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April 28, 1967

The New York Central Railroad Company et al., Plaintiffs
United States of America, Interstate Commerce Commission et al., Defendants

The opinion of the court was delivered by: LEVET


This action was brought by the plaintiffs under §§ 1336, 1398, 2284 and 2321 through 2325 of Title 28, U.S.C. to set aside and enjoin the order of the Interstate Commerce Commission, No. 34254, April 1, 1966, cited as Application of Section 4 Requirements to Joint Motor-Rail Rates Established Under Section 216(c), 326 I.C.C. 453. The Commission's decision also embraces I & S Docket No. 7956, Petroleum, TOFC, Sewaren, N.J., to Zionsville, Ind.

The plaintiffs, The New York Central Railroad Company, The Pennsylvania Railroad Company, The Baltimore and Ohio Railroad Company, and Class I Southern Territory Railroads, are railroad corporations engaged as common carriers in the transportation of property and passengers by railroad in interstate commerce. Plaintiff, Spector Freight System, Inc., is a certificated common carrier engaged in the transportation of property by highway in interstate commerce. Plaintiff, The New York Central Railway Company, is a Delaware corporation with principal offices in New York County, New York, N. Y., and therefore venue properly lies in this court. Plaintiffs, Baltimore and Ohio Railroad Company and Class I Southern Territory Railroads, intervened in ICC No. 34254 and were parties to the proceeding before the Commission. The Louisville and Nashville Railroad Company and the Chesapeake and Ohio Railroad Company filed briefs before the Commission in support of plaintiffs' position. The Port of New York Authority, Eastern Central Motor Carriers Association, Waterways Freight Bureau, Acme Fast Freight, Inc., National Carloading Corporation, Pacific and Atlantic Shippers, Springmeier Shipping Co. and Universal Carloading & Distributing Company, Inc., intervening defendants, filed briefs in opposition both before the Commission and in the instant proceeding. Except for the Port of New York Authority, the intervening defendants are motor carriers or freight forwarders engaged in the transportation of freight in interstate commerce. It is interesting to note that not a single private shipper appears in opposition.

 Pursuant to §§ 2321 through 2325 of Title 28, U.S.C., this review was heard before this three-judge court.

 The controversy involves joint rail-motor rates maintained, or to be maintained, by plaintiffs and certain motor carriers - more particularly joint rates for trailer-on-flat car ("TOFC" or "piggyback") service. Two categories of TOFC service, out of the five which have evolved from the carriers' practices and the Commission's rulings, are involved herein, i.e., Plans II and V as described in Substituted Service - Charges & Practices of For-Hire Carriers & Freight Forwarders, 322 I.C.C. 301, 304-05 (1964) (hereinafter "Substituted Service") [Reversed by Atchison v. U.S. ('65), 244 F. Supp. 955]. Under Plan II TOFC, the entire door-to-door service is provided by the railroad under a single bill of lading, moving its own trailers or containers on flatcars, under tariffs usually similar to those of truckers. It is generally limited to local pick-up and delivery and is regulated under Part I of the Interstate Commerce Act (Sections 1-27 inclusive of Title 49, U.S.C.). Plan V TOFC, however, involves through motor-rail or motor-rail-motor services, with independent line-haul motor carriers at one or both rail terminals and joint rates applicable only over the through route or routes, the motor carriers being subject to Part II of the Interstate Commerce Act, Sections 301-327, inclusive, Title 49, U.S.C. Either the railroad or the motor carrier may originate or deliver a Plan V shipment, which may move on either a rail or motor bill of lading depending on which carrier originates the shipment. The railroad provides only ramp-to-ramp service, or either the pick-up or delivery but not both. *fn1"

