Towne Services House. Goods Transp. Co. v. United States
Citation | 329 F. Supp. 815 |
Decision Date | 14 July 1971 |
Docket Number | Civ. A. No. A-70-CA-114. |
Parties | TOWNE SERVICES HOUSEHOLD GOODS TRANSPORTATION CO., Inc. v. UNITED STATES of America and the Interstate Commerce Commission. |
Court | United States District Courts. 5th Circuit. Western District of Texas |
Herbert Burstein, New York City, James K. Presnal, Austin, Tex., for plaintiff.
Richard W. McClaren, Asst. Atty. Gen., John H. D. Wigger, Atty., U. S. Dept. of Justice, Washington, D. C., Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., for the United States.
Fritz R. Kahn, Gen. Counsel, Betty Jo Christian, Atty., I.C.C., Washington, D. C., for the I.C.C.
Alan F. Wohlstetter, Denning & Wohlstetter, Washington, D. C., Philip Robinson, Austin, Tex., for Wheaton Van Lines, Inc.
G. M. Rebman, Rebman & Aschemeyer, St. Louis, Mo., Ewell H. Muse, Jr., Austin, Tex., for United Van Lines, Inc.
James W. Tallant, Gen. Counsel, Chicago, Ill., Philip Robinson, Austin, Tex., for Allied Van Lines, Inc.
James L. Beatty, Indianapolis, Ind., Philip Robinson, Austin, Tex., for Mayflower Transit, Inc.
Before THORNBERRY, Circuit Judge, and ROBERTS and WOOD, District Judges.
This is an action by plaintiff to annul, vacate, void, enjoin and set aside an Order of The Interstate Commerce Commission (Commission) required to be heard by a three-Judge Court under 28 U.S.C., Sec. 2325. Plaintiff Towne, a motor common carrier of household goods, filed an application with the Commission for a Certificate of Public Convenience and Necessity, authorizing the transportation of household goods as a motor common carrier in interstate commerce between (1) points in Texas; and (2) between points in Texas, on the one hand, and, on the other, points in five southeastern states. The application was opposed by the intervening defendants ("intervenors"). Hearings were held on Towne's application in October, 1968 and in April, 1969. The Hearing Examiner recommended approval of the application to the extent that authority was sought between points within the State of Texas, but recommended denial of the application insofar as it sought authority between Texas and the five southeastern States. Exceptions to the Examiner's Recommended Report and Order were filed by intervenors, and the Commission (Review Board Number 2, "Board") by order dated July 22, 1969, adopted the Examiner's Statement of Facts, Conclusions and Findings as its own.
Petitions for reconsideration were then filed by intervenors and in January, 1970, the Commission reopened the proceedings for reconsideration. On February 24, 1970, Division 1, acting as an Appellate Division, approved the application for authority between points in the State of Texas subject to what is known as a "Kingpak" type restriction which will be explained, infra.
Thereupon, Towne filed a Petition for Reconsideration which was denied by an Order of the Commission, Division 1, acting as an Appellate Division, entered September 10, 1970. Plaintiff then instituted this proceeding to vacate and set aside that portion of the Commission's Order approving the application subject to such restriction.
The plaintiff filed this suit alleging that the restriction imposed by the Commission "was and is contrary to law, erroneous, arbitrary, capricious and not supported by a reliable, probative and substantial evidence of record". The plaintiff further contends that the Commission failed to properly weigh and consider the Recommended Order of the Hearing Examiner and the Decision and Order of the Board which approved the application for service between points in the State of Texas without any such "Kingpak" restriction.
By way of background, it is undisputed that traditionally the transportation of household goods has been handled by the so-called household goods carriers, operating under licenses issued by the Commission. Under this method of shipment, the goods are loaded onto a van at the point of origin, transported by highway, and unloaded at destination. Recently, however, a competing method of handling household goods movements has arisen, primarily in connection with overseas shipments. This method, arranged primarily by freight forwarders exempt from Commission regulation, involves the packing and crating of the goods in a large container at or near the point of origin, transportation of the container by regulated motor, rail and ocean carrier, and unpacking of the container at the final destination.
The freight forwarders who arrange the containerized movements are exempt from Commission regulation. For a number of years it was assumed that the motor carriers who performed the terminal operations on behalf of the freight forwarder (i. e., the pickup and delivery service and the packing, crating, and containerization at the origin or the unpacking, uncrating and decontainerization at the destinations) were also exempt. However, in Kingpak, Inc., Investigation of Operation, 103 M.C.C. 318, the Commission held that motor carriers performing such services are subject to the certificate requirements of the Interstate Commerce Act. The Kingpak decision was sustained in Household Goods Carriers Bureau v. United States, 288 F.Supp. 641 (N.D.Calif.1968), affirmed per curiam 393 U.S. 265, 89 S.Ct. 477, 21 L.Ed.2d 426. As a result of the Kingpak decision, the Commission has issued a number of certificates, based upon findings of public convenience and necessity, authorizing the performance of the type of service described above. In order to insure that such carriers "are authorized to perform services capable of meeting fully the transportation needs of the shipping public, without, at the same time, also enabling the performance of services for which no need has been shown and which are available from other sources" (Central Forwarding, Inc., Extension—Household Goods, 107 M.C.C. 706, 716 (1968), the Commission framed a commodity description tailored to the type of service described above. It is this type of certificate—generally known as a "Kingpak-type"—that was granted to the plaintiff in this case, and to which restricted certificate Towne objects.
The evidence adduced by the plaintiff before the Examiner and considered by the Commission can be divided into three broad categories which will be discussed briefly as follows:
After Plaintiff's Petition for Reconsideration was denied, this suit was filed.
Section 207(a) of the Interstate Commerce Act, 49 U.S.C. Sec. 307(a), provides in pertinent part:
"* * * a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity;...
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