Hewitt-Robins, Incorporated v. Eastern Freight-Ways, Inc.

PETITIONER:Hewitt-Robins, Incorporated
RESPONDENT:Eastern Freight-Ways, Inc.
LOCATION:Clauson’s Inn

DOCKET NO.: 37
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 371 US 84 (1962)
ARGUED: Oct 11, 1962
DECIDED: Nov 19, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – October 11, 1962 in Hewitt-Robins, Incorporated v. Eastern Freight-Ways, Inc.

Earl Warren:

Number 37, Hewitt-Robins Incorporated, Petitioner, versus Eastern Freight-Ways, Incorporated.

Mr. Teichner.

Harry Teichner:

Mr. Chief Justice, may it please the Court.

This case presents the question whether the common law action for damages sustained by a shipper by reason of motor carrier misrouting of a shipment of goods has survived the passage of the Motor Carrier Act of 1935, which is part 2 of the Interstate Commerce Act.

The general situation is not one of novel impression with this Court because this Court had occasion to go into the Motor Carrier Act to 1959 in a case entitled T.I.M.E. Incorporated against United States.

This is an action brought by a shipper of goods against a common carrier by motor vehicle to recover damages for a misrouting of its goods.

During the years 1952 — 1953 and 1954, the plaintiff in the action, the petitioner here delivered some goods, 350 shipments to the defendant, the respondent here, for transportation between Buffalo, New York and New York City, New York.

These goods consisted of foam rubber pads.

The respondent motor carrier was certificated and had operating rights both interstate and intrastate between those two points.

It had filed tariffs with the Interstate Commerce Commission for its intrastate route between Buffalo and New York and it had also filed tariffs with the Public Service Commission of the State of New York similarly for the transportation of that commodity wholly intrastate.

Now, the rates that were filed for the interstate movement were higher than those for the intrastate movement.

These shipments were tended unrouted to the carrier.

The carrier chose to move these shipments via its higher rated interstate route instead of the cheaper intrastate route and the effect of that was that the petitioner had to pay $10,000 more for the movement.

Thereupon, the petitioner instituted a suit in the United States District Court for the Southern District of New York seeking to recover the sum of $10,000 as damages for the misrouting of its shipments claiming that it had a right to have the carrier move the shipments via the cheapest route.

In its complaint, the petitioner requested that the determination of the action be held in abeyance pending the filing of a complaint with the Interstate Commerce Commission to have a determination as to whether or not the practice of the carrier was a reasonable one and to have a determination as to what were the reasonable rates.

The respondent filed an answer and in its answer, set up as one of its defenses that it could not transport these shipments over the lower rated intrastate route because of certain difficulties.

Thereupon, I filed the complaint with the Interstate Commerce Commission and I set forth the facts and I asked for a determination as to what were the reasonable rates and what would a reasonable practice under the circumstances.

In other words, I sought from the Commission, a determination as to whether or not the intrastate route was a reasonable one or whether it was an unreasonable one.

The action of the District Court was held in abeyance and a full hearing was had before the Interstate Commerce Commission on that administrative issue.

The Interstate Commerce Commission made a decision and held that the intrastate route was a wholly feasible route and that the carrier should have moved these shipments over the intrastate route so that the shipper could have had the benefit of the lower rate.

Now, when that decision came down, the carrier felt aggrieved and thereupon instituted a suit in the District Court of New Jersey against the United States of America and against the Interstate Commerce Commission and asked for an annulment of the Commission’s decision on the ground that it was not supported by the evidence or record.

That suit was tried in the District Court of New Jersey, but before the court made a decision and while the action was still pending in the District Court of New York, this Court decided the T.I.M.E. case.

Now in the T.I.M.E. case, this Court decided that a shipper of goods by a certificated motor carrier cannot challenge in post-shipment litigation, the reasonableness of the carrier’s charges which were made in accordance with the tariff governing the shipment.

Thereupon, the carrier made a motion in the District Court of New York in this action for summary judgment on the theory that the T.I.M.E. case was authority for a dismissal of the complaint on the ground that a justiciable issue was not presented upon which relief could be granted.

