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December 11, 1981

DELAWARE AND HUDSON RAILWAY COMPANY, 40 Beaver Street, Albany, N.Y., 12207, Plaintiff,
CONSOLIDATED RAIL CORPORATION, 1138 Six Penn Center Plaza, Philadelphia, Pa., 19104, Defendant

The opinion of the court was delivered by: MINER



In this action plaintiff seeks an injunction directing the defendant, Consolidated Rail Corporation, to concur in a joint rate applicable to the interline transportation of freight, specifically newsprint, over the rail lines of Canadian National Railways, Conrail and the plaintiff, Delaware and Hudson Railway Company. Federal jurisdiction is asserted under 28 U.S.C. §§ 1332(a)(1) and (c). Before the Court is plaintiff's motion for a preliminary injunction. *fn1"


 The dispute arises from the transportation of newsprint and groundwood paper ("newsprint") from a shipper located in Grand Mere, Province of Quebec, Canada to a buyer located in Parkesburg, Pennsylvania. This newsprint is shipped over two alternate routes. It may be shipped via Canadian National Railways (hereinafter "CN"), from Grand Mere to Rouses Point, New York, from there via Delaware and Hudson Ry. Co. (hereinafter "D&H") to Harrisburg, Pennsylvania, and from Harrisburg via Consolidated Rail Corporation (hereinafter "Conrail") to Parkesburg ("Rouses Point Route"). Alternatively, it may be shipped via CN from Grand Mere to Huntingdon, Province of Quebec, and from there via Conrail to Parkesburg ("Huntingdon Route"). Up until November 11, 1981, the cost to a shipper was $ 2.81 per 100 pounds ("joint rate"), regardless of the route over which the newsprint was shipped.

 CN announced its intention to publish a new joint rate of $ 2.35 per 100 pounds applicable to newsprint. Conrail ultimately refused to concur in the new rate via the Rouses Point Route. However, it concurred via the Huntingdon Route. D&H concurred via the Rouses Point Route. Consequently, CN published and filed with the Interstate Commerce Commission (hereinafter "ICC") a tariff establishing the reduction for the Huntingdon Route, pursuant to 49 U.S.C. § 10762. *fn2" This rate took effect November 11, 1981.

 Initially, Conrail indicated its willingness to concur on the new joint rate on both routes. However, it later rescinded its concurrence for the Rouses Point Route. Negotiations between D&H and Conrail, as to concurrence on the new rate for the Rouses Point Route, have failed to produce an agreement. Therefore, CN did not publish a new rate for shipments via the Rouses Point Route.

 D&H asserts that, since there are now two different rates application on the Huntingdon and Rouses Point Routes, it is to the shipper's advantage to seek the least expensive transportation. Shippers have told D&H that the lower rate for newsprint shipped via the Huntingdon Route will make it uneconomical to ship via D&H's Rouses Point Route.

 Moreover, D&H claims that it is a party to an agreement with Conrail executed December 19, 1975, which covers, inter alia, the maintenance of joint rates and access to these routes. This agreement, D&H asserts, represented a compromise reached between D&H, and other small carriers, with Conrail to prevent Congress from binding Conrail by statute to similar obligations. *fn3" D&H claims that Conrail's refusal to concur in the joint rate for newsprint shipped via the Rouses Point Route, while concurring in the joint rate via the Huntingdon Route, is a clear breach of this agreement. This breach, D&H claims, will cause traffic to be diverted away from Rouses Point, thus away from D&H, causing irreparable economic harm to D&H.

 Conrail asserts that the agreement is merely a broad statement of its obligation not to engage in discriminatory or unreasonable practices as to its shared route with D&H. There is nothing in this agreement which precludes Conrail from competing with D&H on other non-shared routes. What Conrail may not do is cancel existing joint and through rates with D&H, or act in any manner as to impair D&H service over their joint routes. Conrail claims that in effectuating D&H's interpretation of the agreement, Conrail would be prohibited from effectively competing and attracting traffic.

 The threshold question here is whether this Court has jurisdiction to grant relief to prevent breach of a rate contract enjoining a carrier from refusing to file a concurrence of a tariff. Having considered the arguments, briefs and affidavits submitted by counsel for the parties, this Court concludes that, since the Court has no jurisdiction over this matter, the motion for a preliminary injunction should be denied.


 Conrail argues that the ICC has "primary jurisdiction" over the subject matter of this controversy for several reasons. *fn4" First, determination of whether Conrail has breached the agreement cannot be made until several factors have been resolved by the ICC. The ICC must determine whether the agreement, given the present "regulatory climate", remains binding on the parties. The ICC must also consider whether the several pieces of transportation legislation enacted subsequent to the agreement have rendered many of its obligations null and void. These issues are currently being considered by the ICC. *fn5" Since determination by the ICC of the status and effect of this agreement must precede any determination of any breach, this Court, Conrail argues, must yield to the primary jurisdiction of the ICC to provide any remedy based upon the agreement.

 Second, Conrail contends that determination of the force and effect of the agreement can only be made by the ICC since a detailed knowledge of the interrelationship of the "3R Act of 1973", the "4R Act of 1976" *fn6" and the Staggers Rail Act of 1980 ("Staggers Act") is required. Congress has given the ICC the primary responsibility for interpreting and enforcing these laws, and the ICC's special expertise regarding the transportation ...

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