Superior Trucking Co. v. United States

306 F. Supp. 872, 1969 WL 177887
District Court, N.D. Georgia·Decided November 20, 1969·No. Civ. A. No. 13060·Published·Cited by 3 cases

Opinion

EDENFIELD, District Judge:

Plaintiffs, Superior Trucking Company, Inc., Eagle Motor Lines, Inc., Colonial Fast Freight Line, Inc., Tom Hicks Transfer Company, Inc., and J. H. Rose Truck Line, Inc., common carriers seek to set aside and annul an order of the Interstate Commerce Commission approving the issuance of a certificate of public convenience and necessity to Diaz Motor Freight, Inc. to transport “iron and steel articles” as a common carrier over irregular routes, from New Orleans to points in Arkansas, Alabama, Georgia, Louisiana, Mississippi, Tennessee, and Texas.

Diaz began interstate operations in May, 1966, under emergency contract carrier authority which permitted it to transport reinforcing steel in 30,000-pound minimum loads for Armco Steel Corporation from New Orleans to a point near Gainesville, Mississippi. This temporary authority was extended but after its expiration in March, 1967, Diaz obtained additional contract carrier temporary authority, on August 6, 1967, which, by an order of February 6, 1968, was extended to expire upon determination of the permanent common carrier application considered in the instant action. Under this temporary authority, Diaz transported wire mesh and structural and reinforcing steel as a contract carrier for Primary Steel, Inc., Atlas Steel & Wire Corporation, and Southeast Steel and Wire Corporation, from New Orleans to points in Arkansas, Alabama, Florida, Georgia, Mississippi, Tennessee, and Texas. On June 24,1968, following three days of hearings, from May 27 through May 29, 1968, Diaz was granted additional temporary authority as a contract carrier for Laclede Steel Company in the same states mentioned above, with the exception of Texas. Prior to the instant action, Diaz’ only permanent authority consisted of intrastate common carrier operations for the transportation of structural and reinforcing steel, heavy machinery, agricultural products, and naval stores.

In its application, Diaz stated that it preferred to receive permanent common carrier authority for iron and steel articles, but would accept permanent contract carrier authority as an alternative. The Hearing Examiner and the Commission treated the application as one for common carrier authority.

After lengthy hearings, the Hearing Examiner, in an extended opinion, recommended the issuance of common carrier authority to ship iron and steel articles from New Orleans to points in all states sought by Diaz, with the exception of Louisiana and parts of Florida. The Commission adopted, with one modification, the decision of the Hearing Examiner granting the certificate. Its only modification was a broadening of the common carrier certificate to permit Diaz to transport goods in interstate and foreign commerce from New Orleans to points in Louisiana, a service denied by the Examiner.

Protestants launch a broadside attack on the Commission’s decision. They urge that the Commission relied on vague, inadequate, and inconsistent findings; that it erred in concluding protestants’ operations would not be materially affected [875]*875by Diaz’ certificate; that the Commission applied contract carrier standards under 49 U.S.C. § 303(a) (15) rather than common carrier requirements under 49 U.S.C. § 307; that no consideration was given to the adequacy of existing service; and that the grant of authority to serve Louisiana was inconsistent with their affirmance of the Hearing Examiner’s limitation of service in Florida.

In considering plaintiffs’ objections, we must be guided by the standard of judicial review set out in the Administrative Procedure Act, 5 U.S.C. § 1009(e), requiring “substantial evidence” on the record as a whole. Substantial evidence is something less than the weight of the evidence, Short Line, Inc. v. United States, 290 F.Supp. 939, 941 (D.R.I.1968). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the Commission’s finding from being supported by the requisite substantiality. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). Again, the Supreme Court has stated that “substantial evidence * * * must do more than create a suspicion of the existence of the fact to be established. * * * [I] t must be enough to justify, if the trial were to a jury a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939).

Common carrier grants are' governed by 49 U.S.C. § 307(a), which provides, in pertinent part, that:

“ * * * [A] certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied * *

In order to sustain its burden of proof before the Commission, Colorado-Arizona-California Express, Inc. v. United States, 224 F.Supp. 894 (D.Colo.1963), applicant Diaz had six supporting shippers testify on its behalf. A close examination of their testimony, and the extensive, detailed conclusions drawn from it by the Hearing Examiner, adopted by the Commission, indicates to the Court that substantial evidence exists to support issuance of common carrier authority to Diaz.

The supporting shippers manufacture or distribute a wide range of items.. Primary Steel, Inc., manufactures and/or distributes steel wire mesh, and several items in the structural steel family, including angles, bars, channels, plates, beams, pipe, tubing, castings, wire rods and other steel articles and accessories. Laclede Steel Company fabricates reinforcing steel bars and distributes wire mesh and certain accessories associated with wire mesh. Atlas Steel and Wire manufactures steel reinforcing wire mesh and distributes reinforcing bars and rods, foundation bolts, tie wire, nails, fence wire and barbed wire. Armco Steel Corporation, another supporting shipper, fabricates reinforcing steel, distributes wire mesh, coiled steel, and certain other steel articles used principally to reinforce concrete. Southeast Steel and Wire Corporation produces steel reinforcing mesh and distributes items such as reinforcing bars, nails, bale ties and foundation bolts.

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Superior Trucking Co. v. United States, 306 F. Supp. 872, 1969 WL 177887 (N.D. Ga. 1969).

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