Petition — Howe v. Allied Van Lines, Inc.

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Supreme u

FI L ms 5

80-223 AUG 41989

a [iadlctacs RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DONALD D. HOWE, ET AL., Petitioners

©.

ALLIED VAN LINES, INC., ET AL., Respondents

(Additional Petitioners and Respondents

listed on page 1)

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

LEONARD S. WISSOW

Attorney for Petitioners

WISSOW AND ODZA

21 South Twelfth Street

Philadelphia, Pa. 19107

(215) 564-2466

THE LEGAL INTELLIGENCER. 66 NORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4050

QUESTION PRESENTED

Whether interstate motor common carriers may

limit their liability for loss or damage to household goods

of members of the armed services shipped at govern-

ment expense without having complied with the provi-

sions of (former) 49 U.S.C. §20(11), now 49 U.S.C.

§§11707 and 10730 (1980).

Other parties involved in this petition are:

Jerry P. Hill, Petitioner, v. Trans-American Van Service, Inc., Re-

spondent

United States Automobile Association, Petitioner, v. Aero May-

flower Transit Co., Inc. and United States of America, Respon-

dents

Dale DeFrank, Petitioner, v. Pyramid Van Lines, Inc., Respondent

Norman R. Foley, Petitioner, v. American Red Ball Transit Co., Inc.

Respondent

Donald E. Madonna, Petitioner, v. Richardson Transfer & Storage

Co., Inc., Respondent

Glenn D. Wilkerson, Petitioner, v. Engel Van Lines, Inc., and

United States of America, Respondents

George J. Merkler and Jur D. Merkler, Petitioners, v. Aero

Mayflower Transit Co., Inc., Respondents

Henry Cevallos, Petitioner, v. Vanpac Carriers, Inc., and Clemmer

Moving & Storage Inc., Respondents

United Services Automobile Association, Petitioner, v. Wheaton

Van Lines, Inc., Respondent.

Williarn E. Blase and United Services Automobile Association, Peti-

tioners, v. National Van Lines, Inc., and United States of Amer-

ica, Respondents.

United Services Automobile Association, Petitioner, v. Rocky Ford

Moving Vans, Inc., and United States of America, Respon-

dents.

TABLE OF CONTENTS

The Petition for Writ of Certiorari

Page

EE ET IE re re a Pre 2

PEERS EP Oe SUE ee ee 2

iy bce 4 aha Wes «47d oes ba ee a 3

i r,s. sks tk bade SAS eC 3

rr ar cree Ce... sae ee od eee 4

Reasons for Granting the Writ ................ 5

Point 1. The Decision Exempts the Major Op.

eration of the Nation’s Moving Van Industry

from the Liability for Cargo Damage Placed

upon such Common Carriers by the Control-

ling Statute and Is in Direct Conflict with the

Decisions of this Court and Other Courts of Ap-

peals as well as the Position of the Interstate

caemmenos Compmiesion ........60600ces 0 5

1. The Decision Conflicts with other Decisions

which Hold that the Provisions of 49 U.S.C.

§20(11) Must Be Strictly Construed ..... 5

2. The Court Below and the First Circuit Have

Entered Contradictory Judgments Based

upon Essentially Identical Facts in a Matter

Involving a Substantial Federal Question . 9

3. The Decision below Holding that the Provi-

sions of 49 U.S.C. §20(11) Do Not Control

the Matter of the Common Carrier’s Liabil-

ity for Cargo Loss on Government Ship-

ments Conflicts with Decisions of this Court

and other Courts of Appeals ............ 11

4. The Court Below Did Not Consider the Posi-

tion of the Interstate Commerce Commis-

sion or the Terms of the Governing Tariff . 14

TABLE OF CONTENTS (Continued)

Page

5. The Decision Below Impairs the Uniformity

of Application of the Law Governing the Op-

erations of Interstate Common Carriers .. 15

Point 2. The Legislative Intent as to Interstate

Commerce Commission Regulation of Govern-

ment Shipments of Household Goods Is Re-

vealed in the Motor Carrier Act of 1980 To Be

Contrary to that Found by the Court of Appeals 16

EP YR SLIIA SERA Pd A SEIN OS Aree 5 ee aE Oe 18

The Appendix

Findings of Fact and Conclusions of Law of the

United States District Court .............. Al

Orders of the United States District Court—

Howe v. Allied Van Lines ................ Al

Hill v. Trans-American Van Service, Inc. .... A12

Faris v. Aero Mayflower Transit Co., Inc. ...A13

Billiter v. Wheaton Van Lines, Inc. ........ Al4

DeFrank v. Pyramid Van Lines, Inc. ....... Al5

Foley v. American Red Ball Transit Co., Inc. . Al6

Cevallos v. Vanpac Carriers, Inc., v. Clemmer

Moving and Storage, Inc. ........... ree 2;

Blase v. National Van Lines, Inc. v. United

mOUONE CE FID. seed oi nce ass Al8

Madonna v. Richardson Transfer & Storage,

RGR REICH eons OA Pig EPL Rae eee rie ee A20

Wilkerson v. Engel Van Lines, Inc. v. United

I re re cel Gaga ales A21

Acreback v. Rocky Ford Moving Vans, Inc. .. A22

TABLE OF CONTENTS (Continued )

Page

Merkler et ux. v. Aero Mayflower Transit Co.,

Inc. and United States of America ..... A23

Opinion (Gibbons, C.J.) of the United States Court

of Appeals for the Third Circuit Dated May 9,

ST Gk ore ae tae ei es Ww a anys we hess A28

‘Judgment of the United States Court of Appeals for

eas ae ee ee tae eee A52

The Federal Statutes Involved—

Sections 20(11) and 22, Part I, Interstate Com-

merce Act of 1887, as amended, 49 U.S.C.

SO gE. . Serer aie aie ae A53

Section 219, Motor Carrier Act of 1935, as

amended, Part II, Interstate Commerce

Act of 1887, as amended, 49 U.S.C. §319 A60

Sections 10721, 10730, 10922 and 11707, Re-

vised Interstate Commerce Act of 1978, 49

U.S.C. §§10721, 10730, 10922 and 11707 A60

Motor Carrier Act of 1980 ................ A68

Rule 40, Federal Rules of Appellate Procedure ...A75

Extract from Justitication of Estimates for FY 1981,

Change of Station Travel — Department of the

PNR i ar rete ar erare rarer rere ware a A76

Extract from Justification of Estimates for FY 1981,

Change of Station Travel, Department of the

PO er tera as ove ne a nom cm 9 bene A A77

Extract from Justification of Estimates for FY 1981,

Change of Station Travel, U.S. Marine Corps. A78

Extract from Justification of Estimates for FY 1981,

Change of Station Travel, U. S. Air Force ...A79

ill

TABLE OF CONTENTS (Continued )

Page

U. S. Government Bill of Lading (household goods

and personal effects of James R. Farris) ....A80O

U. S. Government Bill of Lading (household goods

and personal effects of Norman R. Foley) ... A81

U. S. Government Bill of Lading (household goods

and personal effects of Glenn D. Wilkerson) . A82

Extract from Government and Military Rate Tender

No. 1-H, effective May 1, 1976 ............ A83

Extract from Government Rate Tender I.C.C. No. 1-

¥, elmpctive Baap 8, FONT ce. ce ca cubase A84

TABLE OF CITATIONS

Cases: Page

Adams Express Co. v. Croninger, 226 U.S. 491

ht PPP rar oa AT Gem, oP tain 12-13, 14

Adams Express Co. v. Darden, 265 U.S. 265 (1924) 8-9

American Ry. Express Co. v. Lindenburg, 260 U.S.

re Ce) 4 sn vce bk ee eee 9

Anton v. Greyhound Van Lines, Inc., 591 F.2d 103

¢ oe ee ee 9, 10, 11, 13

Caten v. Salt City Movers, 149 F.2d 428 (2nd Cir.

PE) as cea ae ke eee ee le ee 9

Chandler v. Aero Mayflower Transit Co., Inc., 374

Ff. 120 (40m Cer. 1087) 2. rc nc dilcas 9

Fourco Glass Co. v. Transmirra Products Corp., 353

eu GP EOD: 6 ob 584 ho cas ae eee 12

Ft. Worth & Denver Ry. Co. v. United States, 242

FP .e Fee Ce Sos BOO) 0-04 eo ulea epee 9, 13, 14

—_—

TABLE OF CITATIONS (Continued )

Page

Glickfield v. Howard Van Lines, Inc., 213 F.2d 723

i ER a el Ga hw st ca eke ee ks g

Hollerbach v. United States, 233 U.S. 165 (1914) 13

New York, N.H. & H. R.R. Co. v. Nothnagle, 346

ee OO Gt ss ale aA va ee ys 7-8, 9

Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477

SE SS gil Ne ea Phat a Gi SGN es et yo. = 12

Rocky Ford Moving Vans, Inc. v. United States, 501

op Mh (De A . . } Rh or 13

Southwestern Sugar & Molasses Co., Inc., v. River

Terminals Corp., 360 U.S. 411 (1959) ..... 8, 14

St. Louis, B. & M. Ry. Co. v. United States, 268 U.S.

RR ET NG alae a anne Ae Pte he ae PEPE 13

Strickland Transportation Co. v. United States, 334

Pf Rey fo. Ee AR) Ge 7.- i

United States v. Rutherford, 422 U.S. 544 (1979) 7, 17n

Zimmerman v. Allied Van Lines, Inc., 317 F.2d 72

EI UE SE en ae a rere ee 9

Interstate Commerce Commission (Motor Carrier)

Cases:

Practices of Motor Common Carriers of Household

Goods, 95 M.C.C. 138 (1964) .......... 7. .14, 16

Federal Statutes:

Part I, Interstate Commerce Act of 1887, as

amended, §§20(11) and 22, 49 U.S.C.

EE ONE Soy sy bla oko wo ee 5 et seq.

Motor Carrier Act of 1935, as amended, Part II, In-

terstate Commerce Act of 1887 as amended,

Se ee Pa, OO 8 oe oe se he ewe 5 et seq.

TABLE OF CITATIONS (Continued)

Page

Revised Interstate Commerce Act of 1978, 49

id cs EERE NOOR on ba eb eee ee kee es 5n

Motor Carrier Act of 1980 .............. lin, 16-18

Federal Rules of Appellate Procedure:

ER ee act en aoe gk ee aie es oa ea 16n

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980 No.

DONALD D. HOWE, ET AL., Petitioners,

ALLIED VAN LINES, INC., ET AL., Respondents*

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

To The Honorable, the Chief Justice of the United States

and the Associate Justices of the United States Su-

preme Court:

“Other parties involved in this petition are:

Jerry P. Hill, Petitioner, v. Trans-American Van Service, Inc., Re-

spondent

United States Automobile Association, Petitioner, v. Aero May-

flower Transit Co., Inc. and United States of America, Respon-

dents

Dale DeFrank, Petitioner, v. Pyramid Van Lines, Inc., Respondent

Norman R. Foley, Petitioner, v. American Red Ball Transit Co., Inc.

Respondent

Donald E. Madonna, Petitioner, v. Richardson Transfer & Storage

Co., Inc., Respondent

Glenn D. Wilkerson, Petitioner, v. Engel Van Lines, Inc., and

United States of America, Respondents

George J. Merkler and June D. Merkler, Petitioners, v. Aero

Mayflower Transit Co., Inc., Respondents

Henry Cevallos, Petitioner, v. Vanpac Carriers, Inc., and Clemmer

Moving & Storage Inc., Respondents

United Services Automobile Association, Petitioner, v. Wheaton

Van Lines, Inc., Respondent.

William E. Blase and United Services Automobile Association, Peti-

tioners, v. National Van Lines, Inc., and United States of Amer-

ica, Respondents.

United Services Automobile Association, Petitioner, v. Rocky Ford

* Moving Vans, Inc., and United States of America, Respon-

dents.

The Petitioners, Donald D. Howe, et al., pray that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Third Circuit en-

tered in the above entitled cases on May 9, 1980.

OPINIONS BELOW

The findings of fact and conclusions of law of the

United States District Court for the Eastern District of

Pennsylvania, orally delivered on March 29, 1979, are

unreported. The transcript is printed in the Appendix,

which is hereafter cited by its page as “A- ” (Al). The

opinion rendered by the United States Court of Appeals

for the Third Circuit, dated May 9, 1980, affirming the

judgment of the District Court is not yet officially re-

ported and is printed in the Appendix at A25.

STATUTES INVOLVED

See Appendix at A53.

JURISDICTION

The Judgment of the United States Court of Ap-

peals for the Third Circuit was entered May 9, 1980, and

this Petition for Certiorari was filed within ninety days of

that date. No petition for rehearing was filed. This

Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

QUESTION PRESENTED

Whether interstate motor common carriers may

limit their liability for loss or damage to household goods

of members of the armed services shipped at govern-

ment expense without having complied with the provi-

sions of (former) 49 U.S.C. §20(11), now 49 U.S.C.

§§11707 and 10730 (1980).

STATEMENT OF THE CASES

The Supreme Court is requested to review the judg-

ment rendered by the United States Court of Appeals for

the Third Circuit disposing of the appeals taken in 12

cases which had been combined as related cases in the

United States District Court for the Eastern District of

Pennsylvania and consolidated for purposes of briefing

and argument in the Court of Appeals. Reduced to its

simplest terms, the question common to all the cases is:

If an interstate motor common carrier’s liability for loss

or damage to its household goods cargo is virtually abso-

lute, and it may not limit that liability by agreement ex-

cept under closely circumscribed conditions, is the situ-

ation different when the household goods are owned by

members of the armed services and the Department of

Defense is paying the shipping charges?

In each of the 12 cases the serviceman’s household

goods, shipped at government expense on changes of

Station or separation from the service, were lost or dam-

aged. Suit was brought against the carriers for the full

actual loss under 49 U.S.C. §20(11) (1976), Federal ju-

risdiction being invoked under that statute as well as 28

U.S.C. §1337 (1948). The carriers conceded liabilility

but contended that they had effectively limited that li-

ability to the amount of 60 cents per pound per article by

the tender submitted to the Department of Defense. The

parties in all the cases agreed that since the material

facts were substantially similar and undisputed, the Dis-

trict Court would decide the controlling and common is-

sue on the stipulation of facts filed in one case: Donald

D. Howe v. Allied Van Lines, Inc. and that decision

would apply to the others. The District Court found that

the carriers had effectively limited their liability and en-

tered judgment in all cases accordingly. The Court of

Appeals for the Third Circuit affirmed on May 9, 1980.

REASONS FOR GRANTING THE WRIT

POINT 1

The Decision Exempts a Major Operation of the Nation’s

Moving Van Industry from the Liability for Cargo

Damage Placed upon Such Common Carriers by the

Controlling Statute and is in Direct Conflict with the

Decisions of this Court and Other Courts of Appeals as

Well as the Position of the Interstate Commerce Com-

mission.

1. The Decision Conflicts with Other Decisions which

Hold that the Provisions of 49 U.S.C. §20(11) Must

Be Strictly Construed.

The statute applicable to common carriers, declar-

ing unlawful and void any attempt by any interstate

common carrier to limit its liability for property loss, is

Section 20(11) of the Interstate Commerce Act, the

popularly named Carmack Amendment, Act of June 29,

1906, Chap. 359, 34 Stat. 595 as amended by the

Cummins Amendment, Act of March 4, 1915, Chap.

176, 38 Stat. 1196, and the Second Cummins Amend-

ment, Act of August 9, 1916, Chap. 301, 39 Stat. 441, 49

U.S.C. §20(11). Motor common (but not contract) carri-

ers were brought within the coverage of this section of

Part I of the interstate Commerce Act by Section 219 of

the Muvuior Carrier Act of 1935 (Part II of the Interstate

Commerce Act), 49 U.S.C. §319.!

The complete text is printed at A53. Its parts which

are pertinent here are set out in the opinion of the Court

cf Appeals at A31. In paraphrase, the Carmack Amend-

ment imposes upon any interstate common carrier vir-

tual absolute liability for the full actual loss or damage to

1. These cases arose before the Interstate Commerce Act was

revised and recodified without substantive change by the Revised

Interstate Commerce Act of October 17, 1978, 49 U.S.C. §§10101-

11916 (A60) which was then amended by the Motor Carrier Act of

1980, infra.

its cargo”. The Cummins Amendment prohibits the car-

rier from attempting to limit its liability or the amount of

the damages and declares any such attempt, without re-

spect to manner or form, to be unlawful and void’. The

Second Cummins Amendment added the proviso con-

taining the two exceptions to Cummins’ general pro-

scription of liability limitation: first, in the case of bag-

gage carried on passenger trains and second, in the case

where the Interstate Commerce Commission, by ex-

press order, authorizes the carrier to file tariffs contain-

ing rates based upon .he declared or released value of

the goods’. The tariffs are also required to contain a spe-

cific reference to the released rates order? and the decla-

ration or released value of the goods must be declared in

writing by the shipper or agreed upon in writing.®

The Second Cummins proviso of the Carmack

Amendment limits to two in number the exceptions to

the Amendment’s prohibition of the common carrier’s

attempt to limit its liability for property damage or loss. It

does not exempt from the Amendment's proscriptive

provisions, nor, for that matter, does it make any refer-

ence to, a common carrier when transporting household

goods on bills of lading issued by one of the armed serv-

ices. Nevertheless, the decision below holds that under

such circumstances a Carrier’s limitation of its liability to

60 cents per pound per article is lawful and valid desp'te

the provisions of the statute, even though it is

undisputed that the governing tariff was not filed in

2. Now 49 U.S.C. §11707(a)(1) (1978) (A66).

3. Now 49 U.S.C. §11707(c)(1) (1978) (A67).

4. Now 49 U.S.C. §11707(c)(3) (1978) as to baggage carried

by railroads (A67) and 49 U.S.C. §10730 (1978) as to other property

(A62). The latter section was further amended by Section 12 of the

Motor Carrier Act of 1980, infra, to repeal the requirement that the

Interstate Commerce Commission must authorize limitations of li-

ability, except for shipments of household goods, see infra, pp. 16-

17.

