statutory authority does not of itself render the joint through rate activity impermissible.
The FMC argues, in contrast to the position taken by TOTE, that joint through rates existed prior to the advent of transportation regulation and do not depend on specific statutory authority. At the same time, however, the FMC acknowledges that limitations on permissible forms of transportation may result where portions of through routes are not subject to regulatory control. See Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., 13 I.C.C. 266, 279-81 (1908) (); Pennsylvania v. I.C.C., 561 F.2d 278, 283 (D.C.Cir.1977) ( Cosmopolitan Shipping ). The FMC then fails to address the question of whether lack of regulatory control over the motor portion requires that joint through rates for ICC-exempt commodities in the Alaska trades be prohibited. Stated differently, does effective implementation of the Shipping Acts require that such joint through rates be prohibited?
The FMC never reached the question of implied prohibition in its Report and Order denying TOTE's petition because it had erroneously concluded that the Rivers Act warranted denial of the petition. The FMC inferred from the Rivers Act that Congress intended that joint through rates for motor-water transportation of ICC-exempt commodities in the Alaska trades would not be regulated by any agency. There is no basis for this "logical inference" in the language or legislative history of the Rivers Act. 4 TOTE has not argued implied prohibition because it has erroneously assumed that lack of express statutory authority is enough to defeat the joint rate activity.
Any attempt to answer the difficult question of implied prohibition must start with an examination of the text, purpose and legislative history of the Shipping Act. 5 This is another area where the FMC is entitled to considerable deference. See Udall, 380 U.S. at 16, 85 S.Ct. at 801; Takazato, 633 F.2d at 1278. Therefore, we will give the FMC, which has a working understanding of the shipping industry, an opportunity to answer the question. 6
Accordingly, we remand the case to the FMC for further consideration and explanation of whether effective implementation of the Shipping Acts requires that the joint through rates at issue be prohibited.
Remanded.
1 The Interstate Commerce Commission has jurisdiction over most interstate motor transportation. 49 U.S.C.A. §§ 10521-10529 (1981). However, the ICC does not have jurisdiction over motor vehicle transportation of agricultural and horticultural commodities and certain other commodities described in 49 U.S.C.A. § 10526(a)(6) (1981). By "ICC-exempt" commodities we mean commodities the transportation of which by motor...
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