# American Importers Association v. Civil Aeronautics Board > Court of Appeals for the D.C. Circuit · November 29, 1972 · 473 F.2d 168 URL: https://www.frixlaw.com/law-library/cases/9459143 ## Case - **Full name:** AMERICAN IMPORTERS ASSOCIATION, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** November 29, 1972 - **Citations:** 473 F.2d 168; 154 U.S. App. D.C. 38 - **Precedential status:** Published - **Opinion:** Dissent by MacKINNON - **Judges:** Fahy, Leventhal, MacKINNON, Per Curiam - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459143 ## Opinion text MacKINNON, Circuit Judge, dissenting: The necessity and desirability of cargo carriers having uniform demurrage (detention) rules is so well established and recognized in our jurisprudence as being in the public interest that it is my view no substantial antitrust issue is present. The one-day detention rule for domestic shipments and the rate to be charged are not challenged. Thus, the only question here is whether one extra day to allow for customs clearance of imported goods is sufficient and reasonable. To suggest that the allowable variants of the decision on this question trespass into the antitrust area sufficient to constitute a restraint upon competition are hardly worth noting. The issue is paper-thin and completely within the Board’s competence and expertise. It is necessary to have detention rules that are fair, reasonable and uniform if airline traffic is to be carried on smoothly, equitably, efficiently and without discrimination and preference between localities and interests. We have upheld the right of the Federal Maritime Commission to enforce uniform detention rules on the marine terminals under its jurisdiction. 1 In the case of the railroads, such demurrage rules were forced on the carriers by the United States Commissions and the Interstate Commerce Commission because they recognized the public interest required them. 2 The National Association of Railway Commissioners, an association comprising the commissioners of the several States, adopted in November, 1909, a uniform demurrage code. Its action was based upon extensive investigations and thorough discussion, participated in by the railroad commissioners, commercial organizations, representatives of railroads and individual shippers from all parts of the country. On December 18, 1909, the Interstate Commerce Commission endorsed the rules so adopted and recommended that they be made effective on interstate transportation throughout the country. (In re Demurrage Investigation, 19 I.C.C. 496 ). — Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281 , 37 S.Ct. 287 , 61 L.Ed. 722 , affirming 93 Ohio St. 143 , 112 N.E. 212 . For the text of the original uniform code, and discussion thereof, see 21 Ann.Rep.Natl.Assn. of Ry.Commrs. (1909), pp. 203-240. *176 The commission has frequently-pointed out the desirability of uniformity in dealing with car detention, and declined to approve exceptions to the uniform demurrage rules, in favor of particular traffic. — Demurrage Rules on Coke, 96 I.C.C. 731 ; Demur-rage on Coal and Coke, 102 I.C.C. 554 . Existence of merely unique or exceptional transportation conditions in certain localities furnishes no ground for exceptions being made to the uniform code in favor of such localities unless clearly unlawful discrimination would result against such localities if exceptions were not made. — Michigan Mfrs. Assn. v. Pere Marquette R. Co., 31 I.C.C. 329 ; Merchants & Panters Compress & Warehouse Co. v. Galveston, H. & H. R. Co., 129 I.C.C. 477 . Provision for exceptional cases would rob rules of their efficiency.— Michigan Mfrs. Assn. v. Pere Marquette R. Co., 31 I.C.C. 329 . 1 Interstate Commerce Acts Annotated 721 (1930). This Uniform Code has been approving construed by the Supreme Court on a number of occasions. For example, in Pennsylvania R. Co. v. Kittanning I. & S. Mfg. Co., 253 U.S. 319, 323-324 , 40 S.Ct. 532, 533 , 64 L.Ed. 928 (1920): The purpose of demurrage charges is to promote car efficiency by penalizing undue detention of cars. The duty of loading and of unloading carload shipments rests upon the shipper or consignee. To this end he is entitled to detain the car a reasonable time without any payment in addition to the published freight rate. The aim of the Code was to prescribe rules, to be applied uniformly throughout the country, by which it might be determined what detention is to be deemed reasonable. In fixing the free time the framers of the Code adopted an external standard; that is, they refused to