CANADA PACKERS v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., ET AL

Argument of Leonard S. Goodman

Chief Justice Earl Warren: Canada Packers Limited petitioner versus Railway Company et al.

Mr. Goodman.

Mr. Leonard S. Goodman: Mr. Chief Justice, may it please the Court.

The Commission has suggested in its amicus brief that the statute grants it a jurisdiction of a foreign commerce engaged in by railroads subject to a proviso which limits this jurisdiction personally, to carriers American or foreign which performs some transportation within the United States.

Now, we left off yesterday with considering this Court's opinion in the Porter case, decided in 1961, where the Commission compared the entire three rates from Canada to the United States, found discrimination in the entire rate and ordered the carriers performing transportation in the United States to end the discrimination.

The Canadian national was exempted from that decision for example since that that Commission stated, “No transportation within the United States was performed by that carrier.”

This Court sustained the jurisdiction of the Commission on the grounds it was enough that the order ran against the American carriers.

Here, the Commission likewise considers the entire rate applicable in foreign commerce and limits its order to run only insofar as the transportation takes place in the United States.

If the case had involved future rates, rather than only past rates, the Commission would not have prescribed a rate for application within Canada but again would have entered an order requiring American carriers to seize participation in unlawful rates.

In all events, orders entered by the Commission in its supervision of foreign commerce engaged in by railroads are so drawn as to effect directly only the transportation occurring in the United States.

We submit that this is a rational interpretation of the statute.

One consistently adopted for 56 years an interpretation that is worth well in practice and one that should not be disturbed.

Mr. Justice Fortas asked Mr. Myers yesterday, but isn't the Commission requiring American carriers to pay the shipper more than the carrier received as an overpayment.

Our answer is an equivocal yes.

The division of the rate agreed upon by the carriers is of no concern to the shipper.

He is entitled to full damages from anyone of the carriers participating in the agreed upon joint rate.

In the Porter case, the Commission required American carriers to police the international rates for discrimination.

Here, it requires them to police past rates for unjustness and unreasonableness.

Rather than place the burden on the shipper, to bring two suits to recover his damage, in this case, a Canadian suit would involve less than $1,400.00.

The Commission allows one suit and is held for 56 years that if the American carriers entitled to contribution, it should work that out with its Canadian counterpart.

We find no recorded cases over contribution in this half century of experience under the Commission's interpretation of the statute.

Now, Mr. Justice Black asked whether the Commission disregard Canadian law and Mr. Justice Fortas also asked as I recall what part would the ICC determination play in Canada.

Well, we have just cited and discussed on brief the early Stoy cases which held that the Canadian Commission if suit were brought there in the first instance would approach the case exactly as the Commission has done and determine the lawfulness of the entire rate.

Canada would not go bound by the ICC determination and we are not bound by their determination.

In our view, the statute grants the Commission a concurrent jurisdiction over foreign commerce and the Commission may grant relief to shippers injured by railroads engaged in foreign commerce so long as they perform some transportation in the United States.

The act the Commission administers is of course a product of much history.

The original Act of 1887 did not contain the proviso to the Commission's jurisdiction along which the Solicitor General relies.

In the Black Horse Tobacco case of 1910, the entire Commission explained that it had jurisdiction over foreign commerce, one, to issue a seize and desist order to require American carriers to stop applying an unlawful joint rate on traffic into Mexico; and two, to order reparation be paid on the entire through rate since the American carriers were jointly and severally responsible for all unlawfulness in such rates.

During the hearings on the Transportation Act of 1920 which involved a complete rewriting and reorganization of the Act, this position was explained to Congress and in adding the proviso to Section 1, the report of the House Committee states it was adding and I quote, “minor corrections in clarifying the language in several respects but makes no important change in policy.”

The Commission continued in the International Nickel Company case of 1922 to require that reparation be paid on the entire international joint rate.