5. Now 49 U.S.C. §10730(a) (1980) (A73).

6. Now 49 U.S.C. §10730(b)(1) (1980) (A73).

compliance with an order of the Interstate Commerce

Commission expressly authorizing rates dependent

upon the value declared in writing by the shipper or

agreed upon in writing as the released value of the prop-

erty.

The Department of Defense is the nation’s single

largest shipper of household goods. Practices of Motor

Common Carriers of Household Goods, 95 M.C.C. 138,

145 (1964). In 1960, the Department ordered 510,600

shipments, ibid. In Fiscal 198i it anticipates that it will

arrange for 459,681 shipments at an expenditure of

$1,004,179,000.’ Therefore, the decision below has the

effect of exempting the major portion of the business of

household goods common carriers and the largest class

of claimants for damage or loss to their personal effects,

id. at 141, from the operation of the statute by which

Congress intended to impose a nationally uniform policy

governing interstate carriers’ liability for property loss,

New York, N.H. & H.R.R. Co. v. Nothnagle, 346 U.S.

128 (1953), a uniformity of application which is essen-

tial in a regulated transportation industry. Strickland

Transportation Co. v. United States, 334 F. 2d 172 (5th

Cir., 1964),

The decision is not consonant with the rule of statu-

tory construction affirmed by this Court in the recent

case of United States v. Rutherford, 442 U.S. 544, 555

(1979), which held that “[o]nly when a literal construc-

tion of a statute yields results so manifestly unreason-

able that they could not fairly be attributed to congres-

sional design will an exception to statutory language be

judicially implied.” Also see note 11.

It is in conflict with all the decisions of this Court

involving the construction of the provisions of the

Carmack Amendment. In New York, N.H. & H.R.R. Co.

7. Compiled from “Justification of Estimates For FY 1981”

submitted to Congress with the proposed budget by the

Departments of the Army, Air Force and Navy and the U.S. Marine

Corps, January, 1980 (A76-79).

v. Nothnagle, supra, this Court held that the Second

Cummins proviso exempting “baggage carried on

railroads” from the Carmack Amendment’s prohibition

of liability limitation agreements cannot be extended to

baggage carried by a redcap service for which a separate

charge is made. (‘Clearly that limitation of liability is

voided by the Act urless saved by the statutory proviso.”

Id. at 134.) In Southwestern Sugar & Molasses Co., Inc.

v. River Terminals Corp., 360 U.S. 411, 420 n. 9 (1959),

the Court held that when Congress has declared by stat-

ute the circumstances under which carriers may con-

tract for release from or limitation of liability, or rules

governing the liability or exemption from liability, no

agreement in derogation from them, even if embodied in

a tariff, is valid.

In Adams Express Co. v. Darden, 265 U.S. 265

(1924), the Court emphasized its refusal to accomodate

any implied exception whatsoever to the imposition of

virtual insurer’s liability. There the carrier argued that if

the rates were based upon the released value of the

goods and the limitation were then found to be ineffec-

tive, the shipper would, in effect, be the beneficiary of

preferential treatment in that he was charged a lower

rate for full liability while the other shippers were paying

the same rate for limited liability. This, the carrier ar-

gued, w2s a discriminatory practice which the Interstate

Commerce Act denounces as unlawful and, therefore, if

the Court imposed full liability on the carrier it would be

aiding the shipper in enforcing rights arising out of an

illegal transaction.

The Court, speaking through Mr. Justice Brandeis,

said:

“The short answer to this, and to the company’s

other arguments, is furnished by the comprehen-

sive terms of the statute. From them appears the in-

tention of Congress to make the carrier liable for the

full actual loss, regardless of any agreement or rep-

resentation of the shipper. Its purpose is so accu-

rately stated that discussion could not make it

clearer. It might confuse.” Id, at 268.

In none of the household goods’ shipments from

which the twelve cases here devolve was the governing

tariff filed pursuant to the authority of a released rates

order issued by the Interstate Commerce Commission in

accordance with the Second Cummins proviso’s rules

for the effective limitation of the carrier’s liability. There-

fore, the decision below conflicts with those decisions in

which this Court and the other Courts of Appeals felt im-

pelled to point out that a carrier must affirmatively estab-

lish, or the record must presume, that the shipment was

governed by a tariff filed in compliance with the Com-

mission’s released rates order before the carrier may in-

voke the defense to the claim for cargo loss that it had

lawfully limited its liability: New York, N.H. & H. R.R.

Co. v. Nothnagle, supra; American Ry. Express Co. v.

Lindenburg, 260 U.S. 584 (1923)e""... for, if petitioner

was not duly authorized by the Commiission, its action in

attempting to limit its liability was unlawful.” Id. at 588-

89; Anton v. Greyhound Van Lines, Inc., 591 F.2d 103

(1st Cir. 1978); Caten v. Salt City Movers, 149 F.2d 428

(2nd Cir. 1945); Chandler v. Aero Mayflower Transit

Co., Inc., 374 F.2d 129 (4th Cir. 1967); Ft. Worth &

Denver Ry. Co. v. United States, 242 F.2d 702 (5th Cir.

1957); Strickland Transportation Co. v. United States,

supra; Glickfield v. Howard Van Lines, Inc., 213 F.2d

723 (9th Cir. 1954); Zimmerman v, Allied Van Lines,

Inc., 317 F.2d 72 (9th Cir. 1963).

2. The Court Below and the First Circuit Have Entered

Contradictory Judgments Based upon Essentially

Identical Facts in a Matter Involving a Substantial

Federal Question.

Common to all the cases of which this petition seeks

review is the failure of the carriers to file the governing

tariffs under the authority of a released rates order of the

Interstate Commerce Commission so as to comply with

that requirement of the Second Cummins proviso of the

Carmack Amendment. In three of the cases, the carriers

also failed to comply with another requirement: that “the

value (be) declared in writing by the shipper or agreed

upon in writing as the released value of the property.” 49

U.S.C. §20(11)

Anton v, Greyhound Van Lines, Inc., supra, decided

by the First Circuit on December 21, 1978, also involved

a claim by an Air Force officer for damage to her house-

hold goods shipped by motor common carrier on a gov-

ernment bill of lading under Government and Military

Rate Tariff No. 1-F, which contained rates purportedly

based on a 60 cents per pound per article valuation. The

bill of lading contained the following clause, “household

goods released at a valuation of cents per pound per

article.” (Id. at 105.) The First Circuit held that the ex-

tent of Greyhound’s liability was controlled by the

Carmack Amendment and that a “(1)imitatioref liability

can be effected only when in compliance with an ICC

‘order authorizing special rates dependent upon either a

declaration of value by the shipper in writing or a re-

leased value in writing’ ” (Id. at 107) (emphasis in origi-

nal). Since the declared or agreed value of the goods had

not been inserted in the blanks, the carrier had not com-

plied with the requirement that the value be in writing.

The limitation of liability was, therefore, ineffective and

the carrier was liable for the full actual loss.

In three of the cases which are joined in this peti-

tion: James R. Faris v. Aero Mayflower Co., Inc. v.

United States of America, Third-Party Defendant —

United States Automobile Association, Petitioner: Nor-

man R. Foley, Petitioner v. American Red Ball Transit

Co., Inc.; and Glenn D. Wilkerson, Petitioner v. Engel

Van Lines, Inc. v. United States of America, the circum-

stances are identical to those in Anton v. Greyhound

Van Lines, Inc. None of the bills of lading (A80-82)

make any reference whatsoever to a declared value or re-

leased value or even to any intention to ship on any limi-

tation of carrier liability.®

Therefore, there is an irreconcilable conflict be-

tween the First Circuit’s decision in Anton v. Greyhound

Van Lines, Inc., and these three cases since the

gravaman of Anton was the absence of any writing as to

a released value in a shipment of household goods on a

government bill of lading. The conflict between Anton

and all the cases included in this petition is also

irreconcilable since in none of these cases was the gov-

erning tariff sanctioned by an Interstate Commerce

Commission released rates order and the basis of the de-

cision in Aton was the First Circuit’s conclusion:

“|Alrrangements limiting liability on the part of

interstate carriers is a carefully defined exception to

the general thrust of Section 20(11) of the Inter-

state Commerce Act placing on the carrier absolute

liability for loss or damage of a shipper’s goods. Con-

sequently, such arrangements must be carefully

scrutinized and where they fail, as in the present

case, to fully comply with the provisions of the

Carmack Amendment, it is clear they are ineffective

to limit a carrier's liability.” Id. at 109.

3. The Decision below Holding that the Provisions of 49

U.S.C. §20(11) Do Not Control the Matter of the

Common Carrier’s Liability for Cargo Loss on Gov-

ernment Shipments Conflicts with the Decisions of

this Court and Other Courts of Appeals.

The thrust of the decision below is that Section 22

of the Interstate Commerce Act, 49 U.S.C. §22,

supercedes the provisions of the Carmack Amendment,

Section 20(11) of the Act, to the extent that the latter

does not control the matter of the liability of common

carriers when the shipper is the United States.

8. The requirement that the declaration or agreement be in

writing is retained in the Motor Carrier Act of 1980, 49 U.S.C.

§10730(b)(1) (1980) (A73),.

Section 22 of the Interstate Commerce Act of 1887,

as amended, authorizes the carrier to transport property

free or at reduced rates for the United States and State,

or municipal governments, to and from fairs and exposi-

tions, or for charitable purposes. In the view of the Court

below, this section empowers common carriers who are

made subject to the provisions of 49 U.S.C. §20(11) by

Section 219 of the Motor Carrier Act of 1935, 49 U.S.C.

§319, to limit their liability for government carriage

without the necessity of complying with the Second

Cummins proviso conditions of Section 20(11). Section

22 is silent as to the matter of the liability of the carrier

for cargo loss or damage.’ On the other hand, Section

20(11) deals exclusively with this matter and expressly

provides for the limitation of the carrier’s liability on the

specific condition that the transportation of the goods be

on rates based on declared or agreed values. Accord-

ingly, the decision of the Court below conflicts with the

decision of this Court in Fourco Glass Co. v. Transmirra

Products Corp. 353 U.S. 222 (1957), where it was held

that however inclusive may be the general language of

the statute, it will not be held to apply to a matter specifi-

cally dealt with in another part of the same enactment.

When the Court below held that Section 22 empow-

ered the carrier to limit its liability, the decision con-

flicted with that of this Court in Pennsylvania R.R. Co.

v. Hughes, 191 U.S. 477 (1903), where it found that the

Interstate Commerce Act, containing the antecedent of

the present Section 22 (A34), was enacted in 1887 as an

expression of Congress’ intent to prevent discrimination

as to services and rates and that it was not intended to

deal with matters involving carrier liability for lost or

damaged goods.

Petitioners’ position here is also supported by dicta

in Adams Express Co. v. Croninger, 226 U.S. 491, 507

9. Section 22 was re-enacted without substantive change in 49

U.S.C. §10721 (1978) without reference to the right of the carrier to

limit its liability for property loss (A60),

(1913), where this Court held that Section 22 of the Act

of 1887 was evidently only intended to continue in exist-

ence such other rights or remedies for the redress of

some specific wrong or injury, whether given by the In-

terstate Commerce Act or common law, not inconsistent

with the rules and regulations prescribed by the provi-

sions of the Act.

It would seem, also, that the decision below cannot

be reconciled with the decision in Hollerbach v. United

States, 233 U.S. 165 (1914), where it was held that the

construction and interpretation of government contracts

are as in the case of contracts between individuals or

that in St. Louis, B. & M. Ry. Co. v. United States, 268

U.S. 169, 173 (1925), where the Court said:

“In respect to furnishing transportation, a

railroad crdinarily bears to the government the

same relation that it does to a private person using

its facilities.”

The basis of the decision of the Third Circuit Court

of Appeals is its view that the provisions of 49 U.S.C.

§20(11) do not control the matter of liability for cargo

loss when a common carrier is transporting goods on

government bills of lading. Therefore, it conflicts di-

rectly with decisions of the Courts of Appeals for the

First, Fifth and Eighth Circuits: Anton v. Greyhound

Van Lines, Inc., supra; Ft. Worth & Denver Ry. Co. v.

United States, supra; Strickland Transportation Co. v.

United States, supra; and Rocky Ford Moving Vans,

Inc. v. United States, 501 F.2d 1369 (8th Cir. 1974).

Both Anton v. Greyhound Van Lines, Inc. and

Rocky Ford Moving Vans, Inc. v. United States involved

shipments of the household goods of Air Force officers

on government bills of lading. In the former, the First

Circuit held the carrier liable for the full actual loss to

the goods because it had not complied with the condi-

tions of the Second Cummins proviso of Section 20( 11).

In the latter, the Eighth Circuit held that the carrier had

effectively limited its liability in accordance with the re-

quirements of the statute.

In Ft. Worth & Denver Ry. Co. v. United States, the

Fifth Circuit specifically pointed out that 49 U.S.C. §22

is a rate section authorizing free or reduced rates for the

United States while 49 U.S.C. §20(11) is the section ap-

plicable to the measure of damages for loss of or damage

to goods. 242 F.2d at 703.

4. The Court below Did Not Consider the Position of the

Interstate Commerce Commission or the Terms of

the Governing Tariff

The decision of the Court below did not consider the

position of the Interstate Commerce Commission on the

issue as to whether the liability of household goods com-

mon carriers are subject to Commission regulation, al-

though it was called to the Court’s attention.

The Interstate Commerce Commission has taken

the position that common carrier’s liability for loss or

damage to household goods shipped by the Department

of Defense is subject to Commission regulation. Prac-

tices of Motor Common Carriers of Household Goods,

supra, 7.

In Southwestern Sugar and Molasses Co. v. River

Terminals Corporation, supra, this Court held that even

though the issue in a case is one that appears to be for

judicial rather than administrative resolution, agencies

created by Congress for regulating the subject matter

should not be passed over, particularly when economic

factors are involved. Obviously such economic factors

are involved in cases such as those here when the rates

are required to be proportioned to the amount of the risk.

Adams Express Co. v. Croninger, supra at 509-10.

This matter is particularly appropriate for both judi-

cial and Interstate Commerce Commission resolution

since the terms of the governing tariff refer to the meas-

ure of the carrier’s liability.

Although the opinion supporting the judgment of

the Court below is silent in this regard, it was argued

and the record shows that the terms and conditions of

Government and Military Rate Tender No. 1-H, effective

May 1, 1976, which was stipulated to be the tariff gov-

erning the damaged shipment, brought the matter of the

carrier’s liability within the provisions of the Carmack

Amendment. Item 1 of the tariff states:

“The carrier accepts property for shipment on

the government bill of lading under the following

terms and conditions:

“(a) Carrier’s legal liability for loss or damage

to goods will be the same as set forth in the In-

terstate Commerce Act (Title 49, U.S.C.

§20(11)), limited to the amount per pound per

article (See Note) shown herein.” (A83)

The identical provision appears in Government Rate

Tender I.C.C. No. 1-Y, May 1, 1977 the governing tariff

in those shipments here to which MRT No. 1-H did not

apply. (A84)

5. The Decision below Impairs the Uniformity of Appli-

cation of the Law Governing the Operations of In-

terstate Common Carriers.

For the first time in the 74 years since Congress en-

acted into law what was expected to be the uniform poli-

cy regarding the liability of the nation’s railroads for

cargo loss and in the 45 years since that policy was ap-

plied to interstate common carriers by motor vehicle, a

court has exempted from the ambit of that policy certain

common carriers when enaged in the transportation of

goods at the behest of a particular shipper.

With this decision the Third Circuit Court of Ap-

peals has caused the measure of the liability of interstate

common carriers for loss or damage to the household

goods of servicemen and women to be dependent upon

the circuit in which suit is brought.

POINT 2

The Legislative Intent as to Interstate Commerce Commis-

sion Regulation of Government Shipments of House-

hold Goods Is Revealed in the Motor Carrier Act of

1980 To Be Contrary to that Found by the Court of Ap-

peals.

The basis of the decision below is the Court’s view

as to the intent of Congress in the enactment of Sections

20(11) and 22 of the Interstate Commerce Act. In es-

sence, the Court concluded that Congress did not intend

to include in the Act’s regulatory design, which requires

Interstate Commerce Commission authorization before

common Carriers may limit their liability, the transporta-

tion of household goods for the government because the

government, as the shipper, had sufficient strength to

reach a fair bargain (A51).