 The New York Central case (ICC No. 34254) arose from a Petition For A Declaratory Order filed by plaintiff New York Central with the Commission pursuant to Section 5(d) of the Administrative Procedure Act (Section 1004(d) of Title 5, U.S.C.). The railroad has established a Plan II TOFC rate on air coolers from Louisville, Kentucky, to New York City, of $1.52 per 100 pounds. It has a Plan V rate of $1.48 per 100 pounds from Louisville to Trenton, New Jersey, by way of New York City, the New York City-to-Trenton run being handled by motor carrier. The Pennsylvania Railroad has a direct route from Louisville to Trenton and offers a Plan II rate of $1.48 per 100 pounds for that route. Obviously, New York Central's Plan II TOFC rate is greater for the shorter route from Louisville to New York City than its Plan V TOFC rate for the longer route from Louisville to Trenton via New York City. On January 17, 1963, the Secretary of the Commission advised the New York Central that the joint rail-motor TOFC rates from Louisville to Trenton (Plan V), which were lower than the all-rail TOFC rates from Louisville to New York (Plan II), constituted a violation of the long- and short-haul clause of Section 4(1) of Part I of the Interstate Commerce Act (Section 4(1) of Title 49 U.S.C.). *fn2" The railroad thereafter filed its petition for a declaratory order (a) that Section 4 does not apply to the joint rates filed jointly by the railroad and the motor carriers, and (b) that, even if Section 4 does apply, it has not been violated because the services rendered by the railroad under the two sets of tariffs (Plans II and V) differ. By a six-to-five vote, the Commission rejected the recommended report and order of its hearing examiner supporting the railroads, and decided against the railroads on both issues. On its own motion, the Commission also raised and answered a third point, holding that competition with the Pennsylvania Railroad's Plan II service between Louisville and Trenton did not entitle the New York Central to automatic relief under the second ("circuity") proviso of Section 4(1) for its Plan V service. *fn3"

 The second ICC order (I & S Docket No. 7956) resulted from a proceeding against the Pennsylvania Railroad and the Spector Freight System, Inc., charging that certain joint tariffs they filed violated Section 4(1) of the Act. The Pennsylvania Railroad published reduced joint motor-rail-motor TOFC rates in connection with plaintiff Spector Freight System, Inc., a certificated motor carrier, the rates to apply on petroleum and petroleum products from Sewaren, New Jersey, to Zionsville, Indiana. The Pennsylvania also maintained a higher all-rail TOFC rate between Kearny, New Jersey, and Indianapolis, Indiana. Accordingly, the Commission suspended the proposed motor-rail-motor rate, since that rate would operate from Sewaren to Zionsville over the Pennsylvania Railroad between Kearny and Indianapolis and would appear to violate the long-and short-haul clauses of Section 4(1). The question of the application of the "circuity" proviso of that Section has not been raised in this latter case.

 The Commission's hearing notice of September 16, 1963, set forth two issues to be determined:


"1. Whether motor-rail or motor-rail-motor rates are subject to the provisions of section 4 of the Interstate Commerce Act, and


"2. Whether the services performed in connection with plan II and plan V trailer-on-flatcar rates differ to such an extent that no violation of the fourth section results."

 Since we conclude that motor-rail or motor-rail-motor rates are not subject to the provisions of Section 4, it is not necessary for us to reach any determination of the second issue posed.

 The keystone to the Commission's majority report is its decision in Motor-Rail-Motor Traffic in East and Midwest, 219 I.C.C. 245 (1936), handed down shortly after the passage of the Motor Carrier Act of 1935, and followed in a number of decisions from 1937 through 1955. *fn4" However, none of these decisions has been subject to judicial review.

 The sum and substance of the Commission's decision in Motor-Rail-Motor Traffic, supra, is that:


"While Section 4 does not apply to the charges of motor common carriers, when such a carrier joins in a through route and joint rates with a railroad, it becomes a participant with the railroad in a movement which is subject to that section. Motor common carriers are not required to join with rail carriers in such routes and rates but, having voluntarily entered into such a joint arrangement, the motor carrier assumes obligations similar to those of the participating rail carrier in the observance of the provisions of section 4." 219 I.C.C. at 272.

 The ruling sets forth no statutory authority for such a conclusion, nor is any such authority presently suggested.

 Indeed, analysis of the statutory provisions involved in or relevant to the question, and the references validly to be drawn from judicial consideration of the Act, point to the contrary and support the determination which we here reach.

