United States v. Chesapeake & Ohio Railway Company

PETITIONER:United States
RESPONDENT:Chesapeake & Ohio Railway Company
LOCATION:Quality Photo Shop

DECIDED BY: Warren Court (1956-1957)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 352 US 77 (1956)
ARGUED: Oct 15, 1956
DECIDED: Dec 03, 1956

Facts of the case


  • Oral Argument – October 15, 1956 (Part 1)
  • Audio Transcription for Oral Argument – October 15, 1956 (Part 1) in United States v. Chesapeake & Ohio Railway Company

    Audio Transcription for Oral Argument – October 15, 1956 (Part 2) in United States v. Chesapeake & Ohio Railway Company

    Earl Warren:

    Mr. Hollander.

    Morton Hollander:

    May it please the Court.

    The respondents in the napalm gel case and by incorporation by reference, the respondents in Number 19 have argued that there are outstanding a number of decisions of this Court holding that the two-year limitation period prescribed by Section 16 (3) of the Interstate Commerce Act is jurisdictional in a sense that it sets an outside boundary on the power of the Commission to entertain proceedings filed with — after the expiration of the two-year period.

    I believe that that was the — the question Mr. Justice Harlan was interested in.

    Now, we — we recognized the — the existence of these series of decisions characterized by the respondents as an unbroken line of decision.

    We feel though that they are besides the point here.

    All of those decisions to the extent that they involved proceedings by shippers before the Interstate Commerce Commission are proceedings initiated independently as a matter of first resort by the shipper against the carrier before the Commission and none of those cases cited is establishing these jurisdictional limits on the Interstate Commerce Commission deal with the power of the Court as an incident of a proceeding timely filed before it to refer to the Commission.

    I repeat as an incident of the power of the Court hearing the case to refer to the Commission a proceeding notwithstanding the lapse of the two-year period.

    For that reason, we believe that — that line of jurisdictional cases by itself, that reason alone, requires that those decisions on the jurisdictional point would be viewed as not — not being in point.

    Now, their jurisdictional argument or the argument that these cases set a jurisdictional limit and the Commissions thereby deprived the power and can’t take the case also ignores the fact and this is recognized by respondents in another face of their argument.

    It — it ignores the fact that the Government is because it is the Government because it is the sovereign.

    It is entitled to a special immunity from statute of limitations provisions.

    So that even if it were to be assumed as respondents necessarily contend that the reach of Section 16 (3) goes far beyond its language and extends not only to independent reparation proceedings but also to proceedings referred to the Commission as an incident of a timely filed suit in court.

    And even if that assumption were indulged in, the respondents cannot possibly explain away the fact that the United States traditionally has been held to be immune from such a statute of limitations provisions.

    Now, the only time — the only time the United States may be subjected to a limitation defense, the only time such a defense may be ruled to apply to the United States, and this Court has consistently held, is in a situation where Congress has explicitly manifested an intent to subject the United States to that particular statute of limitations.

    In other words, if in Section 16 (3) (b), there were some explicit manifestation and the only way that manifestation could possibly be expressed would be by saying that independent reparation proceedings filed by the United States just as an independent reparation proceedings filed by any other shipper, they would have to refer explicitly to the United States and subject the United States to the bar of their two-year period.

    That, of course, was not done here.

    The respondents seem to us to take a very inconsistent position because they recognize on the one hand that because of the sovereign — this traditional sovereign immunity from limitations, the United States, the United States if it went into court beyond the expiration of the two-year period, if it went into court, Section 16 (3) they say they agree would be no bar.

    Here, however, they insist that if rather than going to the Court directly, they are hailed into court and try to get before the Commission as an incident of a timely filed judicial proceeding, they somehow reason that this traditional sovereign immunity from limitations is thrown out of the window, so that the United States may be met whether he joined to that, you’re too late now to go over to the Commission, even though you want to get there as an incident to a timely filed judicial proceeding.

    Now, we believe on either one of those two grounds, the line of cases holding that Section 16 (3) is jurisdictional, really has no application here.

    First, as I’ve pointed out those cases involved independent reparation proceedings not those referred as an incident.

    Secondly, it gives no consideration to the unique position.

    The United States has always occupied in its immunity, special immunity from limitation defenses.

    For the reasons I’ve tried to outline and the reasons we advanced in the earlier case and those in our brief, we respectfully submit that the judgment of the Court of Appeals in number 19 and that the judgment of the Court of Claims in number 18 to be reversed with instructions in both cases remanding the cases to the lower courts in order to afford the Government, the petitioner here, a full opportunity to present all of its defenses.