In arriving at its conclusion, the Court was impelled

to resort to such diverse sources and analogies as the Act

of June 15, 1866 which dealt with the special relation-

ship of the railroads (but not motor common carriers)

and the government under the land grant statute (A36-

37) as well as the Senate report accompanying a bill

which was not enacted into law (A41-42),.

The Court’s decision was filed on May 9, 1980.

Therefore, the Court did not have the benefit of the leg-

islative intent in regard to the main issue of these cases

as was subsequently revealed in the provisions of the

Motor Carrier Act of 1980, P.L. 96- , July 1, 1980,

ae.

In the 1980 Act, the latest amendment in the

successive generations of the carrier legislation appear-

ing in Title 49, United States Code—Transportation,

Congress has taken specific note of the transportation of

10. Since the statute was enacted more than 14 days after the

entry of the judgment of the Court of Appeals, petitioners were

barred from filing a petition for rehearing by Rule of Appellate Pro-

cedure 40 (A75).

household goods by motor common carrier for the gov-

ernment. Section 5(b)(4)(c) exempts from the new motor

carrier entry policy “... transportation for the United

States government of property other than used house-

hold goods .. .” (A70) (emphasis added). Clearly, Con-

gress intended that common carriers transporting used

household goods for the United States government are

to be subject to the same rules as are other carriers.

Section 12 amends 49 U.S.C. §10730, the

recodification of the second Cummins proviso in the re-

vised Act of 1978, by repealing the provisions which re-

quire that carriers may legally limit their liability only

when so authorized by the Interstate Commerce Com-

mission, but leaving specifically, as the sole exception to

the repeal, “a motor common carrier of household

goods.” (A73)

Since Section 2 announces that it is the purpose of

the Act to reduce unnecessary regulation by the Federal

Government (A68). the conclusion is inescapable that

when the Act retained the requirement of Interstate

Commerce Commission authority for the limitation of

the liability of motor common carriers of household

goods without exception, limitation or qualification,

while excluding “any other motor common carrier of

property” from such regulation, it indicated that Con-

gress does not consider the Commission’s oversight of

the liability of household goods carriers for lost or dam-

aged cargo to be unnecessary regulation, even when the

shipment is at government expense. !!

By singling out household goods carriers from all

others, Congress is expressing its concern for this aspect

of the transportation business in 1980, just as the Inter-

state Commerce Commission expressed its concern in

1964 when it found that 24 percent of all shipments of

11. “Exceptions to clearly delineated statutes will be implied

only when essential to prevent ‘absurd results’ or consequences ob-

viously at variance with the policy of the enactment as a whole”:

United States vs. Rutherford, supra, at 552.

household goods resulted in claims for loss or damage,

Practices of Motor Common Carriers of Household

Goods, supra, at 166, and that complaints against house-

hold goods carriers outnumbered those against all other

carriers combined. Id. at 141.

Accordingly, Petitioners urge the review of the deci-

sion of the Court of Appeals to consider the materiality of

the Act’s revelation of the legislative intent and its “ex-

plicit direction (to the Interstate Commerce Commis-

sion) for the regulation of the motor carrier industry and

well-defined parameters within which it may act pursu-

ant to Congressional policy.” Section 3(a), Motor Carrier

Act of 1980 (A74).

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that a Writ of Certiorari should be issued to re-

view the judgment order of the United States Court of

Appeals for the Third Circuit.

Leonard S. Wissow

Counsel for Petitioners

Appendix

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action 78-1717

DONALD D. HOWE v. ALLIED VAN LINES

Philadelphia, Pennsylvania

March 29, 1979

Before: HON. DONALD W. VanARTSDALEN, J

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THE COURT: In this case I will make as findings of

fact the stipulations of fact that have been filed.

I have read and examined all of the briefs, | think

with some care, and have heard the arguments of coun-

sel.

It seems to me that his question really boils down to

a determination of the application of the two sections of

Title 49, being Section 2011 and Section 22, as well as

perhaps a consideration of the factual background upon

which these parties entered into the commercial ar-

rangements that occurred.

I am sure that any decision that I make, regardless

of what that decision is, will be ultimately appealed by

one side or the other. I think, therefore, that it is unnec-

essary to go into a long explanation as to my reasons for

the decision that | am going to make.

I conclude that the provisions limiting the defend-

ants liability under this contract shipment to sixty cents

per pound, per article, those conditions are valid and en-

forceable and base this primarily on Section 22.

Therefore, I will grant the defendant’s motion for

summary judgment and deny plaintiff's corresponding

motion for partial summary judgment.

It’s clear in this case that the defendant is liable and

the only question before the Court on the ultimate issue

is the extent of the liability, that is to say, whether the

defendant is liable for the full value of the plaintiff's de-

stroyed household goods, or for sixty cents per pound, or

as was argued in some of the briefs, possibly as a third

alternative, of a dollar twenty-five cents per pound, I be-

lieve.

The limitation of the liability was an expressed term

of the contract between the shipper and the carrier and

therefore it seems to me that the question really boils

down to whether the parties, in so limiting their liability,

acted lawfully within the scope of the Congressional en-

actments governing the conduct of common carriers.

Now as plaintiff points out, Section 2011 clearly

prohibits any limitation of liability by common carriers.

However, this provision is not without exceptions and of

course the basic exception is contained in Section 2011

itself, where it permits limitations of liability that have

been expressly approved by the shipper and the I.C.C.,

as long as the reduced tariff schedule specifically men-

tions such I.C.C. authorization.

There are certain rather technical requirements to

come within the exception of Section 2011.

Now there is a question as to whether or not the car-

rier, the carriers in this case complied with Section 2011

sufficiently to come within its terms.

There’s also another possible exception which we

are concerned with, and that is Section 22 which pro-

vides, in its relevant portion, that nothing in this chapter

shall prevent the carriage, storage or handling of prop-

erty free or at reduced rates for the United States.

Now as I understand plaintiff's theory concerning

Section 22, it is that although Section 22 undoubtedly

permits reduced rates, it makes no mention whatsoever

of reducing liability, and it therefore cannot be said to

authorize corresponding limitations on liability.

Plaintiff argued therefore that even where rates are

reduced, pursuant to Section 22, liability must remain

permanently constant under Section 2011.

That part of the argument I cannot accept.

It is not clear to me that Section 22’s reference to

reduced rates was meant to preclude correspondingly re-

ducing liability. The word rates, as used throughout the

statute, and tariffs that are filed, that are primarily con-

cerned with rates, include such things as the types of

commodity, the areas or distance they are to be shipped,

and are of necessity influenced by a multitude of factors,

including the extent of liability to which they may be

subject.

As I see it, the freedom to reduce rates logically and

necessarily implies a freedom to reduce liability in con-

sideration thereof.

If liability would not also be flexible under Section

22, then it would seem to me that the freedom to reduce

rates would be an empty privilege in most instances;

perhaps attractive to carriers who might be motivated by

pure charity or patriotism, which I think certainly was

not within the Congressional contemplation or possibly

because of anticipated high volume of business. But it

does seem to me that the only logical reason for a carrier,

from a purely business standpoint, to reduce rates to the

United States, would be for the purpose of in some way

reducing its liability.

As I see, Section 22 does not in any way refute the

view that there is a symbiotic relationship between the

rates and liability. It makes no mention, Section 22

makes no mention of liability at all. Moreover, Section

2011, which does specifically deal with liability, I believe

supports this view. It addresses liability repeatedly in

terms of the rates that carriers may charge, suggesting

that Congress did indeed regard the terms of rates and

liability as mutually interdependent.

I agree with the decision of the Comptroller General

that there is no language in the Act clearly indicating

that Congress intended in any way to limit the govern-

ment’s freedom to contract for its transportation needs

and upon such terms and conditions as it deemed appro-

priate.

Congress has remained deferential to the govern-

ment in this area — that is indicated, I believe, by a 1957

Senate report which is referred to, I believe, in the briefs

as No. 410 at page 1785, which expresses concern for

the exigencies of various agencies, especially those re-

lated to national defense.

It appears to me therefore that Congress intended,

and as stated in United States vs. Well Fargo, at 161

Federal Supplement, I believe that is, 606, at 617, that

Section 22 should act to exclude from the operation of

the Act the carriage, storage and handling of property

free or reduced rates for the United States.

Plaintiff has cited a number of cases to support the

contention that Section 22’s reduced rates provision did

not also permit reduced liability.

None of these cases, as I read them, are directly in

point, nor are they particularly helpful in construing the

relationship between Sections 2011 and 22 under the

facts presented in this case.

Plaintiff suggests that even if Section 22 permits

both reduced rates and limited liability for government

shipments, the parties ruled out the possibility of limited

liability by expressly incorporating Section 2011 into the

contract.

Item 1 of the — whether we call it tariff or tender, |

might say I think that’s a matter of semantics without

substantial difference, although counsel apparently

think that it may make substantial difference.

Item 1 of MRT-1-H, which I conclude is the effec-

tive tariff or tender by the carriers to the government for

military transportation provides that carriers’ legal liabil-

ity for loss or damage to goods will be the same as set

forth in the Interstate Commerce Act, citing Title

49 U.S.C. at Section 2011, limited to the amount per

pound, per article shown herein.

This provision is to me obviously not inconsistent

with the desire to limit liability.

Clearly the parties intended that all provisions of

Section 2011 should apply, except that liability should

be limited as specified.

Plaintiff argues also that to permit limit liability,

when the United States is the shipper, would compel the

absurd results of permitting carriers to limit their liabil-

ity against all other shippers specially mentioned in Sec-

tion 22, such as homeless persons and charitable organ-

izations and so on.

This matter is not presently before me and I will not

attempt, at this point, to determine the status of any

other parties other than the United States government

with respect to the right of carriers to limit their liability.

I believe, however, that the language of Section 22,

and Congressional intent behind it leads to the conclu-

sion when the United States is the shipper, carriers may

limit their liability in return for charging reduced rates.

In holding that Section 22 authorized reduced li-

ability, as well as reduced rates, | am not reaching the

question of whether this contract qualifies for limited li-

ability under the provisions expressly contained in Sec-

tion 2011.

I believe, however, that the requirements of that

proviso have also been met.

As I understand it, there is a release rates authoriza-

tion referred to, I believe, as MC-505.

MC-505 was expressly referred to in the tariff of the

defendant in this case for its commercial customers or

commercial rates under 175-C, and the rate tender of

MRT-1-H specifically referred to its tariff 175-C and to

its commercial rates.

It seems to me that although the statute does re-

quire that the matter be expressly referred to, that so far

as the government is concerned, considering that the

government is the shipper and that there is not the Con-

gressional concern of two parties not being on equal

footing in negotiating such transactions and agree-

ments, that there is a sufficient, specific and express ref-

erence to the rates release authorization.

In addition to that, of course, the government-as-

shipper and plaintiff have expressly agreed to this limita-

tion of the carriers’ liability. And as I pointed out before,

it is my view Section 22 gives the government that right

and it is primarily based on Section 22.

I don’t specifically hold that there has been a fully

compliance with Section 2011, but it is my view that

there has been sufficient compliance.

Section 2011 appears to embody Congress’ rather

paternalistic attitude toward shippers who may be in a

poor bargaining position or who might, or — and also |

would say to prevent the carriers from unilaterally limit-

ing their liability under matters that are the type of con-

tracts of adhesion and that type of thing and Congress, |

believe, was of the view that the Interstate Commerce

Commission should have strict control over limitations

of liability for the purposes of protecting particular types

of shippers, namely the ordinary commercial shipper.

I believe that this has been suggested by the Inter-

state Commerce Commission in the practices of motor

common carriers of household goods at 95 M.C.C. 138,

in 1968.

The statute would appear to make the Interstate

Commerce Commission inte a sort of watchdog or

guardian shippers against all limitations of liability that

have not been specifically approved by the Interstate

Commerce Commission.

In the case of an agreement between the United

States and the carriers, it seems to me that the parties

are certainly of equal bargaining power and Congress’

concerns for the ordinary shipper would be entirely dif-

ferent.

It would seem to me that Section 2011's protection

is completely unnecessary and would, in fact, if given

the interpretation sought by plaintiff, would, in fact, very

seriously limit the rights of the government to enter into

contracts at prices most favorable to the government.

There have been some cases also that have held that

if the shipper is sophisticated and knowledgeable in the

area that even though there may be some minor tech-

nical violations or lack of full compliance with Section

2011, or even though the agreement may not stricken

contorm to the requirement of the statute, that neverthe-

less they would be, the reduced liability would be

upheld.

For example, the case of Semi-Metals Incorporated

vs. Pinter Brothers at 360 Atlanta 2d 385-(1976). The

controlling contractual document in this case was the

government’s bill of lading which was required by gov-

ernmental regulations and statues and under the exist-

ing tariff.

I think it’s clear that the defendants and the govern-

ment may be regarded as possessing equal bargaining

power and the government not only consented to the

sixty cents per pound limitation of liability, but actually

dictated it in the sense that it required that shipments be

made at the lowest possible rate.

It is probable that equitable considerations have lit-

tle, if any effect, since we are concerned only with the

construction of statutes.

But | think it is proper to point out that there cer-

tainly was no unfair advantage taken of either the ship-

per, being the government, or the consignee service-

man.

It is clear from the stipulation of facts that the serv-

iceman was fully aware of the limitation of liability. He

was afforded an opportunity to ship at the rates where

the liability would not be so limited. And in addition to

that, he took advantage of the right to secure additional

insurance from an insurance carrier to cover any dam-

age in excess of his liability.

I think to apply Section 2011 to the present case

would extend this Section well beyond the class of per-

sons and beyond the type of conduct which Congress

was concerned with providing protection.

I think it may be of some significance that there has

been a limitation of liability and rates dependent upon

the released value of the property for a long period of

time within the industry. Both sides have accepted the

benefits of this arrangement, government by paying re-

duced rates and carriers by risking proportionately less

liability.

I can see no unfairness to either side in permitting

this long established and accepted practice to continue.

The plaintiff himself named herein, Donald Howe,

was fully protected against loss.

The fact that this is essentially a subrogation claim

does little to suggest that the individual serviceman or

servicemen require protection of Section 2011, nor do |

see any obvious unfairness to the insurance carrier, the

real party in interest.

It obviously had actual notice of the limitation of li-

ability contained in the shipping contract.

It had issued policies in the past for profit under

similar circumstances.

Thus to the extent that there may be equitable con-

sideration, it is clear that all of them would favor a non-

recovery for the plaintiff in this case based upon an

unlimited liability or liability limited only to the value of

the goods.

Therefore | conclude that the limitation of liability

in exchange for reduced rates is authorized by Section

22 of the United States Code, Section 49, and that this

conclusion is supported by the various equitable consid-

erations.

Therefore | will direct that an order be entered in

Civil Action No. 78-1717 denying plaintiff's motion for

partial summary judgment and granting defendant's

motion for summary judgment.

Judgment hereby entered will be in favor of the

plaintiff and against the defendant in the sum of $6,438,

which is the agreed amount, plus interest on $3,938

from July 5, 1977, and making interest from that date,

on that amount, by reason of the fact that there was, ac-

cording to the stipulation of facts, a tender of the pay-

ment of $2,500 on July 7, I believe it was, which was ob-

viously from the stipulation of facts, the day or almost

the day that the notice of the actual loss occurred.

Now gentlemen, as to all of the related cases, it

seems to me that probably the same basic legal issue is

involved. Assuming that there is nothing that would

change my view.of the law, I think it is rather clear that I

would probably rule consistently in all of the other cases.

I will afford counsel for all parties, in all of the other

cases, two weeks from today to file any motions for sum-

mary judgment either by the plaintiffs or the defendants

in those cases.

It would seem to me that although I will not make a

formal order of consolidation in those, that they should

all be able to be disposed of, particularly in view of the

fact that I would anticipate that there would be an ap

peal of this case and perhaps all of the appeals could be

heard at one time.

MR. WISSOW: Your Honor, your Honor made a

finding as to — that MRT-1-H does not contain refer-

ence to a release rates order?

THE COURT: The only findings of fact that I am

making are those contained in stipulations of fact.

MR. WISSOW: Yes, but the stipulation of fact does

not say it in that terms and that was raised — in other

words, stipulation of fact present to the —

Al10

THE COURT: I think it’s not necessary for me to

make such a finding of fact because as part of the find-

ings of fact is the MRT-1-H, and that would speak for

itself. If there is nothing in there, then there is nothing

in there. But my making such a finding would not

change what it is.

In other words, it seems to me that that is the record

and speaks for itself.

You would be in a position to certainly argue that on

appeal.

MR. WISSOW: May I suggest also that we have a

stay on the other cases pending the disposition of this

particular motion, points on appeal?

THE COURT: No. I think that would be entirely

inappropriate. And as I say, the reason I say that is that I

think it would, first of all, if we go ahead and decide the

other case, and they’re appealed at approximately the

same time, they can probably be consolidated for appeal

in the Court of Appeals, otherwise it would not be de-

cided in this case, would not necessarily be res judicata

in the other case.

MR. WISSOW: I suggest that your Honor, because

there are three of those related cases that are exactly An-

ton cases — in other words, they do not have the valu-

ation filled in on the blanks, which was the reason they

THE COURT: That may be a valid reason for mak-

ing a different ruling in those cases, in this case, but |

see no reason to hold up on the decision.