 The first point raised by the defendants is that the administrative ruling, derived from Motor-Rail-Motor Traffic, supra, is so well established that it cannot now be overturned by the court. While it is true that "a construction made by the body charged with the enforcement of a statute, which construction has long obtained in practical execution, and has been impliedly sanctioned by the reenactment of the statute without alteration in the particulars construed, when not plainly erroneous, must be treated as read into the statute ", New York, N.H. & H.R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 401-02, 50 L. Ed. 515, 26 S. Ct. 272 (1906), where the Commission has adopted a construction antagonistic to the construction it had previously followed, the later construction is entitled to little weight as an administrative determination, Atchison, Topeka and Santa Fe Railway Co. v. United States, 209 F. Supp. 35, 41-42 (N.D. Ill. E.D. 1962), even though such later construction may not require corrective action by a reviewing court. Yale Transport Corp. v. United States, 210 F. Supp. 862, 864 (S.D.N.Y. 1962), aff'd mem., 373 U.S. 540, 83 S. Ct. 1537, 10 L. Ed. 2d 687 (1963); Eastern Central Motor Carriers Ass'n v. United States, 239 F. Supp. 591, 599 (D.D.C. 1965). Administrative interpretations, regardless of the time they may have been in effect, do not become the ruling law on the issue if the initial interpretation was erroneous or beyond its authority in the first place. T.I.M.E., Inc. v. United States, 359 U.S. 464, 475-78, 79 S. Ct. 904, 3 L. Ed. 2d 952 (1958); County of Marin v. United States, 356 U.S. 412, 420, 2 L. Ed. 2d 879, 78 S. Ct. 880 (1958). The strength of the Commission's interpretation is further diluted by the close division of the Commission itself in this very case. Moreover, it is for Congress alone to determine the subject matter, circumstances, and methods of regulating interstate commerce, Transportation Co. v. Parkersburg, 107 U.S. 691, 701, 27 L. Ed. 584, 2 S. Ct. 732 (1882), and, "by virtue of its constitutionally-vested exclusive and plenary power over interstate commerce" can authorize action on the part of a carrier or carriers without prior approval by the Commission. State of New Jersey v. United States, 168 F. Supp. 324, 331-32 (D.N.J. 1958), aff'd mem., 359 U.S. 27, 79 S. Ct. 603, 3 L. Ed. 2d 625, rehearing denied, 359 U.S. 950, 79 S. Ct. 722, 3 L. Ed. 2d 683 (1959).

 In our review of the Commission's authority, it is our duty to measure the administrative action solely against the statutory grounds invoked by the agency. "In the exercise of judicial review, a court is not at liberty to seek its own justification for the Commission's order or to accept appellate counsel's post hoc rationalizations." Atchison, Topeka and Santa Fe Railway Co. v. United States, 244 F. Supp. 955, 960-61 (N.D. Ill. 1965), probable jurisdiction noted, American Trucking Assos. T. & S.F. R. Co., 384 U.S. 902, 86 S. Ct. 1337, 16 L. Ed. 2d 356 (1966), citing Burlington Truck Lines v. United States, 371 U.S. 156, 168-69, 9 L. Ed. 2d 207, 83 S. Ct. 239 (1962); and Atchison, Topeka and Santa Fe Railway Co. v. United States, 209 F. Supp. 35, 45 (N.D. Ill. 1962). Accord, American Trucking Associations Inc. v. United States, 364 U.S. 1, 13-14, 4 L. Ed. 2d 1527, 80 S. Ct. 1570 (1960).