    Earl Warren:

    Mr. Spicer.

    Meade T. Spicer, Jr.:

    May it please the Court.

    With reference to the question just discussed by Mr. Hollander, I do like to call attention to the brief filed in number 18, page 29, we incorporated by reference the argument there on this particular point.

    And on page 29, the — as quoted from the Commission case itself, in fact in 80 I.C.C. in which it went into the reasons for its conclusion that it could not pass on a claim that was filed after two years.

    And it said, “It is fundamental that we act only under the jurisdiction conferred upon us by Congress.

    It is the status of the tribunal rather than the status of the litigant.”

    Meade T. Spicer, Jr.:

    In other words, that that point is relied upon here by the respondent.

    The power — in other words, the statute created the right and also created the remedy.

    Certainly, situation is not unusual to the law, one that is common I believe among the death statutes in — throughout the United States, in the state statutes as well as on the Federal Employers’ Liability Act statute that the — where the right goes with the remedy when it’s destroyed.

    Now, I would like to ask the Court to look at page 21 of the record at a stipulation of counsel with this case.

    I do not think that this case, there’s anything to decide in this case that hasn’t already been decided in the case 12, and like 68.

    Before this case was tried, there were a number of cases pending in the District Court in which the questions of frustrated traffic were involved.

    A stipulation of counsel was entered into in which it was agreed and signed — signed stipulation on page 21, that the final judgment in case 12, Number 68 should govern the disposition of claims involved in this action to the extent that it is applicable.

    Now, that copy — that stipulation was filed in this case.

    That was entered into — back in 1953.

    12, 68 was a test case which was litigated through the District Court and through the Circuit Court of Appeals, a year ahead of this case and that is the case that is referred to in the — my opinion of Court of Appeals to say — in which they said, it seems to us that this case has been fully decided and that we might well add nothing more.

    In other words, those — that — the shipments involved in this case arose at the same time that the shipments involved in that case.

    The parties were the same, the destinations were the same, the starting points were the same, Pontiac, Michigan, Newport News, goods intended eventually to go to China by the port of Rangoon.

    The only difference, the only factual difference there was that the Government in that case did not attempt to show anything after the goods got to Newport News.

    They just closed that and said that we weren’t able to carry out our plans because of all developments and that that was entered here.

    In this case, they did go to the extent of showing that a year-and-a-half later after the goods had been unloaded and stayed at Newport News for three months as it did in the other case, they were reconsigned back to storage points in the country, government storage points.

    They stayed in storage points and went to two-storage points stayed for a year, and were eventually exported not to China but to India not by Newport News but by Wilmington, California.

    Now quite obviously, say that — that was not a compliance as we see it with the tariff and we have filed here original transcript of a copy of a portions of the tariff that seemed to be applicable.

    That was in — in the first case.

    They —

    Earl Warren:

    Suppose something had happened that they couldn’t get out of the — out of the port there at Norfolk and — and they had to be — the material had to be shipped up to Baltimore and eventually it went out of Baltimore, would that have destroyed the rate, do you think?

    Meade T. Spicer, Jr.:

    Well, I think it would have printed — present a fairly close question.

    I think possibly, they would have been entitled to it because of this particular tariff allowed other eastern ports, allowed exportation to be made through other eastern ports.

    It had no application to anything, specific ports at all.

    Earl Warren:

    But suppose it have — it have to have applications just in Norfolk and something occurred there and they couldn’t get out of the — of that port and they moved — moved the things by rail again up to Baltimore and then shipped them overseas in accordance with their previous intentions.

    Do you think that would — should deprived them of that right?

    Meade T. Spicer, Jr.:

    Well, I — possibly not if the question of reasonableness I think they have construction, that should be construction.

    Earl Warren:

    Well, do you think the Government wanted to — to abandon this project and — or do you think that it wanted to ship these goods clear across the continent to California again and — and then send them?

    Meade T. Spicer, Jr.:

    Well, I think it was a — there were sent to a storage cellar.

    Earl Warren:

    Well, they have to —

    Meade T. Spicer, Jr.:

    And repacked and we crated apparently.

    Meade T. Spicer, Jr.:

    And then, of course, they had to go to Pacific and they were — suddenly where we crate it and stayed — stayed there.

    Earl Warren:

    And they did go to the Pacific?

