Before McGOWAN, Chief Judge, and WRIGHT, Circuit Judge, and GASCH,* United States District Judge for the District of Columbia.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
ASSOCIATION, AMERICAN TRUCKING ASSOCIATION, INC., FEDERAL
MARITIME COMMISSION, HOUSTON PORT BUREAU, INC., ET AL.,
SOUTH CAROLINA STATE PORTS AUTHORITY, INTERVENORS 1981.CDC.63
Petition for Review of an Order of the Interstate Commerce commission.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
This is a proceeding to review an order of the Interstate Commerce Commission, in which the Commission accepted for the first time exclusive jurisdiction over tariffs naming joint motor/water through rates in trade between the United States and Puerto Rico. In large part the Commission reversed its longstanding previous practice on the strength of Trailer Marine Transport v. Federal Maritime Commission, 195 U.S. App. D.C. 201, 602 F.2d 379 (D.C.Cir. 1979) , in which a panel of this court held that the ICC may exercise exclusive jurisdiction over tariffs naming joint rail/water through rates in the same trade. For the reasons that follow, we affirm the Commission's extension of TMT to motor/water as well as rail/water through rates. I
Trailer Marine Transport is a common carrier by water which operates between ports in the United States and Puerto Rico. Prior to August 1977, TMT operated a single-rate, all-water service between Puerto Rico and Florida. In 1977, however, TMT filed with the Interstate Commerce Commission a tariff naming through rates for a new rail/water intermodal service for the joint carriage of goods *fn1 between points within the continental United States and seaports in Puerto Rico. Pursuant to this tariff, TMT would transport goods on the marine segment of the route and various independent rail carriers would transport the goods within the continental United States. Customers would pay one through rate, to be apportioned between the rail and water carriers according to the terms of their agreement. The Commission accepted exclusive jurisdiction over the tariff, and the joint service commenced operation on November 8, 1977.
Shortly thereafter, TMT filed a tariff similar to the one previously approved, except that the continental segment of the journey would be assumed by motor rather than rail carriers (a provision hereinafter termed a "joint motor/water through rate"). The ICC rejected this tariff, however. TMT filed for reconsideration, but the ICC upheld its previous determination.
Meanwhile, the Federal Maritime Commission filed suit in the United States District Court for the District of Columbia, attempting to set aside the ICC's assertion of exclusive jurisdiction over joint rail/water through rates. The FMC believed that it alone had the power to regulate or accept tariffs with respect to the marine segment of the joint through routes operating between the United States and Puerto Rico. On review, however, this court upheld the ICC's assumption of exclusive jurisdiction over rail/water through rates. Trailer Marine Transport v. Federal Maritime Commission, 195 U.S. App. D.C. 201, 602 F.2d 379 (D.C.Cir. 1979).
Immediately after the TMT opinion issued, TMT petitioned the ICC to reconsider its conflicting decision with respect to joint motor/water rates, arguing that the TMT opinion requires the Commission to take a more expansive view of its powers with respect to traffic in the Puerto Rico trade. The ICC agreed and, on September 10, 1979, handed down the decision now on review.
In its decision upon reconsideration, the ICC reversed its position and for the first time asserted exclusive jurisdiction over tariffs naming joint motor/water through rates in the Puerto Rico trade. The Commission based its decision on the TMT court's findings that (1) Puerto Rico is a "possession" of the United States for purposes of the Interstate Commerce Act ("the Act"), and (2) that the "limitation clause" contained in section 10501 of the Act (and quoted almost verbatim in section 10521, which pertains to motor carriers) is to be read only to prevent ICC regulation of intra-territorial traffic, not to prevent ICC
On October 12, 1979, Puerto Rico Maritime Shipping Authority , a common carrier by water owned by the Government of Puerto Rico, petitioned the ICC to reject TMT's tariff on the grounds that the Commission had no jurisdiction even to accept filings pertaining to the marine leg of a joint through route between Puerto Rico and the United States, much less to assert exclusive jurisdiction over the entire route. The ICC rejected this petition, and refused to stay the tariff pending review by this court. The Court of Appeals eventually stayed the operation of that tariff pending review. *fn2
Numerous parties have since intervened on both sides of the dispute. Supporting the ICC's order are Trailer Marine Transport, progenitor of the tariff which began the dispute, and American Trucking Associations, Inc. The major opponent of the order is the Federal Maritime Commission, as well as various municipal and state shipping authorities which have intervened to protect the livelihood of certain ports operating along the Puerto Rico/United States shipping lines. *fn3 The International Longshoremen's Association, AFL-CIO, and Sea Land Service, Inc., have also joined in the brief urging reversal of this order. II
The issues in this case are two: (1) whether the ICC has the authority to accept and regulate tariffs naming joint rates entered into by motor carriers and water carriers operating between the United States and Puerto Rico, and if so, (2) whether this jurisdiction reposes exclusively in the ICC or concurrently in the ICC and FMC. The first issue turns upon our construction of the Interstate Commerce Act, Part II, which is the statutory authority for the ICC's regulation of motor
The Interstate Commerce Act, Part II, grants the Interstate Commerce Commission general jurisdiction over motor transportation in the following instance, inter alia:
(a) Subject to this chapter and other law, the Interstate Commerce Commission has jurisdiction over transportation by motor carrier ... to the extent that passengers, property, or both, are transported by motor carrier
The United States and a place in a territory or possession of the United States to the extent the transportation is in the United States; *fn4
Section 216(c) authorizes the establishment of joint through routes between motor and other common carriers for the purpose of facilitating efficient and cheaper transportation of goods. It provides:
A carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of this title shall ...