UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
June 21, 1972
Pittsburgh & New England Trucking Company and Ace Doran Hauling & Rigging Company, et al., Plaintiffs,
The United States of America and The Interstate Commerce Commission, Defendants
The opinion of the court was delivered by: DUMBAULD
This is a suit (under 28 U.S.C. §§ 1336 and 2325)
before a three-judge court to set aside an order of the Interstate Commerce Commission.
The basic question at issue is whether the Commission acted validly when it interpreted a "heavy hauler's" certificate (which limits the holder's operating authority to transportation of "commodities which by reason of size or weight require the use of special equipment") as not permitting the transportation of articles which do not require special equipment by reason of their inherent or intrinsic characteristics or properties, but which (chiefly for reasons of convenience and economy) are tendered to the carrier by some shippers in aggregated packages or bundles which are too large or heavy for manual loading and are loaded by means of special equipment.
This is a very difficult, delicate, and doubtful question. At the one extreme it is clear, and admitted by plaintiff, that the mere fact that a large or heavy package of items which in their natural state obviously can be and customarily have been handled without the use of any special equipment (pencils and paper have been cited as examples) is tendered to a carrier should not have the effect of enlarging its operating authority. For such an extension of the carrier's certificated authority would have no limits; there is practically no commodity which (if enough effort were made) could not be packed in bulky and heavy packages requiring mechanical handling. As the Commission states, such an approach would amount to "an obliteration of any meaningful distinction" between heavy haulers and general commodities haulers. (108 M.C.C. at 733).
At the other extreme, "the purely theoretical possibility that a commodity can be handled through physical labor" by employing "robust individuals in sufficient number" does not suffice to withdraw from the scope of a heavy hauler's authority such a commodity when such primitive handling procedures are so irrational, inefficient and uneconomic as to "place them outside the realm of practical reality." (108 M.C.C. at 734).
How is the line to be drawn, and by whom? We conclude that an individual shipper (or heavy hauler) should not have the authority to enlarge a carrier's operating authority by the mere tender and acceptance of an aggregated shipment. Nor should the courts attempt to resolve an issue so imbedded in the area of transportation practices and considerations. The Commission is the appropriate agency to determine issues of this type, in the exercise of its "expertise" in the transportation field and of the regulatory powers conferred upon it by Congress. For reasons to be elaborated later, we also conclude that in the case at bar the Commission has made a conscientious and rational attempt to articulate the criteria for drawing the line where it did.
In the case at bar it is of particular importance to note and heed scrupulously the time-honored precepts (ordinarily regarded as platitudes) delineating the limited scope of a court's power when reviewing an order of the Commission. The classical formulation in I.C.C. v. Union Pacific Railroad Co., 222 U.S. 541, 547, 32 S. Ct. 108, 56 L. Ed. 308 (1912), has been followed in a long and unbroken line of cases, which may be summarized by saying that the Commission's determination must be upheld if it is based upon substantial evidence and is not arbitrary nor erroneous as a matter of law.
"The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." Rochester Telephone Corp. v. U.S., 307 U.S. 125, 146, 83 L. Ed. 1147, 59 S. Ct. 754 (1939); Pittsburgh & L.E.R.R. Co. v. U.S., 294 F. Supp. 86, 91 (W.D. Pa. 1968). "The judicial task is to determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence." Penn-Central Merger and N. & W. Inclusion Cases, 389 U.S. 486, 499, 19 L. Ed. 2d 723, 88 S. Ct. 602 (1968).
It is clear that the Court is not free to substitute its own judgment for that of the Commission:
The function of the reviewing court is . . . limited to ascertaining whether there is warrant in the law and the facts for what the Commission has done. Unless in some specific respect there has been prejudicial departure from requirements of the law or abuse of the Commission's discretion, the reviewing court is without authority to intervene. It cannot substitute its own view concerning what should be done, whether with reference to competitive considerations or others, for the Commission's judgment upon matters committed to its determination, if that has support in the record and the applicable law. United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 536, 66 S. Ct. 687, 90 L. Ed. 821 (1946).
The reason why these established rules are not mere platitudes in the case at bar, but constitute revitalized guidelines requiring most conscientious application, is that all members of the Court, if our personal philosophies and views of wise policy were to be given play, would feel sympathy for the position of plaintiffs.
On a humbler scale, this Court, in deciding whether the Interstate Commerce Commission has exceeded its lawful powers in making the order under review, is confronted with the same soul-searching predicament as the Supreme Court in deciding whether the Congress has exceeded its constitutional powers in enacting a statute. We must be equally alert to avoid substituting our own personal predilections or policy judgments for the commands of the law.
Perhaps no one has perceived this predicament more clearly, or expressed it more poignantly, than Mr. Justice Frankfurter.