    Meade T. Spicer, Jr.:

    A year and a half later.

    Earl Warren:


    Meade T. Spicer, Jr.:

    Now, we think that’s a separate movement.

    There were two intervening, at least two — three intervening domestic movements on which they paid freight charges.

    Earl Warren:


    Meade T. Spicer, Jr.:

    And on which they ultimately got an export rate according to allegations through Wilmington railroads in California.

    In other words, they did get an export — export rate.

    Well, that is, they don’t deny that they didn’t get export rate.

    Well, it went out of Wilmington, North — California.

    Earl Warren:

    But they had to pay two rates across the continent to get it, didn’t they?

    Meade T. Spicer, Jr.:

    Well, they had some —

    Earl Warren:

    They had come here to — come here to Atlantic Coast and then pay that and they are taken back again —

    Meade T. Spicer, Jr.:

    Well, we —

    Earl Warren:

    — in order to accomplish the same purpose?

    Meade T. Spicer, Jr.:

    We said — we said that is another movement.

    That’s another freight movement.

    How long will this thing going to last?

    No, doubt, I think they keep on doing that indefinitely.

    But the statute, this tariff, by exportation from Newport News.

    And that was the way it was submitted to the initial agent in Pontiac, Michigan through Newport News.

    Now, of course, this tariff wasn’t put into effect just for military shipments.

    It was started in peace times.

    It’s a — it’s a traffic matter.

    It’s a competitive matter.

    Norfolk is not as big a port as New York and Boston and that’s — that’s the — that’s the background of — for having it.

    And when it got to Newport News and it was — we didn’t know anything about it being going across.

    They — we — we — bills for the freight charges were assessed as soon as it went to the first other point, which was Bloomfield, New Jersey.

    Now, in this case, as soon as there was — they shipped to Bloomfield, New Jersey, bills were rendered by the CNO.

    Meade T. Spicer, Jr.:

    They not — they all — they — they got — collected a domestic rate from Newport News back to Bloomfield.

    But in — before doing that or when doing that, they presented the bill on the basis of a domestic rate movement from Pontiac to Newport News.

    They were paid properly and that’s the way this thing remains insofar as the Government is concerned.

    I mention that because of the situation in other cases but they were paid properly and it was four years later before the CNO had any knowledge that there was any question about that being the proper rate to pay.

    The CNO had no knowledge of any subsequent transporting, transferring to India across — across the country.

    It had — it didn’t have any bill presented to it for — to revise or anything like that, but four years later.

    So that this claim, if there was a claim for reasonableness, died or — or attacked on the reasonableness died while the matter was in the hands of the Government.CNO had no status before the Commission.

    Now, all that was gone until we say about the other case, we think it — that by virtue of this stipulation of counsel in the case that that judgment is — is binding in this case that there’s nothing legally additional that make any difference.

    The difference was simply that — and the fact that I believe in — in the case below, the first case, they did not actually apply for a hearing before the Interstate Commerce Commission.

    They did question.

    They bring up the question of reasonableness.

    Now, we say that there isn’t any question of reasonableness involved here and we think it’s been a while substantiated because the same thing was brought up in both cases, in the first cases.

    The District Court said, “Well, isn’t that a question of reasonableness here?

    All you’re contesting is which rate applies.”

    And he said, “I — it seems to me that this Court is confident under these circumstances to say whether a though rate applies or vested.”

    But he found that was a voluntary conversion in that first case and he specifically set out in the opinion of the Court.

    There was a change of intention and that — that was required.

    He thought it was a domestic movement.

    And that was — that was a basis of the opinion.

    He said it was a voluntary — Government voluntarily converted what had started out as an export shipment into a domestic shipment.

    There is no reason why it should not pay the domestic rate.

    Now, in the course, the testimony wasn’t very long here but is a reference to the fact that when the — sometimes before the trial, question was raised as to what — what was — what we’re trying to do with the goods in between and it was stated by a witness in General Accounting Office that they were trying to decide what they’re going to do with it.

    That was all that — they knew it at the time they — they moved it back to Bloomfield, New Jersey except they won’t put some additional freighting order.

    Now, we submit that they say there — there is no question of reasonableness except in a very superficial way involved.

    There — the shipments did not stop until after the attack of Pearl Harbor, December the 10th through January.

    They are — nothing was shown to have happened since then except the fall of Rangoon which happened about six weeks after they got there.

    And, of course, Rangoon was not the place, it has ultimate destination.