That motion was granted and Judge Bicks, District Court Judge Bicks who wrote the opinion in the matter, stated that in view of the fact that a referral to the Commission was necessary on the administrative issue as to the reasonableness of the intrastate route, therefore, the Interstate Commerce Commission had no jurisdiction in the matter and the District Court had no jurisdiction of the matter.

An appeal was taken to the United States Court of Appeals for the Second Circuit.

That court affirmed, Judge Moore dissented.

The majority of the Court likewise felt that T.I.M.E. compelled a dismissal of the complaint.

It is our position that T.I.M.E. does not authorize a dismissal of the complaint in this case.

We contend that T.I.M.E. merely went to the question as to whether or not intrinsic reasonableness has an issue on the case would prevent the Interstate Commerce Commission from taking jurisdiction as well as the courts.

Harry Teichner:

A case involving simpleness routing does not involve intrinsic unreasonableness of rates.

The reason that it is conceded for the purposes of the suit that each one of the rates, the interstate as well as the intrastate rate is a applicable rate to each one of those movements and that it is a reasonable rate.

The only complaint is that the carrier committed wrong in transporting these shipments over a higher rated route when a lower rated route was available –excuse me.

William O. Douglas:

And the Commission held that that was an unreasonable practice?

Harry Teichner:

Yes, Your Honor.

William O. Douglas:

What happened to that rule?

Where is that in the litigation now?

Harry Teichner:

Well, that ruling remains at this time and we have intended to —

William O. Douglas:

Is it before a judge of the District Court?

Harry Teichner:

Well, it is before the District Court of New Jersey with respect to whether or not that ruling is supported by evidence or record before the Commission.

William O. Douglas:

Yes, but — I mean, has the District Court decided that case?

Harry Teichner:

Not yet Your Honor.

The District Court of New Jersey is awaiting the decision on this matter.

So that, we have a situation where a motor carrier has committed a common law wrong in exacting a charge for a transportation of shipments of goods when the shipments were tendered unrouted to them and they have the obligation of giving the shipper the cheapest route.

That is a traditional misrouting case in the common law.

The question here is whether or not the Motor Carrier Act abolished such action.

We contend that it did not.

We see nothing in the legislative history for the Motor Carrier Act.

We see nothing in the act itself that proscribes an action for motor carrier misrouting.

It is a simple wrong that was committed by the motor carrier for which it should respond in damages to the shipper.

Arthur J. Goldberg:

Did you happen to file an action in the District Court in resolving the complaint in New Jersey, held that the Commission wrongful [Inaudible]

Harry Teichner:

In this case, we would not have an action Your Honor.

However, there are actions for misrouting where it is not necessary to resort to the Interstate Commerce Commission for an administrative finding at all and where it is within the competence of the court to decide all the issues on the case and such would be such action.

Arthur J. Goldberg:

But your case was not something new?

Harry Teichner:

That is true sir.

John M. Harlan II:

You have to go before the Commission in the first instance since you recognize the first (Voice Overlap) —

Harry Teichner:

Under the doctrine of primary jurisdiction Your Honor, I had to go to the Commission for the reason that the carrier was contending that the route over the intrastate line was an unreasonable one and that of course presented a question for administrative adjudication for the sake of uniformity and the expertise of the Commission to decide whether or not that route was an unreasonable one.

However, there are numerous misroute (Voice Overlap) —

William J. Brennan, Jr.:

[Inaudible] if you shouldn’t prevail here, what happens to that New Jersey one, a suit pending in New Jersey District Court, it doesn’t have to be decided then?

Harry Teichner:

That will be decided Your Honor.

William J. Brennan, Jr.:

That’s to be decided anyway.

Harry Teichner:

It will be decided Your Honor.

William J. Brennan, Jr.:

Well, what’s the New Jersey Court to gain by holding it up until they hear from us?

Harry Teichner:

Well, the Jersey Court was asked to hold in abeyance its decision until this Court decides this matter because there too, the question arises as to whether or not the Interstate Commerce Commission has any jurisdiction on the matter.