Dissenting in W. Va. State Bd. of Education v. Barnette, 319 U.S. 624, 646-47, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), which held the compulsory flag-salute in schools unconstitutional for Jehovah Witness children, he exclaimed:
One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard . . . It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench.
It can not be denied that the assertions of the Department of Justice, on behalf of the statutory defendant the United States, which has confessed error in the case at bar,
are well-founded: the effect of the Commission's decision under review is plainly anti-competitive. It will eliminate competition for certain traffic between heavy haulers and general commodities haulers. To an antitrust alumnus, favoring preservation of competition to the greatest possible extent even in regulated industries,
this argument has undoubted appeal.
But the conclusive answer is equally undeniable: under the regulatory statutes in force it is for the Commission, not the courts, to determine how much competition is desirable in the public interest.
Chesapeake & O. Ry. Co. v. U.S., 283 U.S. 35, 41-42, 51 S. Ct. 337, 75 L. Ed. 824 (1931), long ago held that the Commission might authorize new service for the very purpose of promoting competition to the extent found by the Commission to be convenient or necessary in the public interest. To the same effect, with regard to motor carriers, see authorities cited in Lang Transportation Corp. v. U.S., 75 F. Supp. 915, 927-28, 931 (S.D. Cal. Central Div. 1948), particularly I.C.C. v. Parker, 326 U.S. 60, 65, 89 L. Ed. 2051, 65 S. Ct. 1490 (1945).
In unification or merger cases the Commission is expressly empowered to grant exemption from the Antitrust Laws. McLean Trucking Co. v. U.S., 321 U.S. 67, 83-87, 88 L. Ed. 544, 64 S. Ct. 370 (1944); Pittsburgh & L. E. R. R. Co. v. U.S., 294 F. Supp. 86, 97 (W.D. Pa. 1968). In determining the amount and character of competition which will be most beneficial to the public interest the Commission must "bring to bear upon the problem an expert judgment and . . . determine from its analysis of the total situation on which side of the controversy the public interest lies." U.S. v. Detroit & Cleveland Navigation Co., 326 U.S. 236, 241, 90 L. Ed. 38, 66 S. Ct. 75 (1945).
Moreover, it must be conceded, in all candor, that the Interstate Commerce Act, in its present form,
is itself inherently an anti-competitive instrumentality.
The legislative history of the Motor Carrier Act of 1935 (now part II of the Interstate Commerce Act as amended) shows that Congress feared "destructive" or "cut-throat" competition, and meant to impose on motor carriers many restrictions which in unregulated commerce would fall afoul of the Antitrust Laws. For example, the certification requirements of the Act (secs. 206 and 207, 49 U.S.C. §§ 306(a) and 307) certainly establish "barriers to entry" in the motor carrier industry. And barriers to entry are one of the significant criteria of restraint of trade in the Antitrust field. Federal Trade Commission v. Procter & Gamble Co., 386 U.S. 568, 578-79, 18 L. Ed. 2d 303, 87 S. Ct. 1224 (1967). Likewise, allocation of territory is a per se violation of the Antitrust Laws, akin to price-fixing. Addyston Pipe & Steel Co. v. U.S., 175 U.S. 211, 241, 20 S. Ct. 96, 44 L. Ed. 136 (1899). But it is of the essence of the regulatory scheme, and expressly provided in Section 208 (49 U.S.C. § 308), that the territory or routes of a certificated carrier shall be specified in the certificate. In similar vein is the authority conferred upon the Commission by Section 204(b), 49 U.S.C. § 304(b), to establish classifications of carriers. This power has the intent and effect of confining carriers to a specific type of operations. Price-fixing itself is a consequence of the Commission's minimum-rate power and suspension power under Sections 216(e) and 216(g) of the Act, 49 U.S.C. §§ 316(e) and 316(g), which has often been used as an "umbrella" to protect high-cost carriers.
The unification provisions of Section 5, permitting acquisitions and mergers with exemption from the Antitrust Laws, have already been mentioned.
Similarly, the Janus-faced language of the National Transportation Policy gives feeble support to the Department of Justice's position in the case at bar. As the Supreme Court has recognized, the "overlapping aims" of that declaration necessitate "the balancing by the Commission of the public interests" in the various conflicting legislative objectives.
Of the National Transportation Policy it may be said in the words of Goethe:
Wer vieles bringt, wird manchem etwas bringen; Und jeder geht zufrieden aus dem Haus.
From the foregoing review of the statutory scheme, it seems clear that the adherent of Antitrust principles and economic policies favorable to competition will find only half a loaf in the pattern of regulation of the transportation industry embodied in the Interstate Commerce Act. We could not faithfully perform our judicial task of giving complete effect to the will of Congress if we interpreted the Act and the scope of the Commission's powers thereunder simply in the light of our own wish to encourage competitive enterprise.