MR. WISSOW: Two weeks for proper motions?

THE COURT: Yes.

MR. WISSOW: Is your Honor going to issue this as

an opinion, formal opinion?

THE COURT: I made my statement and my opin-

ion is there. It’s in the record. Anybody that wants to

purchase the record may do so from the court reporter.

I will sign the order which I believe — yes, there has

been a form of order submitted which I will sign today.

Today is the 29th.

* x x

All

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1717

DONALD D. HOWE

ALLIED VAN LINES, INC.

ORDER

AND NOW, this 29th day of March, 1979, after con-

sideration of Plaintiff's Motion for Partial Summary

Judgment and Defendant's Motion for Summary Judg-

ment, the briefs and arguments of the parties and of

amici curiae, it is hereby ORDERED that Plaintiff's Mo-

tion is denied and Defendant's Motion is granted, and

judgment is hereby entered for plaintiff against defen-

dant Allied Van Lines, Inc. in the sum of $6,438, plus

interest at 6% from July 5, 1977 upon $3,938.

Donald W. VanArtsdalen, J.

Al2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1340

JERRY P. HILL

TRANS-AMERICAN VAN SERVICE, INC.

ORDER

Itis ORDERED that after a hearing and trial, judg-

ment is entered in favor of the plaintiff, Jerry P. Hill, and

against the defendant, Trans-American Van Service,

Inc., on the issue of liability, damages being limited to

sixty cents ($.60) per pound per article. The parties have

agreed that based on such limitation of liability, the

damages are Eight Thousand Seven Hundred Fifty-four

Dollars ($8,754.00). Judgment is entered in favor of

plaintiff, Jerry P. Hill, and against defendant, Trans-

American Van Service, Inc. in the sum of Eight Thou-

sand Seven Hundred Fifty-four Dollars ($8,754.00).

By the Court:

Donald W. VanArtsdalen, Judge

May 22, 1979

Al3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1341

JAMES R. FARIS

AERO MAYFLOWER TRANSIT CO., INC.

ORDER

It is hereby ORDERED that plaintiff's motion for

summary judgment as to liability is granted and defen-

dant’s liability is limited to sixty ($.60) cents per pound

per article. The parties have agreed that based upon

such limitation, plaintiff's damages are $3,800.00. Judg-

ment is entered in favor of plaintiff, James R. Faris, and

against defendant, Aero Mayflower Transit Co., Inc. in

the sum of Thirty Eight Hundred Dollars ($3,800.00).

By the Court:

Donald W. VanArtsdalen, Judge

May 22, 1979

Al4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1342

JAMES H. BILLITER

WHEATON VAN LINES, INC.

ORDER

It is hereby ORDERED that final judgment is en-

tered in favor of the plaintiff, James H. Billiter, and

against the defendant, Wheaton Van Lines, !nc. in the

sum of One Thousand Seven Hundred Thirty-Five Dol-

lars and Eighty-Six Cents ($1,735.86).

By the Court:

Donald W. VanArtsdalen, Judge

May 22, 1979

Al5

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1581

DALE A. De FRANK

PYRAMID VAN LINES, INC.

ORDER

It is ORDERED that defendant’s motion for a par-

tial summary judgment is GRANTED: defendant’s li-

ability is limited to sixty ($.60) cents per pound per arti-

cle. The parties have agreed that based on the above

limitation of liability, plaintiff's damages are Eight Hun-

dred Fifty-one Dollars and Four Cents ($851.04). Judg-

ment is entered in favor of the plaintiff, Dale A. De

Frank and against the defendant, Pyramid Van Lines,

Inc., in the sum of Eight Hundred Fifty-one Dollars and

Four Cents ($851.04).

By the Court:

Donald W. VanArtsdalen, J.

May 11, 1979

Al6

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1582

NORMAN R. FOLEY

AMERICAN RED BALL TRANSIT

CO., INC.

ORDER

AND NOW, this 11th day of May, 1979, an Order

having previously been entered in this action granting

the Motion of defendant American Red Ball Transit Co.,

Inc. for Partial Summary Judgment, said Order is hereby

MODIFIED and it is hereby ORDERED that judgment

be entered in favor of plaintiff Norman R. Foley and

against defendant American Red Ball Transit Co., Inc. in

the amount of $2993.32.

By the Court:

Donald W. VanArtsdalen, J.

Al7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1718

HENRY CEVALLOS

VANPAC CARRIERS, INC.

VU.

CLEMMER MOVING & STORAGE, INC.

ORDER

It is hereby ORDERED that final judgment is en-

tered in favor of the plaintiff, Henry Cevallos, and

against defendant, Vanpac Carriers, Inc., in the sum of

Two Thousand Two Hundred Twenty Dollars

($2,220.00).

By the Court:

Donald W. VanArtsdalen, J.

May 22, 1979

Al8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1832

JURY TRIAL DEMANDED

WILLIAM E. BLASE,

Plaintiff

VU.

NATIONAL VAN LINES, INC.,

Defendant

UNITED STATES OF AMERICA,

Third Party Defendant

ORDER

A motion having been regularly made by the de-

fendant, National Van Lines, Inc., for a summary judg-

ment pursuant to Rule 56 of the Federal Rules of Civil

Procedure against plaintiff William E. Blase, upon the

ground that there is no genuine issue of material fact as

to the matters which are the subject of the Motion and

that defendant is entitled to judgment against plaintiff

as a matter of law.

NOW, upon considering the Motion, together with the

briefs of counsel for the parties and due deliberation hav-

ing been had, it is ORDERED that said Motion be and

hereby is GRANTED, and that judgment be and hereby

A19

is entered in favor of defendant National Van Lines, Inc.

and against plaintiff William E. Blase, together with

costs according to law.

By the Court:

Donald W. VanArtsdalen, J.

April 27, 1979

A20

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-1834

DONALD E. MADONNA

RICHARDSON TRANSFER & STORAGE CO.

ORDER

It is ORDERED that defendant’s motion for partial

summary judgment is GRANTED; defendant's liability

is limited to sixty ($.60) cents per pound, per article. The

parties have agreed that based on the above limitation of

liability, plaintiffs damages are Four Thousand Six

Hundred and Twenty-five ($4,625.00) Dollars. Judg-

ment is entered in favor of the plaintiff, Donald E.

Madonna and against the defendant, Richardson Trans-

fer & Storage Co. in the sum of Four Thousand Six Hun-

dred and Twenty-five ($4,625.00) Dollars.

By the Court:

Donald W. VanArtsdalen, J.

May 11, 1979

A21

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-2033

GLENN D. WILKERSON,

Plaintiff

VU.

ENGEL VAN LINES, INC.

Defendant and

Third-Party Plaintiff

Vv.

UNITED STATES OF AMERICA

Third-Party Defendant

ORDER

AND NOW, this 27th day of April, 1979, upon con-

sideration of the Motion of Defendant Engel Van Lines,

Inc. under Fed. R. Civ. P. 56(d) for Partial Summary

Judgment, it is hereby ORDERED that in the event that

defendant’s liability for plaintiff's loss is established, de-

fendant’s liability is not to exceed 60 cents per pound per

article, and is to be the lesser of the actual value of the

loss incurred or 60 cents per pound per article.

By the Court:

Donald W. VanArtsdalen, J.

A22

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-2034

JAMES R. ACREBACK

ROCKY FORD MOVING VANS, INC.

ORDER

It is ORDERED that defendant's motion for partial

summary judgment is GRANTED; defendant's liability

is limited to sixty ($.60) cents per pound per article. The

parties have agreed that based on the above limitation of

liability, plaintiff's damages are One Thousand Twenty-

three ($1,023.00) Dollars. Judgment is entered in favor

of the plaintiff, James R. Acreback and against the de-

fendant, Rocky Ford Moving Vans, Inc., in the sum of

One Thousand Twenty-three ($1,023.00) Dollars.

By the Court:

Donald W. VanArtsdalen, J.

May 11, 1979

A23

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 78-914

GEORGE J. MERKLER and

JUNE D. MERKLER

VU.

AERO MAYFLOWER TRANSIT CoO., INC.

and

UNITED STATES OF AMERICA

ORDER

It is ORDERED that order entered April 27, 1979

granting Aero Mayfiower Transit Co., Inc.’s motion for

summary judgment and limiting liability of sixty cents

($.60) per pound per article be and is hereby vacated.

By the Court:

Donald W. VanArtsdalen, J.

May 29, 1979

A24

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-1857

HOWE, Donald D., Appellant

ALLIED VAN LINES, INC.

(D.C. Civil No. 78-1717)

No. 79-1858

HILL, Jerry P., Appellant

TRANS-AMERICAN VAN SERVICE, INC.

(D.C. Civil No. 78-1340)

No. 79-1859

Faris, James R.

Aero Mayflower Transit Co., Inc.

UNITED STATES OF AMERICA

3rd Party Defendant

UNITED SERVICES AUTOMOBILE ASSOCIATION,

Appellant

(D.C. Civil No. 78-1341)

A25

No. 79-1860

BILLITER, JAMES H.

UNITED SERVICES AUTOMOBILE ASSOCIATION

WHEATON VAN LINES, INC.

UNITED SERVICES AUTOMOBILE ASSOCIATION.

Appellant

(D.C. Civil No. 78-1342)

No. 79-1861

DeF rank, Dale

Pyramid Van Lines, Inc.

Dale A. DeFrank, Appellant

(D.C. Civil No. 78-1581)

No. 79-1862

FOLEY, NORMAN R., Appellant

U.a«

AMERICAN RED BALL TRANSIT CO-, INC.

(D.C. Civil No. 78-1582)

A26

No. 79-1863

CEVALLOS, HENRY, Appellant

VANPAC CARRIERS, INC.

CLEMMER MOVING & STORAGE. INC.

(D.C. Civil No. 78-1718)

No. 79-1864

BLASE, WILLIAM E. and UNITED

SERVICES AUTOMOBILE ASSOCIATION,

Appellants

NATIONAL VAN LINES, INC.,

Deft. and Third Party Plaintiff

VU.

UNITED STATES OF AMERICA,

Third Party Defendant

(D.C. Civil No. 78-1832)

No. 79-1865

MADONNA, DONALD E., Appellant

RICHARDSON TRANSFER AND

STORAGE CO., INC.

(D.C. Civil No. 78-1834)

A27

No. 79-1866

WILKERSON, GLENN D., Appellant

ENGEL VAN LINES, INC.

UNITED STATES OF AMERICA

(D.C. Civil No. 78-2033)

No. 79-1867

JAMES R. ACREBACK

UNITED SERVICES AUTOMOBILE ASSOCIATION

ROCKY FORD MOVING VANS, INC.

UNITED SERVICES AUTOMOBILE ASSOCIATION,

Appellant

(D.C. Civil No. 78-2034)

No. 79-1868

MERKLER, George J. and

MERKLER, June D., Appellants

AERO MAYFLOWER TRANSIT CO., INC.

UNITED STATES OF AMERICA

(D.C. Civil No. 78-0914)

A28

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Argued: March 18, 1980

Before: ALDISERT and GIBBONS, Circuit Judges

and GERRY, District Judge*

(Opinion Filed: May 9, 1980)

OPINION OF THE COURT

GIBBONS, C.J.

This litigation presents us with twelve related cases

which have been consolidated for this appeal. In each

case, the nominal appellant is a present or former mem-

ber of the United States armed forces, and the suit is

against a motor van common carrier of household goods

for damage to the goods during transit. Although the

record in each case does not establish the fact, it is ap-

parent that in each case, the appeal is pressed by the ca-

sualty insurer which insured the military plaintiffs

against such damage. The insurer asserts a right of sub-

rogation. All the shipments were arranged by the De-

partment of Defense (DOD), and the carrier received the

goods on a government bill of lading issued pursuant to a

Military Rate Tender No. 1-H, ICC No. 35 (MRT 1-H).

At least 1500 common carriers of household goods have

made a continuous offer under that tender to the DOD

Military Traffic Management Command (MTMC) to

‘Hon. John F. Gerry, United States District Judge for the District of

New Jersey. sitting by designation.

A29

carry household goods of service personnel at rates lower

than those offered to the general public under tariffs on

file with the Interstate Commerce Commission. By the

terms of MRT 1-H, and the government and carrier bills

of lading issued under its authority, the liability of the

common carrier for loss or damage is limited to an

amount equal to 60 cents per pound per article. In each

case, the serviceman, whose household goods suffered

damage while in transit (or his casualty insurer), con-

tends that he should recover the actual value of the de-

stroyed goods instead of 60 cents per pound. That con-

tention depends, in each case, upon the applicability of

the Carmack and Cummins Amendments of the Inter-

state Commerce Act to the carriage of these goods. See

49 U.S.C. §20(11) (1976).' After cross-motions for sum-

mary judgment, the district court concluded that the

provision relied upon was not controlling, and that the

limitation of liability contracted for by the MTMC pro-

tected the carriers. We affirm.

Il. FACTUAL BACKGROUND

Although the fact patterns in each of the cases is not

identical, for the purposes of our disposition, any such

differences are immaterial. For these reasons, we will

contine our discussion of the relevant facts to the Howe

case, which is typical.

Donald Howe, a Lieutenant Commander in the

United States Navy, made arrangements for the ship-

ment of his household goods through a representative of

MTMC. Under these types of arrangements, the govern-

1. Congress recently repealed the sections of the Interstate

Commerce Act at issue in this case in an Act to revise. codily and

enact without substantive change the Interstate Commerce Act as

subtitle IV of title 49 United States Code, “Transportation.” Act of

October 17, 1978. Pub. L. No. 95-473. §1, 92 Stat. 1337. The Act is

codified at 49 U.S.C. §§$1LO101-11916 (1978). However. since this

case arose belore the recodification and was litigated under the prior

version. we will also use the earlier sections for case of presentation.

A30

ment offers shipment at its expense. Howe, as a member

of the armed services, is entitled to this transportation

benefit by virtue of federal legislation.2 He applied for

the benefit on DOD form 1299, and signed an acknowl-

edgment on DOD Form 1797 that he had been briefed

concerning the carrier and its liability. Howe was in-

formed that the carrier’s liability would be limited to 60

cents per pound per article, and that the goods would be

released by the government on a government bill of lad-

ing at that valuation. He was also advised that under a

federal statute,* he could claim from the United States

an amourit up to $15,000 for any uninsured loss,* and

that, if he desired, he could also purchase additional in-

surance. Howe did purchase additional insurance in the

amount of $25,000 from United Services Automobile As-

sociation, a private insurance company that specializes

in insurance for military personnel.

Allied Van Lines, on April 26, 1977, accepted

Howe’s household goods under a government bill of lad-

ing which designated the United States Naval Academy

as the shipper and Howe as the consignee. On July 5,

1977, Allied’s van overturned and 10,730 pounds of

Howe's belongings were destroyed. Allied contends that

under the bill of lading its liability is limited to

$6,438.22, while Howe and the insurer contend that Al-

lied is liable for the actual value of the goods, which is

estimated to be about $35,000. Howe has received pay-

ment from the insurer, and presumably has received or

can receive payment from the United States for any dif-

ference between the amount received from the insurer

and the $6,438 owed by Allied. Thus, it is clear that the

major portion of any recovery sought from Allied in ex-

cess of $6,438, would be for reimbursement of the insur-

er. The United States acknowledges that it is bound by

2. See 37 U.S.C. §406 (1976).

3. See 31 U.S.C. §§241-243 (1976).

4. See id. at §241(b)01).

A31

the limitation of liability in the government bill of lading,

and has no subrogation claim. It contends, as well, that

the limitation of liability binds Howe, the consignee, and

those in privity with him. The fact pattern of all the cases

is similar, although in some of the cases it is possible

that the serviceman, as well as the insurer, has an inter-

est in any possible recovery.

Il. THE THEORY OF LIABILITY FOR FULL VALUE

The theory of recovery is that the 60 cent per pound

limitation of liability in the government bill of lading is

illegal and void under section 20(11) of the Interstate

Commerce Act, which in relevant part provides:

Any common carrier . . . receiving property for

transportation. . . shall issue a receipt or bill of lad-

ing therefor, and [1] shall be liable to the lawful

holder thereof for any loss, damage, or injury to

such property . . . and no contract, receipt, rule,

regulation, or other limitation of any character

whatsoever shall exempt such common carrier .

from the liability imposed; and any such common

carrier. . . shall be liable to the lawful holder of said

receipt or bill of lading or to any party entitled to re-

cover thereon. . . [2] for the full actual loss, dam-

age, or injury to such property . . . [3] notwith-

standing any limitation of liability or limitation of

the amount of recovery or representation or agree-

ment as to value in any such receipt or bill of lading

. or in any tariff filed with the Interstate Com-

merce Commission; and any such limitation, with-

out respect to the manner or form in which it is

sought to be made is declared to be unlawful and

void: . . . Provided, however, |4| That the provi-

sions hereof respecting liability for full actual loss,

_ notwithstanding any limitation of liability or re-

covery or representation or agreement or release as

A32

to value, and declaring any such limitation to be un-

lawful and void, shall not apply, . . . to property

. received for transportation concerning which

the carrier shall have been or shall be expressly or-

dered or required by order of the Interstate Com-

merce Commission to establish and maintain rates

dependent upon the value declared in writing by the

shipper or agreed upon in writing as the released

value of the property. . .; [5] and any tariff sched-

ule which may be filed with the commission pursu-

ant to such order shall contain specific reference

thereto and may establish rates varying with the val-

ue so declared and agreed upon; and the commis-

sion is empowered to make such order in cases

where rates dependent upon and varying with de-

clared or agreed values would, in its opinion, be just

and reasonable under the circumstances and condi-

tions surrounding the transportation.