 The Commission, as a creation of Congress, has only the power bestowed upon it by its constituent legislation and, conversely, the railroads have only the duties imposed upon them by the same statute. The ultimate responsibility and power to determine the limits of the administrative power and the private duty lies in the courts. East Texas Motor Freight Lines v. Frozen Food Express, 351 U.S. 49, 54, 100 L. Ed. 917, 76 S. Ct. 574 (1956); Social Security Board v. Nierotko, 327 U.S. 358, 368-70, 90 L. Ed. 718, 66 S. Ct. 637 (1945); United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489, 86 L. Ed. 971, 62 S. Ct. 722 (1942). Accordingly, the administrative construction is merely an aid to judicial interpretation and is not binding on the court. Burnet v. Chicago Portrait Co., 285 U.S. 1, 16, 76 L. Ed. 587, 52 S. Ct. 275 (1932). This is particularly true where, as here, we are not dealing with matters peculiarly within the expertise of the Commission, are not concerned with the desirability of uniform application of the law and the settlement of cases at the administrative level or with the protection of vested rights and public reliance on settled law. Nor is the provision in question a broad statement of policy which Congress has assigned to the Commission for detailed interpretation. Compare F.T.C. v. Ruberoid Co., 343 U.S. 470, 484-87, 96 L. Ed. 1081, 72 S. Ct. 800 (1952). The provisions of the National Transportation Policy are the statutory guide furnished by Congress to the Commission (49 USC preceding §§ 301, 901 and 1001), which declares that it is the policy of Congress " . . . to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices, . . ." What we are dealing with in Section 4(1) is a detailed, specific, prophylactic regulation, without technical language which would require expertise in the field for its interpretation. Atchison, Topeka and Santa Fe Railway Co. v. United States, 209 F. Supp., supra at 43.

 Indeed, nobody claims any ambiguity in the act "to be clarified by resort to legislative history, either of the Act itself or of subsequent legislative proposals which failed to become law." Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 492, 67 S. Ct. 789, 91 L. Ed. 1040 (1947); Atchison, Topeka and Santa Fe Railway v. United States, 209 F. Supp., supra at 43.

 The provisions of the statute are clear. The provisions of Part I of the Interstate Commerce Act apply to "common carriers engaged in - (a) The [interstate] transportation of passengers or property wholly by railroad, or partly by railroad and partly by water . . .," 49 USC § 1(1)(a), and Section 4(1) applies to "any common carrier subject to this Part or Part III of this Act [i.e., railroads and interstate water carriers] . . ." 49 USC § 4(1). The provisions of Part II apply "to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce . . .," 49 USC § 302(a), and the term, "interstate commerce" under Part II includes commerce which moves "partly by motor vehicle and partly by rail, express, or water . . ." 49 USC § 303(a)(10).

 In construing the statute, the first point to be noted is that, under Section 1(1)(a), Part I would not apply to motor-rail transportation where the rail portion was wholly within one state although the motor portion crossed state lines. Part II would cover any motor-rail transportation crossing state lines. While this omission in Part I may be of minimal practical effect, if Congress had intended to regulate any phase of motor-rail transportation under Part I it would hardly have made such an arbitrary exception intentionally. On the other hand, in view of the tight draftsmanship on the face of the statute and the number of revisions to which the statute as a whole has been subjected, the exception is probably not an oversight.

 In addition, the authorization for the establishment of through routes and joint rates between motor carriers and railroads is found in Part II, 49 USC § 316(c), and Part II gives the Commission explicit power to regulate such routes and rates as well as the standards and procedures by which the power is to be exercised. 49 USC § 316(c), (f), (g). The provisions are almost identical in wording with those applicable to rail carriers under Part I, 49 USC §§ 1(4), 15(6), (7), except that the establishment of through routes and joint rates is entirely voluntary under Part II and cannot be compelled by the Commission, as under Part I. Certainly the provisions of Part II dealing with combined motor-rail operations on their face form a complete, self-contained system of regulation which includes protection against the evil dealt with in Section 4(1). See Accelerated Transp. - Pony Express, Inc. v. United States, 227 F. Supp. 815 (D. Vt.), aff'd mem., 379 U.S. 4, 85 S. Ct. 43, 13 L. Ed. 2d 21 (1964). The very language employed by the Congress in the enactment of Part II permits of no doubt that it intended to and did create a selfcontained regulatory scheme covering all-motor, joint motor-rail and joint motor-water rates.