A second aspect of the Commission's order in the case at bar likewise puts its critics' case in a favorable light. The order is not only anti-competitive, but it is anti-progressive. It tends to discourage the advancement of science and the widespread use of modern methods and up-to-date technology. It plays down the important factors of efficiency and convenience in transportation.
Here again, one whose personal convictions regarding public policy are largely derived from the teachings of Thomas Jefferson can not fail to find plaintiffs' position appealing when he remembers the familiar words of the sage of Monticello:
"And I am for encouraging the progress of science in all its branches; and not for . . . awing the human mind . . . to go backward instead of forward to look for improvement; to believe that government, religion, morality, and every other science were in the highest perfection in ages of the darkest ignorance, and that nothing can ever be devised more perfect than what was established by our forefathers."
Yet here, too, it must be remembered that the task of exercising expert judgment with regard to questions of transportation (including its growth and development) belongs to the Commission rather than the courts.
Furthermore, closer analysis reveals that the Commission's order under review in the case at bar does not really have the reactionary consequences which at first blush it seems to radiate.
In actual fact, nothing in the Commission's order really limits or forbids the use of modern machinery or improved methods of packaging or handling commodities when they are being loaded onto trucks at a shipper's dock. The only restriction or prohibition imposed by the Commission's order is with respect to whose trucks the goods shall be loaded into.
The case at bar ultimately boils down to an economic conflict between two groups of carriers competing for certain available traffic.
This is precisely the classical case of an issue appropriate for determination by the Commission.
It is the traditional function of the Commission to determine which of two or more competing carriers should be awarded the authority to perform certain transportation service for the benefit of the shipping public.
The fact that cranes, fork-lifts, or other modern handling devices regarded as "special equipment" may be used (if they belong to the shipper instead of the carrier) to load heavy articles into vehicles operated by a general commodities hauler19 calls attention to another unattractive aspect of the order under review.
It appears unfair, at first blush, to permit a general commodities hauler to transport articles which do require special equipment for loading and unloading,
while not permitting a heavy hauler to make a counter-foray into the "turf" of the general commodities hauler.
However, upon reflection, it will be seen that the heavy hauler, as well as the general commodity hauler, does receive a quid pro quo under the "twilight zone" regime. The heavy hauler retains the right to transport traffic which does require special equipment, even if the equipment belongs to the shipper or consignee, and the heavy hauler in fact performs no special service and does nothing but furnish over-the-road transportation with ordinary conventional flat-bed equipment. The "twilight zone" arrangement is thus fair to both types of haulers. Each benefits equally from the shipper's activity, and receives an unearned windfall.
As set forth in Moss Trucking Co., Inc., Investigation of Operations, 103 M.C.C. 91, 101, 105-106 (1966):
Our interpretation of the phrase "requires the use of special equipment" is of vital concern to both classes, for while the heavy haulers are restricted to that type of service, the general-commodity carriers customarily are restricted against such service.
* * *
We believe that the only practicable solution to this seeming dilemma in our regulation of the involved classes of carriers, though not as clear-cut an answer as we might wish, must inevitably be a continuation of the same overall approach which we have utilized in the past. That approach has been in the nature of an accommodation, a recognition of overlapping areas of service, as is probably best exemplified by the "twilight zone" theory set forth in the Rowe case. There it might well have been found that ordinary common carriers could not transport, in accordance with the literal terms of their certificates, commodities requiring special equipment for loading and unloading, even though those operations were performed by the shipper. In an accommodation to the general commodity carriers, however, such operations were found to be authorized, as long as the loading and unloading services were provided by the shippers and only ordinary flatbed trailers used. At the same time the decision to allow the heavy haulers to transport items which were in fact loaded and unloaded by the shippers and consignees could be considered an accommodation to the heavy haulers, since they provided no special equipment for such movements.
Having now dealt with those aspects of the case at bar which tug at the heartstrings of the Court, let us turn to an objective consideration of the Commission's order in order to ascertain exactly what the Commission did, and examine the criteria which it applied in reaching its determination.
The precise question before the Commission was whether the transportation by plaintiffs of certain types of traffic was permitted by the terms of the heavy hauler certificates which they held. The issue, in other words, involved interpretation of the certificates.
The rule therefore is pertinent that in the first instance (subject of course to the customary canons regulating judicial review and limiting the scope thereof) interpretation of certificates which it has issued is a matter for determination by the Commission itself in the exercise of its expert knowledge and informed judgment based upon long-standing familiarity with the transportation industry.
Service Storage & Transfer Co. v. Virginia, 359 U.S. 171, 177, 3 L. Ed. 2d 717, 79 S. Ct. 714 (1959); W.J. Dillner Transfer Co. v. I.C.C., 193 F. Supp. 823, 825-26 (W.D. Pa. 1961).
