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Baltimore & O.R. Co. v. United States

decided: February 12, 1953.

BALTIMORE & O.R. CO. ET AL.
v.
UNITED STATES ET AL.



Author: Goodrich

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

This case involves a question of the jurisdiction of the Federal Maritime Board and also the correctness of an order issued by it. The order directed the petitioning railroads to increase from two to five days the "free time" allowed for the loading and unloading of local freight which moves by truck over the railroad piers in Philadelphia. Free time refers to the allowance of a certain period during which no charge is made for the storage of freight on the pier. Following the expiration of free time demurrage is charged. The petitioning railroads contend that the Board is without jurisdiction to make the order which it has made in this case. Secondly, they contend that the order is unreasonable, not supported by substantial evidence, and should be vacated by this court.

I.

We turn first to the jurisdiction question. The railroads say that in interstate and foreign commerce they are subject to the jurisdiction of the Interstate Commerce Commission. No one, we take it, doubts this. They say, further, that since they are under the jurisdiction of the Interstate Commerce Commission they are not subject to orders by the Federal Maritime Board. They are on less solid ground in urging this because the Interstate Commerce Act expressly provides that nothing contained in it shall interfere with the jurisdiction otherwise exercisable by the Federal Maritime Board.*fn1

But why are railroads having piers in Philadelphia subject to the jurisdiction of a Board which deals with matters concerning the carriage of goods on the water? The answer to this question is found in Section 1 of the Shipping Act, 46 U.S.C.A. ยง 801. The words are worth quoting:

"The term 'other person subject to this Act' means any person not included in the term 'common carrier by water,' carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water."

The words to be emphasized are found in the last part of the quotation and bring under the act those who furnish "wharfage, dock, * * * or other terminal facilities in connection with a common carrier by water."

What happens is this. The railroads own piers in Philadelphia. As a matter of fact they own 13 out of a total of 18 piers which are presently in use in the city. Ships come to these piers at the invitation of the railroads. The ships do not pay for the privilege of using the piers but the railroads expect and do get freight business by having the ships unload at piers owned by them. Some of the freight which is taken off these ships is picked up by trucks which are not owned by the railroad. The railroads charge five cents per hundredweight as a "top wharfage" charge and they open their piers, under regulations imposed and policing by them, for the truckers to take away some of the freight unloaded from the ships.*fn2

In connection with ocean-going freight transportation, it is a common law obligation of the carrier to provide reasonable facilities for the loading and unloading of cargo.*fn3 Water carriers coming to the Port of Philadelphia, with one exception,*fn4 do not own piers. Instead, they use, among others, piers owned by the railroads. If the railroads, for their own business reasons, provide the facilities which it is the obligation of water carriers to furnish, it becomes very clear to us that they are furnishing "wharfage, * * * in connection with a common carrier by water." It seems to us inescapable that they come within the very terms of the Shipping Act.

That this may subject the petitioners in some respects to regulation by the Federal Maritime Board and in other respects by the Interstate Commerce Commission does not make such regulation unlawful, however much multiplicity of regulation may trouble a business enterprise.*fn5 We are advised that the two regulatory bodies have joint hearings on occasions which problems presented make that desirable.*fn6 Be that as it may, this case does not present so far as we are now advised any questions of a clash of jurisdiction, or contradictory rules laid down by the two regulatory bodies. If, as and when that happens, the problems raised by such a set of facts will be answered as best we can at the time. All we are deciding about that point in this decision is that these railroads who open their piers, for a charge, to truckers to take away or bring cargo to or from sea-going ships are subject to regulations under the terms of the Shipping Act. As said by the Supreme Court in California v. United States, 1944, 320 U.S. 577, 586, 64 S. Ct. 352, 356, 88 L. Ed. 322: "whatever may be the limitations implied by the phrase 'in connection with a common carrier by water' which modifies the grant of jurisdiction over those furnishing 'wharfage, dock, warehouse, or other terminal facilities', there can be no doubt that wharf storage facilities provided at shipside for cargo which has been unloaded from water carriers are subject to regulation by the Commission." See also United States v. American Union Transport, Inc., 1946, 327 U.S. 437, 66 S. Ct. 644, 90 L. Ed. 772.

II.

Is the Board's order reasonable and supported by substantial evidence? When we pass from the question of jurisdiction to consider the merits of the order to which the railroads object so vigorously, we find ourselves confronted with difficulties raised by the form of the Board's report. This report contains a summary of the complaint filed and other procedural matters in the case.It contains some statements of fact which will be discussed more fully presently. It summarizes testimony of witnesses in rather considerable detail. It states some propositions of law and then gives an overall conclusion as to what it deems the merits of the case, followed by its order.

The terms of the Administrative Procedure Act, which regulates every "adjudication required by statute to be determined on the record after opportunity for an agency hearing,"*fn7 provides that: "All decisions * * * shall * * * include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon ...


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