 Finally, where Congress has intended to cover by Section 4(1) carriers subject to another part of the Interstate Commerce Act, it has done so explicitly, and where it has intended to subject motor carriers to the same rules as railroads, it has done that explicitly. That Congress did not intend to add Section 4 of Part I to the regulatory provisions of Part II is emphasized by the manner in which it freely used the language of Part I to make up similar provisions for Part II on other phases of regulation.

 The maxim, "Expressio unius est exclusio alterius," is a well-established rule of construction and, if its limitations are observed, has a firm foundation in common sense. See T.I.M.E., Inc. v. United States [supra], 359 U.S. 464, 471, 79 S. Ct. 904, 3 L. Ed. 2d 952 (1958); Ford v. United States, 273 U.S. 593, 611-12, 71 L. Ed. 793, 47 S. Ct. 531 (1927). In a case such as this, where inclusions and omissions form such a definite pattern, it obviously applies, and leads directly to the conclusion that the provisions of Part II, dealing with through motor-rail routes and rates, were intended to be exclusive.

 The Commission does not attempt to meet directly the arguments set forth above, but proposes a counter-argument, that "there is nothing in the statute authorizing the establishment of joint motor-rail rates which relieves a rail carrier joining in such rates from the provisions of section 4. . . . [Having] voluntarily entered into such a joint arrangement, the motor carrier assumes obligations similar to those of the participating rail carrier in the observance of the provision of section 4." Motor - Rail - Motor Traffic in East & Midwest, 219 I.C.C. 245, 271-72 (1936), quoted in the decision here appealed from, 326 I.C.C. 453, 457 (1966). A silent premise in this argument is that it would be impossible to apply Section 4(1) only to the rail portion of a joint rail-motor service. That premise is correct. A joint rate for a through route under Part II, 49 USC § 316(c), is negotiated by the carriers involved, and only the total charge presented to the shipping public is subject to general tariff regulations. The various segments of joint or combination rates for through routes are not legally comparable to open tariffs for service between intermediate points, cf., Hocking Valley Ry. v. Lackawanna Coal & Lumber Co., 224 Fed. 930 (4th Cir. 1915), and the relationships between the participating carriers are regulated under statutory provisions separate from those governing the relationships between carriers and shippers. For example, compare 49 USC §§ 3(1), 316(d) with 49 USC § 3(4). See also St. Louis Sw. Ry. v. United States, 245 U.S. 136, 139 n.2, 62 L. Ed. 199, 38 S. Ct. 49 (1917). The major reason for the distinctions is that the Interstate Commerce Act is designed for the protection of the shipping public and of the carriers only insofar as necessary to protect the public so that the only significant unit of measurement under Section 4(1) is the total charge to the shipper. The Motor Carrier Act of 1935 changed the status of motor carriers vis-a-vis regulated rail carriers, from shipper to connecting carrier. Thus, it would be legal and economic nonsense to apply Section 4(1) only to the rail portion of a joint rail-motor operation; in such a case either the rail portion must be excluded or the motor portion included in the coverage of the provision. This is the simple dilemma in which the Commission found itself in the Motor - Rail - Motor Traffic case in 1936. As this full discussion of it shows, however, there is nothing in the law which compels the joint rates to be treated as a unit to compel their treatment under Section 4(1). As shown earlier, the entire thrust of Parts I and II, when read together, points to the contrary conclusion. The exclusion of the rail portion of a joint rail-motor operation from Part I is inherent in its inclusion under the comprehensive provisions of Part II, while there is nothing to indicate that the motor carrier portion was to be included in any provision of Part I. The Commission's need to find that the motor carrier "assumes" the obligations of Section 4 shows the strain which its interpretation puts upon the language of the statute. If a motor carrier is " any common carrier subject to this part [Part I]" under Section 4(1), then it must be a common carrier subject to Part I under Sections 1(4), 1(6), 1(7), 1(9), 1(11), 2, 3(1), 3(4), 5(1), 6(1), 6(2), 6(5), 7, 8, 9, 10(1), 10(2), and to other sections by implication. A casual reference to these provisions of Part I shows the absurdity of such an argument. Yet this would appear the inevitable result of a holding that a motor carrier, by entering into a joint arrangement with a railroad, assumes the obligations of Part I. However, when Congress intended to exclude a carrier such as a water carrier specifically covered by Part I it did so by defining the carrier as a "carrier by railroad" (e.g., Section 1(16)), and where it desired to exclude a railroad carrier and limit the provision to a "carrier by water" it so provided (e.g., Section 5(1)), and where it intended the term "carrier" to include a motor carrier it made specific provision to that effect. Section 5(13). Moreover, there are numerous references to motor carriers and restrictions in connection with their acquisition by railroads in Section 5 of Part I.

