Tri-State Motor Tr. Co. v. International Transport, Inc., 72-1337

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation479 F.2d 171
Docket NumberNo. 72-1337,72-1391.,72-1337
PartiesTRI-STATE MOTOR TRANSIT CO., a corporation, et al., Appellees, v. INTERNATIONAL TRANSPORT, INC., a corporation, Appellant. TRI-STATE MOTOR TRANSIT CO., a corporation, et al., Appellees, v. C & H TRANSPORTATION CO., INC., Appellant.
Decision Date20 April 1973

Phillip Robinson, Austin, Tex., and William K. Johnson, Chicago, Ill., for International Transport, Inc. and C & H Transportation Co., Inc.

Lawrence R. Brown, Kansas City, Mo., and Harry Horak, Fort Worth, Tex., for Tri-State Motor Transit Co. and others.

Before GIBSON and ROSS, Circuit Judges, and BENSON, Chief District Judge.

ROSS, Circuit Judge.

Tri-State Motor Transit Co. (Tri-State) brought these actions against International Transport, Inc. (International) and C & H Transportation Co., Inc. (C & H), in United States District Court under 49 U.S.C. § 322(b) (2) requesting injunctive relief from continued "clear and patent" violations of the Interstate Commerce Commission Act. C & H and International had "heavy hauling" certificates and had started to haul 500 and 750 pound bombs and palletized ammunition.1 Tri-State had operating rights as a munitions carrier and claimed that bombs and palletized ammunition could not legally be hauled by C & H and International under their "heavy hauling" certificates. The trial court granted the injunctions and awarded attorneys fees.2 We reverse and remand with directions.

International

International filed a tender or rate quotation to haul ammunition and bombs on April 13, 1967, effective April 15, 1967. Commencing May 17, 1967, and continuing to June 11, 1971, International transported 500 and 750 pound bombs. On June 14, 1967, Tri-State filed the complaint seeking to enjoin the transportation of 500 and 750 pound bombs and cannon ammunition. Subsequent to the filing of the complaint International began to haul cannon ammunition which, when not boxed or palletized, weighed less than 150 pounds.

On June 30, 1967, the district court issued a preliminary injunction enjoining International from further transportation of cannon ammunition of an individual weight of less than 150 pounds. The court held that such cartage was a "clear and patent" violation of International's certificate. 49 U.S.C. § 322(b) (2). With regard to the bombs, the court said, "The decision as to the bombs is obviously of the type Congress intended to be decided in the first instance by the Interstate Commerce Commission in the exercise of its expertise." In effect, the court referred the issue to the Interstate Commerce Commission (Commission).

On December 31, 1968, the Commission ruled that such cartage was not within International's certificate of authority. On March 18, 1970, a three-judge court reviewing the Commission's decision remanded the case. International Transport, Inc. v. United States, 318 F.Supp. 763 (W.D.Mo.1970). The United States, a statutory defendant, admitted that the Commission's order was invalid. The three-judge court suggested that the Commission take further evidence and consider the following regulation:

"Care in loading, unloading, or other handling of explosives. No bale hooks or other metal tools shall be used for the loading, unloading, or other handling of explosives, nor shall any package or other container of explosives, except barrels or kegs, be rolled . . . ." 49 C.F.R. § 177.835(b).

The Commission held further hearings and affirmed its previous order. International and others filed another complaint to set aside the two Commission orders. Once again the United States answered and admitted the invalidity of the two Commission orders. The three-judge court reviewed the Commission decision and affirmed it. International Transport, Inc. v. United States, 337 F. Supp. 985 (W.D.Mo.1972).

The United States appealed the decision to the Supreme Court and the decision was affirmed without opinion. United States v. Interstate Commerce Commission, 409 U.S. 904, 93 S.Ct. 235, 34 L.Ed.2d 168 (1972).3

The government's opposition to the Commission rulings was apparently predicated upon the argument that the Commission had failed to take into account the National Transportation Policy's provision relating to economical and efficient service. See 49 U.S.C. §§ 1 et seq., 301 et seq., and 1001 et seq. During the interim between the three-judge decision and the appeal to the Supreme Court, the district court held a hearing and decided this case holding that cartage of 500 and 750 pound bombs and cannon ammunition weighing 150 pounds or less was clearly and patently in violation of International's certificate. An injunction was issued and attorneys fees of $10,894.37 were awarded.

