Trans-American Van Service, Inc. v. United States

• Decision Date: 26 August 1976
• Docket Number: Civ. A. No. CA 4-74-25.
• Citation: 421 F. Supp. 308
• Parties: TRANS-AMERICAN VAN SERVICE, INC. v. UNITED STATES of America and Interstate Commerce Commission and Associated Truck Lines, Inc., et al., Intervening Defendants.
• Court: U.S. District Court — Northern District of Texas

421 F. Supp. 308

TRANS-AMERICAN VAN SERVICE, INC. v. UNITED STATES of America and Interstate Commerce Commission and Associated Truck Lines, Inc., et al., Intervening Defendants.

Civ. A. No. CA 4-74-25.

United States District Court, N. D. Texas, Fort Worth Division.

August 26, 1976.

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John C. Bradley, Rice, Carpenter & Carraway, Washington, D. C., for plaintiff.

Peter A. Fitzpatrick, James T. Proctor, Washington, D. C., for defendants.

Garrett & Nation, by John B. Garrett, Fort Worth, Tex., John C. Bradley, Rice, Carpenter & Carraway, Washington, D. C., for plaintiff.

Frank McCown, U.S. Atty., by Wm. L. Johnson, Jr., Fort Worth, Tex., James T. Proctor, Washington, D. C., for defendant.

Rawlings, Sayers & Scurlock, by Clayte Binion, Fort Worth, Tex., Paul F. Sullivan, Washington, D. C., for intervening defendants, Kenosha Auto Transport Corp., Dallas & Mavis Forwarding Co., Inc., Ace Doran Hauling & Rigging Co., Red Top Trucking Co., Inc.

Rawlings, Sayers & Scurlock, by Clayte Binion, Fort Worth, Tex., Robert E. Joyner, Joyner, Goff & Sims, P. C., Memphis, Tenn., for intervening defendants, Dealers Transit, Inc., C & H Transp. Co., Inc., Gordons Transports, Inc., International Transport, Inc., Superior Trucking Co., Inc.

Rawlings, Sayers & Scurlock, by Clayte Binion, Fort Worth, Tex., Wilmer B. Hill, Ames, Hill & Ames, P. C., Washington, D. C., for intervening defendant, Gregory Haulers, Inc.

Clayte Binion, Sayers, Scurlock, Binion & Brackett, Fort Worth, Tex., James M. Doherty, Doherty & Robertson, Austin, Tex., Michael J. Wyngaard, Aagaard, Nichol & Wyngaard, Madison, Wis., for intervening parties defendant and J. H. Rose Truck Line, Inc.

Before GOLDBERG, Circuit Judge, MAHON and PORTER, District Judges.

OPINION

MAHON, District Judge.

This is an action for judicial review of an Interstate Commerce Commission decision. Plaintiff, Trans-American Van Service, Inc. hereinafter "Trans-American", seeks to have annulled and set aside orders of the Interstate Commerce Commission hereinafter "ICC" or "Commission" denying Plaintiff's application for a motor-vehicle common-carrier certificate authorizing the transportation of specified types of off-highway vehicles between all points in the United States. Jurisdiction and venue are properly vested in this District Court. 28 U.S.C. §§ 1336, 1398, & 2321-2325 (1970).¹

Trans-American complains that the ICC acted arbitrarily and capriciously in failing to make adequate findings to support its ultimate conclusion, in failing to accord the proper significance to the Review Board's finding that Trans-American sustained its burden of proving a prima facie case, in denying its application on the basis of the broad scope of authority requested, and in considering the evidence submitted by five non-testifying "witnesses." Trans-American further complains that there is no substantial evidence on the record to support the Commission's conclusion that Plaintiff's application for a Certificate of Public Convenience and Necessity should be denied.

I. BACKGROUND

A. Trans-American's Proposed Service

Trans-American is currently authorized to transport household goods and golf buggies non-radially between all points in the continental United States. It also holds authority to transport motorcycles radially from specified origins and is heavily engaged in the nationwide transportation of uncrated pianos and organs, typewriters, and dictating machines. Trans-American urges that its existing service is highly specialized to the needs of its particular shippers in that it provides for the following:

(1) The transportation of uncrated articles to avoid the cost of crating and problem of waste disposal at destination;

(2) Use of pads and blankets to protect uncrated and often fragile articles from damage during transportation;

(3) Carrier loading at origin;

(4) Carrier unloading at destination;

(5) Use of winches, powerlifts, ramps, and other devices to facilitate loading and unloading of large and bulky articles;

(6) Roll-on and roll-off loading and unloading of self-propelled vehicles;

(7) Multiple-stop pickup and deliveries to achieve more economical service by aggregation of smaller shipments into truckloads;

(8) Pickup and delivery at remote locations;

(9) Adjustable multi-level decking to facilitate layering of vehicles and other articles without the weight of one layer threatening damage to those below;

(10) Single-line or single-carrier service from origin to destination to promote expedition, tracing, and assignment of responsibility;

(11) Mixed loads of both crated and uncrated articles and of different commodities; and

(12) Use of closed vans to protect lading from highway dirt and grime during transportation.