    Rangoon was simply the port that they were scheduled to go out from.

    Now, we submit that it is not fair to place on the railroad with the knowledge that the Government had when these shipments moved from Pontiac.War had begun at that time.

    And that this is a — not a risk that would — should be fall upon the railroad to make a revision of its records or rates.

    Meade T. Spicer, Jr.:

    The carrier was — the Government knew that when a shipper was submitted at Pontiac, Michigan that the rates and tax have effected that time ago.

    And to see that the initial carrier, they had to take them under those tariffs which remained in effect.

    That is so plain and it seems to us and it seemed to the District Judge, there’s no question here.

    Nobody has attacked, presented any attack on these rates of reasonableness of its other rates by any proper proceedings and there’s nothing to do but to enforce them.

    And they came back and say, that was in — held in the first case.

    And that was — it was conceived by this stipulation that the further second case should be governed by it.

    No — no application for a writ of certiorari was filed closing the first case.

    And they came back with exactly the same position and just said, “Well, it’s unreasonable.”

    And the court tried to bring — for — for what circumstances make it unreasonable.

    And the only thing they could say, “Well, Rangoon fell, war was on before we began and that’s all.”

    Now, that kind of a situation in relation to the great law and element of the case simply calls for a simple decision of a court.

    It didn’t require any battery of tariff experts, economic experts, anything of that kind.

    It was a — something that’s similar to what a federal judge has to decide everyday.

    May I ask you about that situation?

    Do you (Inaudible)

    Meade T. Spicer, Jr.:

    Well, I think that the — I — I think that the — the position was when — when the first case was over, we appeared to ask for judgment in this case and the Government said, “No, this — this stipulation takes care of it while the court says that if there’s some other questions involved, why, it shall not be controlling.

    But so far as the first raise rule, they will be controlling.

    And they said, “Well, we got some additional circumstances here.”

    And they — were afterwards exported at some remote time.

    Of course, we didn’t agree that that was true, but we tried to facilitate a method by which the court might provisionally hear that question.

    The court — there wasn’t any witness there from the General Accounting Office at all to explain anything.

    They simply submitted a sheet — worksheets.

    Now, what there’s one — one ultimate, sir, printed in the record, just one sheet, but they’re about 25 sheets altogether and that’s the transcript right back.

    There wasn’t any witness there to explain anything about them.

    And we just had to take them as it were, and I guess as the best contention of through movement and unreasonable rate should be sustained on that basis.

    Earl Warren:

    I noticed that one of these shipments is made on December 10th —

    Meade T. Spicer, Jr.:


    Earl Warren:

    — 1941, three days after Pearl Harbor and the other one was made on January 31st, 1942.

    There were — there were a lot of things going out in the Pacific besides the fall of Rangoon —

    Meade T. Spicer, Jr.:

    That’s — that’s certainly —

    Earl Warren:

    — would bear that that might influence the Government in delaying somewhat —

    Meade T. Spicer, Jr.:

    Well, that is certainly —

    Earl Warren:

    — the transportation of these things and you got to blame the Government for any — any delay that was occasioned by conditions out in the Pacific immediately after — after —

    Meade T. Spicer, Jr.:

    Well —

    Earl Warren:

    — Pearl Harbor.

    Meade T. Spicer, Jr.:

    Well, Your Honor, our — our position we don’t question the delay, if they had stayed at Newport News and going on from Newport News, I suppose they could have stayed rather indefinitely to deal with the development issues.

    Earl Warren:

    Well, I thought you said that the breach was made when they took them up to New Jersey.

    Meade T. Spicer, Jr.:

    Well, that’s what the court said that that was a voluntary thing that he did and there was no — there was no indication from any dealings with the carrier that they were ever going to be shipped anywhere over the country after that time.

    In other words, there wouldn’t be any mark put on freight bills or any notice given to carrier or anything.

    As far as the CNO knew that was the end of the transaction.

    And they only knew different four years later when the General Accounting Office said we have deducted these amounts.

    Now, that — that was —

    Earl Warren:

    Isn’t that the reason that the Government gave them a right to offset on these charges that were made so that you could get paid immediately and those things could take due course?

    Meade T. Spicer, Jr.:

    Well, that’s a part of the statute, same statute, yes, sir.

    Earl Warren:


    Meade T. Spicer, Jr.:

    That’s certainly true.

    Earl Warren:

    And that was done at the request of the railroads, wasn’t it, so they could —

    Meade T. Spicer, Jr.:

    Well, I don’t think that —

    Earl Warren:

    — paid immediately.