In interpreting a certificate of public convenience and necessity (or any written instrument) we begin, as Justice Frankfurter reminds us, with the words of the document itself, although we may not end there. F.T.C. v. Bunte Bros., 312 U.S. 349, 350, 85 L. Ed. 881, 61 S. Ct. 580 (1941); Frankfurter, Of Law and Men (Philip Elman ed. 1956) 56.
The language of the certificates authorizes transportation of " commodities which by reason of size or weight require the use of special equipment."
The italicized words are the crucial points of the inquiry for purposes of interpretation.
It will be noted that the certificate speaks of "commodities" which require use of special equipment; not of "shipments" or "packages" which require use of such equipment.
The Commission very properly therefore held that primary regard must be had to the inherent and intrinsic properties and characteristics of the commodities themselves.
If aggregation or bundling is necessary by reason of the "inherent nature" of the commodity itself to protect it from injury (as in the case of thin metal sheets, or articles subject to corrosion or chemical reaction if not properly packaged) the Commission clearly recognized that an aggregated package no heavier than reasonably necessary to afford the required protection might properly be handled by a heavy hauler.
This principle was upheld by this Court's decision in the Dillner case.
To accept the contrary view, it was pointed out, "could well have extended the heavy haulers' certificates to cover the hauling of china cups or wooden nutmegs."
Likewise the "inherent nature" rule was upheld by this Court in the Aero case. Judge Weber said:
The wrapping of the palletized assemblies of ingots is done for their protection against caustic atmospheric conditions.
* * *
The Commission's determination is entirely theoretical. It was not shown by the evidence that these commodities are ever manually loaded or separately packaged. In the Dillner case (cit. supra) the Commission applied a formula which uses the "inherent nature" of the commodity as a standard to determine whether the rights of carriers under heavy hauler's certificate cover a commodity when assembled, packaged, or palletized. Dillner dealt with various types of steel and with fire brick. For motor carriers these were all palletized but the record in Dillner showed that these commodities had previously been actually shipped loose, both by motor carrier and by rail. It could, therefore, be reasonably and logically concluded that there was nothing in the "inherent nature" of the commodity that required it to be shipped by shippers with special handling equipment. Dillner, however, was a further refinement of a rule set forth in Black -- Investigation of Operations, 64 M.C.C. 443 (1955), which Dillner states to be a limited exception to be maintained within its strictest limits. The Commission in Black distinquished sic between commodities aggregated because of their inherent nature, and those aggregated for the sake of efficiency and convenience. In Black the Commission was principally involved with large flat thin sheets of steel and aluminum, which were bundled or palletized by the shipper because of the handling difficulty which they presented by reason of their thin gauge and the likelihood of damage when handled individually. There the Commission found that the inherent nature of the commodity required it to be bundled for protection. Dillner, in reaffirming the Black rule, required that it be kept within strict limits so that the carrier would have the burden of establishing a sound basis for coming within the rule. The District Court in affirming Dillner recited the evidence showing that the commodities in question, steel and fire brick, not only could be but were in fact hauled unpalletized and that convenience and saving labor and cost were the main consideration in palletizing the commodity.
* * *
In the present case we fail to find the evidence upon which the Commission relied in refusing to apply the Black exception to the commodities in question here. The evidence to support the Black rule is substantial; the inherent nature of the commodities which required aggregation and palletization here were the varying chemical compositions and alloys of the aluminum ingots involved, which required separation; the soft, fragile and easily abraded quality of individual ingots which required palletizing; the wrapping of the palletized packages to protect them from the corrosive atmosphere in the neighborhood of the shipper's plant; the refusal of customers to accept aluminum ingots and billets loose; and the inconvenience and expense of crating or packaging each individual ingot and billet separately in a form not acceptable to the customer.
The Commission was therefore correct as a matter of law in applying the intrinsic properties rule in the case at bar.
Moreover, the Commission also gave weight to the factor of historic industry practice.
The Commission emphasized that "a conclusion favorable to the heavy hauler premised on present day shipping practice would obviously be unwarranted when the commodity involved is aggregated almost entirely on the basis of economy and efficiency and has a prior history of satisfactory handling by manual labor."
In evaluating "historic shipping practices" the Commission regarded "significant prior use of manual handling" as a circumstance "tending to show that the current resort to mechanized procedures is attributable primarily to factors bearing on economy and efficiency rather than on the item's basic characteristics."
The Commission also accorded weight to the historic categories of carriers and the traditional types of traffic handled in the past by each group of carriers.
Unlike the railroads, which handled passengers and all types of freight indiscriminately, the motor carrier industry has, from the outset of regulation, been characterized by specialization of labor and division into particular classes of carriers each having a separate sphere of service. The governing statute itself expressly authorized the Commission to establish such classifications. 49 U.S.C. § 304(b). Very early in the course of its regulation of motor carriers the Commission prescribed such classifications.
