The three respondent railroads sued the United States in the
Court of Claims under the Tucker Act to recover the difference
between the tariff rates actually paid and those allegedly due on
certain Army shipments of steel aerial bomb cases filled with
napalm gel, but without the bursters and fuses required to ignite
them. The carriers claimed to be entitled to payment at the high
first class rates established in Item 1820 of Consolidated Freight
Classification No. 17 for "incendiary bombs." In each case, the
suit was brought within six years, though not within two years,
after the cause of action accrued. The Court of Claims entered
summary judgment for respondents. On review here,
held:
1. In the circumstances here presented, the question of tariff
construction, as well as that of the reasonableness of the tariff
as applied, was within the exclusive primary jurisdiction of the
Interstate Commerce Commission. Pp.
352 U. S.
62-70.
(a) The doctrine of primary jurisdiction, like the rule
requiring exhaustion of administrative remedies, is concerned with
promoting proper relationships between the courts and
administrative agencies charged with particular regulatory duties.
Pp.
352 U. S.
63-65.
(b) A determination of the meaning of the term "incendiary bomb"
in Item 1820 involves factors "the adequate appreciation of which"
presupposes an "acquaintance with many intricate facts of
transportation." Pp.
352 U. S.
65-68.
(c) Where, as here, the problem of cost allocation is relevant,
and where therefore the questions of the construction of a tariff
and of the reasonableness of the tariff are so intertwined that the
same factors are determinative on both issues, then it is the
Commission which must first pass upon them. Pp.
352 U. S.
68-69.
2. The issues as to the construction and reasonableness of the
tariff having been raised by way of defense, referral of those
questions to the Commission is not barred by the two-year
limitation prescribed by § 16(3) of the Interstate Commerce Act.
Pp.
352 U. S.
70-74.
Page 352 U. S. 60
3. The Court of Claims erred in disposing by summary judgment of
the Government's defense that two of the respondents were estopped
from charging the "1820" rate. Pp.
352 U. S.
74-76.
132 Ct.Cl. 115, 131 F. Supp. 919, reversed and remanded.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The three respondent railroads each sued in the Court of Claims
to recover from the United States as shipper the difference between
the tariff rates actually paid and those allegedly due on 211 Army
shipments of steel aerial bomb cases filled with napalm gel.
[
Footnote 1] Approximately 200
of the shipments were made over the lines of respondents Bangor and
Seaboard in 1944; the remainder were carried by respondent Western
Pacific in 1948 and 1950.
Napalm gel is gasoline which has been thickened by the addition
of aluminum soap powder. The mixture is inflammable but not
self-igniting. In a completed incendiary bomb, the napalm gel is
ignited by white phosphorus contained in a burster charge, which,
in turn, is fired by a fuse. These shipments, however, involved
only the steel casings and the napalm gel; burster and fuse had not
yet been added.
The carriers billed the Government at the high first-class rates
established in Item 1820 of Consolidated Freight Classification No.
17 for "incendiary bombs." Pursuant to § 322 of the Transportation
Act of 1942, [
Footnote 2]
the
Page 352 U. S. 61
Government paid the bills of the Bangor and the Seaboard as
presented; on post-audit, however, the General Accounting Office
made deductions against these respondents' subsequent bills on
other shipments on the ground that the shipments in question should
have been carried at the lower, fifth-class, rate applicable to
gasoline in steel drums. [
Footnote
3] The bills of the Western Pacific were initially paid at the
lower rate. Respondents thereupon brought the present suits to
recover the difference between the bills as rendered and as paid in
the case of the Western Pacific, and the amount of the deductions
in the other two cases.
The Government defended on three grounds: (1) that Item 1820 was
inapplicable because absence of burster and fuse deprived these
bombs of the essential characteristics of "incendiary bombs," and
hence no additional sums were due; (2) that, if this tariff item
was held to govern, the tariff would be unreasonable as applied to
these shipments, and that, as to this issue, the court proceedings
should be suspended and the matter referred to
Page 352 U. S. 62
the Interstate Commerce Commission; and (3) that, in any event,
the Bangor and Seaboard were estopped from charging the "1820"
rate.