Justice John M. Harlan: What happens if they or does the Commission apply the same procedure, they've been applying the same procedure with respect to shipments originating in Canada for example and coming down here?

Mr. Leonard S. Goodman: Yes, Your Honor.

Mr. Justice Harlan, it doesn't matter which way the traffic --

Justice John M. Harlan: It works both ways?

Mr. Leonard S. Goodman: That's right.

Justice John M. Harlan: Has there been any -- has there been any criticism or difficulty with the Canadian government when this statute has been applied on that fashion?

Mr. Leonard S. Goodman: I only vaguely recall some comment during hearings.

I believe it was in the Transportation Act of 1940.

My memory is very vague on this.

It might have been in the Transportation Act of 1920 where some comment was made that an informal agreement had been tried to be reached between the governments concerning a division of responsibility on these rates and no agreement could be reached whether this meant that there had been some dispute between the governments, I could not tell from that and certainly this comment did not go very far.

No legislation was introduced.

Justice John M. Harlan: What happens in a case like that in a practical manner when you charge the whole over charge against the American carrier as a practical manner, does the Canadian carrier makes some kind of an adjustment on the division?

Mr. Leonard S. Goodman: I have no official knowledge of what happens.

The Commission does not receive copies of the divisions filed by the carriers and has no role to play.Unofficially, I am told that the carriers do work this out informally between themselves to their reviewers.

Justice John M. Harlan: Thank you.

Mr. Leonard S. Goodman: This practice of which I speak has been continuously followed since 1910 and later, it --

Chief Justice Earl Warren: May I ask -- may I ask, has it been a matter that has come up often in that time?

Mr. Leonard S. Goodman: In court proceedings, Your Honor?

Chief Justice Earl Warren: No.

No, I mean before the Commission.

Mr. Leonard S. Goodman: Oh!

Yes, very often.

Chief Justice Earl Warren: It's a regular procedure that's been well known in the railroad industry and well known to the Congress that that was the position of the Commission?

Mr. Leonard S. Goodman: Yes indeed.

It was Mr. Chief Justice's practice of Commissioner's report to Congress as late as 1962 and I've cited in our brief the next draft from hearings held in 1962 in which we explained to Congress what we were doing.

Finally, the Solicitor General invokes considerations of committee, equity and practicality.

They too we believe support the jurisdiction exercise consistently by the Commission since 1910.

We might suggest under the heading of committee that first Canada recognizes the Commission's jurisdiction and exercises a concurrent jurisdiction.

And there's not a shred of evidence that our good relations are effective in any way with Canada.

Under the heading of equity, we would submit that the Solicitor General's approach would require the shippers to bring separate suits in the United States and Canada on often very small claims.

And under the heading of practicality, as I recall yesterday, Solicitor General stated to this Court that the Commission's interpretation has not created very upsetting problems in response to the question of the Chief Justice.

Chief Justice Earl Warren: Will you speak just a little louder?

Mr. Leonard S. Goodman: I'm sorry.

In response to the question of the Chief Justice as I recall, the Solicitor General did state yesterday that the Commission's interpretation of the statute has not created very upsetting problems.

Indeed, there is not a shred of evidence that the Commission's practice has in any way discouraged the filing of joint rates.

On the other hand, the Solicitor General's solution would raise a host of practical problems.

Now, we address ourselves on brief to the weaknesses of using divisions as a standard for measuring the shipper's damage resulting from an unlawful rate.

I will not repeat those comments.

We respectfully submit that the Commission's consistent interpretation of its jurisdiction for over half a century approved by this Court in three opinions reported to Congress an exercise with the apparent approval of Congress should be sustained and we ask the order of the District Court be reinstated.

Thank you.

Chief Justice Earl Warren: Meanwhile, we both disagree with the Court of Appeals decision.

Mr. Leonard S. Goodman: Yes, we do.

I believe that is a fair summation of the Solicitor General's approach too.

They would disagree with the rationale, the reasoning of the Court of Appeals.