Heavy haulers were from the outset one of the seventeen special categories established by the Commission.
Common carriers of general commodities, with the usual exceptions,
constituted another separate class of carriers which has been recognized since the early days of motor carrier regulation as a specific sphere of service.
This division of the separate types of traffic handled by motor carriers into particular traditional spheres or fields of service may well be denominated as "protectionism" or "Balkanization" of the industry, as the Department of Justice has done in argument. But it is a well-established feature of the regulatory scheme as intended by Congress. It can not be annihilated by Departmental or judicial fiat for antitrust reasons because it tends to allocate traffic to particular carriers or eliminate competition between them.
The Commission was therefore well warranted in according weight to the historical factor in interpreting the certificates involved in the case at bar.
It is conceivable that investigation might disclose the existence of a well-nigh universal practice of mechanical loading utilizing equipment belonging to the shipper.
In such event, it could perhaps be concluded that there is no practical difference between the services performed by the heavy haulers and the general commodities haulers, and that there is no purpose to be served by continuing to preserve and enforce the distinction between the two types of carriers. In that case the Commission could reclassify the carriers, and perhaps permit present heavy haulers to convert their operations into general commodities operations. It is likely, however, that new legislation would be needed to authorize such a general conversion, as in the case of contract carriers. See U.S. v. Contract Steel Carriers, 350 U.S. 409, 411-12, 100 L. Ed. 482, 76 S. Ct. 461 (1956); Act of August 22, 1957, 71 Stat. 411; I.C.C. v. J-T Transport Co., 368 U.S. 81, 85-87, 7 L. Ed. 2d 147, 82 S. Ct. 204 (1961).
It may also be noted that there is no prohibition against a single carrier's holding both heavy hauling and general commodities authority (such as the prohibition in 49 U.S.C. § 310 against dual operation as a common and contract carrier). Hence upon the usual proof of public convenience and necessity a heavy hauler is free to expand his operations into the sphere of general commodities. The restriction on competition attributable to the Commission's order is thus no greater than what is required and contemplated by the regulatory scheme prescribed by Congress.
And we repeat again that the order under attack does not really deprive the public of the use of modernized equipment. It merely prevents utilization of such equipment as a means of expanding the permissible business of one class of carriers, at the expense of another type of carriers. We are dealing simply with a competitive struggle between carriers for available traffic; and, as we have seen, the question as to how much competition in the motor carrier industry should be permitted as in the public interest is a matter which Congress entrusted to the Commission to determine.
In short, the Commission in the order under attack has made an earnest, conscientious, painstaking and legitimate effort to maintain an appropriate boundary between the spheres of activity of the two types of carriers, confining each to its appropriate and traditional sphere in accordance with the terms of its certificated authority. The Commission's order is rational and articulate. We have no occasion to complain, with Mr. Justice Cardozo, that: "We must know what a decision means before the duty becomes ours to say whether it is right or wrong." U.S. v. Chicago, M., St. P. & P.R.R. Co., 294 U.S. 499, 511, 55 S. Ct. 462, 79 L. Ed. 1023 (1935). Nor can we here invoke Chief Justice Stone's quip: "As we were in doubt as to the intended scope of the Commission's order, . . . we requested a brief on its behalf discussing the meaning and application of its order . . . Although the brief is not wholly free from the obscurity surrounding the order itself, the Commission's ultimate position . . . is one which, under all the circumstances of the case, we accept." Illinois Commerce Commission v. Thomson, 318 U.S. 675, 681, 87 L. Ed. 1075, 63 S. Ct. 834 (1943). Both the Commission's order and its brief and oral argument are characterized by unusual lucidity and cogency. The issues to be resolved have been thoroughly and meticulously discussed.
We thus conclude that the criteria applied by the Commission in interpreting plaintiffs' certificates were not vitiated by mistake of law or misapplication of legal standards. Nor are these criteria arbitrary,
capricious, ultra vires, unconstitutional, or otherwise invalid for any reason.
It remains then only to inquire whether the specific conclusions reached as to particular items of traffic are supported by substantial evidence in the record. In that connection, it should be stated that, in accordance with the governing statute (28 U.S.C. § 2323) we have granted all petitions for intervention presented by parties in interest to the proceeding before the Commission. Some of these parties have submitted affidavits, ruling on the admissibility of which was deferred at the argument. Counsel then stated that they were offered merely to establish the interest and sustain the status of the parties as intervenors. For that purpose we receive them. United Transports, Inc. v. U.S., 214 F. Supp. 34, 38 (W.D. Okla. 1962). On the merits of the case, we confine our consideration to the evidence in the record before the Commission rather than utilizing subsequent affidavits. Mississippi Valley Barge Line v. U.S., 292 U.S. 282, 286, 78 L. Ed. 1260, 54 S. Ct. 692 (1934). Additional evidence de novo is ordinarily received only on constitutional questions of confiscation; and there is some doubt whether even in such cases new evidence need be received, or whether a fresh and independent judicial examination of the record already made suffices. St. Joseph Stock Yards Co. v. U.S., 298 U.S. 38, 51-54, 80 L. Ed. 1033, 56 S. Ct. 720 (1936); R.R. Commission of Texas v. Rowan & Nichols Oil Co., 311 U.S. 570, 575-76, 85 L. Ed. 358, 61 S. Ct. 343 (1941).
