called and for the District Court only to see that the railroad
did collect them." 315 U.S. at 635, 62 S.Ct. at 765.
Accordingly, the language in National Van cited by the
defendant is not a rule of decision (which would be contrary to
the obligation set forth in Crancer v. Lowden, supra), but merely
a statement of the procedural steps which must be taken when an
existing Commission order is used to determine a controversy in
As a final alternative, defendant attempts to analogize this
proceeding to those involving the enforcement of ICC reparation
orders. The procedure for enforcing reparation orders against
carriers is specified in 49 U.S.C. § 16(2). In such cases, the
District Court — in a subsequent action for a money judgment — is
required to review the Commission decision and determine if it is
supported by substantial evidence. See New Process Gear Corp. v.
New York Central R. Co., 250 F.2d 569 (2 Cir. 1958), cert.
denied, 356 U.S. 959, 78 S.Ct. 996, 2 L.Ed.2d 1066 (1958); I.C.C.
v. Atlantic Coast Line R. Co., 334 F.2d 46 (5 Cir. 1964).
In such cases, the scope of review by the District Court is
identical to that which would apply had direct judicial review of
the ICC order been sought. This result, however, does not stem
from the fact that a money judgment is involved, but rather from
the fact that an action seeking enforcement of the ICC order
pursuant to § 16(2) is an alternative and not a supplementary
remedy. It takes the place of the review procedure specified in
28 U.S.C. § 2321-2325 for other ICC orders. See Willamette Iron
& Steel Works v. Baltimore & O.R. Co., 29 F.2d 80, 83 (9 Cir.
By amending 28 U.S.C. § 1336 in 1964, Congress specifically
pointed to the procedure for reviewing ICC orders such as the one
involved in this case. Defendant's attempt to analogize this
proceeding to those under § 16(2) ignores this fact. Were we to
accept defendant's contention, it would mean that a party to a
proceeding referred to the ICC would have two separate attempts
to seek judicial review of the ICC order. Moreover, in view of
the 1964 amendment to § 1336 noted supra, the two review
proceedings would take place before the same court.
In view of the foregoing, the report and order of the
Interstate Commerce Commission has become final and is
determinative of the sole issue before this court.
Defendant, in the course of its brief supporting its motion for
summary judgment attempts to persuade the court that the ICC
order respecting its shipment not only lacks any evidentiary
basis, but compels this court to make the opposite finding. Since
defendant failed to seek direct judicial review in which this
contention would have been proper for consideration, its claims
are not cognizable in the context of this proceeding. However, it
should be noted that — apart from the interest of the litigants
in the ICC order which may be exercised by seeking direct review
— the court, being called upon to use the Commission's order as
the basis for entering a judgment, has an independent interest in
its sufficiency. Even if the parties have waived their right to
review, the court would not be warranted in entering a judgment
based on the ICC order unless it, too, is satisfied that the
order is sufficient. If the court has substantial doubt, it
should properly re-refer the matter to the Commission.
The Commission report and order in the instant case is an
appropriate basis for decision. While a more detailed exposition
of the relation of the character of the shipment to the costs of
service would have been desirable, the Commission's finding that
the used gunsights, as individually boxed and shipped, should not
be treated by rail carriers as scrap metal subject to the lower
tariff applicable to that commodity, even though both seller and
purchaser considered them to have value primarily as scrap brass,
not one which requires re-referral to the Commission.
Plaintiff also seeks recovery of interest on the outstanding
freight charges from February 29, 1961, the date of the shipment.
Defendant does not address itself to the question of interest and
it appears that under the general principles governing such
cases, interest is to be allowed. See Miller v. Ideal Cement Co.,
214 F. Supp. 717 (D.Wyo. 1963).
Accordingly, plaintiff's motion for summary judgment will be
granted and defendant's cross-motion for summary judgment denied.
Judgment will be entered in favor of the plaintiff, Elgin, Joliet
and Eastern Railway Company and against the defendant, Benj.
Harris & Co., in the amount of $2,668.89 plus interest at five
per cent (5%) per annum from February 28, 1961, without costs.
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