National Bus Traffic Association, Inc. v. Interstate Commerce Commission and the United States of America

613 F.2d 881, 198 U.S. App. D.C. 148, 1979 U.S. App. LEXIS 11919

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 12, 1979
• Docket: 78-1163
• Status: Published

Opinions

TAMM, Circuit Judge:

This case involves tariff rules proposed by the National Bus Traffic Association, Inc. (NBTA)¹ that would prohibit acceptance in bus express service of (1) shipments exceeding $500 in actual value and (2) jewelry, watches, and magazines, regardless of value. The Interstate Commerce Commission (Commission) found the proposed rules unjust and unreasonable.² We affirm the Commission’s order.

I

Rules 5 and 15 of the existing National Express Tariff specify the characteristics of shipments that motor carriers of passengers will transport via bus express service.³ Rule 5(a) provides, “[n]o single Shipment will be accepted for transportation which exceeds . . . $250 ... in Declared or Released Value.”⁴ Joint Appendix (J.A.) at 224. Rule 15 states that carriers will not transport shipments of jewelry, watches, or magazines with declared or released values over $50. The declared value of an article is the value stated by the shipper. The released value of an article is the value agreed upon by the shipper and the carrier. See 49 U.S.C.A. § 10730 (West pamphlet 1979). Neither declared nor released value is necessarily equivalent to actual value, which generally refers to the market price or replacement cost of the item. See Household Goods Carriers’ Bureau v. ICC, 189 U.S.App.D.C. 279, 283, 584 F.2d 437, 441 (D.C. Cir. 1978); Brief for Petitioner at 5 (recognizing “practical difference” between actual value and declared or released value).

In December 1976, the Commission instituted an inquiry into the lawfulness of Rules 5 and 15 under 49 U.S.C.A. § 10730.⁵ NBTA responded by proposing to delete reference to declared or released value in those rules.⁶ In tariff schedules intended to become effective on February 15, 1977, NBTA modified the rules as follows: Rule 5(a), which prohibits acceptance of shipments exceeding $250 in declared or released value, would prohibit acceptance of shipments exceeding $500 in actual value. Rule 15, which limits transportation of jewelry, watches, and magazines to shipments valued at $50, would prohibit acceptance of such articles entirely.

On February 11,1977, the Commission, on its own motion, suspended operation of the revised schedules up to and including September 14, 1977, and began an investigation to determine whether the proposed rules were just and reasonable.⁷ J.A. at 9-10. NBTA, at the request of the Commission, voluntarily extended the suspension period pending final resolution of this litigation. Id. at 279, 281. On October 20, 1977, Division 2 of the Commission decided that NBTA had failed to carry its burden of proving the proposed rules just and reasonable ⁸ and ordered them cancelled. Prohibitions & Limitations on Shipments of Articles (Order), 355 I.C.C. 793 (1977). The Commission denied NBTA’s petition for reconsideration in January 1978. J.A. at 343-44. NBTA then filed the petition for review now before us.

II

At the outset, we note the limited scope of our review. Both parties agree that the arbitrary and capricious standard governs review of the Commission’s order.⁹ See 5 U.S.C. § 706(2)(A) (1976). Pursuant to that test, a court must affirm the Commission’s rational decision, even though “the judges would have handled the matter differently had they been agency members.” Calcutta East Coast of India & East Pakistan/U.S.A. Conference v. FMC, 130 U.S.App.D.C. 261, 264, 399. F.2d 994, 997 (D.C. Cir. 1968). Accordingly, we examine whether the Commission’s determination that NBTA failed to carry the burden of proving that proposed Rules 5 and 15 are just and reasonable is supportable on any rational basis.¹⁰

A. Rule 5

NBTA advanced three justifications for Rule 5, as amended. First NBTA argued that transportation of package express by intercity bus is incidental to the transportation of passengers and their baggage and that value limitations are an inherent characteristic of such incidental service. NBTA claims that the case, Continental Southern Lines Extension — Pup Semitrailers, 88 M.C.C. 547 (1961), among others,¹¹ establishes the proposition that value limitations are necessary to ensure that express service remains subordinate to passenger service. Brief for Petitioner at 27.