There are eleven items with respect to which the Commission made findings adverse to plaintiffs. Having examined the entire record
before the Commission, we shall discuss seriatim the testimony dealing with these items.
1. Earth-moving tractors (shipment #3, discussed at 108 M.C.C. 745-46). This appears to be the most questionable determination made by the Commission in the case at bar. The four tractors shipped to separate destinations weighed 7859, 8013, 8024, and 10010 pounds respectively (Tr. 12). The witness Migala admitted that they could have been loaded under their own power from an elevated loading platform or by use of a ramp (Tr. 14, 28, 39).
Though the shipper has a loading dock, it is distant from the place where the trailers are stored prior to shipment. For economic reasons or efficiency, it is simpler to drive them 100 feet to where the overhead crane loads them (Tr. 30). Where a closed top trailer is used, the tractors are loaded under their own power, 500 feet from the location of the crane (Tr. 36, 39). In the past, the tractors were loaded under their own power by a ramp also used for loading railroad cars; but the shipper's safety department frowned on this procedure, and it was abandoned (Tr. 37-38).
With regard to similar road-building equipment, the Commission said in Dallas & Mavis Forwarding Co., Inc., Extension -- Galion, Ohio, 72 M.C.C. 653, 656-57 (1957):
Since no special equipment or handling is required either for loading, unloading, or over-the-road transportation, these particular units lawfully may not be transported by heavy haulers whose authority is confined to the movement of commodities requiring the use of special equipment or handling. The situation is different on shipments of the larger rollers to job sites, for, despite the allegations of the iron works to the contrary, we are not convinced that they can be safely unloaded from flat-bed trailers standing as high as 4 feet from the ground without the use of special equipment. In addition, the weight of these units and of the larger graders, is not equally distributed but rather is concentrated upon the small and narrow areas where the rollers of wheels make contact with the bed of the vehicle. The transportation of the larger units, those weighing approximately 15,000 pounds or more, obviously necessitates the use of braced or heavily reinforced flatbed trailers especially designed for hauling exceptionally heavy commodities and which, when used for that purpose, would belong in the category of "special equipment" as that term has been defined by the Commission. See St. Johnsbury Trucking Co., Inc., Extension -- Heavy Hauling, 53 M.C.C. 277, 298. Nevertheless, it is clear that these protestants may not, under the authority just discussed, participate in that segment of traffic which does not require special equipment or handling, either for over-the-road movement or loading and unloading.
Although the Commission in the above-quoted passage says that specially reinforced equipment is "obviously" necessary for carriage of self-propelled vehicles weighing over 15,000 pounds, it is nevertheless common knowledge that flatbed trailers regularly transport loads heavier than that. The Commission's so-called "last resort" rule in Dallas is intrinsically meretricious. If it were sound, it would be hard to support a distinction between 8,000 and 15,000 pound vehicles; both being "obviously" too heavy for manual lifting or propulsion, and both being equally capable of moving under their own power.
But to speculate regarding deficiencies of the Dallas doctrine is to flog a dead horse; the question is moot, since the Dallas decision was set aside by a three-judge court in United Transports, Inc. v. U.S. 214 F. Supp. 34, 37, 39, 44 (W.D. Okla. 1962). The court's logic is impeccable. These vehicles are not covered by the carrier's heavy hauler certificate for the reason that in truth and in fact no special equipment was used or required for the movement. The tractors were driven part of the way under their own power over the highways, then up a ramp onto a flatbed trailer for the rest of the journey and then unloaded under their own power at destination. Since no special equipment was in fact used, "obviously" (to employ the Commission's adverb) none was "required."
The United Transports decision triggered a massive grant of operating authority to permit transportation of such vehicles weighing over 15,000 pounds in a mammoth proceeding involving sixty heavy haulers who sought extensions of their certificated authority upon proof of public convenience and necessity. Ashworth Transfer, Inc. -- Extension -- 15,000 lb. Articles, 103 M.C.C. 404, 410 (1966). This large-scale proceeding demonstrates the feasibility of dealing with the competitive problems of heavy haulers under the customary procedures when a genuine need exists.
