Hewitt-Robins Incorporated v. Eastern Freight-Ways, 371 U.S. 84 (1962)

Topics:  Eastern Freight-Ways

From the U.S. Government Printing Office via GPO Access
 
Case:   HEWITT-ROBINS INCORPORATED V. EASTERN FREIGHT-WAYS

Case #: 371US84


NO. 37.  ARGUED OCTOBER 11, 1962.  - DECIDED NOVEMBER 19, 1962.  - 293
F.2D 205, REVERSED. 


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 SEC. 216(J) OF THE MOTOR CARRIER ACT.  T.I.M.E.
INC. V. UNITED STATES, 359 U.S. 464, DISTINGUISHED.  PP. 84-89. 

HEWITT-ROBINS INCORPORATED V. EASTERN FREIGHT-WAYS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

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 AS TO
THE REASONABLENESS OF THE PRACTICE.  THE COMMISSION FOUND IT
UNREASONABLE* UNDER THE MOTOR CARRIER ACT, 49 U.S.C. SECS. 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. 

*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, 498 (1958), RATHER THAN RELYING UPON THE SHIPPER TO FILE AN
ADVERSARY PROCEEDING WITH THE COMMISSION. 

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 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. 464, 465.  THE COURT DETERMINED THAT SUCH AN ATTACK WAS
FORECLOSED BY THE "SAVING CLAUSE" OF THE ACT, SEC. 216(J), 49 U.S.C.
SEC. 316(J), AS BEING INCONSISTENT WITH THE STATUTORY SCHEME OF
REGULATION.  WE EMPHASIZED THE BUILT-IN PROTECTIONS GIVEN SHIPPERS
AGAINST UNREASONABLE RATES, AT PP. 478-480, CITING THE 30-DAY-NOTICE
PROVISION OF THE ACT, SEC. 217(C), AS WELL AS THE POWER GRANTED THE
COMMISSION UNDER SEC. 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 PRESHIPMENT DETERMINATION OF ITS
REASONABLENESS.  UNLIKE RATE MAKING 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. SEC. 15(8), TO SELECT AND REQUEST A PARTICULAR
ROUTE OF THE CARRIER.  IN VIEW OF THESE WEIGHTY STATUTORY DIFFERENCES
BETWEEN RATE MAKING 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. 

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 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  ..  ENNFORCEMENT OF THE CLAIM REQUIRES
THE RESOLUTION OF ISSUES  ..  PLLACED WITHIN THE SPECIAL COMPETENCE OF
AN ADMINISTRATIVE BODY  ..  .""  UNITED STATES V. WESTERN PACIFIC R.
CO., 352 U.S. 59, 64 (1956); SEE DAVIS, ADMINISTRATIVE LAW TREATISE,
SEC. 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 R.
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 SEC.
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
SEC. 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. 

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 ALLEGE
A STATUTORY CAUSE OF ACTION, THAT IS, ONE BASED ON THE TERMS OF THE
MOTOR CARRIER ACT ITSELF.   T.I.M.E., AT 468-472.  HOWEVER, CONSTRUING
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 SEC. 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 SECS.
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 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 475. 

BOTH OF THESE FACTORS ARE PRESENT HERE.  THERE CAN BE NO DOUBT THAT
UNDER SEC. 216(B) AND (E) OF THE INTERSTATE COMMERCE ACT THE COMMISSION
HAS PRIMARY JURISDICTION OVER THE COMPLAINED OF MISROUTING PRACTICES,
(FN1) 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 FULL PLAY. 

1.  IT IS TRUE THAT IN THIS INSTANCE THE ACT DOES NOT CONTAIN CERTAIN
PROTECTIVE PROVISIONS AS IN THE CASE OF RATE MAKING.  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 SEC. 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
SEC. 222(B) CONFERS JURISDICTION ON THE DISTRICT COURTS TO ENJOIN
VIOLATIONS OF THE ACT WHEN APPLICATION IS MADE BY THE COMMISSION. 

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, (FN2)
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 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 PRESHIPMENT
DETERMINATION OF ITS REASONABLENESS."  (FN3) 

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.  (FN4)  OUR DUTY IS TO
APPLY THE STATUTE AS WE FIND IT. 

I WOULD AFFIRM. 

FN1  SECTION 216(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
316(B), PROVIDES IN PERTINENT PART; "IT SHALL BE THE DUTY OF EVERY
COMMON CARRIER OF PROPERTY BY MOTOR VEHICLE  ..  TOO  .. OBSSERVE  ..
REAASONABLE  ..  PRRACTICES  ..  REELATING TO OR CONNECTED WITH THE
TRANSPORTATION OF PROPERTY IN INTERSTATE  ..  COOMMERCE."  SECTION
216(E) PROVIDES THAT WHENEVER "THE COMMISSION SHALL BE OF THE OPINION
THAT ANY  ..  PRRACTICE  ..  ISS OR WILL BE UNJUST OR UNREASONABLE  ..
IT  SHALL DETERMINE  ..  THHE LAWFUL  ..  PRRACTICE." 

FN2  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. 

FN3  IF THE COURT'S REFERENCE TO COMMISSIONER EASTMAN'S STATEMENT
QUOTED IN T.I.M.E., AT 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 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 478. 

FN4 SO FAR, CONGRESS HAS REFUSED TO ACT.  SEE H.R. 8031, 86TH CONG.,
1ST SESS. (1959); 359 U.S., AT 471-472 AND NOTES 10, 11.