allow the circumstances of the particular shipper to be considered. When they prescribed 48 hours as the free time, they fixed the period which, in their opinion, was reasonably required by the average shipper to avail himself of the carrier’s service under ordinary circumstances. The framers of the Code made no attempt to equalize conditions among shippers. It was obvious that the period fixed was more than would be required by many shippers most of the time; at least, for certain classes of traffic; and that it was less than would be required by some shippers, most of the time, for any kind of traffic. Among the reasons urged for rejecting consideration of the needs or merits of the individual shipper, was the fear that, under the guise of exempting shippers from demurrage charges because of conditions peculiar to them, unjust discrimination and rebates to favored shippers might result. See also Swift & Co. v. Hocking Valley R. So., 243 U.S. 281 , 37 S.Ct. 287 , 61 L. Ed. 722 (1917). The need for uniformity in demurrage rules has been frequently recognized by the I.C.C. Chrysler Corp. v. N. Y. Central R. Co., 234 I.C.C. 755 , 759 (1939); N. Pac. Millers’ Assn. v. Chicago, M., St. P. & P. R. Co., 181 I.C.C. 750 , 754 (1932); Mich. Manufacturers’s Assoc, v. Pere Marquette R. Co., 31 I.C.C. 329 , 330 (1914). In this latter case the Commission stated: The code here under attack was adopted by the carriers in November, 1909. In several proceedings that have been brought before us seeking modifications of certain of its provisions the Commission has emphasized the fact that the code was not prepared by the carriers but by a committee of the National Association of Railway Commissioners, composed of a representative of each state that had a railway commission and a member of the Interstate Commerce Commission, and that the action of this body in recommending the adoption of the code was taken only after an extensive investigation and a thorough discussion, participated in by railroad com *177 missioners, commercial organizations, representatives of railroads, and individual shippers from all parts of the country. It was the opinion of the committee that prepared the code that uniformity in its provisions was most necessary for its successful operation, and that if it was sought by the rules to provide for exceptional cases the rules would be robbed of their efficiency. See report of the committee on ear service and demurrage on page 231 of the proceedings of the twenty-first annual convention of the National Association of Railway Commissioners. It also seems that the petitioner here is relying upon the congestion at Kennedy International Airport under the prior rule 3 to justify a flexible rule for local airports under the new rule. 4 However, when the rule was changed by the Board’s order of 1969 so that free time does not begin to run until the consignee has been notified of the arrival of the goods and they are available for pickup all talk of congestion being a factor is beside the point. If congestion, or any other factor, prohibits, delays or interferes with pickup of the goods, free time does not even begin to run under the new rule. Thus, under the new rule it is not necessary to allow for any flexibility because of congestion. It is my view that with the issue being the limited one that it is, there being no challenge to the one-day rule for domestic shipments, and the detention charge not being questioned, that the Board was well within its authority in approving the agreement. I would accordingly affirm the Board without requiring the remand. . American Export-Isbrandtsen Lines, Inc. v. Federal Maritime Commission, 143 U.S. App.D.C. 366, 444 F.2d 824 (1970). . For the history of railroad demurrage rule see Hartman, Law and Theory of Railway Demurrage Charges 1-5 (1928). . Under the prior rule free time began to run after “8:00 A.M. of the day following arrival at the airport” of the goods (J.A. 17). . The detention rule approved by the CAB by its Order 69-7-90 on September 15, 1969 provided that “free storage periods for [imported shipments] . . . shall not commence until the day following notification to the consignee or his agent that a consignment has arrived and is available for the purpose of clearing Customs. This condition . . . will assure that importers will not be subject to demurrage payments occasioned by operational difficulties [congestion] at airports.” (J.A. 18) (Emphasis added.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459143. Public record. Not legal advice.