Nevertheless, in the fitness of things there is some justification for what the Commission sought to accomplish by means of the Dallas ruling. One feels instinctively that a vehicle of this type (whether weighing 7000 or 15,000 pounds) ought to be treated as a piece of heavy machinery properly falling within the category of commodities constituting the historical and traditional field of service belonging to the heavy haulers.
This feeling is reinforced by the conviction that such freight, unlike passengers or cattle, is normally tendered to carriers in its natural, inert state; and that a shipper ought to be entitled to tender for transportation a new automobile,
for example, without supplying it with gasoline and a chauffeur.
But notwithstanding these misgivings regarding the propriety of the Commission's treatment of heavy machinery possessing the potentiality of autonomous locomotion, we are constrained to sustain the Commission's ruling with respect to the particular shipments involved in the case at bar; for, as has been seen, the testimony in the record shows that these four tractors were in fact tendered for shipment supplied with diesel fuel and were in fact driven under their own power from the storage area to the crane; and at the same plant on other occasions similar vehicles were in fact loaded under their own power in closed-top trailers and by use of the ramp at the rail siding. The rationale of United Transports is determinative here.
But we regard the Commission's decision in the case at bar as devoid of value as a precedent under different circumstances; and feel impelled to state our opinion that if such vehicles of 7000 to 10,000 pounds were tendered without fuel at a point in close proximity to the end of a production line in a new plant (with no ramp or loading dock) where no past history of self-propelled loading could be shown, a heavy hauler should feel free to transport such traffic unless and until the Commission, in a subsequent proceeding, upon an adequate record, dealing convincingly with the matters mentioned above, shall have determined otherwise.
2. Pallets and skids (shipments #8 and 9; 108 M.C.C. 746). The testimony shows that a single pallet weighs 167 pounds, and could be loaded manually (Tr. 262). The lift truck used for loading would have to be used to move the articles 400 to 500 feet from the storage area to the loading dock, and it would be possible but impractical to then load the pallets individually by hand (Tr. 263-64). The skids weighed 121 pounds each, and could be loaded manually (Tr. 264-65). Banding the individual items together enables the full capacity of the vehicle to be utilized, up to the height limit (Tr. 273, 276); and enables the minimum requirements of a truckload rate to be met (Tr. 279). This is an economic reason, rather than an intrinsic aspect of the commodity. So too, the oily substance found on the pallets results from production techniques, and is not designed to protect the pallets in transit (Tr. 278).
The Commission's conclusion with respect to this commodity is thus clearly correct, under the applicable legal criteria.
3. Apparatus cabinets (shipments #10 and 11; 108 M.C.C. 746-47). The testimony shows that these articles weigh almost 100 pounds, and could be loaded manually (Tr. 42-43). This shipper has no ramp or loading dock (Tr. 43, 51). The articles are loaded in the same manner when hauled by general commodities carriers (Tr. 49-50). The evidence here supports the Commission's conclusion.
4. Rails (shipments #15 and 16; 108 M.C.C. 747-48). An individual rail, for some reason called a 30 pound rail, weighs 150 pounds (Tr. 56); and could be manually loaded (Tr. 60). Aggregation or bundling is not necessary for protection of the product from damage (Tr. 65). The shipper has used general commodities haulers in van type equipment (Tr. 59), where the same method of loading is used (Tr. 60). For two men to carry the rails from the storage area to the loading area they would have to "snake their way" around and over other material for a considerable distance (Tr. 63, 67). This evidence supports the Commission's conclusion.
5. Threaded steel pipe, less than 200 lbs. (shipments #27, 66-72; 108 M.C.C. 748-49). The Commission permitted the heavy haulers to handle pipe weighing approximately 200 pounds and over. This seems like a reasonable limit to manual handling. The evidence shows that manual loading of the lower weights is possible, but is not practiced for economic reasons (Tr. 205-206, 213, 220, 223-24). For trade reasons, to protect jobbers, pipe is shipped only with a 40,000 pound minimum (Tr. 207). The shipper uses general commodity haulers for the same product (Tr. 207). Bundling is not needed to protect the product from damage (Tr. 218); but the load is safer during transit when bundled (Tr. 211, 519-22).
Here again the evidence supports the Commission's conclusions.
6. Conduit pipe (shipment #28; 108 M.C.C. 749-50). These items could be loaded manually (Tr. 283), and weigh 100 to 150 pounds (Tr. 284). They are loaded individually by crane (Tr. 285); the shipper has no dock (Tr. 289). The same method of loading is used when shipments move by general commodities haulers (Tr. 292-93). This evidence supports the Commission's conclusion.