The Commission found that the incidental nature of bus express service is and has been defined solely in terms of the shipment’s quantity, size, volume, or weight, without reference to value. Order, • 355 I. C.C. at 799. The authorities cited by NBTA, according to the Commission, support this finding. The Commission thus concluded that NBTA had failed to prove its contention that value limitations are an essential component of incidental service.

Our review of the case law indicates that the Commission’s analysis is reasonable. Although we agree that carriage of express is incidental to the primary responsibility of bus companies to transport passengers, see Continental Southern Lines Extension — Pup Semitrailers, 88 M.C.C. at 549-50, we find no precedent indicating that value limitations are necessary to maintain that balance.

The Commission uniformly has defined “incidental” services by focusing on the physical compatibility of express and passenger service. Commission decisions emphasize the volume, weight, size, or method of handling the particular shipments involved.¹² The cases reflect concern that passenger comfort will be inhibited if too many or too large packages are accepted for transport on buses which have limited storage space, and that passenger safety will be jeopardized if goods are improperly stored atop buses or in trailers attached to the rear of buses.¹³ The Continental case does not mention value, and the concept appears to have been irrelevant not only to that decision, but to other decisions defining “incidental” service as well.¹⁴

Further, we note that NBTA’s own practices do not establish the inherent relationship it claims exists between “incidental” service and value limitations. Although NBTA has consistently restricted the released value of goods accepted for carriage, the actual value of goods has never been limited. Accordingly, a shipper willing to declare the value of a shipment at no more than $250 for purposes of carrier liability has been able to transport goods of any value via bus express. Thus, we agree with the Commission that value limitations are not an essential component of “incidental” service.

NBTA next contends that, absent value limitations on goods accepted for transportation, express service would be financially infeasible. NBTA claims that carrier inability to provide special handling for valuable express could result in shipment damage or loss. NBTA believes that the increase in reimbursement claims which would result if high value goods were carried would either drive carriers out of business entirely or would force them to discontinue express service.

NBTA’s argument ignores the carrier’s ability to charge rates that either (1) cover the cost of liability for the actual value of a good or (2) allow carriers to limit their liability through the use of released or declared value. Released excess value rates exist specifically to protect carriers following the second course against the financial risks of transporting valuable freight. The Commission, in a 1967 amendment to Released Rates Order No. MC-293, authorized carriers to charge higher rates for transportation of valuable shipments. Under that order, shipments released to a value not exceeding $50 for any shipment of 100 pounds or less, or not exceeding 50 cents per pound actual weight for any shipment over 100 pounds, move under certain basic rates not here in issue. Shipments with declared or released values exceeding these amounts, however, are assessed at the base rate plus 25 cents more for each $100, or fraction thereof, of declared excess value.¹⁵ J.A. at 242-43. These rates, which are contained in Rule 4 of NBTA’s current tariffs, allow carriers to shift the burden of transporting valuable goods to the shippers using the service.¹⁶

Finally, NBTA argues that passenger safety would be jeopardized by the criminal elements attracted by transportation of valuable property without adequate security. This contention is wholly speculative and unsupported by any evidence on the record.¹⁷ Further, the Commission found no evidence of the feared disruption under the existing Rules 5 and 15, which limit the released values of shipments to $250, but place no ceiling on actual value. The rules presently in effect thus “actually permit acceptance of the very class of traffic [NBTA] now seeks to prohibit.” Order, 355 I.C.C. at 797.

The Commission also refused to approve Rule 5 on the ground that it could not be uniformly applied and enforced. The Commission explained, “Although the value limitation of rule 5 is fixed and definite insofar as the dollar amount is concerned, it is vague and indefinite as to the articles that would be accepted or prohibited.” Id. at 798. We agree.

Value, under Rule 5 as proposed, “will be determined by the shipper, who will be asked by the carriers to state the article’s actual value.” Brief for Petitioner at 23. Absent an objective standard, carriers could use varying methods to define actual value. Manufacturer’s cost, wholesale price, retail price, or invoice price could all form the basis of an actual value determination. Property rejected by one carrier as exceeding $500 actual value based on retail price could be accepted by another based upon wholesale price. The Commission’s conclusion that this uncertainty “could create a breeding ground for abuse” by carriers, Order, 355 I.C.C. at 798, is reasonable.

