Petitioner brought a common law action in a Federal District
Court against respondent, a common carrier by motor vehicle, to
recover the difference between charges made by respondent at its
established interstate rate and lower charges established by its
intrastate rate on shipments from Buffalo, N.Y., to New York City.
Petitioner alleged that it made the shipments without specifying
the routes, and that respondent violated its duty by shipping the
goods over its established interstate route at its higher rate,
rather than over its established intrastate route at its lower
rate. The Interstate Commerce Commission found that the practice
was unreasonable.
Held: the complaint stated a cause of action upon which
relief could be granted, and such right of action was saved by §
216(j) of the Motor Carrier Act.
T.I.M.E. Inc. v. United
States, 359 U. S. 464,
distinguished. Pp.
371 U. S.
84-89.
293 F.2d 205, reversed.
MR. JUSTICE CLARK delivered the opinion of the Court.
This is an action by a shipper to recover from a motor carrier
the difference in rate charges resulting from a practice of the
latter of carrying unrouted intrastate shipments on its interstate
routes at higher rates than those applicable to its available
intrastate routes. The District Court for the Southern District of
New York stayed the action awaiting a finding by the Interstate
Commerce Commission
Page 371 U. S. 85
as to the reasonableness of the practice. The Commission found
it unreasonable
* under the Motor
Carrier Act, 49 U.S.C. §§ 301-327, and subsequently the District
Court dismissed the complaint on the ground that the Act neither
provided any reparation remedy nor preserved one at common law. 187
F. Supp. 722. The Court of Appeals, one judge dissenting, affirmed
on the same grounds. 293 F.2d 205. Each court bottomed its decision
upon
T.I.M.E. Inc. v. United States, 359 U.
S. 464 (1959). Having some doubts as to the appositeness
of that case, and because of the importance of the question in the
administration of the Act, we granted certiorari. 368 U.S. 951. We
have concluded that
T.I.M.E. Inc., supra, does not control
the issue here, and therefore reverse the judgments.
Page 371 U. S. 86
The petitioner alleges that, between January 1, 1953, and
February 1, 1955, it delivered numerous shipments of foam rubber
pads to respondent, a common carrier by motor vehicle, for
transportation from Buffalo, N.Y., to New York City. It claims
that, while the shipments were tendered without specifying the
routes of shipment the respondent, contrary to its duty as a common
carrier, shipped the pads over its interstate route at the higher
tariff that it had on file with the Interstate Commerce Commission,
rather than over its intrastate route at the lower tariff that it
had on file with the Public Service Commission of New York. Excess
charges in the sum of $10,000 have been collected by respondent,
for which petitioner prays judgment.
The sole issue before us is whether the complaint states a cause
of action upon which the District Court may grant relief. The gist
of the action as alleged is that the shipper had the common law
right, and the carrier owed it the duty, to ship the pads over the
cheapest available route, no adequate justification for not so
doing being shown. Nevertheless, petitioner says, the carrier, in
derogation of this responsibility, transported the pads at the
higher rate and subjected the shipper to the $10,000 damage.
No attack is made upon either of the carrier's published tariffs
-- both are admittedly reasonable. The controversy hinges entirely
upon whether the carrier violated its duty to the shipper in
selecting the interstate route and the accompanying higher rate
which subjected the shipper to the loss,
i.e., the
difference between the two lawful rates. We believe that the
complaint stated a justiciable cause of action. The issue here is a
far cry from that in
T.I.M.E. Inc. v. United States,
supra. There, the question, as stated by the Court, was,
"Can a shipper of goods by a certificated motor carrier
challenge
Page 371 U. S. 87
in post-shipment litigation the reasonableness of the carrier's
charges which were made in accordance with the tariff governing the
shipment?"
359 U. S. 359 U.S.
464,
359 U. S. 465.
The Court determined that such an attack was foreclosed by the
"saving clause" of the Act, § 216(j), 49 U.S.C. § 316(j), as being
inconsistent with the statutory scheme of regulation. We emphasized
the built-in protections given shippers against unreasonable rates
at pp.