And of course, if it should be found that the Interstate Commerce Commission does not have jurisdiction then the United States and Interstate Commerce Commission will fail in that case and the order of the Commission will be annulled.

Now, there are cases of misrouting where it is not at all necessary to go to the Commission for an administrative finding and this would be a case of that kind.

Let us assume that a carrier has two routes between the same points, one is a higher rated route than the other one and the motor carrier thereupon, transports the shipment over the higher rated route, and a suit is instituted to recover damages.

If there is no question at all about the reasonableness of the intrastate route or the lower rated route, then of course there is no question at all to present to the Interstate Commerce Commission and under those circumstances, the court in which the action is brought may determine all the issues on the case, and we then have a simple common law case.

That is one the differences between a case of a misrouting and a case where rates are attacked as being intrinsically unreasonable.

In the latter case, it is necessary at all times to refer the matter of reasonableness to the Interstate Commerce Commission.

However, in a case of motor carrier misrouting or rail carrier misrouting, there is no necessity of referring the matter to the Interstate Commerce Commission in case no issue is raised with respect to the reasonableness of the lower rated route.

Now, one of the factors for example that may be involved in determining whether or not a lower rated route is reasonable would be road conditions, whether the route conditions are such, that we cannot reasonably expect a carrier to transport the shipment over such route.

Absent such question, the Interstate Commerce Commission would not be resorted to at all.

That is one of the differences between misrouting and the T.I.M.E. case which involved merely intrinsic unreasonableness of rates.

Now, there is another distinction and it is this.

In the T.I.M.E. case, this Court held that a shipper has a built-in protection granted it by the Motor Carrier Act with respect to the reasonableness of rates.

It is incumbent upon an interstate motor carrier to file a tariff of its rates with the Interstate Commerce Commission.

As soon as the carrier does so, any member of the shipping public can come in and attack those rates and say that they are unreasonable and they prove that they are unreasonable.

In other words, the shipper is not precluded from attacking the rates.

He has a right to do so immediately upon their filing.

What the T.I.M.E. says is that the Motor Carrier Act told the shipper, if you have any question with respect to reasonableness of rates, don’t come in, post shipment, come in at once as soon as that rate is filed and contest its validity and its reasonableness —

John M. Harlan II:

Of course T.I.M.E. involved that kind of the situation, but what do you find in T.I.M.E. to suggest that the reason of the decision, the reason of the opinion was limited to a so-called inherently unreasonable rates?

Harry Teichner:

Well —

John M. Harlan II:

Do you think that — do you think that was the rationale of the case?

Harry Teichner:

Well, I believe Your Honor that that was the set — the only question involved in the case, the reasonableness of rates.

John M. Harlan II:

That’s what put the issue.

Certainly, that was the issue.

Harry Teichner:

Yes sir and we feel that the decision should be confined to its own facts.

With respect to misrouting, a shipper is at the mercy of a carrier because he never knows whether or not when he delivers a shipment of goods to a carrier whether the carrier is going to misroute or not.

He never gets advance notice of it.

Harry Teichner:

So that he is really at the mercy of the motor carrier.

He doesn’t have an opportunity to attack the practice before the practice is put into effect as a shipper has in a case the rates.

In the case of rates, he comes in immediately and says, “This rate is unreasonable,” but with respect to misrouting, he knows whether or not there’s going to be any misrouting.

William J. Brennan, Jr.:

But may the shipper direct the route?

Harry Teichner:

I beg your pardon?

William J. Brennan, Jr.:

May the shipper direct the carrier to take a particular route or not?

Harry Teichner:

No, not in motor carrier practice, sir.

William J. Brennan, Jr.:

I wouldn’t suppose it was a practice, I just wondered whether a shipper might say, “I want you to go by the intrastate rather than the interstate.”

Harry Teichner:

He has no right at all to route a motor carrier shipment.

That differs from rail shipments Your Honor.