 While the precise question raised herein has not been the subject of prior judicial determination, the courts have consistently refused to rewrite the Interstate Commerce Act by the cross-application of sections of one Part to another Part or by expanding by implication the application of any section to carriers other than the one for which the particular Part of the Act was framed, in the absence of clear and unequivocal provision by Congress.

 In T.I.M.E., Inc. v. United States [supra], 359 U.S. 464, 79 S. Ct. 904, 3 L. Ed. 2d 952 (1958), a shipper of goods by motor carrier attempted to challenge in post-shipment litigation the reasonableness of the carrier's charges which were made in accordance with the tariff governing the shipment, claiming that a right of action to recover the unreasonable rates was granted by implication under Sections 316(b) and (d) of Part II (The Motor Carrier Act) which imposed a duty not to charge or collect other than reasonable rates. The Court, pointing out that while the provisions of Part I, and their counterparts in Part III, gave such a right of action, noted that such provisions were conspicuously absent in Part II and refused to find such provisions therein by implication.

 In Consolidated Freightways, Inc. v. United Truck Lines, Inc., 216 F.2d 543 (9th Cir. 1954), cert. denied, 349 U.S. 905, 99 L. Ed. 1242, 75 S. Ct. 582 (1955), the plaintiff motor carrier sued defendant motor carrier for money damages because the latter had been transporting property over a route for which, unlike plaintiff, it had not been certificated.


"In oral argument appellant urged that Part I of the Interstate Commerce Act, the original Act, and Part II of the Interstate Commerce Act, the Motor Carrier Act of 1935, must be regarded as one piece of legislation on the theory that Part II is merely an amendment of Part I and as such necessarily 'incorporates', i.e., assimilates, the provisions of Sections 8 and 9 of Part I, 49 U.S.C. §§ 8 and 9.


"We do not agree with the theory advanced in the preceding paragraph. As we have indicated above, Part II makes provision only for criminal penalties and injunctive remedies to be sought by the Commission. In contrast with Part I, Part II is silent as to any private remedy for a violation of any of its provisions. This omission is significant, and persuades us that Part II is to be regarded as a wholly independent legislative enactment in which Congress deliberately elected to provide no remedies for violation of any of its provisions other than those carefully spelled out in Part II itself." Id. at 545.

 In McFaddin Express, Inc. v. Adley Corporation, 363 F.2d 546 (2d Cir.), cert. denied 385 U.S. 900, 17 L. Ed. 2d 132, 87 S. Ct. 206 (1966), plaintiffs, an interstate motor carrier and its stockholders, attempted to impose liability upon another carrier for a violation of Section 5(4). A majority of the court held that in the absence of provision in Title II, no private right of action against a motor carrier for violation of that section existed. This conclusion was reached in spite of the fact that Section 5(13) defines motor carriers as within the term "carrier" as used in paragraphs (2)-(12) of Section 5 and "hence it can be said with verbal accuracy that violation of § 5(4) of a motor carrier is a violation by a 'carrier subject to the provisions of this chapter' within the terms of §§ 8 and 9." 363 F.2d at 548-49. Furthermore, the conclusion was reached despite the prior passage of the Act of September 6, 1965, 79 Stat. 648, which amended § 204(a) to grant a right to reparation for unreasonable or discriminatory charges by motor carriers, and added a new section 222(b)(2), giving a private right of action to enjoin "clear and patent violation" of the licensing requirements. Id. at 549.