B. Rule 15

Under existing Rule 15, bus lines have accepted for transportation jewelry, watches, and magazines not exceeding $50 in declared or released value. Rule 15, as modified, prohibits carriage of these items entirely. NBTA did not justify the exclusion before either the Commission or this court. Accordingly, we affirm the Commission’s decision that NBTA failed to carry the burden of .proving Rule 15 just and reasonable. Should NBTA propose a value limitation on these items, analogous to that of Rule 5, the concerns set out in Part 11(A) of this opinion would apply with equal force.

Ill

For the foregoing reasons, the Commission’s determination that NBTA failed to prove that Rules 5 and 15 are just and reasonable is affirmed. In so holding, we do not suggest that bus carriers must transport all items regardless of value. As the Commission noted, “bus carriers of express may adopt just and reasonable tariff restrictions pertaining to specific items of extraordinary value.” ¹⁸ Brief for Respondent at 34 n.9. We hold only that a rational basis supports the Commission’s decision that NBTA failed to prove the reasonableness of rules which limit transportation of ordinary commodities to $500 in value and prohibit entirely transportation of jewelry, watches, and magazines.

Affirmed.

1 . The National Bus Traffic Association, Inc. (NBTA) is an association of passenger motor carriers. As of April 1, 1978, it had 351 members. See Appendix to Brief for Petitioner.

2 . Prohibitions & Limitations on Shipments of Articles (Order), 355 I.C.C. 793, 797 (1977).

3 . Express service refers to the expedited transportation of comparatively small shipments of goods. It is usually conducted through passenger trains and passenger buses, rather than by rail-freight or motor-freight. Railway Express Agency, Inc., Extension of Operations — Durant-Kosciusko, 34 M.C.C. 111, 114 (1942); see Coordination of Motor Transp., 182 I.C.C. 263, 348 (1932).

4 . Both existing Rule 5 and modified Rule 5, see 198 U.S.App.D.C. at-, 613 F.2d at 883-884 contain exceptions not relevant in this proceeding.

5 . Pursuant to this section, carriers may limit their liability to the declared or released value of the shipment only if they charge lower rates specifically approved by the Commission. See Household Goods Carriers’ Bureau v. ICC, 189 U.S.App.D.C. 279, 281, 584 F.2d 437, 439 (D.C. Cir. 1978). In 1949, the Commission issued Released Rates Order No. MC-293, which authorized NBTA to establish and maintain released rates for bus express service. 14 Fed. Reg. 369, 1127 (1949). The Commission was concerned that Rules 5 and 15, as released rate tariffs, did not comport with the authorization requirements of MC-293 and thus unlawfully limited liability. The Commission ordered NBTA to show cause why the rules should not be stricken. On May 10, 1977, the Commission issued an order holding the show cause order in abeyance pending the outcome of the present case. Accordingly, those rules are currently in effect. Existing Rules 5 and 15 are not now before us, and we express no view on their legality.

6 . The Commission accepted for purposes of this case NBTA’s contention that a value provision which does not refer to “declared or released” is merely a description of the property to be accepted and not a limitation of liability. Order, 355 I.C.C. at 797.

7 . See 49 U.S.C.A. §§ 10701, 10521(a) (West pamphlet 1979). See also note 10 infra.

8 . 49 U.S.C.A. § 10708(c) (West pamphlet 1979) places “the burden ... on the carrier proposing the changed rate, classification, rule, or practice to prove that the change is reasonable.”

9 . Brief for Petitioner at 29; Brief for Respondents at 13.

10 . The Commission argues that the proposed rules violate the duty of a common carrier of property to accept, within the scope of its certificate of authority and the limitations imposed by its equipment, all property safely susceptible of transportation in the equipment ordinarily used. See, e. g., Transportation Activities of Arrowhead Freight Lines, 63 M.C.C. 573, 575-76 (1955). NBTA contends, however, that bus carriers authorized to provide express service are primarily common carriers of passengers and, as such, are not subject to the obligations of common carriers of property. NBTA asserts that a more liberal standard governs bus carriers that transport express: they “have the right to establish just and reasonable rules specifying the type of traffic they will transport and must accept all commodities only within that realm.” Brief for Petitioner at 28. We find the distinction irrelevant in this case. Even assuming that the obligations of common carriers of passengers that transport express are less stringent than those of carriers that exclusively transport property, for reasons we now explain, NBTA, nevertheless, has failed to prove that the proposed rules are “just and reasonable.”