In rail shipments, a shipper has a right to say, “I want this shipment to move via this line, this line, and this line over such and such route.”

Byron R. White:

Do you say he has no right to specify a route, but you do say he’s got a right to pick this certain route with the —

Harry Teichner:

Yes sir.

Byron R. White:

— and he has got a right to inspect the carrier that [Inaudible]

Harry Teichner:

Oh, the cheapest route, that is —

Byron R. White:

So, he doesn’t have a right to direct a route — the cheapest — it’s just automatically the shortest route, you say?

Harry Teichner:

Well, under common law he is entitled to have the cheapest route, but he has no right to say to the carrier, “I want you to ship via this route.”

He cannot do that as in the case of rail carriers.

Arthur J. Goldberg:

And there’s no way the Commission could make him hold that he’s going to put it in this route?

Harry Teichner:

No, sir.

There’s no way at all that the Commission has of awarding damages for unreasonable rates, misrouting or anyway at all.

It is incumbent upon the one that is injured to bring a suit in a District Court or the state court having jurisdiction and if it is one of those cases of misrouting where the administrative question of reasonableness comes into play, the reasonableness of the route, then under the doctrine of primary jurisdiction, the court will hold in abeyance its decision and refer to the Commission the issue that must be determined by the Commission as an aid to the court in finally deciding whether or not the plaintiff is entitled judgment.

Earl Warren:

We’ll recess now.

Harry Teichner:

— Your Honor I have concluded my argument.

Thank you sir.

Earl Warren:

Very well. Mr. Caron.

Wilfred R. Caron:

May it please the Court.

The petitioner’s brief and to some extent petitioner’s argument has created by either inadvertence or intention, the impression that there was deliberate misconduct on the part of the carrier, respondent.

And so in view of that, I would like to clarify the facts insofar as they help to narrow the conduct involved and what has been done here which is assailed as improper.

First of all, the complaint merely refers to the routing practice as unreasonable.

Wilfred R. Caron:

It does not allege that it was willfully done.

It does not allege that it was deliberate or that it was discriminatory at all.

We simply charged a rate that was in accordance with the filed tariff and which applied to the route that was actually used.

Now, a reference might be made for a moment to the report of the Commission, Division III which decided that the routing practice in question was not reasonable.

First of all, the examiner that made his report to the Division recommended that the charge of unreasonableness was unsound and should be rejected.

However, the Division did not agree with that and by a 2 to 1 decision found that it was unreasonable under the Act.

Now, what was unreasonable?

Well, first of all, let’s consider the routes.

The interstate route was 385 miles long or 12 miles shorter than the intrastate route.

There is a quote in my adversary’s brief about routing shipments around Robin Hood’s barn but that really didn’t happen at all.

Actually, the intrastate route was 3.1% longer, although it did involve a lower rate.

Now, the selection of the route again as disclosed and discussed in the ICC report, was based on matters so far as the carrier was concerned of practicability and economy.

It was the feeling of the company that the shipment could not be practicably handled intrastate and there were reasons given for that, the size of the vehicles, the fact that there were less than truck load shipments which had to be broken down in a terminal and so it used the interstate route.

One of the Commissioners dissented on the ground and by the way this is before T.I.M.E. on the ground that it had no jurisdiction to decide the issue of reasonableness of past routing practices.

John M. Harlan II:

[Inaudible]

Wilfred R. Caron:

302 ICC page 173 Your Honor.

So that — it’s been a closed question all along and it’s been a question of reasonableness and I might say that the argument of the petitioner has time and again called this a question of reasonableness referable to the Commission in the first instance and to no one else.

There is no doubt whether the Commission had primary jurisdiction subject to a right of review in a court.

Well, I suppose, there is [Inaudible]

Wilfred R. Caron:

Only to the extent that there was a difference between rates and routes.

[Inaudible]

Wilfred R. Caron:

But essentially, the question of reasonableness involved the — or similar administrative judgment, it involves similar technical problems and it does result in the application of a rate, certainly.

Now, a lot of stress has been put on the word intrinsic.

