Trailer Marine Transport Corp. v. Ortiz, Civ. No. 90-1373 (JP).

• Citation: 733 F. Supp. 490
• Decision Date: 22 March 1990
• Docket Number: Civ. No. 90-1373 (JP).
• Parties: TRAILER MARINE TRANSPORT CORP., Plaintiff, v. Hermenegildo ORTIZ, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

733 F. Supp. 490

TRAILER MARINE TRANSPORT CORP., Plaintiff, v. Hermenegildo ORTIZ, et al., Defendants.

Civ. No. 90-1373 (JP).

United States District Court, D. Puerto Rico.

March 22, 1990.

Nicolás Jiménez, Jiménez, Graffam & Lausell, San Juan, P.R., for plaintiff.

Carlos Del Valle, Ramírez & Ramírez, Hato Rey, P.R., and Yolanda Benítez, Dept. of Justice, San Juan, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

On March 14, 1990, plaintiff, Trailer Marine Transport Corporation, filed this action and requested a Temporary Restraining Order ("TRO") against the defendants, the Secretary of Transportation, the Secretary of Treasury of Puerto Rico, and the Automobile Accident Compensation Administration ("AACA"), in order to enjoin the imposition of a tax imposed pursuant to Law No. 27 of December 12, 1989. In essence, plaintiff alleges that Law No. 27 as applied to it, violates Article 1, Section 8 of the United States Constitution — specifically, that Law No. 27 violates the Dormant Interstate Commerce Clause. Plaintiff sustains that the application of Law No. 27 creates an undue burden on interstate commerce.

Plaintiff also requests injunctive relief as to Law No. 26 of December 12, 1989, alleging that such statute is also unconstitutional.

On March 20, 1990, a hearing was held and all parties were represented by counsel. The defendants argued against the issuance of the TRO. The Secretary of the Treasury did not present evidence at this hearing and merely rested on its contention that this Court lacked subject matter jurisdiction. The AACA Administrator, who argued extensively and cross-examined plaintiff's witnesses, did not present any evidence. Because the instant proceeding concerned the determination of whether to issue the TRO, the parties were not required to present witnesses or evidence and could rely on their allegations and sworn statements. See Rule 65(b) of the Federal Rules of Civil Procedure.

I. BACKGROUND

Plaintiff is a common carrier engaged in the transportation of goods by sea between various ports of the continental United States, Puerto Rico, and foreign nations. Plaintiff's method of transportation includes the carriage of cargo in containers which are already coupled to a chassis on wheels and depends on trucks for movement. Such trailers are rolled on and rolled off a barge by a tractor. The barge is not self-propelled and is towed by an ocean-going tugboat. Through this method, the containers coupled to the chassis are placed on the barge as though the barge was a floating parking lot.

Michael Hopkins, plaintiff's Director of Operations in Puerto Rico, testified that once the cargo is delivered to its destination point in Puerto Rico, the empty trailer returns to the terminal for its return voyage to the mainland United States or elsewhere. Following the delivery of cargo, these trailers may stay in Puerto Rico from anywhere between a few hours to several days. None of plaintiff's trailers ever become permanently located in Puerto Rico.

Plaintiff contends that its competitors, which are also engaged in the transportation of goods by sea, use containers which are not coupled to a chassis. According to plaintiff, the competitors' vessels utilize a lift-on/lift-off system. This system provides that once the containers arrive in Puerto Rico, a large crane is used to lift the containers off the vessel and place them on a chassis, which is permanently based in Puerto Rico. Through this lifton/lift-off system, the chassis with wheels is never loaded on the vessel. Therefore, the containers can be stacked on top of each other for their ocean voyage.

Plaintiff testified that it has approximately one-third of the market share in the transportation of goods by sea business in Puerto Rico. Plaintiff's largest competitor is Navieras de Puerto Rico, which is a public corporation wholly owned by the Government of Puerto Rico. Plaintiff further testified that Navieras also utilizes plaintiff's roll-on roll-off method. However, Navieras' use of this system is very limited.

Plaintiff alleges that Law No. 27 is unconstitutional as applied to its operations. Under Law No. 27, the plaintiff is required to pay a registration fee of five dollars ($5.00) for each entry into Puerto Rico of a trailer up to a maximum of sixty-five dollars ($65.00). This fee authorizes the trailer to travel on the roads of Puerto Rico up to thirty (30) days. If the trailer remains in Puerto Rico over thirty days, the Government imposes the regular sixty-five dollar registration fee, which is valid for one year and during that year it can come in and go out of Puerto Rico without triggering the $5.00 fee again.