The Court of Claims, relying on its earlier decision in
Union Pacific R. Co. v. United States, 111 F. Supp. 266,
125 Ct.Cl. 390, [
Footnote 4]
entered summary judgment for respondents, two judges dissenting.
[
Footnote 5] It held that the
shipments in question were "incendiary bombs" within the meaning of
Item 1820 of the tariff, and thus entitled to the higher rate. In
addition, while seemingly recognizing the Government's right to
have the defense of unreasonableness determined by the Interstate
Commerce Commission, the court ruled that the running of the
two-year period of limitations provided by § 16(3) of the
Interstate Commerce Act [
Footnote
6] cut off the right of referral to the Commission. Lastly, the
court overruled the defense of estoppel as to the respondents
Bangor and Seaboard. Because of the importance of these questions
in the administration of the Interstate Commerce Act, and alleged
conflict among the lower courts on the issue of limitations, we
granted certiorari. 350 U.S. 953.
I
We are met at the outset with the question of whether the Court
of Claims properly applied the doctrine of primary jurisdiction in
this case -- that is, whether it correctly allocated the issues in
the suit between the jurisdiction of the Interstate Commerce
Commission and that of the court. In the view of the court below,
the case presented two entirely separate questions. One was the
question
Page 352 U. S. 63
of the construction of the tariff -- whether Item 1820 was
applicable to these shipments. The second was the question of the
reasonableness of that tariff if so applied. The Court of Claims
assumed, as it had in the
Union Pacific case,
supra, that the first of these -- whether the "1820" rate
applied -- was a matter simply of tariff construction, and thus
properly within the initial cognizance of the court. [
Footnote 7] The second -- the reasonableness
of the tariff as applied to these shipments -- it seemed to regard
as being within the initial competence of the Interstate Commerce
Commission. Before this Court, neither side has questioned the
validity of the lower court's views in these respects.
Nevertheless, because we regard the maintenance of a proper
relationship between the courts and the Commission in matters
affecting transportation policy to be of continuing public concern,
we have been constrained to inquire into this aspect of the
decision. We have concluded that, in the circumstances here
presented, the question of tariff construction, as well as that of
the reasonableness of the tariff as applied, was within the
exclusive primary jurisdiction of the Interstate Commerce
Commission.
The doctrine of primary jurisdiction, like the rule requiring
exhaustion of administrative remedies, is concerned with promoting
proper relationships between the courts and administrative agencies
charged with particular regulatory duties. "Exhaustion" applies
where a claim is cognizable in the first instance by an
administrative agency alone; judicial interference is withheld
until the administrative process has run its course. "Primary
Page 352 U. S. 64
jurisdiction," on the other hand, applies where a claim is
originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which,
under a regulatory scheme, have been placed within the special
competence of an administrative body; in such a case, the judicial
process is suspended pending referral of such issues to the
administrative body for its views.
General American Tank Car
Corp. v. El Dorado Terminal Co., 308 U.
S. 422,
308 U. S. 433.
No fixed formula exists for applying the doctrine of primary
jurisdiction. In every case, the question is whether the reasons
for the existence of the doctrine are present and whether the
purposes it serves will be aided by its application in the
particular litigation. These reasons and purposes have often been
given expression by this Court. In the earlier cases, emphasis was
laid on the desirable uniformity which would obtain if initially a
specialized agency passed on certain types of administrative
questions.
See Texas & Pacific R. Co. v. Abilene Cotton Oil
Co., 204 U. S. 426.
More recently, the expert and specialized knowledge of the agencies
involved has been particularly stressed.