49 U.S.C. §20(11).

Plaintiff reads section 20(11) as a plain prohibition

(|3]) against a limitation of liability for less than full val-

ue (|2]) unless the ICC has approved a released value or-

der (|4]) and the carrier has filed an approved tariff

schedule reflecting a reduced rate approved by the ICC.

It contends that there was no ICC released value order

(|4]) approving the 60 cent per pound limitation in MRT

1-H 9, and that there was no filed approved tariff sched-

ule (|5]) establishing a rate for such reduced liability.

Since Howe and the other servicemen are lawful holders

of the government bills of lading, they and their insurer

contend that, under section 20(11), the limitation of val-

ue is unlawful and void. If section 20(11) governs, and

has not been complied with, the logic of the plaintiffs

position seems inescapable.

With respect to the rates charged to the general

public, the motor carriers do not contend that they are

free to contract for a limited liability based upon an

agreed reduced value of goods received. The carriers

A33

agree that under section 20(11) they must obtain a re-

leased value order, and file an approved tariff schedule

reflecting any rate that is different from that charged to

other shippers. They do urge, however, that they sub-

stantially complied with section 20(11) because their

tender to the government, MRT 1-H, was filed with the

ICC. But their primary contention, with which the

United States as amicus agrees, is that section 20(11)

does not govern their dealings with the govern-

ment-as-shipper. In support of their argument, both the

motor carriers and the United States point to section 22

of the Interstate Commerce Act, which in relevant part

provides:

Nothing in this chapter shall prevent the carriage

. of property free or at reduced rates for the

United States, State or municipal governments, or

for charitable purposes, or to or from fairs and expo-

sitions for exhibition thereat.

49 U.S.C. §22 (1976).

The motor carriers and the government contend

that section 22 authorizes the United States to enter into

agreements with carriers which are otherwise subject to

the Interstate Commerce Act, at reduced transportation

rates with concommitant limitations of liability. They

urge that the freedom of contract which the United

States enjoys by virtue of section 22, is an exception to

the general antidiscrimination thrust of the Act. And,

therefore, since section 20(11) is one of the sections that

promotes this antidiscrimination purpose, they are

exempted from its requirements.

Hil. THE INAPPLICABILITY OF SECTION 20(11) TO

GOVERNMENT ARRANGEMENTS PURSUANT

TO SECTION 22.

For present purposes we accept as correct, without

deciding, the plaintiffs’ contention that they are “hold-

ers” of these government bills of lading and that there-

A34

fore they fall within the terms of the limitation of liability

protections in section 20(11). We also assume,

arguendo, that the plaintiffs are correct in their conten-

tion that strict, not merely substantial compliance with

that section is required before a carrier to which it ap-

plies can claim the protection of a contractual limitation

of liability? However, since the plaintiffs’ rights as

“holders” are no greater than those of the consignor

(United States), to whom the bill of lading was issued,

we must first consider the contention that section

20(11) is inapplicable to government bills of lading by

virtue of section 22. We conclude that both history and

policy support that construction of section 22.

A. The Background of Section 22

The language of section 22, quoted above, has been

a part of the Interstate Commerce Act from the date of

the Act’s first passage on February 24, 1887. See Act of

February 24, 1887, ch. 104, §22, 24 Stat. 387.° But its

5. See New York, N.H. & H.R. Co. v. Nothnatle, 346 U.S. 128,

134-35 (1953) (to limit liability in accordance with statutory excep-

tion, there must be agreement in writing between shipper and carri-

er to that effect); American Ry. Express Co. v. Lindenberg, 260

U.S. 584, 589-90 (1923) (Cummins Amendment requires express

authorization of ICC to maintain rates dependent upon value de-

clared and agreed to as the released value, but statute does not re-

quire signature of shipper); Glickfeld v. Howard Van Lines, 213

bk. 2d 723, 725 (9th Cir. 1954) (discussing statutory requirement for

released values); Caten v. Salt City Movers & Storage Co., 149 F.2d

428. 432 (2d Cir. 1945); Semi-Metals, Inc. v. Pinter Bros., 360 A.2d

385, 387 (N.J. Sup. Ct. 1976) (discussing requirements of section

20(11)).

6. The original version of section 22 states (emphasis added):

Section 22. That nothing in this act shall apply to the carriage,

storage, or handling of property, free or at reduced rates for the

United States, State, or municipal governments, or for chiarita-

ble purposes, or to or from fairs and expositions for exhibition

thereat, or the issuance of mileage, excursion, or comnyutation

passenger tickets; nothing in this act shall be construed to pro-

hibit any common carrier from giving reduced rates to minis-

A35

antecedents are even older. The issue of federal regula-

tion of interstate railroads had been the subject of con-

gressional debate for more than twenty years prior to the

Act. The 1887 enactment was the culmination of these

debates. Previously, a provision similar to section 22 had

been included in other proposed bills’ on which the Sen-

ate and the House had failed to agree.®

The unsuccessful proponents of federal railroad

regulation were not writing, however, on a clean slate

with respect to their attempt to exempt government con-

tracts from the general coverage of the act. The subject

had already been addressed in the Act of June 15, 1866,

ch. 124, §1, 14 Stat. 66 (1866). This was the first

railroad statute passed pursuant to commerce clause

powers. It was precipitated by the New Jersey statutory

grant of a monopoly to the Camden & Amboy Railroad of

the traffic between New York and Philadelphia.” The act

NOTE 6 — (Continued)

ters of religion; nothing in this act shall be construed to prevent

railroads from giving free carriage to their own officers and em-

plovees, or to prevent the principal officers of any railroad com-

pany or companies from exchanging passes or tickets with oth-

er railroad companies for their officers and employees; and

nothing in this act contained shall in any way abridge or alter

the remedies now existing at common law or by statute, but the

provisions of this act are in addition to such remedies: Provided,

that no pending litigation shall in any way be affected by this

act,

We note that, in this original version, the first clause states flatly

that the act shall not “apply.” The later version, instead, uses the

word “prevent.” Compare Act of February 24, 1887, ch. 104, §22, 24

Stat. 387 with 49 U.S.C. §22 (1976). Apparently, the wording was

changed inadvertently in the Act of March 2, 1889, ch. 382, §4, 25

Stat. 862 (1889).

7. See H.R. No. 2546, The Reagan Bill of 1878, §9, 9 Cong.

Rec. 93 (1878-79), reprinted in L. H. Haney, ILA CONGRESSION-

AL HISTORY OF RAILWAYS 297 (1908 & 1910) (reprinted two

volumes in one by A. Kelly 1968) |hereinafter cited as Haney}.

8. See Haney, supra note 7, at 292.

9. See id. at 215-27.

A36

authorized all railroads to carry through traffic and to

interconnect with other lines. Congress thus intended to

eliminate this monopoly by imposing this _ inter-

connection principle on all railroads. The act contained

the proviso “|t}hat this act shall not affect any stipulation

between the government of the United States and any

railroad company for transportation or fares without

compensation, nor impair or change the conditions im-

posed by the terms of any act granting lands to such

company. . ..” 14 Stat. 66. This reference to “any act

granting lands to any such company” is the key to the

understanding of the “shall not apply” language in the

original section 22.

Most railroad companies, whether chartered by the

states or built pursuant to federal legislation were the re-

cipients of various forms of public support, for which the

government sought a quid pro quo of more favorable

treatment. '° This treatment of the railroads was consis-

tent with the earlier treatment of canal companies which

received government support.'' By 1866, the land grant

acts stated in fairly specific terms exactly what favorable

treatment the government expected. A land grant act in

1866 is particularly illustrative and significant:

That the grants aforesaid are made upon the condi-

tion that the said companies shall keep said railroad

. in repair and use, and shall at all times trans-

port the mails,. . . forthe. . . United States, .

and that the government shall at all times have the

preference in the use of said railroad. . . at fair and

reasonable rates. . . not to exceed the rates paid by

private parties. . . . And said railroad shall be and

remain a public highway for the use of the govern-

ment of the United States, free of all toll or other

charges upon the transportation of the property or

10. See id. at 34-38.

Ll. See id. at 34.

A37

troops of the United States; and the same shall be

transported over said road at the cost, charge, and

expense of the corporations or companies owning or

operating the same, when so required by . . . the

United States.

Act of July 25, 1866, ch. 242, §5, 14 Stat. 240-41 (1866).

Some members of Congress assumed that these condi-

tional land grants provided for exactly what they stated:

the government was entitled to free transportation for its

property and troops from those railroads which had re-

ceived the land grants. In 1874, Congress attempted to

enforce the free transportation provisions and according-

ly prohibited the use of army appropriations to be paid

for these expenses. Act of June 16, 1874, ch. 285, 18

Stat. 74. The Supreme Court disagreed with Congress’

interpretation of its own legislation, and held in

Atchison, Topeka & S.F. Co. v. United States, 93 U.S. (3

Otto) 442 (1876), that such statutory provisions applied

to tolls, not to transportation charges. The railroads

were, by then, sufficiently well-connected in Congress

that the decision was not overturned by subsequent leg-

islation. But, Congress did continue to insist that the

beneficiaries of its land grants do business with the

United States at reduced rates. !”

Congress was certainly aware in 1887, when it

passed the Interstate Commerce Act, of its own statutes

that required preferential treatment. Numerous states

have also enacted similar preferential legislation.'* To

12. Id. at 37-38. There were, moreover, numerous statutes

dealing with conditions and rates for transportation of the mails.

See. ¢.g., Post Office Act, ch. 335, §§213, 214, 17 Stat. 309 (1872);

Act of March 3, 1873, ch. 231, 17 Stat. 559; Act of July 12, 1876, ch.

179. 19 Stat. 79; Act of June 17, 1878, ch. 259, 20,Stat. 142 (1878);

Act of Dec. 21, 1878, ch. 10, 20 Stat. 259; Act of March 3, 1879, ch.

180. 20 Stat. 357; Act of March |, 1881, ch. 96, 21 Stat. 375; See

Haney. supra note 7, at 200-213.

13. For example, railroads in New Jersey are required to carry

free of charge state emplovees who are tray cling on state business.

Sve N.J. Stat. Ann. §48:12-109 (West Supp. 1978).

a”

A38

understand why it was necessary for Congress to

exempt governmental business from coverage of the In-

terstate Commerce Act, it must be recognized that the

primary feature of that Act was to prohibit “any undue or

unreasonable preference or advantage to any particular

person, company, firm, corporation, or locality, or any

particular description of traffic, in any respect whatso-

ever. . . .”’ Interstate Commerce Act of 1887, ch. 104.

§3, 24 Stat. 380. Thus if the governmental exception,

embodied in section 22, had not been included in the

‘Act, a large number of federal and state statutes provid-

ing for preferences or advantages to governmental traffic

would have been repealed.

However, the real concerns of the 1887 Congress

did not involve governmental traffic. The aforemen-

tioned stalemate between the House and the Senate over

federal railroad regulation finally came to an end in 1887

with the passage of the Act, because of the coincidental

occurence of two events. One was the decision of the Su-

preme Court in Wabash St. L. & Pac. Ry. Co. v. Illinois,

118 U.S. 557 (1886). In that case, the Court held that

the 1870 Illinois statute prohibiting discrimination be-

tween long haul and short haul shippers was, under the

commerce clause, unconstitutional. The other precipi-

tating event was the disclosure of evidence that the

Standard Oil Company had conspired with railroads in

Western Pennsylvania; it was intended that the railroads

would charge higher rates for transportation of Pennsyl-

vania crude to refineries in Pittsburgh than for transpor-

tation to Standard’s refinery in Cleveland.'? Further in-

vestigation by congressional committees revealed that

five leading railroads had been part of a conspiracy to

monopolize the petroleum trade. It was the railroad’s

ability to charge various rates that enabled them to effect

anticompetitive policies. In 1887, Congress was

14. See Haney, supra note 7, at 286-87.

A39

interested in the elimination of the discrimination in fa-

vor of classes of private shippers, and not in the elimina-

tion of a longstanding legislative judgment that the gov-

ernment could insist upon such discrimination.

The early history of section 22 compels the conclu-

sion that Congress intended to preserve the federal gov-

ernment’s power to bargain with carriers, or to impose

upon carriers preferential rates and terms—free of the

antidiscrimination prohibitions of the Interstate Com-

merce Act, and free of regulation by the Commission

which the Act created. Subsequent amendments to sec-

tion 22 do not indicate any intention on the part of Con-

gress to eliminate this right of the federal government to

make its own arrangements.

The first several changes in the section consisted of

the addition of new classifications for which reduced

rates would be allowed—if the carrier decided to offer

such rates. For example, the Act of March 2, 1889, ch.

382, §9, 25 Stat. 862, which also changed the wording

from “apply” to “prevent”, added destitute, homeless and

indigent persons, persons from National or State Homes,

and soldiers to the list. Similarly, blind persons accompa-

nied by a guide were added to section 22 in the Act of

February 26, 1927, ch. 217, 44 Stat. 1247-48, and the

reduced rate exception was extended to transportation of

property to or from parts of the country with the object of

providing relief from earthquakes, floods, fires, and oth-

er such disasters. See Act of March 4, 1927, ch. 510, §1,

44 Stat. 1446-47. In 1934, an exception was added for

improving nationwide housing, as specified by the Com-

missioner, see Act of June 27, 1934, ch. 847, §511, 48

Stat. 264, but was repealed in 1940. See Act of Septem-

ber 18, 1940, ch. 722, §3, 54 Stat. 900-901. Other minor

changes were made by the 1940 Act. During the inter-

vening years, motor carriers were added to the Act. See

motor carrier act of August 9, 1935, ch. 498, 49 Stat.

543, 563, seeing eye dogs were subsequently allowed for

blind persons, see Act of July 5, 1937, ch. 432, 50 Stat.

A40

475, and additional relief for disasters when authorized

by the Commission (with or without a hearing). See Act

of August 25, 1937, 50 Stat. 809.

It wasn’t until 1957 that a significant change — rel-

evant to this litigation — was proposed but not adopted.

In that year, the Senate Committee on Interstate and

Foreign Commerce recommended an amendment to

section 22. The bill was directed to the first clause of the

act under which the United States, state, and municipal

governments were allowed reduced rates. The bill pro-

posed to limit the granting of such rates to times of war

or national emergency.

The Senate report on this proposal discusses the

various positions of the bill’s proponents and opponents.

The following excerpts are relevant to Congress’ under-

standing of the scope of the section.

The Interstate Commerce Commission advo-

cates amendment of section 22 as indicated in this

bill on the ground that the reduced rates so obtained

have a strong tendency to increase the cost of regu-

lated transportation.

Leading advocates of repeal are members of the

motor carrier industry. . . . It is argued that it is

unfair to the commercial shipper to allow the gov-

ernment to move its traffic without regulation be-

cause under this policy the various levels of govern-

ment obtain low rates that must be subsidized, or

the difference made up by commercial shippers in

the form of higher rates to them.

The railroads generally contend that as long as

unregulated means of transportation are available to

the government . . . that section 22 should be

A41

available to the railroads to allow them to compete

for government business.

The Department of Defense does not favor pas-

sage of S. 939. Its representative pointed out... that

the Department . . . deems it imperative that it

continue to have the means for obtaining quick ac-

tion on rate adjustments now available under sec-

tion 22. The usual rate bureau procedure for ob-

taining such adjustments is considered too slow to

meet the Department’s needs.

S. Rep. No. 410 (June 6, 1957), reprinted in [1957] U.S.

Code Cong. & Ad. News 1782, 1783-84 (emphasis

added).

The discussion is, in a large part, a comparison of

the commercial regulated traffic with the unregulated

government transportation. The report presumes that

government traffic is unregulated and that the determi-

nation of its rates and regulations is not subject to nor-

mal ICC procedures. Significantly, the Department of

Defense suggested that “section 9 of S. 1457, 85th Con-

gress, be substituted. That section would make rates on

government traffic subject to all provisions of the Inter-

state Commerce Act, including the requirements for fil-

ing and public inspecting, except the long-and-short-

haul clause and the terms of the act providing for sus-

pension of rates.” [1957] U.S. Code Cong. & Ad. News at

1784. This proposal itself indicates that the government

at that time was not subject to the other provisions. The

Report recommends legislation in lieu of S. 939, which |

essentially is a compromise between the different pro-

posals urged by various carriers and various government

agencies. (The federal agencies could not agree among

themselves about S. 939).

