Locust Cartage Co. v. Transamerican Freight Lines Inc.

430 F.2d 334 (1970) | Cited 38 times | First Circuit | August 3, 1970


1. Locust is authorized to transport general commodites within Massachusetts under a certificate issued by the Massachusetts Department of Public Utilities and registered with the I.C.C. pursuant to 49 U.S.C. § 306(a)(1). Transamerican transports general commodities between points in a number of states under an I.C.C. certificate, and also possesses irregular route authority from the Massachusetts DPU.

2. 49 U.S.C. § 316(c) permits carriers to establish joint rates. This is usually accomplished by having one carrier concur in the rates of the other pursuant to 49 C.F.R. § 1307.47.

3. The Court order read, in relevant part: "Both parties will seek to secure an informal or, if possible, a formal ruling from the ICC as to whether in its opinion the agency tariffs of New England Motor Rate Bureau, Inc. would apply to the carriage of Locust Cartage Company, Inc. upon the following assumptions: "The first assumption is that there was an oral agreement or a novation of a written agreement under which Locust Cartage Company, Inc. agreed to carry for Transamerican Freight Lines, Inc. goods which were covered by shipping contracts between Transamerican Freight Lines, Inc. and its customers. "The second assumption is that the actual carriage was within the points that Transamerican Freight Lines, Inc. was authorized by the ICC to carry goods. "The third assumption is that the shipper paid to Transamerican Freight Lines, Inc. precisely the amount that was appropriate if the total carriage was by Transamerican Freight Lines, Inc. "The fourth assumption is that Transamerican Freight Lines, Inc. did not have complete control of the operations of Locust Cartage Company, Inc. With respect to the fourth assumption, a more detailed statement may be made by the parties."

4. 49 U.S.C. § 302(c)(2) provides that the provisions of the Motor Carrier Act shall not apply to pick up and delivery service performed for a common carrier within a terminal area -- here the commercial zone of Boston. See also 49 C.F.R. § 1057.3(c) exempting operations within a commercial zone from the I.C.C.'s lease regulations.

5. By this ruling we do not intend to encumber every carrier's suit for undercharges with a parallel administrative proceeding. The doctrine of primary jurisdiction is a flexible tool for the allocation of business between court and agency, and should seldom be invoked unless a factual question requires both expert consideration and uniformity of resolution. Thus no reference to the agency is necessary when the issue turns on questions of law which have not been committed to agency discretion, e.g., Packard Motor Car Co. v. NLRB, 330 U.S. 485, 91 L. Ed. 1040, 67 S. Ct. 789 (1947), or when agency policy has already been clearly enunciated, e.g., Shew v. Southland Corp., 370 F.2d 376, 379-380 (5th Cir. 1966), or when the issue turns on questions of fact which are peculiar to the case and have no broader implications for the I.C.C.'s regulatory program. E. g., Pennsylvania R.R. Co. v. Fox & London, 93 F.2d 669 (2d Cir. 1938). In this case, however, the question of whether Locust performed transportation raises broader issues of transportation policy requiring uniform agency resolution. Otherwise, Transamerican's identical relationships with two carriers in different terminal areas could produce diametrically opposed rulings on the appropriate tariff.

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