United States v. Great Northern Railway Co.

• Decision Date: 19 October 1964
• Docket Number: No. 17527.,17527.
• Citation: 337 F.2d 243
• Parties: UNITED STATES of America, Appellant, v. GREAT NORTHERN RAILWAY CO., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

337 F.2d 243 (1964)

UNITED STATES of America, Appellant, v. GREAT NORTHERN RAILWAY CO., Appellee.

No. 17527.

United States Court of Appeals Eighth Circuit.

October 19, 1964.

Frederick B. Abramson, Attorney, Dept. of Justice, Washington, D. C., and John W. Douglas, Asst. Atty. Gen., Washington, D. C., Alan S. Rosenthal, Attorney, Civil Division, Washington, D. C., and Miles W. Lord, U. S. Atty., Minneapolis, Minn., for appellant.

Curtis H. Berg, St. Paul, Minn., for appellee.

Before VOGEL, MATTHES, and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

The primary question for determination in this appeal is whether "transit privileges" appearing in Western Trunk Lines Freight Tariff (WTLFT) No. 417-D, encompass the terms "inspection" and "reconsignment" and how the latter terms, referred to in such tariff, should be considered in computing transportation charges made in relation to specified shipments of grain by the Commodity Credit Corporation (CCC). From the opinion of the District Court appearing at 219 F.Supp. 415 (July 19, 1963) it is clear that the above issues were submitted on motions for summary judgment, filed by both parties, and that there is no disputed question of fact here involved. That being so, the matter for our determination is whether the question of law presented to the District Court was correctly applied to the undisputed facts hereinafter stated. Koepke v. Fontecchio, 177 F.2d 125 (9 Cir. 1949).

The instant action was brought to recover $5,088.82 for alleged freight overcharge. All the shipments but one were consigned by the CCC to itself at Minneapolis, at which point the grain was "inspected" and "reconsigned" to Duluth, Minnesota. One shipment consigned directly to Duluth from point of origin was incorrectly charged via Minneapolis; hence the judgment for $22.29 entered in favor of appellant for that amount. As to all the other shipments, appellee computed the rate from point of origin to Duluth via Minneapolis, and that amount was paid. Appellant's claim of overcharge as to the last-mentioned shipments was disallowed by the District Court by its consideration of Items 95, 100 and 575 of this tariff. Item 95 is titled "Intrastate Traffic," wherein it is stated:

"In the application of the distance scales of rates * * * the distances shall be determined by use of the short intrastate distance using not more than three lines such distances to be figured via junction points where there are track connections for the transfer of carload freight without transfer of the lading * * *. On shipments accorded transit privileges as authorized in tariffs of the lines parties hereto, distances shall be computed via the transit station origin to destination."

There is no dispute that the above item is applicable to interstate shipments. Item 100 of the instant tariff provides that "Item 95 will also apply on interstate traffic having origin and destination in the State of Minnesota * * *." It is to be noted that the only exception in Item 95, supra, as to distance rates, is from the place of origin to destination, where "transit privileges" are allowed. Then the distance rate is computed via the transit point.

It is appellant's claim that "inspection" and "reconsignment" do not constitute "transit privileges"; and that the proper rate for the shipments of grain involved should have been computed on the short intrastate distance, origin to Duluth, which concededly amounts to a substantially less rate than the short intrastate distance via Minneapolis to Duluth as charged by appellee.

In ruling otherwise, the District Court based its decision on an interpretation of "Item 575" set forth below, by considering "reconsignment" to be a "transit privilege." It is appellant's contention that the District Court was in error in so ruling. Primarily, appellant bases its contention in the proposition that the interpretation of the term "transit privileges" as used in this tariff is within the primary jurisdiction of the I.C.C. and since the I.C.C. has determined prior to the time judgment was entered in this case that "inspection" and "reconsignment" are not "transit privileges," the District Court's ruling contra is clearly erroneous. (Citing Farmers Union Grain Terminal Association v. Canadian National Railways, et al., 313 I.C.C. 311 (1961) as modified, 315 I.C.C. 559 (1962), discussed below.) Appellee's response thereto is that construction of this tariff is a matter of law for the courts; that the prior determination by the I.C.C. is not binding on this Court; and that the applicable rates are a factual matter to be determined by the route selected by the appellant, in this instance via Minneapolis. Hence it is obvious that the only matter to be determined in this case is the correct construction of the above tariff.