7. Wrought steel pipe (shipment #29; 108 M.C.C. 750-51). This pipe, according to the shipper's testimony, weighed 100 to 150 lbs. per piece (Tr. 284). The shipper has no dock (Tr. 289-90). The pipe could be lifted by two men under appropriate circumstances (Tr. 292). In view of testimony that plants generally have loading docks, the Commission was warranted in finding that the use of a crane by this particular shipper does not suffice to qualify this commodity as one requiring special equipment.
8. Metal lath (shipment #44; 108 M.C.C. 753-54). Here the Commission's denial of heavy hauler authority rests on the fact that a consignee unloaded the material by hand by breaking bulk (Tr. 69, 75). The product for protection requires bundles of at least 10 sheets (Tr. 76). The weight of such a bundle was not clearly stated, but may be inferred from consignee's testimony to be five pounds (Tr. 76).
In the report of Division 1, dated September 28, 1967, 105 M.C.C. 801 (Appendix C to Complaint herein) at p. 809, it is stated that: "During production bundles of 10 pieces of lath are wired together in order to protect the items from bending. These smaller bundles are considered too flimsy for safe handling and loading, and, in turn, are rebundled and palletized in packages consisting of about 50 of the small, 10-piece bundles before tendered for transportation. Protective devices and throwaway sheets are placed around the outer surface of the pallet to prevent damage to the entire package in banding, loading, and unloading."
No shipper witness from Inland Steel Co. was called, and nothing can be found in the testimony of the consignee to support the conclusionary statement of Division 1 that a 10-piece bundle is "too flimsy" and that the product by reason of its intrinsic characteristics requires further bundling.
The only evidence was that of the consignee, regarding unloading. The consignee, a plasterer, may resort to such primitive methods of breaking bulk as he chooses in order to get this material off the truck. That does not prove whether special equipment was required for loading the product in order to protect it adequately until arrival at destination. There is no convincing evidence as to what size or weight of package would properly be required by reason of the intrinsic qualities of the commodity.
The Examiner's Report, served February 20, 1967, App. B to Complaint herein, at sheet 40, says that the commodities are "not contemplated for transportation by a heavy hauler" and that roofing and siding have in fact been loaded manually in the past.
Possibly as a matter of Commission expertise or general knowledge one might accept the conclusion that one would ordinarily expect a light and flimsy article like lath to be transported by general commodities haulers rather than by heavy haulers.
Hence, we are perhaps making too much ado about one shipment, since the evidence does not permit us to say either that the Commission is wrong or that the Commission is right. Under the circumstances, in view of what has been said, the issue is best disposed of by upholding the Commission's conclusion, on the basis of antecedent probability, but emphasizing that its ruling here is not to be accorded any value as a precedent, and that if the same issue should arise in connection with any subsequent proceedings it must be resolved upon the basis of an adequate record.
9. Steel roofing sheets (shipment #45; 108 M.C.C. 754). The largest length was 12 feet (Tr. 345), weighing 78 pounds (Tr. 346). The sheets could have been loaded manually, but it would not have been economical (Tr. 346). The shipper loaded from a dock (Tr. 347). The material is asbestos-coated, and requires a throwaway sheet at the top and bottom of the bundling for protection of the coating (Tr. 348-50). In the past manual loading was in fact practiced, and then the waster sheets were not used (Tr. 350-51). The change to bundling was made for purely economic reasons (Tr. 355).
The weight of this somewhat confused testimony was for the Commission, and its conclusion as to this item of traffic seems adequately supported by record evidence.
10. Channel iron and steel under 200 pounds (shipment #47; 108 M.C.C. 755-56). The evidence regarding this shipment is obscure (Tr. 83-86). The Commission authorized pieces weighing 240 pounds. Another bundle of eleven pieces weighed 1260 pounds, or slightly over 114 pounds on the average. These the Commission regarded as too light for heavy hauler authority. Two other bundles of 14 pieces weighing in all 2085 pounds were apparently disregarded in the Commission's ruling. On the whole, it is impossible to say that the Commission has deviated from its 200 pound rule of thumb, which we have previously judged to be a reasonable line between light and heavy items.
11. Corrugated culvert pipe under 200 pounds (shipments #49, 50, 51; 108 M.C.C. 756-57). Here, too, the Commission authorized heavy hauler handling of items weighing 240 pounds, but excluded the items under 200 pounds. The testimony shows different sizes and weights. A ten foot 16 gauge specimen would weigh 124 pounds (Tr. 86). For reasons of economy the pipe is stacked ten feet high to make a full truckload. This required mechanical loading (Tr. 87-88). On the whole it would seem that the Commission here exercised appropriate discrimination in evaluating the evidence.
Recapitulating, I conclude that with respect to all eleven of the items ruled upon adversely to plaintiffs by the Commission, there is sufficient evidence in the record to support the results reached by the Commission.
From the foregoing it follows that the order of the Commission here under attack must be sustained, and the relief prayed for in the complaint be denied.