See Far East
Conference v. United States, 342 U. S. 570. The
two factors are part of the same principle,
"now firmly established, that in cases raising issues of fact
not within the conventional experience of judges or cases requiring
the exercise of administrative discretion, agencies created by
Congress for regulating the subject matter should not be passed
over. This is so even though the facts, after they have been
appraised by specialized competence, serve as a premise for legal
consequences to be judicially defined. Uniformity and consistency
in the regulation of business entrusted to a particular agency are
secured, and the limited functions of review by the judiciary are
more rationally exercised, by preliminary
Page 352 U. S. 65
resort for ascertaining and interpreting the circumstances
underlying legal issues to agencies that are better equipped than
courts by specialization, by insight gained through experience, and
by more flexible procedure."
Id. at
342 U. S.
574-575. The doctrine of primary jurisdiction thus
does
"more than prescribe the mere procedural timetable of the
lawsuit. It is a doctrine allocating the lawmaking power over
certain aspects"
of commercial relations. "It transfers from court to agency the
power to determine" some of the incidents of such relations.
[
Footnote 8]
Thus the first question presented is whether effectuation of the
statutory purposes of the Interstate Commerce Act requires that the
Interstate Commerce Commission should first pass on the
construction of the tariff in dispute here; this, in turn, depends
on whether the question raises issues of transportation policy
which ought to be considered by the Commission in the interests of
a uniform and expert administration of the regulatory scheme laid
down by that Act. Decision is governed by two earlier cases in this
Court. In
Texas & Pacific R. Co. v. American Tie &
Timber Co., 234 U. S. 138, a
shipper attempted to ship oak railroad ties under a tariff for
"lumber." The carrier rejected them, urging that such ties were not
lumber. In a damage action, expert testimony was received on the
question. This Court, however, held that the Interstate Commerce
Commission alone could resolve the question. The effect of the
holding is clear: the courts must not only refrain from making
tariffs, but, under certain circumstances, must decline to construe
them as well. A particularization of such circumstances emerged in
Great Northern R. Co. v. Merchants Elevator Co.,
259 U. S. 285.
There, the Court held that, where the
Page 352 U. S. 66
question is simply one of construction, the courts may pass on
it as an issue "solely of law." But where words in a tariff are
used in a peculiar or technical sense, and where extrinsic evidence
is necessary to determine their meaning or proper application, so
that "the inquiry is essentially one of fact and of discretion in
technical matters," then the issue of tariff application must first
go to the Commission. The reason is plainly set forth: such a
"determination is reached ordinarily upon voluminous and
conflicting evidence, for the adequate appreciation of which
acquaintance with many intricate facts of transportation is
indispensable, and such acquaintance is commonly to be found only
in a body of experts."
Id. at
259 U. S. 291.
We must therefore decide whether a determination of the meaning of
the term "incendiary bomb" in Item 1820 involves factors "the
adequate appreciation of which" presupposes an "acquaintance with
many intricate facts of transportation." We conclude that it
does.
A tariff is not an abstraction. It embodies an analysis of the
costs incurred in the transportation of a certain article and a
decision as to how much should, therefore, be charged for the
carriage of that article in order to produce a fair and reasonable
return. Complex and technical cost allocation and accounting
problems must be solved in setting the tariff initially. In the
case of "incendiary bombs," since it is expensive to take the
elaborate safety precautions necessary to carry such items in
safety, evidently there must have been calculation of the costs of
handling, supervising, and insuring an inherently dangerous cargo.
In other words, there were obviously commercial reasons why a
higher tariff was set for incendiary bombs than for, say, lumber.