    Meade T. Spicer, Jr.:

    I don’t think that part of it was at the request of the railroads but it wasn’t done at the same time.

    In other words, the railroads were interested in getting from or more from the payment than they had gotten by reason of things that hadn’t been audited.

    Earl Warren:

    And as Mr. Hollander said, the railroads represent it to — to Congress.

    Well — we’ll let the audit go until — whenever —

    Meade T. Spicer, Jr.:


    Earl Warren:

    — the Government gets around to it, you can make the deductions there and pay it, but we want our money —

    Meade T. Spicer, Jr.:


    Earl Warren:

    — now and —

    Meade T. Spicer, Jr.:

    That’s — that’s entirely true.

    Earl Warren:

    So you wouldn’t expect under those circumstances, would you, that they would challenge the payment right at that moment.

    We’re in a war and a desperate one and — and all kinds of things were happening out in the ocean —

    Meade T. Spicer, Jr.:

    Well —

    Earl Warren:

    — and many and many shipment couldn’t be made on time and perhaps had to be routed to other places before they could be done.

    Do you think the Government should be penalized for that —

    Meade T. Spicer, Jr.:

    Well, I think it should have stated —

    Earl Warren:

    — by our own railroads?

    Meade T. Spicer, Jr.:

    I — I think it should have stated.

    You could use all.

    I have to conceive that there may have been strategic developments that demanded that other things be done with it.

    Well, if that was true, that was a military risk.

    That wasn’t a carrier risk.

    The carrier had a risk that was set forth in the tariffs and in the bill of lading.

    And that was what it is.

    When — when they were shipped after — after the war begun and all of these were that — that wasn’t a risk that was put on the carrier and it was — no military risk.

    And I say that the expense here may have been very small compared to what the importance — military for having these goods somewhere else.

    They might have sent them back to entirely into the continent and they may — may have used them for self-defense, but that wouldn’t affect the —

    Earl Warren:

    But they did — but they didn’t.

    They sent them overseas.

    Meade T. Spicer, Jr.:

    They sent them overseas after two independent, two or three independent movements indicating that they probably decided what to do then, what they’re going to — but it just — it just — just happens that they ultimately sell them to the same continent not to the same country, but to the same continent that they were suppose to go and start there.

    Now, we say that that’s an unwarranted burden upon the railroads or I should say something had been done but that was — we weren’t — not — not until four years later.

    Earl Warren:

    How did this cost the railroad any more money?

    Meade T. Spicer, Jr.:

    Well, I don’t know that it did, but it’s a —

    Earl Warren:

    And then what’s the burden?

    Meade T. Spicer, Jr.:

    Well, I — we were entitled to it on the situation that existed for a year afterwards and we have until four years afterwards.

    And we had no way of knowing that we would be called upon to pay anything more.

    I think that’s right along a period of time for something to be — come back on — on you is — without any notice.

    But we know whether they were had — had been put and sent somewhere else in the country.

    They are used for National Guard or inside the country and otherwise, we had no way of —

    Earl Warren:

    And I think if they had been, you’d have — might have an entirely different case here and maybe it wouldn’t be here at all.

    Meade T. Spicer, Jr.:

    Well, we didn’t think we would ever be here on these shipments after so did — for — for months.

    Now, I think that the fact, this first point we made in our brief, that the fact that two courts, the lower court and the Circuit Court of Appeals, found in both cases that there had been a voluntary conversion of these goods back into domestic shipments that that should justify affirmance of the opinion.

    Meade T. Spicer, Jr.:

    Now, I realize that’s not a mandatory rule by anyway, but I think it’s a reasonable rule and in view of the stipulation in this case, which have all the elements, I have never seen one in which it was so much alike and just the different shipments and what — as far the time and the places and the parties and everything.

    Now, I don’t think that question of statute of limitations was involved in this case.

    The — the brief, Government brief starts off in this Court by saying the two years limitation thing.

    Well, that statute of limitation was not mentioned in the trial court.

    It wasn’t mentioned in the trial court in the preceding case.

    And we submit that the briefs had said nothing about them in — in the Court of Appeals case.

    And there’s only an effort on — apparently on the part of the Government to get this case into the move that the other case was that their question was presented.

    We don’t think it has anything to do with the case.

    We adopted Colonel Weiner’s argument on the point, but the jurisdictional power lacking in the Court of Claims.

    But the record just doesn’t say anything about it.