Plaintiff further alleges that Law No. 26 of December 12, 1989, is also unconstitutional. Plaintiff contends that this law violates Article I Section 8 of the Constitution and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Under this law, plaintiff is required to pay AACA an annual $35.00 insurance premium per trailer or pay a special premium fee of $15.00 in lieu of the regular fee of $35.00 per each re-entry in Puerto Rico if the trailer will remain in Puerto Rico for less than thirty days.

During the last three years, the plaintiff as well as its parent company had been losing millions of dollars in its operations. The payments, which are required under the challenged statute, will eventually cause plaintiff additional losses unless it changes its method of operation. Plaintiff's competitors use a method of operation different from that of plaintiff. Their trucks and trailers are permanently located in Puerto Rico, therefore they only have to pay the $65.00 license tax and the $35.00 insurance premium to AACA once a year per trailer. The plaintiff has 101,400 trailers that enter Puerto Rico each year. Therefore, the plaintiff would be subject to a $5.00 registration fee and a $15.00 insurance premium per entry to AACA. Of these, fifty percent come in enough times to pay the $65.00 and $35.00 taxes and premiums respectively without obligation of further payment during the year, regardless of the times they come into Puerto Rico.

II. JURISDICTION

The main issue in the instant case is whether this Court has subject matter jurisdiction to entertain plaintiff's request for a TRO. This issue of jurisdiction is determined by an interpretation of the Butler Act, 48 U.S.C. § 872, as well as the Tax Injunction Act, 28 U.S.C. § 1341.

The Butler Act provides that no suit for the purpose of restraining the assessment or collection of any tax imposed by the laws of Puerto Rico shall be maintained in the United States District Court for the District of Puerto Rico. In Carrier Corp. v. Pérez, 677 F.2d 162 (1st Cir.1982), the Court of Appeals for the First Circuit, held that the provisions of the Butler Act are to be construed in conjunction with the provisions of the Tax Injunction Act. The Tax Injunction Act forbids the district courts from enjoining, suspending or restraining the assessment, levy or collection of any tax under state law where a plain, speedy and efficient remedy may be had in the courts of each state. The First Circuit in Carrier therefore concluded that the "plain, speedy, and efficient remedies" provision of the Tax Injunction Act is also applicable to the Butler Act.

Plaintiff has requested this Court to enjoin a state tax which requires the payment of a "registration fee" for every trailer temporarily introduced into Puerto Rico because such mandatory fee or tax, when applied to plaintiff, forces it to pay more tax than the other corporations which provide similar services as the plaintiff. Therefore, plaintiff sustains that Law No. 27 violates the Commerce Clause. U.S. Const. Art. I § 8.

This Court finds that under the circumstances of this case, it lacks subject matter jurisdiction because of the express prohibitions of the Butler Act and the Tax Injunction Act. The plaintiff has a plain, speedy and efficient remedy under Puerto Rico law. First, the tax can be challenged before the Secretary of the Treasury. Plaintiffs can seek further judicial review from the Secretary's decision before the Superior Court of Puerto Rico. See 13 L.P.R.A. § 261; Carrier, 677 F.2d at 174 (upholding Puerto Rico's refund procedure as a plain, speedy and efficient remedy).

This Court is mindful of its decision in Venrod Corporation v. Secretary of the Treasury of the Commonwealth of Puerto Rico, 704 F.Supp. 21 (D.P.R.1989), but finds that case distinguishable from this case. In Venrod we found that the procedure under Puerto Rico law for the challenging the state tax was not "plain, speedy and efficient." The plaintiff in Venrod alleged that the defendant had violated its procedural due process rights when it revoked without a hearing a permit which permitted an excise tax on the sale of a sub-standard wine and increased the tax to be paid after the plaintiff had committed itself to purchase thirty thousand cases of the wine. The procedure available to plaintiff for challenging the tax required the plaintiff to suffer the economic burden of the tax. The Court concluded that this procedure placed the plaintiff in a "catch-22" situation: it could either pass the burden of the tax on the ultimate purchaser, which would have made the wine uncompetitive, and therefore it would have given up any remedy for an allegedly illegal tax, or it could have absorbed the tax, sold the wine at a loss, and attempted to obtain a refund. Venrod, 704 F.Supp. at 24. Due to the specific factual circumstances present in the Venrod case, we issued a TRO compelling the Secretary of the Treasury to enforce the first tax rate that was assessed against Venrod along with Venrod's permit, which was later revoked without due process by the issuing agency. The case was decided in view of the mixed legal question in failing to grant plaintiff due process of law because of the...