The amendment to section 22 that was passed re-

flects a balancing between the government’s need for

flexibilitv, particularly with respect to matters of de-

A42

fense, the carriers desire to repeal the exception, and the

need, as the committee saw it, for section 22 quotations

to “be made available for public scrutiny. Rates for gov-

ernment traffic, like other business transactions of the

government, are, in the absence of compelling reasons

to the contrary, best handled in the daylight of complete

publicity. Requirement for such action is deemed neces-

sary here.” Id. at 1786. So, in rejecting the original ver-

sion of S. 939, a new paragraph was suggested which

“would require carriers to submit to the Interstate Com-

merce Commission copies of section 22 quotations si-

multaneously with- their submittal to the agencies and

departments of the United States government. The

Commission would not have any regulatory authority

over rates made under section 22, but would be required

to make section 22 tenders or quotations available for

public examination.” Id. (emphasis added).

The 1957 Congressional activity resulted in the re-

quirement that copies of quotations (MRT 1-H) to the

United States government be filed with the Interstate

Commerce Commission for informational purposes, and

open for public inspection. See 49 U.S.C. §22(2). Nei-

ther the text of the 1957 amendment nor its legislative

history suggest any departure by Congress from the de-

cision made in 1887 that the federal government, de-

spite the passage of the Act, remained free to contract

with common carriers on its own terms. Indeed, a depar-

ture from that policy was expressly rejected in 1957.

‘Not directly in point, but nevertheless relevant to an

understanding of section 22, are the exceptions for cer-

tain classes of passengers to the “free pass” prohibition

found in section 1(7) of the Act, 49 U.S.C. §1(7).'° That

15. Section one states in relevant part:

Free transportation for passengers prohibited; exceptions; pen-

alty. No common carrier subject to the provisions of this chap-

ter, shall, directly or indirectly, issue or give any interstate free

ticket, free pass, or free transportation for passengers, except to

its employees, its officers, time inspectors, surgeons, physicials,

A43

section is aimed at prohibiting non-excepted passes be-

cause they operate, in effect, as unjust discrimination.

The “free pass” prohibition was not enacted by Congress

until 1906, but those persons excepted from the “free

pass” prohibition are similar to those excepted in section

22. Commentators have noted that the two sections

must be cross-referenced'® because they embody a com-

NOTE 15 — (Continued)

and attorneys at law, and the families of any of the foregoing; to

the executive officers, general chairmen, and counsel of em-

plovees’ organizations are authorized and designated to repre-

sent employees in accordance with the provisions of the Rail-

way Labor Act; to ministers of religion, traveling secretaries of

railroad Young Men's Christian Associations, inmates of hospi

tals and charitable and eleemosynary institutions, and persons

exclusively engaged in charitable and eleemosynary work; to

indigent, destitute and homeless persons, and to such persons

when transported by charitable societies or hospitals, and the

necessary agents employed in such transportation; to inmates

of the National Homes or State Homes for Disabled Volunteer

Soldiers. and of Soldiers’ and Sailors’ Homes, including those

about to enter and those returning home after discharge; to

necessary caretakers of livestock, poultry, milk, and fruit; to

employees on sleeping cars, express cars, and to linemen of

telegraph and telephone companies; to railway mail-service

employees and persons in charge of the mails when on duty

and traveling to and from duty, and all duly accredited agents

and officers of the Post Office Department and the Railway

Mail Service and post-office inspectors while traveling on offi-

cial business, upon the exhibition of their credentials; to cus-

toms inspectors, and immigration officers; to newsboys on

trains, baggage agents, witnesses attending any legal investiga-

tion in which the common carrier is interested, persons injured

in wrecks and physicians and nurses attending such persons:

49 U.S.C. §1(7).

1G. See L. A. Miller, THE LEGISLATIVE EVOLUTION OF

THE INTERSTATE COMMERCE ACT 18, 280 (John Byrne & Co.

1930): ICC. INTERSTATE COMMERCE ACTS ANNOTATED,

Sen. Doc. No. 166, 70th Cong., Ist Sess. Vol. 3 at 2699.

A44

mon purpose.'’ The correlation between the “reduced”

tare and a limitation on liability has been recognized;

limitations on carrier liability in free passes made pursu-

ant to the Act have been consistently upheld. '®

B. The Background of Section 20( 11)

The plaintiffs acknowledge that section 22 appears

to reserve to the federal government the right to contract

with common carriers on its own terms. They contend,

however, that section 22 has no bearing upon the issue

of carrier liability. Apparently, they regard that issue as

completely unrelated to section 22 rights, and instead,

urge that the matter has been dealt with comprehensive-

ly and preemptively in section 20(11).

The evolution of section 20(11) illustrates very dif-

ferent policies than the legislative history of section 22.

The first version of section 20(11) was the Carmack

Amendment of the Hepburn Act. See Act of June 29,

1906 (Hepburn Act), ch. 359 §7, 34 Stat. 595. The

Carmack Amendment was Congress’ reaction to the de-

cision in Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477

(1903).'? According to the Hughes Court, the Interstate

Commerce Act of 1877 did not provide any guidance on

the issue of carrier liability, and that, instead, state law

controlled. However, the 1887 Act had carried forward

the carrier interconnection principle which first ap-

peared in the Act of June 15, 1866, ch. 124, §1, 14 Stat.

17. See F. Judson, THE LAW OF INTERSTATE COM-

MERCE AND ITS FEDERAL REGULATION 294, §179 (J.H.

Flood & Co., Chicago, 3d ed. 1916).

18. See, e.g., Francis v. Southern Pacific Co., 333 U.S. 445

(1948); Charleston & Western Carolina R. Co. v. Thompson, 234

U.S. 576 (1914); Boering v. Chesapeake Beach R. Co., 193 U.S.

(1904); Northern Pacific R. Co. v. Adams, 192 U.S. 440 (1904). See

Judson, supra note 17, at 296, §180.

19. See C. Miller, THE LEGISLATIVE EVOLUTION OF THE

INTERSTATE COMMERCE ACT 257 (1930).

A45

66 (1866). It was for this reason that the Hughes case

created a problematic situation: the lawful holder of a

bill of lading would have to identify and locate the

interconnecting carrier actually responsible for the loss.

This was often an impossibility.2° Thus under the

Carmack Amendment, and therefore a uniform federal

standard, the initial carrier, which issued the bill of lad-

ing, was made responsible not only for the damage

which it caused but also for any damage caused by an

interconnecting carrier.

In Adams Express Co. v. Croninger, 226 U.S. 491

(1913), the Court construed the Carmack Amendment

to be only an adoption of the common law rule that a

common carrier may not contract itself out of liability for

negligence. However, under state common law, a carrier

could contract for a limited valuation of goods. Thus, the

Court held that under state law, which had not been pre-

empted by the Amendment, it was lawful for a carrier to

limit its exposure to liability. The Adams Express hold-

ing introduced the possibility that common carriers

could discriminate among shippers by offering reduced

rates in exchange for real or imaginary limitations in de-

clared value. In 1915, Congress reacted to this situation,

and passed the First Cummins Amendment to the sec-

tion. See Act of March 4, 1915, 38 Stat. 1196. It provided

that a carrier could contract to limit liability as to valu-

ation only if the goods were hidden from view by wrap-

ping, boxing, or other means. In such a case, the carrier

and the shipper could agree on a declared value, and the

shipper could obtain a reduced rate dependent on value,

but only if such reduced rates were filed with the Inter-

state Commerce Commission in advance.

Finally, in 1916, as a result of a Commission con-

struction of the 1915 Amendment,”! Congress passed

20. See Knorst, INTERSTATE COMMERCE LAW & PRAC-

TICE 89-90 (1953).

21. See id. at 104.

A46

the Second Cummins Amendment.”” The purpose of

this amendment was to restore the rule of liability for full

value as it had previously existed. The Commission

could establish rates which varied with the value of the

property declared or agreed upon. A limitation of liability

was allowed if expressly authorized by the Commission.

These released values were to be filed, as rates were,

with the Commission. The Second Cummins Amend-

ment contained all the relevant language of the current

section 20(11).° As we view the legislative evolution of

section 20(11), we discern three aspects. First, Congress

in the Carmack Amendment in 1906 federalized, and

thus made uniform, the law of common carrier liability

in interstate commerce transactions. Next, in the First

Cummins Amendment, Congress endorsed one of the

aspects of the Adams Express interpretation of the

Carmack Amendment: a carrier could not contract out of

negligence absolutely, but it could contract for a rate re-

flecting a declared value of the goods shipped. Third,

Congress recognized that to allow private parties to con-

tract for special rates based upon declared values would

open the door to discrimination. Thus, Congress made

such contracts the subject of filed tariffs, and thus of the

filed tariff rule.** We must decide how each of these as-

pects bears upon the federal government’s pre-existing

section 22 power to do business with carriers on its own

terms.

The first aspect of section 20(11) is, we think, irrele-

vant for present purposes. In 1906, Congress probably

did not have in mind the protection of the federal gov-

22. See Act of August 9, 1916, ch. 301, 39 Stat. 441.

23. Section 20(11) has been recodified without substantive

change at 49 U.S.C. §10730 (1978). See note 1 supra.

24. Carriers are required to file tariffs and must adhere to those

tariffs in order to prevent discrimination. See Essential Communica-

tions v. American Tel. & Tel., 610 F.2d 1114, 1119-20 (3d Cir.

1979).

A47

ernment from the vagaries of state law, and from carrier

contracts that exculpated the carrier from negligence.

Congress’ basic position was reflected in section 22: the

federal government could deal with carriers on whatever

terms it bargained for. But, even if we assume that the

1906 legislation was intended to benefit the United

States, that aspect of section 20(11) is not in issue. The

government bills of lading in this case did not exculpate

the carriers from their own negligence, and no one sug-

gests that we should look elsewhere but to federal law.?°

The second aspect of section 20(11) is equally irrel-

evant. The First Cummins Amendment endorsed the

concept of the Adams Express rule that a shipper and a

carrier could contract for a limitation on liability tied to

the declared value of the goods. The endorsement of this

concept neither added to nor subtracted from the pre-ex-

isting authority of the federal government, recognized in

section 22, to contract in exactly that manner if federal

officials so desired.

The third aspect of section 20(11), the requirement

that shipper-carrier agreements be made only pursuant

to approved filed tariffs, is the only possibly relevant as-

pect. The question is a narrow one: did Congress, when

it brought agreements as to declared value of shipments

within the antidiscrimination coverage of the Interstate

Commerce Act, intend to modify the longstanding policy

that the federal government was not bound by the

antidiscrimination principle. There is no evidence of any

such intention in 1915, or in 1916, or at any time since.

The plaintiffs contend that section 22 is solely a rate

section, while section 20(11) is solely a carrier liability

section, and thus each section must govern exclusively

on the separate issues. They urge that the federal gov-

ernment is free under section 22 to negotiate for dis-

25. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 367

(1943).

A48

criminatory rates, but is bound under section 20(11),

like private shippers, by the prohibition against

contractual limitations on liability—unless, of course, it

has fully complied with the released value exception.

But section 20(11) itself recognizes the interrelationship

between the declared value of property and the rate

charged for carriage. According to that section, a shipper

who choses to self-insure for any excess over the de-

clared value is entitled to a reduction in rate, since the

carrier is thereby relieved of a portion of the risk that it

would otherwise be responsible for. The amount of the

reduction must be determined, however, in accordance

with an approved filed tariff, in order to prevent favored

shippers from using the self-insurance device as a meth-

od of exacting rate discriminations. A government ship-

per, exempted under section 22, who agrees to a de-

clared value, similarly acts as a self-insurer in order to

seek a rate concession to relieve the carrier of part of the

risk of loss. Thus, since a government shipper may law-

fully exact a discriminatory rate, there is no reason to re-

quire adherence to the antidiscrimination released value

provisions of section 20(11).

C. Caselaw On Government Bills of Lading

Few cases have been called to our attention dealing

expressly with the applicability of section 20(11) to a

government bill of lading. The case which gives the

plaintiffs the greatest comfort is Anton v. Greyhound

Van Lines, 591 F.2d 103 (1st Cir. 1978). On facts similar

to those presented here, the court held that a carrier was

liable to a serviceperson for full value of goods damaged

in transit because it had not complied with the released

value requirements of section 20(11). The court

mistakenly refers to the military person as the shipper,

although it seems clear that the goods were, as here,

shipped on a government bill of lading at a declared val-

ue of 60 cents per pound pursuant to a general tender to

A49

the DOD. No mention is made in the opinion of section

22, and apparently it was not called to the court’s atten-

tion. Had it been, we are confident that the result in

Anton would have been different.

No other cases on which the parties rely are particu-

larly helpful. In Rocky Ford Moving Lines, Inc. v. United

States, 501 F.2d 1369 (8th Cir. 1974), the court en-

forced the 60 ~ent per pound limitation of liability, but

did not clearly disclose whether its decision rested upon

a section 22 exemption or upon substantial compliance

with section 20(11). In Fort Worth & Denver R.R. Co. v.

United States, 242 F.2d 702 (5th Cir. 1975), the court

held that the carrier was liable to the United States for

full value because neither the section 22 quotation nor

the bill of lading contained a lower declared value. 242

F.2d at 705.

In C & H. Transp. Co. v. United States, 436 F.2d

480 (Ct. Cl. 1971), the government argued that the sec-

tion 22 tender (which contained no released value provi-

sion) governed. The carrier contended that the section

22 quotation incorporated by reference the carrier’s pub-

lished tariff regulations and released values. The court

held for the government. Although the court recognized

that a section 22 rate was exclusive, it did not mention

section 20(11).7°

In a similar context, section 22 quotations were rec-

ognized as lawfully published and filed with the com-

mission, although not approved. See Atchison, Topeka &

S.F.R. Co. v. United States, 572 F.2d 843 (Ct. Cl. 1978).

Apparently, the court viewed publication and filing:as

the only necessary elements for section 22 rates. How-

ever, the court did not discuss the applicability of section

20( 11).

26. Cf. Stric’land Transp. Co. v. United States, 334 F.2d 172

(Sth Cir. 1964) (distinction between reduced and released rates un-

der section 20011) in context of U.S. bill of lading—but section 22

not mentioned ).

ASO

Finally, plaintiffs rely on dicta in Hughes Transp.

Co. v. United States, 121 F. Supp. 212 (Ct. Cl. 1954).

which was vacated, and summary judgment was grant-

ed to the government for other reasons in a subsequent

decision.*’ 168 F. Supp. 219 (Ct. Cl. 1958), cert. denied,

359 U.S. 968 (1959). To the extent that the Hughes

opinion tends to support plaintiffs’ version of the interac-

tion between sections 20(11) and 22, we find it

unpersuasive.

This is, so far as we can tell, the first case which has

considered whether the Carmack and Cummins

Amendments require Interstate Commerce Commission

approval of declared value limitations in government tar-

iffs and bills of lading. As indicated above, we think the

government is free to contract for declared value limita-

tions without such approval.

D. Policy Considerations

The government’s shipment of household goods is a

massive operation and is part of a comprehensive com-

pensation plan for the military. See 37 U.S.C. §406(b).

The government has elected to act as a self-insurer for

the excess of value over 60 cents per pound, upon the

reasonable belief that by doing so, it will obtain more fa-

vorable rate quotations from the common carriers of

household goods. It is undisputed that the DOD need

not have Interstate Commerce Commission approval for

the solicitation and acceptance of tenders for carriage.

There is no feasible method to separate the component

of a tendered rate reflecting risk of loss from the rest of

the tender. Thus, as a practical matter, either all aspects

of tenders to the government should be made subject to

27. The Supreme Court held in Public Utilities Comm. of

Calif. v. United States, 355 U.S. 534 (1958), that rates for the feder-

al government were not subject to regulation by the states, and

therefore the original holding of Hughes was incorrect.

AS1

the Commission's approval jurisdiction or none should

be. Congress chose in 1957 to continue the policy,

adopted in 1887, of allowing the federal government to

bargain freely for preferential treatment. Moreover, it is

not unreasonable to assume that the government, as a

shipper, has sufficient strength to reach a fair bargain.

In light of the close relationship between rates and de-

clared values, it would be unrealistic to interpret the Act

as imposing partial coverage.

IV. JUDGMENT

Our conclusion that section 20(11) does not apply to

government bills of lading suffices to sustain the judg-

ment in favor of the defendants for any amounts in ex-

cess of 60 cents per pound. That being so, we have no

occasion to discuss other contentions advanced in sup-

port of that judgment. In eleven cases, No. 79-1857,

79-1858, 79-1859, 79-1860, 79-1861, 79-1862, 79-1863,

79-1864, 79-1865, 79-1867, and 79-1868, the plaintiffs

also urge that the court erred in omitting interest from

the date of loss to the dat’ of judgment. That point is not

fully developed in the brief for the plaintiffs, and is re-

sponded to only in the brief filed in No. 79-1857 on be-

half of Allied Van Lines.

Allied made a $2500 unconditional tender to Howe

on July 7, 1977, which was rejected. It contends that the

unconditional tender stopped the running of interest on

that amount. We agree. As to the remaining balance, in-

terest was allowed. In the other cases, the briefs fail to

offer any information on how the amount of the judg-

ment was calculated. But our examination of the record

suggests that in those instances in which judgments

were entered in favor of the plaintiff, on the assumption

that 60 cents per pound was due, the amount of the

judgment was agreed upon. Thus we will affirm the

judgments of the district court in all cases.

