Union Cartage Company v. United States, Civ. A. No. 65-209-J.

• Decision Date: 28 June 1965
• Docket Number: Civ. A. No. 65-209-J.
• Citation: 244 F. Supp. 1005
• Parties: UNION CARTAGE COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — District of Massachusetts

244 F. Supp. 1005

UNION CARTAGE COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. 65-209-J.

United States District Court D. Massachusetts.

June 28, 1965.

Leonard Jaskiewicz and Ronald N. Cobert, Washington, D. C., Francis E. Barrett, East Milton, Mass., for plaintiff.

W. Arthur Garrity, Jr., U. S. Atty., Boston, Mass., for defendant United States.

John F. Curley, Boston, Mass., for defendant I. C. C.

Mary E. Kelley, Boston, Mass., William P. Sullivan, Washington, D. C., for intervenor Mac Transport.

Before ALDRICH, Chief Judge of the Court of Appeals, and FORD and JULIAN, District Judges.

JULIAN, District Judge.

This action is brought, and the jurisdiction of this Court is invoked, under 28 U.S.C. §§ 1336, 1398, 2321, 2322, 2323 and 2325, to set aside, vacate, and annul, and to enjoin the enforcement of, two orders of the Interstate Commerce Commission, one dated December 22, 1964, granting Mac Transport Lines¹ temporary authority to transport malt beverages as a contract carrier for the account of Hampden-Harvard Breweries, and the other dated February 12, 1965, denying the petitions of the plaintiff and other protestants for reconsideration of the order granting the temporary authority.

The United States and the Interstate Commerce Commission moved to dismiss the complaint with prejudice on the ground "that the order herein attacked concerns a matter committed to the discretion of the Commission and is not subject to judicial review."²

The facts on which the action is based are stated in the complaint, the appendices to the complaint, and the plaintiff's memorandum in opposition to the motion to dismiss.

On September 14, 1964, Mac Transport Lines filed with the Commission an application for temporary authority under 49 U.S.C. § 310a(a) to transport malt beverages, as a contract carrier, by motor vehicle in interstate commerce from Willimansett, Massachusetts, to points in Connecticut, Rhode Island, New York, and New Jersey. The application was accompanied by a supporting letter of Piel Bros., Inc., on behalf of its division, Hampden-Harvard Breweries, which is engaged in the manufacture, sale, and distribution of malt beverages. The letter states that "the immediate availability of this authority is necessary to retain and fully service the accounts now being jeopardized by the lack of adequate service to replace existing private carriage." The letter details the grounds for this assertion, among them the following:

"Our interstate movements have always been conducted by private carriage because of the described customer demands for timely deliveries. Recently in anticipation of our changing requirements attempts were made to utilize the services of existing motor common carriers to the application territory. These efforts have proved completely unsuccessful."

The letter lists the plaintiff among the carriers which Hampden-Harvard found to be unable to supply satisfactory service to meet its special requirements, and gives specific reasons for the belief that Mac Transport Lines would be able to meet those requirements. It is further represented in the letter that a denial of the application would force Hampden-Harvard to expand its private carriage operations if it was to remain competitive, and that it had no desire to expand such operations unless compelled to do so.

On September 30, 1964, Mac Transport Lines filed an application for permanent authority under 49 U.S.C. § 309 for a contract carrier permit to transport the same commodities to and from the same points covered by the application for temporary authority. The application for permanent authority is still pending before the Commission.

The plaintiff and several other carriers protested the application for temporary authority. On October 28, 1964, the Temporary Authorities Board of the Commission issued an order denying the application. A petition for reconsideration was filed by Mac Transport on November 18, 1964. Replies were filed by various protestants, but no reply was filed by the plaintiff.

On December 22, 1964, Division 1 of the Commission, acting as an Appellate Division, entered an order which vacated the denial of the application and granted temporary authority to Mac Transport Lines to transport malt beverages as a contract carrier for a period of 180 days for the account of Hampden-Harvard Breweries, over irregular routes, from Willimansett, Massachusetts, to points in Connecticut, Rhode Island, New York, and New Jersey. The Commission premised its action on the immediate and urgent need for the motor carrier service described in the grant and on the unavailability of carrier service capable of meeting such need.

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