It therefore follows that the decision whether a certain item was
intended to be covered by the tariff for incendiary bombs involves
an intimate knowledge of these very reasons themselves. Whether
steel casings filled with napalm
Page 352 U. S. 67
gel are incendiary bombs is, in this context, more than simply a
question of reading the tariff language or applying abstract
"rules" of construction. For the basic issue is how far the reasons
justifying a high rate for the carriage of extra-hazardous objects
were applicable to the instant shipment. Do the factors which make
for high costs and therefore high rates on incendiary bombs also
call for a high rate on steel casings filled with napalm gel? To
answer that question there must be close familiarity with these
factors. Such familiarity is possessed not by the courts, but by
the agency which had the exclusive power to pass on the rate in the
first instance. And, on the other hand, to decide the question of
the scope of this tariff without consideration of the factors and
purposes underlying the terminology employed would make the process
of adjudication little more than an exercise in semantics.
The main thrust of the Government's argument on the construction
question went to the fact that the shipments here involved were not
as hazardous as contemplated by the term "incendiary bomb" as used
in the tariff, and that therefore the tariff should not be
construed to cover them. [
Footnote
9] Similarly, the dissenting judges below emphasized the
absence from the shipments of the commercial factors which call for
a high rate on incendiary bombs:
"If the reason for the high freight rate is the incendiary
quality of the freight, and if the freight does not have the
incendiary quality, the reason for the high rate vanishes, and the
rate should vanish with it."
132 Ct.Cl. at 118, 131 F. Supp. at 921. The difficulty with this
line of argument is that we do not know whether
Page 352 U. S. 68
the "incendiary quality of the freight" was in fact the reason
for the high rate, still less whether that was the only reason, and
how much weight should be assigned to it. Courts which do not make
rates cannot know with exactitude the factors which go into the
ratemaking process. And for the court here to undertake to fix the
limits of the tariff's application without knowledge of such
factors, and the extent to which they are present or absent in the
particular case, is tantamount to engaging in judicial guesswork.
It was the Commission, and not the court, which originally
determined why incendiaries should be transported at a high rate.
It is thus the Commission which should determine whether shipments
of napalm gel bombs, minus bursters and fuses, meet those
requirements; that is, whether the factors making for certain
costs, and thus a certain rate, on incendiaries are present in the
carriage of such uncompleted bombs.
This conclusion is fortified by the artificiality of the
distinction between the issues of tariff construction and of the
reasonableness of the tariff as applied, the latter being
recognized by all to be one for the Interstate Commerce Commission.
For the Government's thesis on the issue of reasonableness is not
that the rate on incendiary bombs is, in general, too high. It
argues only that the rate. "as applied" to these particular
shipments. is too high --
i.e., that, since the expenses
which have to be met in shipping incendiaries have not been
incurred in this case, the carriers will be making an unreasonable
profit on these shipments. This seems to us to be but another way
of saying that the wrong tariff was applied. In both instances, the
issue is whether the factors which call for a high rate on
incendiary bomb shipments are present in a shipment of bomb casings
full of napalm gel but lacking bursters and fuses. And the mere
fact that the issue is phrased in one instance as a matter of
tariff construction and in the other as a matter of reasonableness
should not
Page 352 U. S. 69
be determinative on the jurisdictional issue. To hold otherwise
would make the doctrine of primary jurisdiction an abstraction to
be called into operation at the whim of the pleader. [
Footnote 10]
By no means do we imply that matters of tariff construction are
never cognizable in the courts. We adhere to the distinctions laid
down in
Great Northern R. Co. v. Merchants Elevator Co.,
supra, which call for decision based on the particular facts
of each case. Certainly there would be no need to refer the matter
of construction to the Commission if that body, in prior releases
or opinions, has already construed the particular tariff at issue
or has clarified the factors underlying it.
See Crancer v.
Lowden, 315 U. S. 631.
And, in many instances, construing the tariff does not call for
examination of the underlying cost allocation which went into the
making of the tariff in the first instance. We say merely that
where, as here, the problem of cost allocation is relevant, and
where, therefore, the questions of construction and reasonableness
are so intertwined that the same factors are determinative on both
issues, then it is the Commission which must first pass on
them.
Page 352 U. S. 70
We hold, therefore, that both the issues of tariff construction
and the reasonableness of the tariff as applied were initially
matters for the Commission's determination.
