TRI-STATE MOTOR TRANS. CO. v. HJ Jeffries Truck Lines, Inc.

• Decision Date: 26 April 1972
• Docket Number: No. 2149.,2149.
• Citation: 347 F. Supp. 864
• Parties: TRI-STATE MOTOR TRANSIT CO. et al., Plaintiffs, Interstate Commerce Commission, Intervening Plaintiff v. H. J. JEFFRIES TRUCK LINES, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

347 F. Supp. 864

TRI-STATE MOTOR TRANSIT CO. et al., Plaintiffs, Interstate Commerce Commission, Intervening Plaintiff v. H. J. JEFFRIES TRUCK LINES, INC., Defendant.

No. 2149.

United States District Court, W. D. Missouri, Southwestern Division.

April 26, 1972.

Stinson, Mag, Thomson, McEvers & Fizzell, Lawrence R. Brown, Kansas City, Mo., for plaintiffs.

Harry Horak, Reg. Counsel, I. C. C., Ft. Worth, Tex., for intervening plaintiff.

Karl Schmidt, Kansas City, Mo., for defendant.

FINDINGS, ORDER AND OPINION

ELMO B. HUNTER, District Judge.

This is a proceeding for an injunction under 49 U.S.C., § 322(b) (2), the so-called "self help" statute which provides that if any person operates in clear and patent violation of any provisions of the Interstate Commerce Commission Act or any rule, regulation or order of that Commission any person injured may apply to the district where the violator operates for the enforcement of the law, rule, regulation or order.¹ The statute also provides for allowance in the Court's discretion of reasonable attorneys' fees to the prevailing party.

The three plaintiffs are each common carriers by motor vehicle to whom certificates of convenience and necessity have been issued by the Interstate Commerce Commission authorizing plaintiffs to transport, among other things, Class A and Class B explosives over certain prescribed routes in interstate commerce. The Interstate Commerce Commission appears as an intervening plaintiff.

Defendant, H. J. Jeffries Truck Lines, Inc., (Jeffries), an Oklahoma corporation, is a common carrier by motor vehicle to whom certificates of convenience and necessity have been issued by the Interstate Commerce Commission authorizing Jeffries to transport, among other items, commodities, the transportation of which, by reason of size or weight, requires the use of special equipment or special handling, over certain prescribed routes in interstate commerce. In the exercise of its authority Jeffries at all relevant times has operated in the Western District of Missouri. The various routes over which Jeffries transported the items in controversy are competitive, in whole or in part, with routes over which plaintiffs hold operating authority to transport such items.

BACKGROUND OF THE DISPUTED TRANSPORTATION

In May or June, 1967, Jeffries commenced transporting 500 and 750-pound bombs.² It was still hauling these bombs in the period of January 1, 1971, through December 31, 1971. As late as January 25, 1972, it "reasonably anticipated continuing to do so." Its witness testified it ceased hauling the bombs on January 29, 1972, and further stated Jeffries did not intend to haul them until it obtains further interpretation from the Interstate Commerce Commission.³

Along with its bomb hauling, Jeffries also during the same period hauled ammunition and other Class A or Class B explosives weighing much less than 150 pounds per unit and often weighing much less than 150 pounds even if boxed.⁴ All mentioned transportation was for the Department of Defense and was obtained in competition with plaintiffs.

Prior to commencing the described transportation, Jeffries filed with the Interstate Commerce Commission a tender, holding itelf out to transport all items described therein at the rates set out. Included in the tender is a wide range of ammunition and bombs (Class A and Class B explosives) with no stated limitation as to weight or size.

On December 13, 1968, plaintiffs filed in the United States District Court of Kansas their complaint, seeking to enjoin, among other items, the transportation of 500 and 750-pound bombs and ammunition for cannon. On August 4, 1967, pursuant to 28 U.S.C. § 1404(a) Judge Stanley transferred the case to the undersigned Court.

THE PRIOR RELATED LITIGATION

On May 16, 1967, International Transport, Inc., a North Dakota corporation, commenced the transportation of 500 and 750-pound bombs and certain small ammunition, all Class A or Class B explosives. International was the first heavy-hauler to transport such items in reliance upon size and weight authority. These plaintiffs immediately brought suit in the Western District of Missouri to enjoin such transportation by International. A temporary injunction was issued prohibiting the transportation of certain ammunition of a weight of less than 150 pounds, and the controversy over 500 and 750-pound bombs was referred to the Interstate Commerce Commission for its primary consideration. See, International Transport, Inc., Investigation, No. MC-C 5766, 108 M.C. C. 275. While many other heavy-haulers intervened in the Interstate Commerce Commission proceeding, Jeffries did not, but did keep informed as to the litigation and its outcome.