Frankly, I don’t understand why that’s important or whether the word has any significance, whatever.

Now, I would like first to correct the few matters that were brought out in the course of the argument properly petitioned.

I believe my colleague stated that the shipper had no right whatever to designate a route.

I confirmed my contrary belief by telephone during the recess and was advised by the Traffic Manager of Eastern Freight-Ways that any shipper may designate a route on the Bill of Lading and if that route is practicable and possible to follow, it will be done.

If it is not reasonable or practicable, then of course the carrier cannot do it.

So far as I understand the law, there is no right on the part of the carrier arbitrarily to refuse, to pursue a designated route specified by the shipper.

Potter Stewart:

Well, in this case however, so much you’ve told us, your client, the carrier thought that the intrastate route was not practicable was it, or reasonable?

Potter Stewart:

So, it’s certainly —

Wilfred R. Caron:

Sir —

Potter Stewart:

— would not have conformed with the shipper’s request, isn’t that right?

Wilfred R. Caron:

If it had been made, it may well be that it would not have but I don’t find that that’s one the facts in the case Your Honor.

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

That is my understanding, exactly Your Honor.

And I might add, this point does come up so far as I’m concerned for the first time today.

If the Court so inclined, I’d be happy —

William J. Brennan, Jr.:

Well, it might have those —

Wilfred R. Caron:

— to furnish a brief, should it have significance.

Tom C. Clark:

If it don’t designate [Inaudible] —

Wilfred R. Caron:

Then there is of course that basic obligation to select a cheaper route provided all circumstances are equal.

And that’s the very question that came in for the Commission where all circumstances equal, was it practicable?

Earl Warren:

I think some of the members of the Court might be interested in knowing that as a fact, perhaps both of you within the next day or so can give us a memorandum on it, can you?

Not necessarily (Voice Overlap) —

Wilfred R. Caron:

We’ll be glad to.

Earl Warren:

Not necessary to print it, you may have it typed.

Wilfred R. Caron:

What you have in mind is a question of practicability involved to be (Voice Overlap) —

Earl Warren:

No, no the question — the question as to whether or not the shipper —

Wilfred R. Caron:

I see.

Earl Warren:

— has a right to designate the route that he is to — his commodities should be shipped on?

Wilfred R. Caron:

Yes, Your Honor.

Now, on the question of the law, if it please the Court, frankly, I don’t believe that the petitioner has — is in a position to argue a common law remedy here.

One looks at the complaint, and one looks at the proceedings taken by the petitioner until the T.I.M.E. case and one finds a clear reliance upon a statutory duty upon a purported statutory cause of action.

That is the way the case was framed.

That is the way it was brought into court and that is the way it went before the Commission.

Things changed a little when we made our motion.

I respectfully submit that the only question before this Court is whether or not there is a statutory cause of action created by Part II of the Act, in favor of the shipper in the circumstances presented in this case.

And I submit that the first holding of T.I.M.E. requires that that be answered in the negative.

Certainly, there is not specific grant of a remedy in the Act.

Wilfred R. Caron:

And there is none by implication either.

In T.I.M.E. when this Court considered the effect of the statutory duty in Section 216 (b), it held that it was only a criterion for administrative application and that it did not create any legal rights, any enforceable legal rights.

Now, in saying that, the court was not limiting itself to the question of intrinsic reasonableness of race.

It was addressing itself to a broad construction of Section 216 (b) and I respectfully submit that there is no statutory cause of action whatsoever under the circumstances here and that is where is believe the case should end.

Now —

Earl Warren:

Does it follow from what you have said that the carrier may select any route that he wants —

Wilfred R. Caron:

Not at all, Your Honor.

Earl Warren:

— regardless of whether it’s cheaper or not?

Wilfred R. Caron:

Not at all.

The obligation is there so was the right on the part of the shipper and the opportunity to enforce it, much as was done here by a complaint properly filed with the Commission, and I might add that 350 shippers do not have to go by it before that’s done.

