Tri-State Motor Transit Co. v. LEONARD BROS. TRUCKING CO.

• Decision Date: 26 April 1972
• Docket Number: No. 2150.,2150.
• Citation: 347 F. Supp. 872
• Parties: TRI-STATE MOTOR TRANSIT COMPANY et al., Plaintiffs, and Interstate Commerce Commission, Intervening Plaintiff, v. LEONARD BROS. TRUCKING CO., Inc.
• Court: U.S. District Court — Western District of Missouri

347 F. Supp. 872

TRI-STATE MOTOR TRANSIT COMPANY et al., Plaintiffs and Interstate Commerce Commission, Intervening Plaintiff, v. LEONARD BROS. TRUCKING CO., Inc.

No. 2150.

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

April 26, 1972.

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

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

Lewis A. Dysart, Kansas City, Mo., William O. Turney, Washington, D. C., for defendant.

FINDINGS, ORDER AND OPINION

ELMO B. HUNTER, District Judge.

Plaintiffs seek an injunction and attorneys' fees under the provisions of 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 the 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.¹

The three plaintiffs, Tri-State Motor Transit Company, Riss and Co., and Yellow Freight System, Inc., 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 items, Class A and Class B explosives over certain prescribed routes in interstate commerce. The Interstate Commerce Commission appeared as an intervening plaintiff under 49 U.S.C. § 322(b) (2) and obtained a stay order.²

Defendant, Leonard Bros. Trucking Co., Inc., (Leonard Bros.) a Florida corporation is a common carrier by motor vehicle to whom certificates of convenience and necessity have been issued by the Interstate Commerce Commission authorizing Leonard Bros. to transport, among other things, commodities, the transportation of which, by reason of size or weight, required the use of special equipment or special handling, over certain prescribed routes in interstate commerce. In the exercise of its authority, Leonard Bros. at all relevant times has operated in the Western District of Missouri.³ The various routes over which Leonard Bros. transported the goods in controversy are competitive, in whole or in part, with routes over which plaintiffs hold operating authority to transport such commodities. Defendant's hauling of these goods has resulted in diverting from plaintiffs some of such hauling.⁴

Commencing in May or June, 1967, and continuing to January 28, 1972, Leonard Bros. transported in interstate commerce over competitive routes 500-pound and 750-pound bombs containing Class A or Class B explosives.⁵ Leonard Bros. also similarly transported considerable ammunitions (Class A or Class B explosives) weighing less than 150 pounds per individual item.⁶ It continued to do so until February 15, 1972. On January 25, 1972, its vice-president in its interrogatory answers stated, "The company contemplates no radical change and proposes to continue the same type of transportation on the commodities shown . . . in Appendix A," which includes less than 150-pound per unit ammunition, i. e. not bundled, boxed, packaged or palletized. All mentioned transportation was performed for the Department of Defense.

Prior to commencing the above described transportation, Leonard Bros. filed with the Interstate Commerce Commission a tender or rate quotation, thereby holding itself out to transport all items described therein at the rates set out. Leonard Bros. interpreted its authority to include the transportation of all the items in dispute in this proceeding.⁷ Included in the tender is a wide range of ammunition, bombs and other explosives without limitation as to weight.

THE PRIOR RELATED LITIGATION

In June, 1967, plaintiffs had filed in this Court a complaint against International Transport, Inc., in which this Court issued a preliminary injunction against International restraining it from transporting certain Class A or Class B explosives weighing 150 pounds or less per package or box and referred the question of the legality of the transportation of 500 and 750-pound bombs to the Interstate Commerce Commission. The Interstate Commerce Commission issued its initial decision on January 14, 1969, in International Transport, Inc., Investigation and Revocation of Certificates, 108 M.C.C. 275, holding motor carriers size and weight authority did not include the right to transport 500 and 750-pound bombs.⁸

THE PRESENT LITIGATION

Following that decision, on January 21, 1969, plaintiffs filed their present complaint against Leonard Bros. seeking to enjoin, among other things, the transportation in interstate commerce of the 500 and 750-pound bombs and other mentioned Class A or Class B explosives of a weight of less than 150 pounds.⁹ Plaintiffs obtained a temporary injunction.¹⁰

Thereafter, the Interstate Commerce Commission, after an additional hearing in which Leonard Bros. participated again held and ruled that heavy-haulers, including Leonard Bros., "beyond question" did not possess authority to transport the mentioned bombs. This decision was affirmed in a Three-Judge Court proceeding. See International Transport, Inc. v. United States, 337 F. Supp. 985 (W.D.Mo.1972).

Following the International decision the Interstate Commerce Commission filed a motion for Entry of Injunction Instanter against Leonard Bros. 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."

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 Leonard Bros. unless Leonard Bros. operated in clear and patent violation of its certificated authority. As stated in Baggett Transportation Company v. Hughes Transportation, Inc., 393 F.2d 710, 716 (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. & 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 Bros. Trucking Co. v. United States, 301 F.Supp. 893, 897, 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

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,¹¹ and by the profits attainable, International energetically entered the hauling of Class A and Class B explosives.¹² Quickly, Leonard Bros. 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.¹³ 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 Leonard Bros. 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.¹⁴ No special equipment is required for that purpose. Additionally, it is the Court's finding that the mentioned 500 and 750-pound bombs transported by ...