West Coast Fast Freight v. United States, 13403.

• Citation: 205 F.2d 249
• Decision Date: 12 June 1953
• Docket Number: No. 13403.,13403.
• Parties: WEST COAST FAST FREIGHT, Inc. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 249 (1953)

WEST COAST FAST FREIGHT, Inc. v. UNITED STATES.

No. 13403.

United States Court of Appeals Ninth Circuit.

June 12, 1953.

Glanz & Russell and Theodore W. Russell, Los Angeles, Cal., for appellant.

Chauncey Tramutolo, U. S. Atty., and Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MATHEWS, HEALY and ORR, Circuit Judges.

ORR, Circuit Judge.

Appellant is a motor carrier holding a certificate of convenience and necessity from the Interstate Commerce Commission, hereafter Commission, to engage in transportation in interstate or foreign commerce. It is authorized to engage in the transportation of "commodities generally, * * * except dangerous explosives," between certain designated points.

Sometime prior to the year 1950 the United States Government Sierra Ordnance Depot at Herlong, California, began routing traffic over appellant's lines. The shipments with which we are here concerned were transported from Herlong, California, to San Francisco or Oakland, California, by Wells Cargo, Inc., a connecting motor carrier. At Oakland or San Francisco the freight was turned over to appellant for transportation to Washington or Oregon points.

Appellant was charged in thirteen counts with transporting, in interstate commerce, shipments of dangerous explosives without there being in force and effect with respect to appellant a certificate of public convenience and necessity issued by the Interstate Commerce Commission authorizing such interstate operations.

In order to sustain the convictions against appellant it is of course necessary that the commodities transported by appellant come within the exception in its certificate of convenience and necessity contained in the words "dangerous explosives."

Appellant contends that "primary jurisdiction" to determine the meaning of the term "dangerous explosives" rests with the Commission. We think it has done so. Exhibits 23 and 24 are publications issued by the American Trucking Associations, Inc., Tariff Bureau, and contain regulations issued by the Commission for transportation of explosives and other dangerous articles by motor, rail and water. Exhibit 24, under the heading explosives, contains a sub-heading divided into four classifications, three of which are pertinent here, viz.: Class A. Dangerous Explosives; detonating or otherwise of maximum hazard. Class B. Less dangerous explosives; inflammable hazard. Class C. Relatively safe explosives; minimum hazard. In the case of Strickland Transportation Co., Inc., Extension, Dangerous Explosives, 49 M.C.C. 595 (1949), the Commission pointed out that explosives encompassed by the term dangerous were clearly set out under the designation made in its classifications. That the classification made by the Commission under the words "dangerous explosives" as shown by Exhibit 24, is a sufficient definition of the exception contained in the certificate is not disputed by appellant. But, argues appellant, a significant change was made by the Commission in subsequent regulations which were in effect at the time of the alleged offenses and with which we are now concerned. In the regulations (Exhibit 23) in force at the time of the alleged offenses, the Commission used the following language:

"Class A explosives: detonating or otherwise of maximum hazard. "Class B explosives: flammable hazard. "Class C explosives: minimum hazard."

It will be noted that the above statement of classes eliminates the word "dangerous" formerly used. Appellant argues that this elimination is significant and resulted in stripping from the regulations a definition of dangerous explosives, and that the interpretation of the term "dangerous explosives" as made in the Strickland case is no longer controlling. We see a valid reason for eliminating the word "dangerous." It was superfluous. When you say an explosive is a hazard, you say it is dangerous, and if it is a maximum hazard it is extremely dangerous. So, it seems clear that explosives listed by the regulations as maximum hazards are not only dangerous but extremely so. The explosives alleged to have been carried by appellant are listed under Class A, which the Commission, having "primary jurisdiction", has defined as a maximum hazard. A carrier transporting detonating fuses, explosive projectiles for cannon, ammunition for cannon with explosive projectiles, hand grenades, black powder and rocket ammunition with empty projector should be quite cognizant of the fact that they are dangerous, and such was the type of explosive appellant was convicted of carrying.

Appellant alleges error in the overruling of its objection to the introduction into evidence of Exhibits 3, 4, 5, 6, 11, 14, 15, 16, 17, 18, 19, 21 and 22. These exhibits are photostatic copies of freight bills taken from the records of appellant. Freight bills of this type are generally prepared by appellant's traffic department. The general manager of the Oakland terminal operated by appellant testified that to the best of his knowledge the information appearing on the freight bills was taken from freight bills...