A52

JUDGMENT

These causes come on to be heard on the records

from the United States District Court for the Eastern

District of Pennsylvania and were argued by counsel on

March 18, 1980.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgments of the

said District Court, filed: May 3, 1979; May 22, 1979;

May 11, 1979; May 22, 1979; April 27, 1979; May 11,

1979; May 11, 1979; May 11, 1979; and June 8, 1979,

respectively be and the same are hereby affirmed. Costs

taxed against appellants.

Attest:

Thomas F. Quinn, Clerk

May 9, 1980

A53

FEDERAL STATUTES

SECTIONS 20(11) and 22 of PART I —

INTERSTATE COMMERCE ACT OF 1887, as amended

49 U.S.C. §20(11) and §22

§20, par. (11). Liability of initial and delivering car-

rier for loss; limitation of liability; notice and filing of

claim. Any common carrier, railroad, or transportation

company subject to the provisions of this chapter receiv-

ing property for transportation from a point in one State

or Territory or the District of Columbia to a point in an-

other State, Territory, District of Columbia, or from any

point in the United States to a point in an adjacent for-

eign country shall issue a receipt or bill of lading there-

for, and shall be liable to the lawful holder thereof for

any loss, damage, or injury to such property caused by it

or by any common carrier railroad, or transportation

company to which such property may be delivered or

over whose line or lines such property may pass within

the United States or within an adjacent foreign country

when transported on a through bill of lading, and no

contract, receipt, rule, regulation, or other limitation of

any character whatsoever shall exempt such common

carrier, railroad, or transportation company fromorm the

liability imposed; and any such common carrier,

railroad, or transportation company so receiving property

for transportation from a point in one State, Territory, or

the District of Columbia to a point in another State or

Territory, or from a point in a State or Territory to a point

in the District of Columbia, or from any point in the

United States to a point in an adjacent foreign country,

or for transportation wholly within a Territory, or any

common carrier, railroad, or transportation company de-

livering said property so received and transported shall

be liable to the lawful holder of said receipt or bill of lad-

ing or to any party entitled to recover thereon, whether

AS4

such receipt or bill of lading has been issued or not, for

the full actual loss, damage, or injury to such property

caused by it or by any such common carrier, railroad, or

transportation company to which such property may be

delivered or over whose line or lines such property may

pass within the United States or within an adjacent for-

eign country when transported on a through bill of lad-

ing, notwithstanding any limitation of liability or limita-

tion of the amount of recovery or representation or

agreement as to value in any such receipt or bill of lad-

ing, or in any contract, rule, regulation, or in any tariff

filed with the Interstate Commerce Commission; and

any such limitation, without respect to the manner or

form in which it is sought to be made is declared to be

unlawful and void: Provided, that if the loss, damage, or

injury occurs while the property is in the custody of a

carrier by water the liability of such carrier shall be de-

termined by the bill of lading of the carrier by water and

by and under the laws and regulations applicable to

transportation by water, and the liability of the initial or

delivering carrier shall be the same as that of such car-

rier by water: Provided, however, That the provisions

hereof respecting liability for full actual loss, damage, or

injury, notwithstanding any limitation of liability or re-

covery or representation or agreement or release as to

value, and declaring any such limitation to be unlawful

and void, shall not apply, first, to baggage carried on pas-

senger trains or boats, or trains or boats carrying passen-

gers; second, to property, except ordinary livestock, re-

ceived for transportation concerning which the carrier

shall have been or shall be expressly authorized or re-

quired by order of the Interstate Commerce Commission

to establish and maintain rates dependent upon the

value declared in writing by the shipper or agreed upon

in writing as the released value of the property, in which

case such declaration or agreement shall have no other

effect than to limit liability and recovery to an amount

not exceeding the value so declared or released, and

A55

shall not, so far as relates to values, be held to be a viola-

tion of section 10 of this title; and any tariff schedule

which may be filed with the commission pursuant to

such order shall contain specific reference thereto and

may establish rates varying with the value so declared

and agreed upon; and the commission is empowered to

make such order in cases where rates dependent upon

and varying with declared or agreed values would, in its

opinion, be just and reasonable under the circumstances

and conditions surrounding the transportation. The

term “ordinary livestock” shall include all cattle, swine,

sheep, goats, horses, and mules, except such as are

chiefly valuable for breeding, racing, show purposes, or

other special uses: Provided further, That nothing in

this section shall deprive any holder of such receipt or

bill of lading of any remedy or right of action which he

has under the existing law: Provided further, That all

actions brought under and by virtue of this paragraph

against the delivering carrier shall be brought, and may

be maintained, if in a district court of the United States,

only in a district, and if in a State court, only in a State

through or into which the defendant carrier operates a

line of railroad: Provided further, That it shall be unlaw-

ful for any such receiving or delivering common carrier

to provide by rule, contract, regulation, or otherwise a

shorter period for the filing of claims than nine months,

and for the institution of suits than two years, such peri-

od for institution of suits to be computed from the day

when notice in writing is given by the carrier to the

claimant that the carrier has disallowed the claim or any

part or parts thereof specified in the notice: And pro-

vided further, That for the purposes of this paragraph

and of paragraph (12) of this section the delivering car-

rier shall be construed to be the carrier performing the

line-haul service nearest to the point of destination and

not a carrier performing merely a switching service at

the point of destination: And provided further, That the

liability imposed by this paragraph shall also apply in the

A56

case of property reconsigned or diverted in accordance

with the applicable tariffs filed as in this chapter pro-

vided. Feb. 4, 1887, c. 104, Pt. I, §20, 24 Stat. 386; June

29, 1906, c. 3591, §7, 34 Stat. 593; Mar. 4, 1915, c. 176,

§1, 38 Stat. 1196; Aug. 9, 1916, c. 301, 39 Stat. 441;

Feb. 28, 1920, c. 91, §§ 436-438, 41 Stat. 494; July 3,

1926, c. 761, 44 Stat. 835; Mar. 4, 1927, c. 510, § 3, 44

Stat. 1448; Apr. 23, 1930, c. 208, 46 Stat. 251; Aug. 9,

1935, c. 498, §1, 49 Stat. 543; Sept. 18, 1940, c. 722, Ti-

tle I, §13(b), 54 Stat. 919.

§ 22. Restrictions; quotations of rates for United States

Government

(1) Nothing in this chapter shall prevent the car-

riage, storage, or handling of property free or at reduced

rates for the United States, State, or municipal govern-

ments, or for charitable purposes, or to or from fairs and

expositions for exhibition thereat, or the free carriage of

destitute and homeless persons transported by charita-

ble societies, and the necessary agents employed in such

transportation, or the transportation of persons for the

United States Government free or at reduced rates, or

the issuance of mileage, excursion, or commutation pas-

senger tickets; nothing in this chapter shall be con-

strued to prohibit any common carrier from giving re-

duced rates to ministers of religion, or to municipal

governments for the transportation of indigent persons,

or to inmates of Veterans’ Administration facilities or

State Homes for Disabled Volunteer Soldiers and of Sol-

diers’ and Sailors’ Orphan Homes, including those about

to enter and those returning home after discharge, un-

der arrangements with the boards of managers of said

homes; nothing in this chapter shall be construed to pro-

hibit any common carrier from establishing by publica-

tion and filing in the manner prescribed in section 6 of

this title reduced fares for application to the transporta-

tion of (a) personnel of United States armed services or

of foreign armed services, when such persons are travel-

AS7

ing at their own expense, in uniform of those services,

and while on official leave, furlough, or pass; or (b) per-

sons discharged, retired, or released from United States

armed services within thirty days prior to the com-

mencement of such transportation and traveling at their

own expense to their homes or other prospective places

of abode; nothing in this chapter shall be construed to

prevent railroads from giving free carriage to their own

officers and employees, or to prevent the free carriage,

storage, or handling by a carrier of the household goods

and other personal effects of its own officers or employ-

ees when such goods and effects must necessarily be

moved from one place to another as a result of a change

in the place of employment of such officers or employees

while in the service of the carrier, or to prevent the prin-

cipal officers of any railroad comipany or companies from

exchanging passes or tickets with other railroad compa-

nies for their officers and employees; and nothing in this

chapter contained shall in any way abridge or alter the

remedies now existing at common law or by statute, but

the provisions of this chapter are in addition to such

remedies; nothing in this chapter shall be construed to

prohibit any common carrier from carrying any totally

blind person accompanied by a guide or seeing-eye dog

or other guide dog specially trained and educated for

that purpose or from carrying a disabled person accom-

panied by an attendant if such person is disabled to the

extent of requiring such attendant, at the usual and ordi-

nary fare charged to one person, under such reasonable

regulations as may have been established by the carrier:

Provided, That no pending litigation shall in any way be

affected by this chapter: Provided further, That nothing

in this chapter shall prevent the issuance of joint inter-

changeable five-thousand-mile tickets, with special

privileges as to the amount of free baggage that may be

carried under mileage tickets of one thousand or more

miles. But before any common carrier, subject to the

provisions of this chapter, shall issue any such joint in-

A58

terchangeable mileage tickets with special privileges, as

aforesaid, it shall file with the Interstate Commerce

Commission copies of the joint tariffs of rates. fares, or

charges on which such joint interchangeable mileage

tickets are to be based, together with specifications of

the amount of free baggage permitted to be carried un-

der such tickets, in the same manner as common carri-

ers are required to do with regard to other joint rates by

section 6 of this title; and all the provisions of said sec-

tion relating to joint rates, fares, and charges shall be ob-

served by said common carriers and enforced by the In-

terstate Commerce Commission as fully with regard to

such joint interchangeable mileage tickets as with re-

gard to other joint rates, fares and charges referred to in

said section. It shall be unlawful for any common Carrier

that has issued or authorized to be issued any such joint

interchangeable mileage tickets to demand, collect. or

receive from any person or persons a greater or less com-

pensation for transportation of persons or baggage under

such joint interchangeable mileage tickets than that re-

quired by the rate, fare, or charge specified in the copies

of the joint tariff of rates, fares, or charges filed with the

Commission in force at the time. The provisions of sec-

tion 10 of this title shall apply to any violation of the re-

quirements of this proviso. Nothing in this chapter shall

prevent any Carrier or carriers subject to this chapter

from giving reduced rates for the transportation of prop-

erty to or from any section of the country with the object

of providing relief in case of earthquake, flood, fire,

famine, drought, epidemic, pestilence, or other calami-

tous visitation or disaster, if such reduced rates have first

been authorized by order of the Commission (with or

without a hearing); but in any such order the Commis-

sion shall (1) define such section, (2) specify the period

during which such reduced rates are to remain in effect,

and (3) clearly define the class or classes of persons enti-

tled to such reduced rates: Provided, That any such or-

der may define the class or classes entitled to such re-

AS59

duced rates as being persons designated as being in

distress and in need of relief by agents of the United

States or any State authorized to assist in relieving the

distress caused by any such calamitous visitation or dis-

aster. No carrier subject to the provisions of this chapter

shall be deemed to have violated the provisions of such

chapter with respect to undue or unreasonable prefer-

ence or unjust discrimination by reason of the fact that

such carrier extends such reduced rates only to the class

or classes of persons defined in the order of the Commis-

sion authorizing such reduced rates.

(2) All quotations or tenders of rates, fares or

charges under paragraph (1) of this section for the trans-

portation, storage, or handling of property or the trans-

portation of persons free or at reduced rates for the

United States Government, or any agency or department

thereof, including quotations or tenders for retroactive

application whether negotiated or renegotiated after the

services have been performed, shall be in writing or con-

firmed in writing and a copy or copies thereof shall be

submitted to the Commission by the carrier or carriers

offering such tenders or quotations in the manner speci-

fied by the Commission and only upon the submittal of

such a quotation or tender made pursuant to an agree-

ment approved by the Commission under section 5b or

Sc of this title shall the provisions of paragraph (9) of

such section 5b or paragraph (8) of such section 5c ap-

ply, but said provisions shall continue to apply as to any

agreement so approved by the Commission under which

any such quotation or tender (a) was made prior to Au-

gust 31, 1957 or (b) is on or after August 31, 1957 made

and for security reasons, as hereinafter provided, is not

submitted to the Commission: Provided, That nothing in

this paragraph shall affect any liability or cause of action

which may have accrued prior to August 31, 1957.

Submittal of such quotations or tenders to the Commis-

sion shall be made concurrently with submittal to the

United States Government, or any agency or department

A60

thereof, for whose account the quotations or tenders are

offered or for whom the proposed services are to be

rendered. Such quotations or tenders shall be preserved

by the Commission for public inspection. The provisions

of this paragraph requiring submissions to the Commis-

sion shall not apply to any quotation or tender which, as

indicated by the United States Government, or any

agency or department thereof, to any carrier or carriers,

involves information the disclosure of which would en-

danger the national security.

As amended July 27, 1956, c. 759, 70 Stat. 702; Aug. 31,

1957, Pub.L. 85—246, 71 Stat. 564; Sept. 2, 1958,

Publ.L. 85—857, §13(a), 72 Stat. 1264; Oct. 19, 1976,

Pub.L. 94—555, Title II, §220(n), 90 Stat. 2630

§219 OF MOTOR CARRIER ACT OF 1935 as amended

(Part I! — INTERSTATE COMMERCE ACT OF 1887, as amended)

49 U.S.C. §319

§319 Application of section 20(11) and (12) of this title

to common carriers by motor vehicle

The provisions of section 20(11) and (12) of this title,

together with such other provisions of chapter 1 of this

title (including penalties) as may be necessary for the

enforcement of such provisions, shall apply with respect

to common carriers by motor vehicle with like force and

effect as in the case of those persons to which such pro-

visions are specifically applicable. Feb. 4, 1887, c. 104,

Pt. II, § 219, as added Aug. 9, 1935, c. 498, 49 Stat. 563,

and amended May 16, 1942, c. 318, § 3, 56 Stat. 300;

Aug. 7, 1942, c. 552, § 1, 56 Stat. 746.

Sections 10721, 10730, 10922 and 11707 of the REVISED INTERSTATE

COMMERCE ACT of 1978 49 U.S.C. §10721, §10730, §10922, and

$11707

§10721. Government traffic

(a) (1) Except as provided in this section, the full ap-

plicable commercial rate shall be paid for transportation

A61

for the United States Government by a common carrier

providing transportation or service subject to the juris-

diction of the Interstate Commerce Commission under

this subtitle. Section 5 of title 41 does not apply when

transportation for the United States Government can be

obtained from a common carrier lawfully operating in

the area where the transportation will be provided.

When prescribing rates for transportation or service by

those common carriers, the Commission shall consider

increased revenues those carriers receive under this

subsection to reflect those increases in appropriate

readjustments of their rates.

(2) Paragraph (1) of this subsection does not apply,

and the law related to compensation for transportation

for the United States Government in effect immediately

before September 18, 1940, applies to a rail carrier if that

carrier, or its predecessor in interest, received a grant of

land from the United States to aid in constructing the

railroad it operates but did not file a release with the Sec-

retary of the Interior before September 18, 1941, of

claims against the United States Government to, or aris-

ing out of, lands that were granted, claimed to have been

granted, or claimed should have been granted to that

carrier or its predecessor in interest. This paragraph

does not require a rail carrier to reconvey to the United

States land patented or certified to it or prevent the pat-

ent of land that the Secretary of the Interior found was

sold by the carrier to an innocent purchaser for value or

as preventing the patent of land listed or selected by the

carrier and finally approved by the Secretary of the Inte-

rior to the extent that issuance of those patents is au-

thorized by law.

(b) (1) A common carrier providing transportation

subject to the jurisdiction of the Commission under

subchapter I, II, or III of chapter 105 of this title may

transport individuals for the United States Government

without charge or at reduced rates. The carriers may

A62

transport custom inspectors and immigration officers

without charge. A common carrier providing transporta-

tion or service subject to the jurisdiction of the Commis-

sion under chapter 105 of this title shall provide trans-

portation for the United States Postal Service under

chapters 50 and 52 of title 39, and may transport prop-

erty for the United States Government, a State, or mu-

nicipal government without charge or at reduced rates.

(2) Unless a carrier is advised by the United States

Government that disclosure of a quotation or tender of a

rate established under paragraph (1) of this subsection

for transportation provided to the United States Govern-

ment would endanger the national security, the carrier

shall file the quoted or tendered rate, including a retro-

active rate made after the transportation has been pro-

vided, concurrently, with the Commission and the de-

partment, agency, or instrumentality of the United

States Government for which the quotation or tender

was made or for which the proposed transportation is to

- be provided. A carrier may quote or tender a rate estab-

lished under an agreement made and approved under

section 10706 of this title, but the exemption from the

antitrust laws provided by that section applies only when

the filing requirements of this paragraph are met.

accounting, method of determining costs of transporta-

tion, value of property, or rate of return may not be ap-

plied to a water carrier owned or controlled by the

United States Government than is applied to a water car-

rier providing transportation subject to the jurisdiction

of the Commission under subchapter III of chapter 105

of this title.

Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1383.

§10730. Rates and liability based on value

The Interstate Commerce Commission may require or

authorize a carrier providing transportation or service

A63

subject to its jurisdiction under subchapter I, II, or IV of

chapter 105 of this title, to establish rates for transporta-

tion of property under which the liability of the carrier

for that property is limited to a value established by writ-

ten declaration of the shipper, or by a written agreement,

when that value would be reasonable under the circum-

stances surrounding the transportation. A rate may be

made applicable under this section to livestock only if

the livestock is valuable chiefly for breeding, racing,

show purposes, or other special uses. A tariff filed with

the Commission under subchapter IV of this chapter

shall refer specifically to the action of the Commission

under this section.