359 U. S.
478-480, citing the 30-day notice provision of the Act,
§ 217(c), as well as the power granted the Commission under §
216(g) to suspend rates for seven months. The Court concluded that
those remedies amply protected the shipper, and that the allowance
of a judicial remedy would result in undercutting the stability of
the rate structure which the statutory procedures sought to
insure.
Here, the challenge is directed not at the "reasonableness" of
the rates, but at the carrier's misrouting practice. The question,
therefore, is not one of rates, but of routes. The determination of
rail carriers' routing practices has long been within the primary
jurisdiction of the Commission.
Northern Pacific R. Co. v.
Solum, 247 U. S. 477
(1918). This jurisdiction is the more important in the case of
motor carrier routing, where alternative routes are greater in both
number and variety. Furthermore, selection of the route is usually
made on an
ad hoc basis, precluding pre-shipment
determination of its reasonableness. Unlike ratemaking, there is no
statutory procedure by which routing practices may be challenged in
advance of shipment. Nor is the shipper by truck accorded even the
right given the shipper by rail, under 49 U.S.C. § 15(8), to select
and request a particular route of the carrier. In view of these
weighty statutory differences between ratemaking and routing
practices, the survival of a damage claim for misrouting appears
entirely consistent with the Act. It therefore meets the proviso of
the "saving clause" as well as the teaching of
T.I.M.E.
Inc.
Page 371 U. S. 88
This conclusion is buttressed by the fact that the allowance
here of a damage action nowise hampers the efficient administration
of the Act, unlike the allowance of such an action as to
unreasonable rates. A misrouting claim does not jeopardize the
stability of tariffs or of certificated routes, the sole issue
being whether the carrier routed the shipment over the cheapest
available route, or made a showing of adequate justification for
not doing so. Moreover, the allowance of misrouting actions would
have a healthy deterrent effect upon the utilization of misrouting
practices in the motor carrier field, which, in turn, would
minimize "cease and desist" proceedings before the Commission.
Finally, and not to be overlooked, the absence of any judicial
remedy places the shipper entirely at the mercy of the carrier,
contrary to the overriding purpose of the Act. The allowance of
such actions would, on the contrary, give neither an unfair
advantage.
Those who contend that no judicial remedy is available place
much weight on the fact that, as we have said, the Interstate
Commerce Commission has primary jurisdiction in routing practices.
We put no significance in whether one tags the claim as
"overcharges" as Commissioner Eastman apparently did in his
testimony before the Senate,
see T.I.M.E. Inc., supra at
359 U. S.
477-478, n. 18, or whether it is a proceeding involving
the "reasonableness" of routing practices. In either case, the
problem is one originally within the jurisdiction of the
Commission. To say, however, that such primary jurisdiction compels
the conclusion that the courts are without power to award damages
in every instance where the Commission may not award reparations by
no means follows. Indeed, the doctrine of primary jurisdiction is
designed to apply
"where a claim is originally cognizable in the courts, and . . .
enforcement of the claim requires the resolution of issues . . .
placed within the special competence of an
Page 371 U. S. 89
administrative body. . . ."
United States v. Western Pacific R. Co., 352 U. S.
59,
352 U. S. 64
(1956);
see Davis, Administrative Law Treatise, § 19.01
(1958). The practice of the Commission in making such determination
in the first instance, even though it has no power to award
reparations in a given case, has long been exercised,
Bell
Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 343
(1944), and is supported by a long line of cases.
See Thompson
v. Texas Mexican Ry. Co., 328 U. S. 134
(1946), and cases there cited. Be this as it may, the survival of a
judicial remedy under the saving clause of § 216(j) cannot be
determined on the presence or absence in the Commission of primary
jurisdiction to decide the basic question on which relief depends.
Survival depends on the effect of the exercise of the remedy upon
the statutory scheme of regulation. According to § 216(j), if the
remedy is inconsistent with that scheme, it does not survive. In
T.I.M.E. Inc., we found inconsistencies, and hence no
judicial remedy survived. Here, as we have indicated, rather than
running interference against the Act, the exercise of the judicial
remedy supports its overall purposes, and is nowise inconsistent
with the congressional scheme embodied within its four corners. The
remedy, therefore, survives, and the judgment is
Reversed.