 The clear separation of the various Parts of the Act has not escaped judicial notice. In Atchison, Topeka and Santa Fe Railway Co. v. United States, 244 F. Supp. [955] at 964-65, the Court noted that:


"The internal structure of the Interstate Commerce Act itself bears evidence of the limited authority conferred on the carrier. Each mode of transportation is the subject of a separate formal part of the Act: part I deals with rail carriers; part II with carriers by motor vehicle; part III with carriers by water; and part IV with freight forwarders. The certificate of public convenience and necessity or license appropriate for each mode of transportation is, by its terms and by the internal logic of the legislation, confined to transportation by that mode. Thus the certificate issued to a motor carrier constitutes a formal determination of the public need for motor transportation, regardless of the availability of other modes, and authorizes the holder to engage in for-hire transportation by 'motor vehicle', not by rail or other modes, and on the 'public highway.'


"When operation by another mode is permissible, specific legislative exceptions have been created. Thus freight forwarders under part IV are specifically authorized to ship goods by means of common carriers governed by other parts of the Act. Such special exceptions mirror the underlying statutory scheme that limits the carrier in each mode to transportation within and by that mode, absent special exception.


"These elementary observations make plain the legislative plan that motor carriers shall perform their authorized services by motor vehicle unless shipment by other modes is permitted by some specific statutory exception. The only relevant statute which allows such substitution is Section 216(c) of the Act. It provides:


"'(c) Common carriers of property by motor vehicle may establish reasonable through routes and joint rates, charges and classifications with other such carriers or with common carriers by railroad and/or express and/or water . . . . In case of such joint rates, fares, or charges it shall be the duty of the carriers parties thereto to establish just and reasonable regulations and practices in connection therewith, and just, reasonable, and equitable divisions thereof as between the carriers participating therein which shall not unduly prefer or prejudice any of such participating carriers. . . .'


"It is agreed on all sides that this provision is permissive. In declaring that carriers ' may establish' through routes and joint rates, Congress left the matter to voluntary agreement, and did not empower the Commission to require such cooperation or coordination. This literal interpretation of Section 216(c) is reinforced by comparison with other provisions of the Act which, as between other classes of carriers, authorize compulsory through routes by Commission order. "

 Although it seems clear that Section 216(c) is permissive as to both joint allmotor and joint rail-motor routes and rates, if Part I and Part II may be cross-referenced without legislative authority, then Sections 3(4) and 15(3) of Part I may be cross-referenced and applied against both modes and a rail carrier, having entered into a joint rate with a motor carrier would, under Section 3(4) be obligated to join in the same rates with any other motor carrier, although the Commission has expressly concluded otherwise. Movement of Highway Trailers by Rail, 293 I.C.C. 93, 105 (1954) (New Haven case). *fn5"

 There is much discussion in the briefs of the legislative history of Section 216(c) of Part II, which contains the provision authorizing joint motor-rail tariffs. In 1928, 1932 and 1934 the Commission recommended to Congress that it authorize joint motor-rail tariffs and each recommendation specifically provided that such tariffs be subject to the present Part I. The reason for such recommendation is clear. In 1928 at least the Commission recognized that the provisions of Part I would not apply to transportation partly by railroad and partly by motor. None of the recommendations was acted upon by Congress. When the Motor Carrier Act of 1935 was passed it authorized joint tariffs but without express reference to Part I. From these facts the plaintiffs infer that Congress considered placing joint tariffs under Part I and deliberately rejected the idea. The Commission argues that the earlier recommendations were connected with bills or proposals substantially different from the statute finally enacted and that there was never any discussion by the legislators on the record concerning the reasons for omitting the cross-reference. Under these circumstances, the Commission may be correct in saying that no great significance can be attached to the omission. On the other hand, the legislative inaction which the Commission cites in its favor, i.e., the failure of Congress to reverse the Commission's 1936 decision, is subject to the same comment - it has not been debated in Congress, no reason for it has been stated by Congress, and it has not been subject to independent vote. Thus, if the prior legislative history does not negate the Commission's claim that joint motor-rail tariffs are subject to Part I, the inaction of Congress after the Commission's 1936 decision certainly does not substantiate that claim. *fn6"