Trans-American proposes to extend this specialized service to transportation over irregular routes, between all points in the continental United States, of the following commodities; off-highway vehicles, all-terrain vehicles, sports vehicles, and snowmobiles, commercial adaptations thereof, and parts, accessories, and attachments thereto.

Trans-American claims that the service it proposes will save the shippers, distributors, and retailers of the products in question significant time and expense, both directly in the manner of shipment, itself, and indirectly through simplification of the shipment procedure, by not requiring the shipping and receiving parties to maintain as many employees or as much special equipment. Trans-American further claims that its proposed service will deliver the products in question in a cleaner condition and with less chance of damage.

Trans-American asserts that its proposed service would be virtually unique in the industry into which Trans-American proposes to extend it. The record discloses that no existing carrier offers the entire panoply of specialized services that Trans-American has proposed,² and that few carriers currently offer any significant number of them. Trans-American has pointed out that a substantial number of the protestants cannot pretend to hold out the service that Trans-American proposes because they are "heavy haulers," which are limited to "size and weight" commodities heavier than the products that Trans-American proposes to carry.³

The protestants, several of which are Intervening Defendants here, claim generally that Trans-American's proposed service is an unexceptional compilation of "gimmicks." Intervening Defendants argue that Trans-American uses basically the same equipment as they, albeit somewhat modified, and that there is nothing unique about the pads, blankets, loading, unloading, etc., proposed by Trans-American. The protestants point out that it is unclear under the current state of the law exactly what is meant by a "heavy hauler," and that most of the protestants have such capabilities that they could, at least theoretically, offer the services that Trans-American has proposed. Indeed, one Intervening Defendant and protestant, Kenosha Auto Transport Corp., claims to hold out within its limited grant of authority a service substantially similar to that proposed by Trans-American, though from the record it appears that Kenosha uses open trailers instead of closed, padded vans, and does not provide carrier loading and unloading.

B. Proceedings Before the Commission

On 21 October 1970, Trans-American filed an application with the ICC seeking a Certificate of Public Convenience and Necessity authorizing it, as a common carrier by motor vehicle, to transport non-radially over irregular routes and between all points in the continental United States, the off-highway, all-terrain sports and snow vehicles detailed above.⁴ Trans-American's application was supported by thirty-one manufacturers and distributors of the involved commodities located in various parts of the United States, Canada, Japan, and Italy. Formal written protests to a grant of the application were filed on behalf of sixty-six carriers. Of these sixty-six original protesting carriers, twenty-eight offered evidence in opposition.

Trans-American's application was the subject of oral hearings held before two hearing examiners in May 1970 and December 1971. On 27 June 1972, the second hearing examiner served his report recommending that the application be denied on the grounds that Trans-American had failed to establish a prima facie case of public need for the service proposed. The final hearing examiner was of the opinion that Trans-American's proposed service would be advantageous and beneficial to the shippers in its use of padded vans, multiple-drop and direct-line service, and carrier loading and unloading. Nevertheless, the examiner thought that Trans-American had failed to adequately establish traffic volume figures and shipment frequency estimates. He concluded that, by so failing to produce specific factual data, Trans-American had also failed to demonstrate a public need for its proposed service.

In proceedings of this nature it cannot be gainsaid that the testimony of supporting shippers carries great importance. Numerically speaking the shipper support here, totalling more than 30, is impressive. But as the examiner has tried to emphasize throughout this discussion, it is the substance of that support rather than the sheer quantity of it, which is determinative. Because the essence of the support herein is characterized more by a desire for service embedded in the precatory comments of shippers, rather than an ascertainable need for the sought service, the examiner lacks any basis upon which to recommend an award of authority and so concludes this application should be turned down.⁵

A final, but important comment. This report contains no recitation of the evidence adduced by protestants, nor does it mention the arguments they advanced on brief. The exclusion has been deliberate. The recommendations reached have not been

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