* 302 I.C.C. 173. Respondent brought an action against the
United States and the Commission in the District Court for the
District of New Jersey, seeking to set aside the report and the
cease and desist order entered by the Commission. After the
complaint was filed, the Commission amended its disposition by
striking out the cease and desist order, leaving only its
declaratory findings as to past practices. The three-judge court,
relying upon our decision in
United States v. Interstate
Commerce Commission, 337 U. S. 426
(1949), held that, as a three-judge court, it had no authority to
adjudicate the controversy, since no order was under attack. 170 F.
Supp. 848. Decision in the action is now held in abeyance by a
single judge pending disposition of this litigation. Thus the
litigation has been bifurcated into two District Courts, whose
further proceedings may yet be separately appealable. This might
have been avoided had the District Court for the Southern District
of New York followed this Court's admonition that
"the courts, while retaining the final authority to expound the
statute, should avail themselves of the aid implicit in the
agency's superiority in gathering the relevant facts and in
marshaling them into a meaningful pattern,"
Federal Maritime Board v. Isbrandtsen Co., 356 U.
S. 481,
356 U. S. 498
(1958), rather than relying upon the shipper to file an adversary
proceeding with the Commission.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE
WHITE join, dissenting.
With deference, I consider that the
T.I.M.E. case,
359 U. S. 464,
plainly controls this one. That it does control is not and could
hardly be gainsaid to the extent that the complaint purports to
alleges a statutory cause of action, that is, one based on the
terms of the Motor Carrier Act itself.
T.I.M.E. at
359 U. S.
468-472. However, construing
Page 371 U. S. 90
the complaint as alleging also a common law cause of action, the
Court holds that such an action is "not inconsistent" with the
Motor Carrier Act, and is therefore preserved by § 216(j) of the
statute.
The Court's decision rests primarily on the significance it
accords to the existence of certain administrative procedures
available to shippers to challenge rates in advance of their
application,
see §§ 216(g) and 217(c) of the Act, and the
lack of such protective remedies in the case of routing practices.
In addition, three further considerations are asserted to support
its conclusion: (1) a misrouting claim does not jeopardize the
stability of tariffs or of certificated routes, whereas to permit
actions attacking the reasonableness of rates would hamper the
efficient administration of the Act; (2) the allowance of
misrouting actions will deter misrouting practices and decrease the
number of "cease and desist" proceedings before the I.C.C.; (3) the
absence of any judicial remedy would put the shipper entirely at
the mercy of the carrier, contrary to the purpose of the Motor
Carrier Act. This reasoning, I submit, entirely misconceives the
basis of the
T.I.M.E. decision.
The result reached in
T.I.M.E. basically rested on two
interdependent considerations: (1) the courts may not adjudicate a
matter over which the Commission has been given primary
jurisdiction, 359 U.S. at
359 U. S.
473-474; (2) since the Commission must decide whether a
rate is reasonable, and Congress has denied it the authority to
award reparations for past unreasonable charges, to allow a
judicial remedy for recovery of past rate charges would "permit the
I.C.C. to accomplish indirectly what Congress has not chosen to
give it the authority to accomplish directly,"
id. at
359 U. S.
475.
Both of these factors are present here. There can be no doubt
that, under § 216(b) and (e) of the Interstate Commerce Act, the
Commission has primary jurisdiction
Page 371 U. S. 91
over the complained-of misrouting practices, [
Footnote 1] as indeed the Commission's action
taken with respect to these very practices,
Hewitt-Robins,
Inc., v. Eastern Freight-Ways, Inc., 302 I.C.C. 173, and the
Court's opinion in this case show. Nor is it suggested that the
Commission possesses any reparations authority with respect to such
misrouting. The conjunction of these factors thus brings
T.I.M.E., decided only four Terms ago, into fully
play.