Pub.L. 95-473, Oct 17, 1978, 92 Stat. 1389.

§10922. Certificates of motor and water common carri-

ers

(a) Except as providec in this section 10930(a) of

this title, the Interstate Commerce Commission shall is-

sue a certificate to a person authorizing that person to

provide transportation subject to the jurisdiction of the

Commission under subchapter II or III of chapter 105 of

this title as a motor common carrier or water common

carrier, respectively, if the Commission finds that—

(1) the person is fit, willing and able—

(A) to provide the transportation to be au-

thorized by the certificate; and

(B) to comply with this subtitle and regu-

lations of the Commission; and

(2) the transportation to be provided under the

certificate is or will be required by the present or fu-

ture public convenience and necessity.

(b) A person must file an application with the Com-

mission for a certificate to provide transportation as a

motor common Carrier or water common carrier. The

A64

Commission may approve any part of the application or

deny the application. The application must—

(1) be under oath;

(2) contain information required by Commis-

sion regulations; and

(3) be served on persons designated by the

Commission. (c)(1) Subject to section 10927(a) of

this title, each certificate issued to a person to pro-

vide transportation as a motor common carrier shall

specify—

(A) the transportation to be provided by the

carrier;

(B) any of the regular routes over which, any

of the places between which, and off-route places at

which, the carrier may provide transportation; and

or between specified places, the area in which the

carrier may provide transportation.

(2) Under regulations of the Commission, a motor

common carrier may occasionally deviate from the regu-

lar routes, or the places specified in the certificate, or

both.

(3) If a motor common carrier transports passen-

gers, the Commission may authorize transportation of

the passengers only over a regular route and between

specified places, except to the extent the carrier is au-

thorized to provide special or charter transportation.

(4) Acertificate of a motor common carrier to trans-

port passengers may include authority to transport—

(A) newspapers, baggage of passengers, ex-

press, or mail in the same motor vehicle with the

passengers; and

(B) baggage of passengers in a separate motor

vehicle.

A65

(d) Each certificate issued to a person to provide

transportation as a water common carrier shall specify

each route over which, and each port between which,

the carrier may provide transportation.

(e)(1) A motor common carrier may provide trans-

portation under a certificate only if the carrier complies

with conditions the Commission finds are required by

public convenience and necessity, including condi-

tions—

(A) on extending routes of the carrier; and

(B) to carry out requirements established by

the Commission under this subtitle

(2) The Commission may prescribe necessary con-

ditions under which a water common carrier provides

transportation, including conditions on extending routes

of the carrier.

(3) The Commission may prescribe conditions

when the certificate is issued and at any time thereafter.

The Commission may not prescribe a condition prevent-

ing—

(A) a motor common carrier or water Common

carrier from adding to its equipment and facilities or

its transportation within the scope of the certificate

to satisfy business development and public demand;

(B) a water common carrier, if the carrier has

authority to provide transportation over completed

parts of a waterway project authorized under law,

from extending its transportation over the

uncompleted parts of the project when opened for

navigation to satisfy business development and pub-

lic demand.

(f) A certificate issued under this section does not

confer a proprietary or exclusive right to use the public

highways or public waterways.

Pub.L. 95-473, Oc. 17, 1978, 92 Stat. 1409.

A66

§11707. Liability of common carriers under receipts

and bills of lading

(a)(1) A common carrier providing transportation

or service subject to the jurisdiction of the Interstate

Commerce Commission under subchapter I, II, or IV of

chapter 105 of this title shall issue a receipt or bill of lad-

ing for property it receives for transportation under this

subtitle. That carrier and any other common carrier that

delivers the property and is providing transportation or

service subject to the jurisdiction of the Commission un-

der subchapter I, II or IV are liable to the person entitled

to recover under the receipt or bill of lading. The liability

imposed under this paragraph is for the actual loss or in-

jury to the property caused by (1) the receiving carrier,

(2) the delivering carrier,or (3) another carrier over

whose line or route the property is transported in the

United States or from a place in the United State: to a

place in an adjacent foreign country when transported

under a through bill of lading and applies to property

reconsigned or diverted under a tariff filed under

subchapter IV of chapter 107 of this title. Failure to issue

a receipt or bill of lading does not affect the liability of a

carrier. A delivering carrier is deemed to be the carrier

performing the line-haul transportaion nearest the desti-

nation but does not include a carrier providing only a

switching service at the destination.

(2) A freight forwarder is both the receiving and de-

livering carrier. When a freight forwarder provides serv-

ice subject to this subtitle and uses a motor common car-

rier providing transportation subject to the jurisdiction

of the Commission under subchapter II of chapter 105 of

this title to receive property from a consignor, the motor

common carrier may execute the bill of lading or ship-

ping receipt for the freight forwarder with its consent.

With the consent of the freight forwarder, a motor com-

mon carrier may deliver property for a freight forwarder

on the freight forwarder’s bill of lading, freight bill, or

A67

shipping receipt to the consignee named in it, and re-

ceipt for the property may be made on the freight for-

warder’s delivery receipt.

(b) The carrier issuing the receipt or bill of lading

under subsection (a) of this section or delivering the

property for which the receipt or bill of lading was issued

is entitled to recover from the carrier over whose line or

route the loss or injury occurred the amount required to

be paid to the owners of the property, as evidenced by a

receipt, judgment, or transcript, and the amount of its

expenses reasonably incurred in defending a civil action

brought by that person.

(c)(1) A common carrier may not limit or be

exempt from liability imposed under subsection (a) of

this section except as provided in this subsection. A limi-

tation of liability or of the amount of recovery or repre-

sentation or agreement in a receipt, bill of lading, con-

tract, rule, or tariff filed with the Commission in of this

section is void.

(2) If loss or injury to property occurs while it is in

the custody of a water carrier, the liability of that carrier

is determined by its bill of lading and the law applicable

to water transportation. The liability of the initial or de-

livering carrier is the same as the liability of the water

Carrier.

(3) Acommon carrier of passengers may limit its li-

ability under its passenger rate for loss or injury of bag-

gage carried on passenger trains, boats, or motor vehi-

cles, or on trains, or boats, or moter vehicles carrying

passengers.

(4) A common carrier may limit its liability for loss

or injury of property transported under section 10730 of

this title.

(d) Acivil action under this section may be brought

against a delivering carrier in a district court of the

United States or in a State court. Trial, if the action is

A68

brought in a district court of the United States is in a ju-

dicial district, and if in a State court, is in a State,

_through which the defendant carrier operates a railroad

or route.

(e) A carrier may not provide by rule, contract, or

otherwise, a period of less than 9 months for filing a

claim against it under this section and a period of less

than 2 years for bringing a civil action against it under

this section. The period for bringing a civil action is com-

puted from the date that person receives written notice

from the carrier that it has disallowed any part of the

claim specified in the notice.

Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1453.

MOTOR CARRIER ACT OF 1980

P.L. 96-____ July 1, 1980,___ Stat.___

AN ACT

To amend subtitle IV of title 49, United States Code, to provide

for more effective regulation of motor carriers of property, and for

other purposes.

Be it enacted by the Senate and House of Represen-

tatives of the United States of America in Congress as-

sembled, That this Act may be cited as the “Motor Car-

rier Act of 1980”.

PURPOSE OF THE ACT

Sec. 2 This Act is part of the continuing effort by

Congress to reduce unnecessary regulation by the Fed-

eral Government.

sy ” me

MOTOR CARRIER ENTRY POLICY

Sec. 5. (a) Section 10922 of title 49, United States

Code, is amended—

A69

(1) in subsection (a) by inserting “of passen-

gers” after “motor common carrier”;

(2) by redesignating subsections (b), (c), (d),

(e), and (f), and all references thereto, as

subsections (c), (d), (e), (f), and (g), respectively;

and

(3) by inserting after subsection (a) the follow-

ing new subsection:

“(b) (1) Except as provided in this section, the In-

terstate Commerce Commission shall issue a certificate

to a person authorizing that person to provide transpor-

tation subject to the jurisdiction of the Commission un-

der subchapter II of chapter 105 of this title as a motor

common carrier of property if the Commission finds—

. “(CA) that the person is fit, willing, and able to

provide the transportation to be authorized by the

certificate and to comply with this subtitle and regu-

lations of the Commission; and

“(B) on the basis of evidence presented by per-

sons supporting the issuance of the certificate, that

the service proposed will serve a useful public pur-

pose, responsive to a public demand or need;

unless the Commission finds, on the basis of evidence

presented by persons objecting to the issuance of a cer-

tificate, that the transportation to be authorized by the

certificate is inconsistent with the public convenience

and necessity.

‘“(2) In making a finding under paragraph (1) of

this subsection, the Commission shall consider and, to

the extent applicable, make findings on at least the fol-

lowing:

‘(A) the transportation policy of section

10101(a) of this title; and

“(B) the effect of issuance of the certificate on

existing carriers, except that the Commission shall

A70

not find diversion of revenue or traffic from an exist-

ing carrier to be in and of itself inconsistent with the

public convenience and necessity.

“(3) The Commission may not make a finding re-

lating to public convenience and necessity under para-

graph (1) of this subsection which is based upon general

findings developed in rulemaking proceedings.

‘(4) The provisions of paragraph (1) of this

subsection (other than subparagraph (A)) shall not ap-

ply to applications under this subsection for authority to

provide—

“(A) transportation to any community not reg-

ularly served by a motor common carrier of property

certificated under this section;

“(B) transportation services which will be a di-

rect substitute for abandoned rail service to a com-

munity if such abandonment results in such com-

munity not having any rail service and if such

application is filed within 120 days after such aban-

donment has been approved by the Commission;

“(C) transportation for the United States Gov-

ernment of property other than used household

goods, hazardous or secret materials, and sensitive

weapons and munitions;

“(D) transportation of shipments weighing

100 pounds or less if transported in a motor vehicle

in which no one package exceeds 100 pounds; and

“(E) transportation by motor vehicle of food

and other edible products (including edible byprod-

ucts but excluding alcoholic beverages and drugs)

intended for human consumption, agricultural

limestone and other soil conditioners, and agricul-

tural fertilizers if—

(i) such transportation is provided with

the owner of the motor vehicle in such vehicle,

except in emergency situations; and

A7]

“(ii) after issuance of the certificate, such

transportation (measured by tonnage) does not

exceed, on an annual basis, the transportation

provided by the motor vehicle (measured by

tonnage) which is exempt from the jurisdiction

of the Commission under section 10526(a) (6)

of this title and the owner of the motor vehicle

certifies to the Commission annually that he is

complying with the provisions of this clause

and provides to the Commission such informa-

tion and records as the Commission may re-

quire.

‘“(5) Notwithstanding any other provision of law,

any carrier holding authority under paragraph (4) (D) of

this subsection operating one or more commercial motor

vehicles with a gross vehicle weight rating of 10,000

pounds or more shall be subject to commercial motor ve-

hicle safety regulations promulgated by the Secretary of

Transportation pursuant to this title with respect to its

entire operations, including the operations of commer-

cial motor vehicles with gross vehicle weight ratings less

than 10,000 pounds.

‘(6) The Commission shall streamline and

simplify, to the maximum extent practicable, the proc-

ess for issuance of certificates to which the provisions of

paragraph (4) (E) of this subsection apply.

“(7) No motor common carrier of property may pro-

test an application to provide transportation filed under

this subsection unless—

“(A) (i) it possesses authority to handle, in

whole or in part, the traffic for which authority is ap-

plied;

“(ii) it is willing and able to provide service that

meets the reasonable needs of the shippers in-

volved; and

A72

“(iii) it has performed service within the scope

of the application during the previous 12-month pe-

riod or has, actively in good faith, solicited service

within the scope of the application during such peri-

od;

“(B) it has pending before the Commission an

application filed prior in time to the application be-

ing considered for substantially the same traffic; or

“(C) the Commission grants leave to intervene

upon a showing of other interests that are not con-

trary to the transportation policy set forth in section

10101(a) of this title.

“(8) No motor contract carrier of property may pro-

test an application to provide transportation filed under

this subsection.”.

(b) Section 11145 of title 49, United States Code, is

amended by adding at the end thereof the following new

subsection:

“(c) The Commission shall streamline and

simplify, to the maximum extent practicable, the report-

ing requirements applicable under this subchapter to

motor common carriers of property with respect to trans-

portation provided under certificates to which the provi-

sions of section 10922(b)(4)(E) of this title apply and to

metor contract carriers of property with respect to trans-

portation provided under permits to which the provisions

of section 10923(b)(5) of this title apply.”

(c)(1) Section 10762(a)(1) of title 49, United States

Code, is amended by striking out the last sentence and

inserting in lieu thereof the following: “A motor contract

carrier that serves only one shipper and has provided

continuous transportation to that shipper for at least one

year or a motor carrier of property providing transporta-

tion under a certificate to which the provisions of section

10922(b)(4)(E.) of this title apply or under a permit to

which the provisions of section 10923(b)(5) of this title

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apply may file only its minimum rates unless the Com-

mission finds that filing of actual rates is required in the

public interest.”.

(2) Section 10762 of title 49, United States Code, is

amended by adding at the end thereof the following new

subsection:

“(g) The Commission shall streamline and

simplify, to the maximum extent practicable, the filing

requirements applicable under this section to motor

common carriers of property with respect to transporta-

tion provided under certificates to which the provisions

of section 10922(b)(4)(E) of this title apply and to motor

contract carriers of property with respect to transporta-

tion provided under permits to which the provisions of

section 10923(b)(5) of this title apply.”.

RATES AND LIABILITY BASED ON VALUE

SEC. 12. Section 10730 of title 49, United States

Code, is amended by inserting “(a)” before “The Inter-

state Commerce Commission”, by inserting “(including

a motor common carrier of household goods but exclud-

ing any other motor common carrier of property)” after

“authorize a carrier”, and by adding at the end thereof

the following new subsection.

“(b)( 1) Subject to the provisions of paragraph (2) of

this subsection, a motor common carrier providing

transportation or service subject to the jurisdiction of the

Commission under subchapter II of chapter 105 of this

title may, subject to the provisions of this chapter (in-

cluding the general tariff requirements of section 10762

of this title), establish rates for the transportation of

property (other than household goods) under which the

liability of the carrier for such property is limited to a

value established by written declaration of the shipper or

by written agreement between the carrier and shipper if

that value would be reasonable under the circumstances

surrounding the transportation.

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“(2) Before a carrier may establish a rate for any

service under paragraph (1) of this subsection, the Com-

mission may require such carrier to have in effect and

keep in effect, during any period such rate is in effect

under such paragraph, a rate for such service which

does not limit the liability of the carrier.”.

CONGRESSIONAL FINDINGS

SEC. 3. (a) The Congress hereby finds that a safe,

sound, competitive, and fuel efficient motor carrier sys-

tem is vital to the maintenance of a strong national econ-

omy and a strong national defense; that the statutes gov-

erning Federal regulation of the motor carrier industry

are outdated and must be revised to reflect the transpor-

tation needs and realities of the 1980's; that historically

the existing regulatory structure has tended in certain

circumstances to inhibit market entry, carrier growth,

maximum utilization of equipment and energy re-

sources, and opportunities for minorities and others to

enter the trucking industry; that protective regulation

has resulted in some operating inefficiencies and some

anticompetitive pricing; that in order to reduce the un-

certainty felt by the Nation’s transportation industry, the

Interstate Commerce Commission should be given ex-

plicit direction for regulation of the motor carrier indus-

try and well-defined parameters within which it may act

pursuant to congressional policy; that the Interstate

Commerce Commission should not attempt to go beyond

the powers vested in it by the Interstate Commerce Act

and other legislation enacted by Congress; and that leg-

islative and resulting changes should be implemented

with the least amount of disruption to the transportation

system consistent with the scope of the reforms enacted.

(b) The appropriate authorizing committees of

Congress shall conduct periodic oversight hearings on

the effects of this legislation, no less than annually for

the first 5 years following the date of enactment of this

Act, to ensure that this Act is being implemented accord-

ing to congressional intent and purpose.

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RULES OF APPELLATE PROCEDURE

Rule 40.

Petition For Rehearing

(a) Time for Filing; Content; Answer; Action by

Court if Granted. A petiticn for rehearing may be filed

within 14 days after entry of judgment unless the time is

shortened or enlarged by order. The petition shall state

with particularity the points of law or fact which in the

opinion of the petitioner the court has overlooked or mis-

apprehended and shall contain such argument in sup-

port of the petition as the petitioner desires to present.

Oral argument in support of the petition will not be

permitted. No answer to a petition for rehearing will be

received unless requested by the court, but a petition for

rehearing will ordinarily not be granted in the absence of

such a request. If a petition for rehearing is granted the

court may make a final disposition of the cause without

reargument or may restore it to the calendar for

reargument or resubmission or may make such other or-

ders as are deemed appropriate under the circumstances

of the particular case.

(b) Form of Petition; Length. The petition shall be

in a form prescribed by Rule 32(a), and copies shall be

served and filed as prescribed by Rule 31(

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