II
We come then to the question of whether referral of these issues
to the Commission was barred by the two-year period of limitation
contained in § 16(3) of the Interstate Commerce Act. We hold that
it was not.
Section 16(3)(a) provides that
"all actions at law by carriers subject to this chapter for
recovery of their charges . . . shall be begun within two years
from the time the cause of action accrues, and not after. [
Footnote 11]"
This provision makes it clear that, where a carrier sues a
private shipper, the action must be brought within two years.
However, the Tucker Act, 28 U.S.C. § 2501, provides that
"every claim of which the Court of Claims has jurisdiction shall
be barred unless the petition thereon is filed . . . within six
years after such claim first accrues."
Relying on the broad language of the latter act, the Court of
Claims has, since 1926, consistently held that §16(3) does not
apply to suits by carriers to recover alleged undercharges from the
United States as shipper.
Southern Pac. Co. v. United
States, 62 Ct.Cl. 391;
Seaboard Air Line R. Co. v. United
States, 83 F. Supp. 1012, 113 Ct.Cl. 437;
Union Pacific R.
Co. v. United States, 86 F. Supp. 907,
114
Ct.Cl. 714. The present suits were thus held timely brought,
[
Footnote 12] even though
more than two
Page 352 U. S. 71
years had elapsed since the accrual of the cause of action.
[
Footnote 13] However, the
Court of Claims held that the two-year limitation of § 16(3) did
bar the Government from obtaining a reference of its defense of
unreasonableness to the Interstate Commerce Commission. [
Footnote 14] Presumably it would
have ruled likewise as to the issue of tariff construction had it
regarded that question as lying initially within the competence of
the Commission. In other words, the holding below was that the
United States can be sued for six years, but can raise certain
defenses only if the suit is brought in the first two of those
years.
We may assume without deciding that the Government would have
been barred by § 16(3) from filing an affirmative suit before the
Commission to recover overcharges from a carrier. Nevertheless, we
do not think that the statute operates to bar reference to the
Commission of questions raised by way of defense in suits which are
themselves timely brought. Respondents in effect ask us to hold
that a suit may be brought for six years, but that certain defenses
thereto may be raised only for two years. Only the clearest
congressional language could force us to a result which would allow
a carrier to recover unreasonable charges with impunity merely by
waiting two years before filing suit.
Page 352 U. S. 72
Section 16(3) does not deal with referral of questions to the
Commission incident to judicial proceedings. On its face, it has to
do only with the commencement of actions or reparation proceedings
before the Commission. There is therefore no language which
militates against the conclusion that the statute does not apply to
referrals. More important, the basic policy behind statutes of
limitations has no relevance to the situation here. The purpose of
such statutes is to keep stale litigation out of the courts. They
are aimed at lawsuits, not at the consideration of particular
issues in lawsuits. Here, the action was already in court, and held
to have been brought in time. To use the statute of limitations to
cut off the consideration of a particular defense in the case is
quite foreign to the policy of preventing the commencement of stale
litigation. We think it would be incongruous to hold that, once a
lawsuit is properly before the court, decision must be made without
consideration of all the issues in the case and without the benefit
of all the applicable law. If this litigation is not stale, then no
issue in it can be deemed stale.
It is argued that this Court has construed § 16(3) as
"jurisdictional," and that the Commission is therefore barred
absolutely from hearing questions as to the reasonableness of rates
arising in suits brought after two years, whether such questions
come to the Commission by way of referral or in an original suit.
