Tri-State Motor Transit Co. v. C & H TRANSPORTATION CO.

• Citation: 347 F. Supp. 879
• Decision Date: 04 May 1972
• Docket Number: No. 17244-4.,17244-4.
• Court: U.S. District Court — Western District of Missouri
• Parties: TRI-STATE MOTOR TRANSIT CO. et al., Plaintiffs, and Riss & Co., Inc., Plaintiffs and Interstate Commerce Commission, Intervening Plaintiff v. C & H TRANSPORTATION CO., Defendant.

347 F. Supp. 879

TRI-STATE MOTOR TRANSIT CO. et al., Plaintiffs,

and

Riss & Co., Inc., Plaintiffs and Interstate Commerce Commission, Intervening Plaintiff v. C & H TRANSPORTATION CO., Defendant.

No. 17244-4.

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

April 25, 1972.

As Amended May 4, 1972.

COPYRIGHT MATERIAL OMITTED

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

Harry Horak, Regional Counsel, Fort Worth, Tex., John L. Kapnistos, Kansas City, Mo., for intervening plaintiff.

William M. Austin, North Kansas City, Mo., Mert Starnes, Austin, Tex., 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 any rule, regulation or order of the Commission any person injured may apply to the district court of any district where the violator operates for enforcement of that if any person operates in clear and patent violation of any provisions of the Interstate Commerce Commission Act or the law, rule, regulation or order.¹

The statute also provides for the allowance in the Court's discretion of reasonable attorneys' fees to the prevailing party.

The two plaintiffs, Tri-State Motor Transit Co., and Riss & Co., Inc., are each common carriers by motor vehicle to whom Certificates of Convenience and Necessity have been issued by the Interstate Commerce Commission authorizing each of them to transport Class A and Class B explosives over certain prescribed routes in interstate commerce. The Interstate Commerce Commission is an intervening plaintiff.

The Defendant, C & H Transportation Co., Inc., (C & H) a corporation, is a common carrier by motor vehicle authorized to transport numerous commodities, including commodities, the transport of which, by reason of size or weight, require the use of special equipment or handling. In the exercise of its authority C & H at all relevant times has operated in the Western District of Missouri. The various routes over which C & H operates are competitive in whole or part with routes over which plaintiffs hold operating authority to transport Class A and Class B explosives.

Plaintiffs on January 21, 1969, filed their complaint for self-help seeking under 49 U.S.C. § 322(b) (2) to enjoin transportation by defendant of ammunitions weighing less than 150 pounds per individual item and bombs described as 500 and 750-pound bombs.² Defendant C & H filed its motion to stay the district court proceedings, alleging the subject matter of this dispute was then pending before the Interstate Commerce Commission in the proceeding entitled International Transport, Inc., Investigation and Revocation of Certificates, Docket No. MC-C 5766.³ This motion was sustained, and in response to the invitation of this Court, the Interstate Commerce Commission assumed primary jurisdiction over the question of the authority of this defendant, among other heavy-haulers, to transport 500 and 750-pound bombs under heavy-hauler authority. C & H, along with numerous other heavy-haulers, intervened in the Interstate Commerce Commission proceedings. The Interstate Commerce Commission issued its stop order to this Court.⁴ In the Commission proceedings C & H fully supported the heavy-hauler's position that they were authorized by their heavy-hauler certificates to haul bombs of those weights and sizes.

As a result of two hearings, the Interstate Commerce Commission twice held and ruled that heavy-haulers, including C & H, "beyond question" did not possess authority to transport the mentioned bombs.⁵ Thereafter the Commission withdrew its stay order, and on November 12, 1971, filed a motion for Entry of Injunction Instanter stating, ". . . it appears that an injunction should now be entered to enjoin this transportation which has been twice found by the Commission to be unlawful."

A full evidentiary hearing and trial was held on February 15, 1972.⁶ From that hearing it is evident that C & H in mid-1968 began transporting 500 and 750-pound bombs, and continued to do so until March, 1970, when because of competition and other economic factors it was no longer financially feasible to do so. However, its outstanding tender continued to contain bombs, without limitation as to weight. C & H, in the latter part of 1968, on several occasions transported what probably were cannon projectiles, known as 155 millimeter projectiles, weighing some 95 to 100 pounds.⁷

The evidence differs somewhat as to how defendant developed its described Class A and B explosives business. C & H suggests it came about principally by solicitation of the Department of Defense, while plaintiffs contend and the evidence supports that it occurred through the activities of Orville Grimes, who had been employed by an Iowa cooperative which had been engaged in the transportation of explosives but was enjoined from hauling them. It is firmly established that Mr. Grimes did solicit such business,⁸ and that C & H leased and used some 150 trucks and in many instances their owners and operators were those that the Murphy Co-operative had used prior to its being enjoined from transporting Class A and B explosives. In the first six months of transporting the 500 and 750-pound bombs the income therefrom was 4 or 5% of the $37,000,000 total revenue of C & H.

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 C & H unless C & H operated in clear and patent violation of its certificated authority. 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 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.D.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

On April 10, 1959, if not earlier, as a result of the 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.

In Baggett Transportation Company v. Hughes Transportation, Inc., 393 F.2d 710, 715-716 (8 Cir. 1968) it is stated:

The Congressional concern with eliminating delay which prevents innocent parties from securing prompt and effective protection was manifest in the 1965 amendment. Thus, in discussing the amendment increasing the civil penalties, the House Report appropriately notes that: "Under existing law, procedures for dealing with certain motor carrier violations are often slow and cumbersome, and frequently ineffective." 1965 U.S. Code Cong. & Adm.News, Vol. 2, at p. 2929. Certainly one way of securing prompt and effective protection for innocent persons injured by the clearly illegal operations of other carriers is to give the injured persons the right to apply for injunctive relief independently of any Commission proceedings. § 322(b) (2) accomplishes this by allowing injured persons to enjoin "clear and patent" violations.

The evidence in the instant case is such that it is the Court's finding that the mentioned bombs transported by C & H did not inherently require palletization or bundling, and that their transportation was a clear and patent violation under 49 U.S.C., § 322(b) (2) of C & H's certificated authority in violation of the provisions of §§ 303(c) and 306 of the Interstate Commerce Act.⁹ In so finding this Court adopts the reasoning, criteria and guidelines for making such finding as set out in the Three-Judge review and in the two Commission's hearings on this same issue and hauling by International in which C & H was an intervening party. See, International Transport, Inc., et al. v. United States of America and Interstate Commerce Commission, 337 F. Supp. 985 (W.D.Mo.1972); International Transport, Inc., Investigation, No. MC-C 5766, 108 M.C.C. 275 and ibid. MC-C 5766. In that Three-Judge Decision it was summarized thusly: "The said guidelines, all of which, by way of emphasis, have been developed in prior cases, may be described as follows: (1) the basic characteristics, if any, of the commodity which occasion the use of special equipment; (2) prevailing industry practice with regard to its handling; (3) the manner in which it or analogous commodities have historically been shipped; and (4) its traditional sphere of carriage."

It would serve only to prolong this opinion to detail all the evidence applicable to each of these guidelines for interpreting a certificate such as C & H's. The history of the manual handling of...