Before DUFFY and CASTLE, Circuit Judges, and MERCER, District Judge.
The plaintiffs-appellants*fn1 brought suit in the District Court seeking to recover from International Harvester Company, defendant-appellee, the difference between charges paid by defendant for transportation services and charges claimed by plaintiffs under their published tariffs. The complaint alleged that the action arose under the Interstate Commerce Act, 49 U.S.C.A. §§ 3(2) and 6(7) and that jurisdiction was predicated on 28 U.S.C.A. § 1337. The defendant filed a motion for summary judgment. The cause was heard on the complaint, motion for summary judgment and affidavits filed in support of and in opposition to the motion. The District Court found that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law.The court granted defendant's motion for summary judgment and entered judgment for the defendant. The plaintiffs appealed contending that the court erred in granting the motion for summary judgment.
The contested issues are (1) whether a genuine issue of material fact was presented, and (2) whether the issue involved concerned a matter within the primary jurisdiction of the Interstate Commerce Commission.
Pursuant to a 1956 application of railroads the Interstate Commerce Commission granted certain rate increases. Among increases granted were those to be accorded "lake cargo coal". This commodity moves by rail from inland mines to ports on the Great Lakes where it is transshipped by vessel to other ports. In some instances upon arrival at the second port the coal moves inland by rail. The findings of the Commission with respect to the increases to be permitted on "lake cargo coal" read as follows:
"The flat 10 cents per net ton increase shall also apply on so-called lake cargo coal with a subsequent movement beyond the first port to or via ports other than those located on Lake Superior and the west bank of Lake Michigan.
"Otherwise on coal and coke moving by rail-water, including coal to Canada, the increase in the rail factor subject to our jurisdiction shall not exceed 5 cents per net ton to the port when transshipped as cargo beyond such port; and when moving by rail-water-rail routes the increase in the rail factors subject to our jurisdiction shall not exceed 5 cents per net ton from the mine origin to the first port and 5 cents per net ton from the second port to destination."
The railroads thereafter published tariffs as follows:
"Note 4. - Except as provided in Note 5
of this item on Coal and Coke, as de- 10 cents
scribed in this item, moving on lake cargo per net
rates to ports on the Great Lakes and St. ton
Lawrence River for transshipment by wa-