Reliance is placed upon
A. J. Phillips Co. v. Grand Trunk
Western R. Co., 236 U. S. 662;
William Danzer & Co. v. Gulf & S.I. R. Co.,
268 U. S. 633;
Midstate Horticultural Co. v. Pennsylvania R. Co.,
320 U. S. 356. But
these cases all dealt with affirmative claims for the recovery of
transportation charges, and not with referrals incident to suits
which were originally brought in time. The teaching of the
Midstate case, for instance, is that the running of the
statute destroys the right to affirmative recovery as well as the
remedy, so that the period of limitations cannot be waived by the
parties. But here the
Page 352 U. S. 73
Government is not asserting a right to affirmative recovery. It
is seeking only to have adjudicated questions raised by way of
defense. It is therefore irrelevant whether the statute of
limitations is "jurisdictional" or not; the question would still
remain whether Congress intended it to apply to referrals as well
as to affirmative suits. Nor does
Morrisdale Coal Co. v.
Pennsylvania R. Co., 230 U. S. 304,
help the respondents. There again, the statute of limitations was
invoked against a plaintiff in order to bar an affirmative claim
which was untimely filed. A coal shipper had sued a carrier for
damages arising out of the alleged discriminatory allotment of
railroad cars for its use. Stating that the propriety of the
carrier's method of allotment, even though incident to a damage
action, was cognizable only by the Commission, and that redress
there was governed by the two-year statute of limitations, the
Court held that the statute could not be evaded by filing suit in
the District Court, rather than before the Commission, and then
having the barred claim adjudicated by referral to the latter. In
effect, the holding was that the plaintiff had invoked the wrong
tribunal, and that, since limitations barred suit before the
correct tribunal, no referral could be made to the latter.
Morrisdale must be limited to its peculiar facts, and we
shall not extend it to bar the referral of defenses in actions
properly and timely brought, as the Court of Claims has held this
one was. [
Footnote 15]
We are told that the Government can protect itself, when it
believes it has been charged an unreasonable rate,
Page 352 U. S. 74
by filing an affirmative claim for reparations with the
Commission within the two-year period provided by § 16(3). But
Congress has relieved the Government from filing such anticipatory
suits by expressly authorizing the General Accounting Office to
deduct overpayments from subsequent bills of the carrier if, on
post-audit, it finds that the United States has been overcharged.
[
Footnote 16] This right was
thought to be a necessary measure to protect the Government, since
carriers' bills must be paid on presentation and before audit. On
respondents' theory the Government could invoke this right only at
the peril of losing its defenses in a later suit by the carrier.
Evidently this was not the purpose of Congress in authorizing
unilateral set-off. [
Footnote
17]
We hold, therefore, that the limitation of § 16(3) does not bar
a reference to the Interstate Commerce Commission of questions
raised by way of defense and within the Commission's primary
jurisdiction, as were these questions relating to the applicable
tariff.
III
There remains the question of whether the Court of Claims
properly dismissed the Government's defense of estoppel as to the
respondents Bangor and Seaboard. We deal with it now because that
defense would be reached should the further proceedings below,
which must follow in consequence of what we have already said,
result in
Page 352 U. S. 75
adherence to the view that Item 1820 applies to these shipments.
[
Footnote 18]
The Government's claim is that the Bangor and Seaboard were
estopped from charging the "1820" rate because of the Army's
reliance on a ruling of the Official Classification Committee, a
railroad tariff agency to which these two respondents belonged,
that this type of napalm gel bomb shipment would be carried at a
lower rate. The Court of Claims rejected this defense because (1)
the ruling was later withdrawn by the Committee; (2) the Government
had shown no detrimental reliance on the ruling; (3) it had paid
the high rate billed for all shipments; and (4) neither carrier had
acquiesced in the Committee's ruling.
We think that the Court of Claims erred in disposing of this
defense by summary judgment. It appears to be undisputed that the
ruling in question was not rescinded until after all of these
shipments had been made. [
Footnote 19] The Government's affidavits in opposition to
the motion for summary judgment were, in our opinion, sufficient to
entitle it to an opportunity to prove reliance and detriment. The
fact that the Government paid the carrier's bills as rendered is
without significance in light of §322 of the Transportation Act,
supra, requiring payment "upon presentation" of such bills
and postponing final settlement until audit. And the question
whether the Official Classification Committee had authority to bind
these two carriers to acceptance of a lower rate presents
Page 352 U. S. 76
issues of fact which must be tried. Nor, unlike the case of a
private shipper, do we think that the defense of estoppel is
unavailable to the Government.