1. It is true that, in this instance, the Act does not contain
certain protective provisions as in the case of ratemaking. This
cannot, however, serve to distinguish
T.I.M.E., whose
determination of the congressional purpose underlying the Motor
Carrier Act was based on considerations that stand quite
independently of the impact of particular provisions of the
statute. It should also be noted that the absence of such
provisions does not mean that carriers may follow misrouting
practices with impunity. Section 212(a) of the Act provides that
the Commission may, on its own initiative or on complaint, suspend
or revoke certificates, permits, or licenses for willful failure to
comply with any provision of the Act or any order or regulation of
the Commission. Under § 216(e), the Commission may order the
termination of an unjust practice and prescribe the lawful practice
to be followed. Section 222(a) imposes fines for violations of the
Act, and § 222(b) confers jurisdiction on the District Courts to
enjoin violations of the Act when application is made by the
Commission.
Page 371 U. S. 92
2. If the issue as to the reasonableness of a routing practice
is referred to the Commission, a procedure the Court recognizes as
essential, allowance of a judicial remedy for misrouting will not
jeopardize the stability of tariffs or of certificated routes. But
the suggestion that such a danger was presented by a court action
challenging unreasonable rates, and that this contributed to the
decision in
T.I.M.E., is manifestly untenable. It was
conceded there, as of course it had to be under prior decisions of
this Court, [
Footnote 2] that
the primary jurisdiction doctrine compelled referral to the
Commission of all issues as to the reasonableness of the rates.
Since, even if a judicial remedy were allowed, the Commission would
have been the tribunal deciding the basic question, the course of
decision would have been uniform, and there would not have been,
any more than here, interference with the Commission's functioning
in the area of its special competence or any threat to the
stability of the rate structure. Moreover, the possibility that
rate actions might constitute a threat to the rate structure
through stimulating excessive litigation could hardly have been
regarded as a significant factor in
T.I.M.E., for it was
there observed that only a handful of actions to recover for
unreasonable charges had been brought in the previous 24 years. 359
U.S. at
359 U. S. 479.
And if the Court now believes that to have been a relevant
consideration in
T.I.M.E., it should certainly be of
greater weight with respect to misrouting claims, which are likely
to arise more frequently because, as the Court points out,
"selection of the route is usually made on an
ad hoc
basis, precluding pre-shipment determination of its
reasonableness." [
Footnote
3]
Page 371 U. S. 93
3. Finally, as to the suggestions that actions such as this
should be allowed because of their incidental deterrent effect on
misrouting practices and in the interest of justice to shippers, it
need only be said that these are matters for the Congress.
[
Footnote 4] Our duty is to
apply the statute as we find it.
I would affirm.
[
Footnote 1]
Section 216(b) of the Interstate Commerce Act, 49 U.S.C. §
316(b), provides in pertinent part:
"It shall be the duty of every common carrier of property by
motor vehicle . . . to . . . observe . . . reasonable . . .
practices . . . relating to or connected with the transportation of
property in interstate . . . commerce."
Section 216(e) provides that whenever
"the Commission shall be of the opinion that any . . . practice
. . . is or will be unjust or unreasonable . . . , it shall
determine . . . the lawful . . . practice."
[
Footnote 2]
See, e.g., Texas & Pacific R. Co. v. American Tie &
Timber Co., 234 U. S. 138;
Texas & Pacific R. Co. v. Abilene Cotton Oil Co.,
204 U. S. 426.
[
Footnote 3]
If the Court's reference to Commissioner Eastman's statement
quoted in
T.I.M.E. at
359 U. S.
477-478, n. 18, is intended to imply that the present
action may be characterized as one for rate "overcharges," and thus
is permissible, it should be noted that the "overcharges" to which
the Commissioner referred were, as his statement makes clear,
charges "above published tariff rates,"
id. at
359 U. S. 478,
not those resulting, as alleged here, from the application of a
wrong tariff. It is only the former that the Commissioner thought
could be recovered "in court as the law now stands."
Id.
at
359 U. S.
478.
[
Footnote 4]
So far, Congress has refused to act.
See H.R. 8031,
86th Cong., 1st Sess. (1959); 359 U.S. at
359 U. S.
471-472 and notes 10, 11.