There may be explanations why that happened, but the point of the matter is that the no shipper is unaware or has to be unaware as to what route will be followed or was — as to what the applicable tariff is or as to what are the possible routes available, certainly not, they are billed or they pay in advance, they can apprise themselves, they can seek counsel and they can file a complaint.

William J. Brennan, Jr.:

The provision would be —

Wilfred R. Caron:

But —

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

There is no authority so far as I understand the law.

In the ICC, it’s a little more reparations.

William J. Brennan, Jr.:

[Inaudible] $10,000, as you know, on a different rate.

If that is so, this means then that you can file a complaint to the get $10,000 —

Wilfred R. Caron:

Well, first of all, $10,000 is his estimate.

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

Secondly, that is the result of a — an accumulation and I might say I will go a step —

William J. Brennan, Jr.:

[Inaudible] on your position, you do not have any way to tell us the difference of the route rates?

Wilfred R. Caron:

But I don’t think that he can acquire rights for himself by waiting, by failing to act.

William J. Brennan, Jr.:

Well, whatever — whatever it’ll be?

Wilfred R. Caron:

Surely, the result is that if that amount does spell out the difference between the two rates over this period of time and that he can otherwise establish a right to recovery in light of the T.I.M.E. case then or rather — cannot establish a right, he is out of that $10,000.

By the same token, I say to the Court that he is not out because he’s passed that along to every shipper for whom he has taken a shipment of goods.

There is no doubt in my mind about that.

That’s the way these charges are setup and I say that if at this time, he recoups $10,000 as his windfall, 50% of which may go to a solicitor.

[Inaudible]

Wilfred R. Caron:

Sir?

Byron R. White:

[Inaudible]

Wilfred R. Caron:

Well, then he have a breach of express contract situation which happens to be true in one of cases cited by the petitioner.

It was a Jersey case and I frankly don’t recall the name right now but there, there was an express contract of carriage over a given route and the carrier unilaterally decides to go another way and charge more.

And there on the theory of express contract, the carrier was held to respond for the difference.

Earl Warren:

Was that an — was that a trucking affair or was that railroads, in that case?

Wilfred R. Caron:

I think it might have been railroad, even frankly Your Honor, I would have to look at my brief to see —

Earl Warren:

Is there no difference between the statutes as — between the two types of carriers?

Wilfred R. Caron:

Well, there is a substantial difference —

Earl Warren:

On that —

Wilfred R. Caron:

— principally, —

Earl Warren:

On that score — I mean on that score — particular score.

Wilfred R. Caron:

On the score of being — being what Your Honor?

I’m sorry.

Earl Warren:

What you’ve just been talking about?

Wilfred R. Caron:

Well, I’ve said a lot.

Earl Warren:

Well, alright.

Let’s skip it.

I’m sorry, yes.

Wilfred R. Caron:

And now, we’ve got — as I read the T.I.M.E. case and the principles upon which its based and the scope of the principles as they were expressed, I frankly can find no way to distinguish nor any need to distinguish the result there in order to reach a different result here.

I might add that the legislature since the T.I.M.E. case has been exposed to a proposed amendment to the Act which would engraft a remedy under circumstances like this, there’s much had been done prior to T.I.M.E. and that attempt was unsuccessful as well.

I think the legislative history as it has built up before and after T.I.M.E. indicates a clear acquiescence, if we can say no more, acquiescence by the legislature in the construction placed on the Act by this Court.

John M. Harlan II:

You had referred to in your brief?

Wilfred R. Caron:

It is sir.

It’s referred — I would have to get the page.

It’s referred to on page 6 and I refer to it as House Rule 8031, they’ve adjunct 3059 and the language of that proposal was substantially or identical to the language of the prior proposed amendments which would create a right of recovery for any violation of the duties imposed by the Act.

Now, that was never passed, as had not been in the prior proposed amendments.

To point the fact, I think that the relevant considerations on the question of whether or not there is a statutory remedy are about the same on the question of whether or not there was a surviving common law remedy.

As I say, I don’t believe the petitioner has the right to argue that he has a common law remedy under the pleadings of this case.