11 . NBTA also relied on Meisinger Stages Common Carrier Application, 1 M.C.C. 471 (1937); Capital Motor Lines Common Carrier Application, 1 M.C.C. 462 (1937); and Emporium v. New York Central R.R., 214 I.C.C. 153 (1936), before the Commission.

12 . In Continental Southern Lines Extension— Pup Semitrailers, 88 M.C.C. 547 (1961), the Commission denied the application of a passenger carrier to transport express in semitrailers attached to the rear of passenger buses on the grounds that the trailer presented a safety hazard to passengers, id. at 552, and, absent a demonstrated need for the service, it would result in unwarranted competition with interstate carriers of freight, id. at 550, 552.

In Meisinger Stages Common Carrier Application, 1 M.C.C. at 473, the Commission stated that the carriage of express in a vehicle with passengers was to be limited to those shipments of a weight, bulk, and volume that could be transported without “disturbing the comfort and convenience of passengers or interfering with the safety, speed, and other essential qualities of common carrier passenger service.”

Similarly, in Capital Motor Lines Common Carrier Application, 1 M.C.C. at 464, a case involving the transportation of mail in a passenger bus, which NBTA asserts is analogous to express service, the Commission allowed mail carriage only in a manner which “[would] not jeopardize the safety or comfort of the passengers.”

13 . See, e. g., J.A. at 84 (verified statement of Jerry M. Thielen, Vice President, Package Express, Greyhound Lines, Inc.).

14 . See note 12 supra. But cf. Emporium v. New York Central R.R., 214 I.C.C. 153. In Emporium, the Commission held that a railroad carrier’s refusal to transport silver or gold was not unlawful. The Commission has long acknowledged that gold and silver, as items of extraordinary value, require highly specialized service. See generally International Detective Serv., Inc. v. ICC, 194 U.S.App.D.C. 55, 59, 595 F.2d 862, 866 (D.C. C.ir. 1979). The case, accordingly, cannot be said to stand for the general proposition that refusal to transport ordinary commodities in excess of certain value limitations is necessay to maintain “incidental” express service. See note 18 infra.

15 . NBTA made no showing that the rates were inadequate to compensate carriers for claim or security costs associated with transporting property valued in excess of $500 actual value. We note, however, that the rates have not been changed since 1967 and may indeed be outdated. If such is the case, NBTA’s proper recourse, as the Commission suggests, is to seek modification of the existing released rates order to provide excess value rates commensurate with projected or actual claim and security costs. The financial interests of the carriers are thus fully protected, rendering the proposed tariff restriction unnecessary. See Household Goods Carriers’ Bureau v. ICC, 189 U.S.App. D.C. at 291, 584 F.2d at 447 (MacKinnon, J„ concurring).

16 . Carriers could use the additional revenue either to offset the costs of higher reimbursement claims or to provide greater security. NBTA argues, however, and the dissent agrees, that increased security measures cannot be instituted because they “impede and interfere with unencumbered transportation of passengers.” Dissenting op., 198 U.S.App.D.C., at --, 613 F.2d at 888. We find ample evidence to support the Commission’s position that the inconvenience NBTA predicts need not necessarily result. Security devices could be installed, at a minimal cost, which would reasonably protect against theft without unduly disrupting passenger carriage. Express awaiting bus availability in urban areas could be stored, for example, in enclosed areas with lock and key control similar to those recently instituted by Greyhound, Inc. See J.A. at 227 — 41. In rural areas, express awaiting shipment or pick-up could be placed with little inconvenience in special areas set aside in the building or business operating as the bus terminal.

17 . See note 16 supra.

18 . Articles of extraordinary value refer to items “which clearly have intrinsic value, that is: value based on qualities such as rarity, high and consistent marketable monetary worth, and legal usage.” Garrett Freight Lines, Inc.— Modification, 106 M.C.C. 390, 398 (1968) (emphasis in original). They generally include precious metals, legal tender, negotiable and nonnegotiable instruments, and rare objects. Id. at 394. The Commission has distinguished the risks attendant to transportation of ordinary commodities of “high value” from those which accompany carriage of items of “extraordinary value.” For example, the Commission observed in Garrett Freight Lines that problems of marketability render items in general commerce less attractive to the potential thief than articles of intrinsic worth. Id. at 397-98.