The referenced matter remained before the Interstate Commerce Commission for approximately two years, during which period after extensive hearings it twice decided and ruled that heavy-hauler authority "beyond question" did not authorize the transportation of 500 and 750-pound bombs, and that their transportation by International was illegal.⁵ The Interstate Commerce Commission rulings were affirmed by the United States District Court for the Western District of Missouri in a three-judge proceeding. See International Transport, Inc. v. United States, D.C., 337 F. Supp. 985 (1972).

THE PRESENT CASE

On February 14, 1972, a full and final evidentiary hearing was held in the instant case. In order to expedite final disposition of the cause, the parties, with the Court's approval, limited the commodities to be considered to ammunition weighing less than 150 pounds per individual item and to bombs of approximately 500 and 750 pounds.

JURISDICTION

This Court has jurisdiction of the parties and of controversies under 49 U.S.C. § 322(b) (2). Under that section no relief may be granted against Jeffries unless Jeffries operated in clear and patent violation of its certificated authority. As stated in Baggett Transportation Co. v. Hughes Transportation, Inc., 393 F.2d 710, 716 (8 Cir. 1968) in discussing Section 322(b) (2), "Not only is a remedy provided therein, the words `clear and patent' are judiciously used to indicate jurisdiction separate and apart from the ICC's primary jurisdiction. Thus the House Report notes that, `* * * 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.' 1965 U.S.Code Cong. & Adm.News, Vol. 2 at p. 2931. In order to regain primary jurisdiction of the controversy and also to prevent the use of § 322(b) (2) to harass carriers legitimately operating, the ICC may take jurisdiction of the matter under § 322(b) (3) and stay further action in the District Court." And as stated in Leonard Brothers Trucking Co. v. United States, 301 F.Supp. 893, 898 n. 7 (S.C.Fla. 1969), "As is normally the case with reference to the doctrine of primary jurisdiction, `Court jurisdiction is not thereby ousted, but is only postponed.' United States v. Philadelphia Nat'l Bank, 1963, 374 U.S. 321, 353, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915."

THE QUESTION OF CLEAR AND PATENT VIOLATION

From the two hearings in this case, it is established that prior to May 17, 1967, no heavy-hauler in reliance on size and weight authority had attempted to haul Class A or Class B explosives. On that date, perhaps encouraged by the Moss decision,⁶ and by the profits attainable, International energetically entered the hauling of Class A and Class B explosives.⁷ Quickly, Jeffries also commenced transporting such explosives in reliance on its heavy-hauler authority, as did numerous other heavy-haulers. To a great extent as to the majority of such items, they were testing their size and weight authority by the items in the packaged or palletized form in which they were tendered by the shipper regardless of whether the inherent nature of the shipped items "required" boxing or palletizing.

However, on April 10, 1959, if not earlier, as a result of the Interstate Commerce Commission's decision in W. J. Dillner Transfer Co., Investigation of Operations, 79 M.C.C. 335, the heavy-haulers were clearly on notice that in bundling, aggregating or palletizing, the general rule of construction is that it is the individual commodity itself that is the pertinent consideration as respects a carrier's size and weight authority, unless the inherent nature of the commodity itself requires it to be bundled or palletized for its own protection, and that even in that limited circumstance it is the minimum bundle so required that must be looked to rather than the actual bundle tendered by the shipper.⁸ As noted in Ace Doran Hauling & Rigging Co., Investigation, 108 M.C.C. at 726 (1969): "Following favorable decisions upon judicial review, in W. J. Dillner Transfer Company v. I. C. C., 193 F. Supp. 823 (1961), affirmed in Dillner Transfer Co. v. United States, 368 U.S. 6, 82 S.Ct. 16, 7 L.Ed.2d 16 (1961), the Commission and the motor carrier industry came to rely on the Dillner standards, and these criteria were utilized to determine the status under heavy-hauler authority of a wide scope and variety of commodities." Certainly, on December 31, 1968, when the Interstate Commerce Commission report in International was made, it should have been crystal clear to Jeffries that for the purpose of testing its heavy-hauler authority in the Class A and Class B explosives field, it could not resort to the tendered items as palletized, for weight and size, absent such palletization being inherently required by the items involved.

The evidence in this case is such that it is the Court's finding that the above-mentioned and described ammunition and explosives transported by Jeffries and weighing less than 150 pounds per commodity did not inherently require palletization or bundling and is easily handled in loading, unloading, and otherwise, by hand.⁹ No special equipment is required for that purpose. Additionally, it is the Court's...