But even if he did, I say again the rationale of T.I.M.E. and — or to its opinion, would compel precisely the same result.

Here, you would have as in that case the situation where the court would have absolutely no authority to determine in the first instance, the primary question in issue.

Wilfred R. Caron:

And it would in effect give the Commission the indirect ability to make a reparations award which Congress has by default or however you want to describe it, refused or failed to give it.

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

Exactly so, and there is specific provisions to that effect, that is brought out.

I didn’t want to dwell too much on the comparisons between Parts I, II, and III, they are so fully set out in the opinion in T.I.M.E. But that is one of the great distinction between Part II of the motor carrier part and Parts I to III.

That were as they spell out specific remedies that is very noticeably lacking in Part II and that is what compelled this Court certainly to a great extent to reach the result it did.

And those considerations are no different, no different at all between the questions there and the one here, precisely the same considerations as far as I understand the rationale.

Now, I go one step further, this Court in writing its T.I.M.E. opinion, broken down to two parts considering separately (a) statutory remedy, and (b) a surviving common law right.

I would like to advance this position which is mentioned in brief.

I believe that once you decide or once it is decided rather that the statute by imposing a duty does not by imposing that duty create legal rights that are enforceable, then certainly there is no other standard, no other criteria, no other right which can be violated and give rise to a remedy if the violation of that standard, of that statutory obligation was not intended to give rise to a remedy and I don’t know of any other standard that could — I don’t know from what jurisdiction it comes and I really believe that the decision in part one of T.I.M.E. require the result in part two.

Arthur J. Goldberg:

Mr. Caron.

Wilfred R. Caron:

Yes sir.

Arthur J. Goldberg:

What would you say in the [Inaudible]?

Wilfred R. Caron:

Oh, certainly, there’s a right to recovery.

Some [Inaudible] to pay all the obligation.

Arthur J. Goldberg:

As to the —

Wilfred R. Caron:

I think —

Arthur J. Goldberg:

What about the — what about the [Inaudible]?

Can you proceed before the Commission in other words on the [Inaudible]?

Wilfred R. Caron:

To recover for damage to merchandise?

Arthur J. Goldberg:

No, this is the [Inaudible] of the carrier.

Suppose the carrier had a policy on mishandling [Inaudible]?

Wilfred R. Caron:

Well, if I understand the use of the word mishandling correctly, as meaning that there is some deliberate practice whereby they are routed willy-nilly at — without regard to cost to the shipper and of course there is recourse not only before the Commission but as I tried to point out in the latter portion of the brief, when you reach the point where you find a deliberate tort, when you have reached the point where you may even get involved in a criminal conspiracy to defraud, then, not only is there recourse in the Commission, there probably is recourse under the criminal statutes.

Arthur J. Goldberg:

It’s a common law offense?

Wilfred R. Caron:

Common law criminal remedy and very likely a common law — in other words, I am not saying and I don’t mean to create the impression that there is no wrong that cannot be remedied under the Act.

Sure, an action for overcharges is subject to a remedy and is specifically recognized in the Act, Section 204, where a statute of limitation is specifically spelled out for an overcharge claim.

There is a clear wrong and there is clear debt not involving an administrative determination.

Byron R. White:

Does that carry the fact that the [Inaudible]?

Wilfred R. Caron:

Absolutely and if I fail to make it clear that that’s my feeling, I apologize.

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

The thought —

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

Well, I would say that it wasn’t all my idea.

I had really nothing to do with the T.I.M.E. case but the fact of the matter is, that is the result, it’s not an unfair result.

I do believe the T.I.M.E. case is correctly decided if my opinion makes any difference.

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

No, it’s not.

To tell you why its not —

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

Because there are problems on each side of the —

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

Certainly and very quickly and by the way, by doing an inquiry, can avoid.

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

Well —

William J. Brennan, Jr.:

[Inaudible]

Wilfred R. Caron:

I had difficulty —

Byron R. White:

[Inaudible]

Wilfred R. Caron:

I’m sorry Your Honor.

