Tri-State Motor Transit Co. v. International Transp., Inc., 2054.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Citation: 343 F. Supp. 588
• Decision Date: 24 April 1972
• Docket Number: No. 2054.,2054.
• Parties: TRI-STATE MOTOR TRANSIT COMPANY et al., Plaintiffs, Interstate Commerce Commission, Intervening Plaintiff, v. INTERNATIONAL TRANSPORT, INC., Defendant.

343 F. Supp. 588

TRI-STATE MOTOR TRANSIT COMPANY et al., Plaintiffs,
Interstate Commerce Commission, Intervening Plaintiff,
v.
INTERNATIONAL TRANSPORT, INC., Defendant.

No. 2054.

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

April 24, 1972.

343 F. Supp. 589

COPYRIGHT MATERIAL OMITTED

343 F. Supp. 590

Lawrence R. Brown and Lawrence M. Berkowitz, Kansas City, Mo., for plaintiffs

Harry F. Horak, I. C. C., Ft. Worth, Tex., John L. Kapnistos, Kansas City, Mo., for intervening plaintiff.

Byron J. Beck, Kansas City, Mo., William K. Johnson, Chicago, Ill., 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 court of any district where the violator operates for enforcement of the law, rule, regulation or order. The statute also provides for allowance in the Court's discretion of reasonable attorney fees to the prevailing party.

The four 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 as of June, 1969, has appeared as an intervening plaintiff.

Defendant, International Transport, Inc., (International) a North Dakota corporation, is a common carrier by motor vehicle to whom certificates of convenience and necessity have been issued by the Interstate Commerce Commission authorizing International to transport,

343 F. Supp. 591

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 International at all relevant times has operated in the Western District of Missouri. The various routes over which International transported the goods in controversy are competitive, in whole or in part, with routes over which plaintiffs hold operating authority to transport such commodities

Background of the Litigation

Commencing on May 17, 1967, and continuing to and including June 11, 1971, International transported in interstate commerce 500-pound bombs and 750-pound bombs containing Class A or Class B explosives. International also transported in interstate commerce after the filing of the instant complaint at least two truckloads of palletized ammunition for cannon having an apparent unit weight, unboxed and unpalletized, of less than 150 pounds, much of which weighed 29 pounds or 39 pounds to the box. All mentioned transportation was performed for the Department of Defense.

Prior to commencing the above described transportation, International filed with the Interstate Commerce Commission a tender or rate quotation, which was issued April 13, 1967, and effective April 15, 1967. By such document International held itself out to the public including the Department of Defense to transport all items described therein at the rates set out.¹ Included in the tender is a wide range of ammunition and bombs (Class A and B explosives) with no limitation as to weight.

On June 14, 1967, plaintiffs filed their complaint seeking to enjoin, among other items, the transportation in interstate commerce of the mentioned 500 and 750-pound bombs and ammunition for cannon.

On June 30, 1967, as the result of an evidentiary hearing on June 29, 1967, the undersigned court upon findings made issued a preliminary injunction enjoining International from further transportation of the cannon ammunition of an individual weight of 150 pounds or less. Particularly, the Court found that International lacked certificated authority to haul such ammunition and that its hauling of it was a clear and patent violation under Title 49 U.S. C. § 322(b) (2). At the same time and to avail itself of the expertise of the Interstate Commerce Commission the Court in effect referred to the Interstate Commerce Commission the question of whether International was authorized to haul 500 and 750-pound bombs of the type and description it was hauling.² Meanwhile, International continued to haul such bombs.³

The referenced matter remained before the Interstate Commerce Commission for approximately two years, during which period after extensive hearings it twice decided and ruled by administrative order that heavy-hauler authority, including that possessed by International did not authorize the transportation of the mentioned 500 and 750-pound bombs, and that their transportation by International was illegal. See International Transport, Inc., Investigation, No. MC-C 5766, 108 M.C.C. 275, decided December 31, 1968, and ibid,

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MC-C 5766, decided October 26, 1971. The administrative order was 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

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

As a result of that hearing and the earlier hearing it is clear that International prior to May 17, 1967, had never attempted to haul Class A or Class B explosives, nor had any other heavy-hauler insofar as is known to any of the parties. Perhaps encouraged by the Moss decision,⁴ and by the profits attainable, on May 17, 1967, it energetically⁵ entered the hauling of Class A and B explosives field as earlier described. By its mentioned tender it held itself out as willing to haul all of the commodities listed in it. These items, as earlier noted, included a wide range of ammunitions and bombs, with no limitation as to weight. Some of the smaller items actually hauled included 29 and 39-pound shells, palletized; cartridges, grenades, and percussion caps, also palletized.⁶

It was International's position that the weight and size of the individual item or boxed item was not controlling as to its right to transport the item but that it was the size and weight of the items as palletized that controlled such right.⁷ International clearly was not limiting its asserted right to transport palletized items to those situations where by the inherent nature of the items palletization is required. Differently stated, International's position was that if the shipper for economic reasons or for reasons of efficiency or convenience to it tendered the items in palletized form the right of International to transport was governed by the size and weight of the palletized group of items regardless of whether the inherent nature of the items to be shipped required palletization.

The Question of Jurisdiction

It is conceded by the parties that the Court has personal jurisdiction of the parties and jurisdiction of controversies under 49 U.S.C. § 322(b) (2). However, International contends jurisdiction to grant relief under 49 U.S.C. § 322(b) (2) is conferred only in those cases where the defendant operates "in clear and patent violation" of certain specified sections of statute, or of any lawful rules or regulations issued pursuant thereto, and that there is no credible evidence to show a clear and patent violation. Hence, International asserts this Court is without jurisdictional authority to grant injunctive relief and to award attorneys' fees.

(a) Background of Section 322(b) (2)

Some of the background reasons for the enactment by Congress of Section 322(b) (2) are apparent. Originally, Congress by its statutory scheme had

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charged the Interstate Commerce Commission with the responsibility of administering the interstate motor carrier field. Congress was aware that no private right to damages existed on the part of any motor carrier who was damaged by another carrier's unlawful incursion into the business of the first carrier by operations of a competitive nature beyond its certificated authority. See, McFaddin Express, Inc., v. Adley Corporation, 363 F.2d 546, cert. denied 385 U.S. 900, 87 S.Ct. 206, 17 L.Ed.2d 132 (2nd Cir. 1966). Congress recognized that in the public interest motor carriers who were aggrieved by a motor carrier's operation in excess of its certificated authority should be empowered to go into a federal district court and enjoin such excess operations where the particular operation is a clear and patent violation.⁸ Yet Congress did not want the federal district courts to intrude so as to possibly interfere with the Interstate Commerce Commission's regulatory scheme, absent the safeguard of a clear and patent violation situation. To further prevent possibility of undesired interference, Congress granted statutory authority to the Interstate Commerce Commission to stop any federal district court from proceeding in a case until the Commission had opportunity to resolve the matter. As stated in Baggett Transportation Co. v. Hughes Transportation, Inc., 393 F.2d 710 (8 Cir. 1968), in discussing § 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. & Admin. News, Vol. 2, at...