    There’s no testimony.

    There’s no position taken by a counsel and the first thing we heard of it was in the application for certiorari here.

    Did the Court of Appeals (Inaudible)

    Meade T. Spicer, Jr.:

    The Court of Appeals as — in its opinion in the last case said in this case, said that the case is just like — is like the one before and nothing further need — need to be said.

    The case, we think, is clearly governed by our own former decision and nothing may be added — nothing need to be added to what was said there.

    That it went on to say in answer to the Government’s contention that this is a great hardship on us, for two-year limitation and you’re assuming on a six-year limitation that this is hardship, its unfair and uneven and referred to the Kansas City Southern case in which the court said there was no such administrative questions involved in — in this case as it was in that case which involved element of charges at — at a port where there was no — where there was a tariff, it provided that it should be absorbed by the carrier, but where the shipper didn’t elect to take them that way, but went out and got some of his own, took the same elevator company, hired it privately and then claimed afterwards that he ought to have the allowance for it.

    And — and after that, the court has — it went on to say more or less to placate to the other side that furthermore it would not have been a reasonable discretion to stay proceedings pending action by the Commission where all parties before the court were barred by limitations from asking for such action.

    Now, the Government grabbed on to that which was not necessary to the decision at all because the court had previously decided the case.

    It’s not necessary to say anything else.

    The Government grabbed on to that and makes it the first point in his brief in this case.


    Meade T. Spicer, Jr.:

    [Laughs] Well, I think it was too late in this case.

    It wasn’t presented in the lower court in any sense.

    It wasn’t presented in the Court of Appeals in any sense.

    So it just wasn’t litigated there.

    And I — as I understand this Court to review is what happened in — in the trial court, as long as the case was affirmed.

    The decision of the District Court was affirmed by the District — Court of Appeals, this case and in the preceding case without any change at all.

    And we — it was submit that — here, the question here is what happened in the District Court.

    And here, the Government brief starts out by saying something about the statute of limitations of two-year, which — well, I don’t think the trial judge would recognize the case.

    Now, we submit therefore that — that under the circumstances that — and the findings, specific findings, that there was (Inaudible) conversion back into a — from an interstate movement — export movement into a domestic movement that the domestic rates was properly applied and that judgment should therefore be affirmed.

    Meade T. Spicer, Jr.:

    The reason we’re putting this tariff excerpt in was that it did not appear on the — necessarily in the trial that the rate applied in Newport News but it did supply to Northern but the tariff shows that they provide in both places.

    Earl Warren:

    Thank you, Mr. Spicer.

    Do you have anything further, Mr. Hollander?

    Morton Hollander:

    Well, I think the court’s questions are fully explored all of the issues in the case.

    I have nothing further to add, except I would like to take two or three minutes, Your Honor, to show why the stipulation Mr. Spicer relies on.

    Earl Warren:

    All right.

    Morton Hollander:

    The — the stipulation controlled the Government, it is true to the extent that that case was similar to this.

    But that case was different from this in at least these three respects and it was because of these differences in these three respects that we found it necessary to further litigate the second series of Chesapeake & Ohio cases.

    The first time the — the first case, the one in which the stipulation is supposedly controlling, the first case did not involve any subsequent exportation.

    Judge Parker’s opinion in the first case seemed to place a great deal of emphasis on that fact that we had not, on the record shown, that there was any subsequent exportation.

    In the second case, we were ready to show it.We had ample evidence of subsequent exportation.

    That was a major difference number one.

    In the first case, we never suggested that there should be a referral of the reasonableness question to the Interstate Commerce Commission.

    Judge Parker in the first case thought that that was terribly important when we suggested that the Court of Appeals, the first time should — and that the District Court, the first time we suggested the Court of Appeals should have state its proceedings and referred to the ICC.

    Judge Parker said, “Well, you didn’t ask the District Court to.”

    That was in the first case.

    In the second case, we very explicitly asked the District Court to refer, the District Court denied the motion.

    It’s basic difference number two.

    Finally, in the first case, there is a specific factual finding by the District Court that there was a voluntary conversion of that shipment from export into domestic by the Government, the District Court relying in large part on the fact that we never showed any evidence of subsequent exportation.

    There is no such similar finding by the District Court in this case.

    In this case, the District Court simply viewed it as a question as to whether or not we’re entitled to export rate, even though while he acknowledged subsequent exportation, it was from a port other than the original concerned port.

    Earl Warren:

    Well —