The only explanation of "transit privileges" appearing in this tariff is Item 575, titled "Terminal or Transit Privileges or Services." In the course of that item it is stated:

"* * * Terminal or Transit Privileges or Services, including also

                  Car Rental,               Private Car Mileage
                  Car Service,              Reconsignment
                  Cartage,                  Refrigeration
                  Demurrage,                Stop-off
                  Diversion,                Storage
                  Elevation,                Switching,
                  Heater Service,           Transfer,
                  Icing,                    Transit Privileges,
                  Lighterage,               Unloading,
                  Loading,                  Weighing." (Emphasis added.)
                

The items above listed apparently constitute four classifications: terminal privileges and terminal services, transit privileges and transit services, with no evident division into those separate categories. In the light of the foregoing, it is readily apparent that the wording of Item 575, ante, is ambiguous and does not, on its face, support the statement of the District Court to the effect that that item specifically defines reconsignment as a transit privilege. The most that Item 575, ante, does is to state that "Terminal or Transit Privileges or Services" include, among twenty items, "Transit Privileges" and "Reconsignment," and this in a section of this tariff entirely unrelated to Item 95, in which "Transit Privileges" is used only in connection with rates.

At the outset it seems significant that the drafters of this tariff listed the two items ante separately under two general headings, leading to a conclusion that they did not assume one term used under one heading to encompass the other. More importantly, Item 95 ante, dealing with rates, does not specifically define what is there meant by the term "Transit Privileges." That it is capable of differing definitions, or that there is at least some confusion as to its meaning, is evident, for in Item 575 quoted above, by condensation in the heading and the list of included items, we find the statement, "* * * Transit Privileges * * including also * * * Transit Privileges * * *." The above being so, it is necessary that the term "Transit Privileges" in Item 95 ante, be construed before any correct application of the rate structure in this tariff can be made.

Ordinarily, the construction of a tariff is a matter of law for the Court, being no different than the construction of any other written document. Great Northern Railway Company et al. v. Merchants' Elevator Company, 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943 (1922); A. E. West Petroleum Co. v. Atchison, T. & S. F. Ry. Co., 212 F.2d 812 (8 Cir., 1954). However, there are instances where preliminary resort to the I.C.C. for a construction is required, such as where the words requiring construction are of a technical nature, or where extrinsic evidence within the particular field of expertise of the agency is required to satisfactorily reach a conclusion. Great Northern Railway Company et al. v. Merchants' Elevator Company, supra; United States v. Western Pacific Railroad Co. et al., 352 U.S. 59, 77 S.Ct. 161, 1 L. Ed.2d 126 (1956); Northern Pac. Ry. Co. v. United States, 213 F.2d 366 (8 Cir. 1954); Western Oil & Fuel Co. v. Great Lakes Pipe Line Co., 210 F.2d 490 (8 Cir. 1954). This is generally referred to as the primary jurisdiction doctrine. That doctrine is applicable where a claim, though originally cognizable in the courts, is of such a nature that the question involved initially should be determined by an agency and is usually required as necessary before a court should proceed. McCleneghan v. Union Stock Yards Co. of Omaha, 298 F.2d 659 (8 Cir.1962); 3 Davis, Administrative Law, Sec. 19.01 (1958). That is so because "* * * The courts, while retaining the final authority * * * should avail themselves of the aid implicit in the agency's superiority in gathering the relevant facts and in marshaling them into a meaningful pattern. * * *" Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 498, 78 S.Ct. 851, 861, 2 L.Ed.2d 926 (1958). The above cases make clear that it is only when the words in the tariff are used in their common, ordinary sense, with no particular connotation in the expert field of the agency, that the doctrine of primary jurisdiction is not applicable and the construction becomes a matter of law for the courts without prior resort to the agency.

In the instant case the words requiring definition are "Transit Privileges." On their face it is obvious that these words must have a particular connotation in the rail transportation field, being a generic term requiring specific definition. They certainly cannot refer to any privilege which might be insisted upon by a shipper while his commodity is in transit, but must in reason be limited to certain previously understood conditions. Therefore, we think "Transit Privileges" as here considered is a matter for primary determination by the I.C.C. within its particular expertise and knowledge in the field of transportation; and that where it has previously made such a determination its decision should be given some consideration by the...