 On the other hand, the legislative history cited by an intervening defendant, The Port of New York Authority, does show clearly the reasons why motor carriers were not made subject to Section 4(1). The statements quoted come down to the fact that the number of motor carriers and the variety of their routes and services (1) provide competitive pressures which make the provision less necessary than it is for railroads, and (2) would place an undue administrative burden upon the carriers and the Commission. The point which defendants disregard is that these same considerations are also applicable in part to TOFC services. For example, Plan I and sometimes Plan V TOFC rates are set at levels competitive with all-motor shipments rather than with other rail services. See Substituted Service, 322 I.C.C. 301, 304 (1964); Motor-Rail-Motor Traffic in East and Midwest, 219 I.C.C. 245, 270 (1936). Furthermore, although TOFC services must be routed through specially equipped rail terminals, they are not limited to places contiguous to rail lines. Thus, competition in joint rail-motor transportation is more like that in all-motor transportation than in all-rail transportation. With regard to motor carriers, Congress clearly found that the need for flexibility and speed in setting rates to meet competition without undue delay or administrative burdens outweighed any regulatory purpose that the application of Section 4(1) would serve. While certain economic considerations apply to motor-rail transportation which do not apply to all-motor transportation, particularly the high ratio of fixed costs to variable costs which makes long-and-short haul discrimination profitable, Locklin, Economics of Transportation, 469, 488 (6th ed. 1966), the competitive conditions of motor-rail operations, in addition to the Commission's powers under Part II of the Act, remove much of the incentive for discrimination unjustified under established principles for Section 4 relief. See Louisville & Nashville Railroad Co., 1 I.C.C. 31 (1887); Locklin, supra at 480-82. Thus, consideration of the economic factors which Congress has deemed to control the application of Section 4(1) does not bar the interpretation given above, but confirms it. The Commission's interpretation, on the other hand, would unnecessarily hinder legitimate competition contrary to National Transportation Policy and increase the rigidity of transportation rates.

 The defendants attempt to justify the Commission's ruling as a matter of policy on the ground that a contrary ruling would render Section 4 entirely ineffective, allowing railroads to avoid its requirements at will merely by tacking a short motor haul to any rail haul in the form of a joint service. In effect, the defendants charge that the railroads would try to use the exclusion of joint motor-rail services from Section 4(1) illegitimately and without any other justification than the evasion of that provision. Whether railroads would take such action is, however, highly speculative, and such speculation has little weight as against the existing and increasing burden placed upon the transportation system by the present application of Section 4(1). *fn7" Furthermore, the differences between competition in all-rail transportation and joint motor-rail transportation which justify the exclusion of the latter from Section 4(1) requirements arise chiefly in cases where the motor portions are line hauls, so the danger of evasion would seem most likely in cases where both the origin and destination of the through routes are in terminal areas of the railroad and could be served under Plan II. The Commission has considered such cases and determined that Plan I and Plan V services are permitted, Substituted Services [supra], 322 I.C.C. 301, 355-61 (1964), but for purposes of Section 4(1) it may establish a rebuttable presumption that they are railroad terminal services under Section 202(c)(2) of the Act, 49 USC § 302(c)(2), and thus subject to Section 4(1). Thus, specific remedies might be developed for specific areas of abuse, rather than using the Commission's shotgun approach.

 The defendants also contend that under the provisions of Part II the Commission can, upon complaint, stay the effective date of a tariff for only seven months. If seven months is not sufficient time for proper administrative adjudication, the remedy is an amendment of Section 316(g) by Congress, not the indiscriminate imposition of indefinite administrative delay upon carriers and shippers by the Commission.

 The plaintiffs are entitled to a judgment setting aside and annulling the order of the Interstate Commerce Commission and permanently enjoining the enforcement and operation thereof.

 Settle judgment on notice.

 I am authorized to state that Judge Tenney concurs in the foregoing opinion.

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