C & H

Tri-State filed its complaint for injunction against C & H on January 21, 1969. The action was stayed and the Commission asserted primary jurisdiction. C & H participated in the above-mentioned Commission proceedings, and in the subsequent three-judge court proceedings. On appeal the three-judge court decision adverse to C & H was affirmed without opinion by the Supreme Court. See C & H Transportation Co. v. Interstate Commerce Commission, 409 U.S. 904, 93 S.Ct. 235 (1972). C & H had stopped hauling the bombs in March of 1970. The single judge district court enjoined C & H from further hauling bombs, and allowed $4,557.00 in attorneys fees. The court did not enjoin C & H's alleged transportation of cannon ammunition in view of the uncertainty of the evidence and the small quantity involved.

Clear and Patent
A. The Bombs

Both International and C & H argue that transportation of the 500 and 750 pound bombs was apparently justified since the bombs, while not "inherently" requiring the use of special equipment to handle them, certainly as a practical matter were handled in a more expeditious manner when palletized and loaded and unloaded by special equipment. Both truckers contend that, until the Supreme Court rendered its decision affirming the three-judge court, there was a real question about the validity of the Commission's decisions. International and C & H point to the government's admission in the three-judge court and before the Supreme Court that the Commission's decisions were in error. From this fact the truckers assert that it is erroneous to now claim that the truckers "clearly and patently" operated without their authority, since the question of the lawfulness per se of the activity was certainly debatable. We agree with this reasoning.

49 U.S.C. § 322(b) (2) provides in pertinent part:

"(2) If any person operates in clear and patent violation of any provisions of section 303(c), 306, 309, or 311 of this title, or any rule, regulation, requirement, or order thereunder, any person injured thereby may apply to the district court of the United States for any district where such person so violating operates, for the enforcement of such section, or of such rule, regulation, requirement, or order. The court shall have jurisdiction to enforce obedience thereto by a writ of injunction or by other process, mandatory or otherwise, restraining such person, his or its officers, agents, employees, and representatives from further violation of such section or of such rule, regulation, requirement, or order; and enjoining upon it or them obedience thereto."

As this Court has said:

"The foregoing section was a 1965 amendment, the purpose of which was to `afford injured parties a measure of self-protection against operations which are openly and obviously unlawful\'. 1965 U.S.Code Cong. & Adm. News, Vol. 2, at p. 2931. Prior thereto only the Commission could go into District Court and obtain an enforcement order. Obviously, the Congress desired to expedite the remedy where `clear and patent\' violations were established." Baggett Transportation Co. v. Hughes Transportation, Inc., 393 F.2d 710, 714 (8th Cir.), cert. denied, 393 U.S. 936, 89 S.Ct. 297, 21 L. Ed.2d 272 (1968). (Emphasis supplied.)

And it is important to note that Congress "wished to emphasize . . . that the district courts of the United States should entertain only those actions under these sections, as amended, which involved clear and patent attempts to circumvent regulations in the areas involved." Conference Report 810, 89th Congress 1st Sess. (1965); U.S.Code, Cong. & Admin.News at 2943 (1965). (Emphasis supplied.) Further legislative history indicates:

"These new provisions are intended to afford injured parties a measure of self-protection against operations which are openly and obviously unlawful. In each new paragraph the words `clear and patent\' are used and are intended as a standard of jurisdiction rather than as a measure of the required burden of proof. As was stated in the Senate report on S. 2560, 87th Congress (S.Rept. 1588, 87th Cong., dated June 13, 1962), in explanation of an amendment to section 222(b) of the act which is identical to that proposed in this legislation:
No district court is to entertain any action except where the act complained of its openly and obviously for-hire motor carriage without authority under the sections enumerated above * * *. The language of the section is designed to make it clear that the courts would entertain only those suits which involve obvious attempts to circumvent operating regulation." (Emphasis supplied.)
House Report No. 253, 89th Congress 1st Sess. (1965); U.S.Code, Cong. & Admin.News at 2931 (1965).

The principal question in this case thus becomes whether C & H and International were engaged in an open and obvious attempt to circumvent operating regulations by hauling the 500 and 750 pound bombs.

In 1959 the Commission decided W. J. Dillner Transfer Co-Investigation of Operations, 79 M.C.C. 335 (1959). See also W. J. Dillner Transfer Co. v. I.C.C., 193 F.Supp. 823 (W.D.Penn.), aff'd Dillner Transfer Co. v. United States, 368 U.S. 6, 82 S.Ct. 16, 7 L.Ed.2d 16 (1961). The Dillner dec...

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