See 49 U.S.C. § 22.
Cf.
Oregon-Wash. R. Co. v. United States, 255 U.
S. 339;
Western Pac. R. & N. Co. United
States, 255 U. S. 349.
[
Footnote 20] We conclude
that the Government should have an opportunity to prove estoppel,
without any intimation, of course, as to whether it will be able to
establish the defense.
The judgment below must be reversed and the case remanded to the
Court of Claims for further proceedings not inconsistent with this
opinion.
It is so ordered.
MR. JUSTICE DOUGLAS dissents from a reference of these matters
to the Interstate Commerce Commission, since he is of the view that
the principles of
Great Northern R. Co. v. Merchants Elevator
Co., 259 U. S. 285, are
applicable here.
MR. JUSTICE REED and MR. JUSTICE BRENNAN took no part in the
consideration or decision of this case.
[
Footnote 1]
The suits were brought under the Tucker Act, 28 U.S.C. §
1491.
[
Footnote 2]
54 Stat. 955, 49 U.S.C. § 66. This section provides:
"Payment for transportation of the United States mail and of
persons or property for or on behalf of the United States by any
common carrier subject to the Interstate Commerce Act, as amended,
or the Civil Aeronautics Act of 1938, shall be made upon
presentation of bills therefor, prior to audit or settlement by the
General Accounting Office, but the right is hereby reserved to the
United States Government to deduct the amount of any overpayment to
any such carrier from any amount subsequently found to be due such
carrier."
[
Footnote 3]
It is not entirely clear from the record just what rate the
Government believes is applicable to these shipments. It seems to
concede that Item 1895 of Consolidated Freight Classification No.
17, covering "Empty Aerial Bombs," does not apply, although this
was the original classification assigned to such shipments by the
Official Classification Committee, a railroad tariff agency. The
essence of the Government's position seems to be that these
shipments, being nonincendiary, were a mere combination of
gasoline, napalm thickener, and steel casings. Since these three
items, standing alone, are all carried at the fifth-class rate, the
Government urges that the "combination rule" should apply and the
articles be carried at the same fifth-class rate under Rule 18 of
Consolidated Freight Classification No. 17.
[
Footnote 4]
In that case, the Court of Claims held Item 1820 applicable to
shipments similar to those involved here. The Government did not
seek review of that decision.
[
Footnote 5]
132 Ct.Cl. 115, 131 F. Supp. 919. The dissenters were Judge
Madden and Chief Judge Jones.
[
Footnote 6]
24 Stat. 384, as amended, 49 U.S.C. § 16(3).
[
Footnote 7]
The Court of Claims stated in the
Union Pacific case,
125 Ct.Cl. at 393, 111 F.Supp. at 268:
"At the outset, it should be noted that, while this court has no
ratemaking functions . . . , the construction and application of
published rates and classifications are proper matters for the
courts, as well as for the Interstate Commerce Commission."
[
Footnote 8]
Jaffe, Primary Jurisdiction Reconsidered, 102 Univ.Pa.L.Rev.
577, 583-584 (1954).
[
Footnote 9]
In response to the motion for summary judgment, the Government
presented affidavits by chemical engineers stating that napalm gel
is not incendiary. But these affidavits become meaningful only if
the court knows the precise relevance of the incendiary quality of
the shipments to the setting of the rate.
[
Footnote 10]
The artificiality of trying to separate the issue of
"construction" from that of "reasonableness as applied" is
illustrated by the Court of Claims' holding in the
Union
Pacific case, supra. There, after holding that the absence of
bursters and fuses did "not affect the identity of the articles" as
incendiary bombs, the court went on to say that
"it may well be that a lower tariff rate should apply to the
carriage of the less hazardous incendiary bomb [one without burster
and fuse]. This question is not within our jurisdiction, however,
as the question of the reasonableness of rates is a matter
entrusted by Congress solely to the Interstate Commerce
Commission."