Byron R. White:

Do you say this [Inaudible]? They did have [Inaudible]?

Wilfred R. Caron:

“Based on many shipments over the same route after long experience and certainly predictable and by the way known in advanced.”

Byron R. White:

[Inaudible]

Wilfred R. Caron:

Well, if you make reference to the answer —

Byron R. White:

[Inaudible]

Wilfred R. Caron:

There is —

Byron R. White:

[Inaudible]

Wilfred R. Caron:

That may be.

That may be but I do say this that, so far as the Act goes, it is clear under T.I.M.E. that the — if there is to be reparation, if there is to be recovery, there is a Congress that will take care of that if it so chooses and that is the only point I’m making.

I don’t argue that there is complete equity in denying recovery of something that might have been an excess of a proper rate, but I do say that it cannot come from anywhere else but a specific legislative amendment to the Act as construed by this Court in T.I.M.E. That is my feeling Your Honor.

[Inaudible]

Wilfred R. Caron:

I really don’t believe I have to take any more time except I would reserve if I may —

Byron R. White:

[Inaudible]

Wilfred R. Caron:

Well, they were certainly doing that but I don’t know as I read the opinion that that was made the ground of the decision or even played any part.

In fact, I think it was a footnote but the broad rationale certainly didn’t hinge on the fact that there was that machinery or procedure available for review in advance.

Earl Warren:

Very well Mr. Caron.

Mr. Teichner.

Harry Teichner:

Mr. Chief Justice, I think it was the concluding paragraph of the majority opinion in T.I.M.E. which adverted to the malice we have just discussed whether or not the shipper would have a right to attack the rate as being unreasonable anti shipment and at the time when the rate was first proposed to be put into effect.

With respect to this matter as to whether or not, a shipper by motor carrier has a right to designate the route.

I would invite the attention of the Court to Section 15, subdivision 8 of part one of the Interstate Commerce Act.

Hugo L. Black:

Is that mentioned your brief?

Harry Teichner:

No sir it is not.

That is an answer to the Chief Justice’s inquiries to whether or not there’s any authority for this proposition.

Hugo L. Black:

[Inaudible]

Harry Teichner:

Its Section 15, subdivision 8 of part one of the Interstate Commerce Act which provides that with respect rail carriers, a shipper may designate the route and that it would unlawful for the rail carriers to deviate from such route.

Now, there is no such — no counterpart of that provision in part two with respect to motor carriers.

And the Interstate Commerce Commission in its decision in the case that we have at bar stated the following, “Misrouting is an unreasonable practice violative of the provisions of Section 216 (b) of the Act.

And while a motor carrier must under Section 217 (b) of the Act observe its tariff rates over the route of movement, it also must observe just and reasonable routing practices.”

This duty is not affected by the absence from part two of the Act of any specific grant to shippers of the right to designate routes by which their property shall be transported.

When no routing instructions are given, a motor carrier has a duty to select the least expensive route unless it is an unreasonable one, citing the North Pacific Railway Company case against Solum in 247 U.S.”

In other words, —

Hugo L. Black:

What were you reading from?

Harry Teichner:

I was reading from the decision of the Interstate Commerce Commission in this case.

Hugo L. Black:

In this particular case?

Harry Teichner:

Yes sir.

In our review of Robins’ case, 302 ICC, 173.

In other words, we have in part two a specific grant to a shipper of a right to route his own shipments and to that direction must be observed and obeyed by the rail carrier.

And as the ICC points out, part two of the Act does not give such specific grant to a shipper by motor carrier, the inference being that under those circumstances, a shipper by motor carrier would not have a right to specifically route a shipment with respect to movements by motor vehicle.

Wilfred R. Caron:

Mr. Chief Justice, under these circumstances, do you still require an additional brief with respect to that point?

Earl Warren:

Did you want to —

Harry Teichner:

I would like to submit something Your Honor.

Earl Warren:

You may if you wish if you don’t —

Harry Teichner:

And to clarify —

Earl Warren:

— care to submit anything more, it’s not necessary.

Harry Teichner:

Thank you.