125 Ct.Cl. at 393, 394, 111 F. Supp. at 26. Similarly, the
Government here concedes that the question of hazard "goes to the
issue of reasonableness," although arguing that it is
"also relevant to the question of tariff interpretation, for,
like any other instrument, a tariff is to be read in the light of
its known purposes and in a manner which avoids unnecessary and
gross unfairness."
[
Footnote 11]
24 Stat. 384, as amended, 49 U.S.C. § 16(3)(a).
[
Footnote 12]
The suits were instituted in 1954. In the
Western
Pacific case the carrier's claims accrued in 1948 and 1950,
when the United States paid the lower rate instead of the "1820"
rate for which it was billed. As to the
Bangor and
Seaboard cases, where the United States initially paid the
"1820" rate as billed (presumably in 1944 when the shipments were
made), and subsequently readjusted that rate on post-audit, it is
impossible to say when the claims accrued, as the record is silent
as to when the post-audit readjustment was made.
[
Footnote 13]
Although questioning the soundness of this ruling which subjects
carriers' claims against the United States as shipper claims
against the United States as shipper than that applicable to their
claims against other shippers, the Government has not challenged it
here. We therefore do not pass on it.
[
Footnote 14]
The opinion of the Court of Claims does not expressly refer to
the two-year period of § 16(3). The cases cited by the court,
however, make it clear that it had in mind that provision, probably
§16(3)(c), which reads:
"For recovery of overcharges action at law shall be begun or
complaint filed with the commission against carriers subject to
this chapter within two years from the time the cause of action
accrues, and not after. . . ."
[
Footnote 15]
The fact that, in this instance, the issues of tariff
"construction" and "reasonableness" were both referrable to the
Commission does not, of course, bring the case within
Morrisdale. Both of these questions were issues only by
reason of the Government's defense; neither was part of the
carrier's affirmative case. In other words, had the applicability
of this tariff not been challenged by the Government, the carrier's
own case would have presented nothing which was referrable to the
Commission.
[
Footnote 16]
See n 2,
supra.
[
Footnote 17]
Statistics furnished by the Comptroller General show that, since
1948, the General Accounting Office has post-audited 17,220,783
bills presented by carriers. In the same period, post-audit
revealed overpayment in 1,102,654 cases. The magnitude of these
figures underscores the impossibility of requiring the Government
to file anticipatory suits before the I.C.C. in every case where it
thinks the carrier might later sue to recover the amount set off by
the Government.
[
Footnote 18]
The estoppel defense is not asserted against the Western
Pacific, so that this case must, in any event, go to the
Commission. Hence, adjudication of the estoppel defense as to the
Bangor and Seaboard would no doubt await the Commission's
determination as to whether the "1820" tariff was applicable to
these shipments, and reasonable if so applied.
[
Footnote 19]
The ruling was made in 1943, and was confirmed in 1945. The
Bangor and Seaboard shipments were made in 1944.
[
Footnote 20]
A private shipper may not invoke the defense of estoppel to
prevent a carrier from collecting a higher applicable tariff rate
than that which may have been actually quoted by the carrier. This
results from § 6(7) of the Interstate Commerce Act, 24 Stat. 380,
as amended, 49 U.S.C. § 6(7), forbidding departures from the
published tariff.
See Pittsburgh, Cincinnati, Chicago & St.
Louis R. Co. v. Fink, 250 U. S. 577,
250 U. S. 583. The
same considerations do not obtain when the Government is the
shipper, in view of § 22 of the Act, 24 Stat. 387, as amended, 49
U.S.C. § 22, providing that "nothing in this chapter shall prevent
the carriage, storage, or handling of property free or at reduced
rates for the United States."