The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendant's motion to stay
proceedings in order to seek an interpretation of Tariff 20-A
from the Interstate Commerce Commission.
The plaintiff is Agar Food Products Co. ("Agar"), a
corporation organized and existing under the laws of the State
of Illinois with its principal place of business located
within the State of Illinois. The defendant is Chicago River
and Indiana Railroad Company ("Chicago"), a corporation
organized and existing under the laws of the State of
Illinois, which operates a line of railroad as a common
carrier through this district in conjunction with other common
carriers, railroads and transportation companies under an
arrangement for continuous carriage from points in the State
of Illinois to points outside the state.
This is an action brought under Section 20(11) of the
Interstate Commerce Act, 49 U.S.C. § 20(11), for the loss and
injury to a quantity of meat products carried by the defendant
On January 12, 1972 this Court denied the defendant's motion
to dismiss stating that a crucial question in this case is
whether or not defendant was a party to a joint rate and that
there is an issue of material fact as to whether defendant was
paid under an absorption agreement or under a joint rate.
The defendant in support of its motion to stay the
proceedings contends that the issue of whether Chicago was
paid under an absorption agreement or under a joint rate is a
matter which should be submitted to the Interstate Commerce
Commission for determination pursuant to Section 5(d) of the
Administrative Procedure Act. The plaintiff in opposition to
the instant motion contends that this Court should not delay
the proceedings further and should rely on numerous Commission
decisions which are applicable to the instant issue.
It is the opinion of this Court that the defendant has not
clearly presented this Court with a factual or legal issue
which would require the staying of the instant proceeding and
a determination by the Interstate Commerce Commission.
The doctrine of primary jurisdiction has been applied by
federal courts to refer an issue pending before the court to
an administrative body for ruling where it is believed that
such referral is necessary because of the greater expertise of
the agency and where the agency's determination is necessary
to maintain uniformity within the area entrusted to the
agency. Schwartz v. Bowman, 244 F. Supp. 51, 65-66 (S.D.N Y
1965), aff'd sub nom., Annenberg v. Alleghany Corp.,
360 F.2d 211 (2nd Cir. 1966), cert. denied, 385 U.S. 921, 87 S.Ct. 230,
17 L.Ed.2d 145 (1966). However, the doctrine of primary
jurisdiction should not be applied where an agency has issued
prior rulings and made its position clear on the issue sought
to be referred to the agency.
Strickland Transportation Co. v. United States, 334 F.2d 172
(5th Cir. 1964). See also United States v. Western Pacific R.
R., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956).
It is clear that an absorption agreement is not identical
with a joint rate agreement. Further, it is well settled that
an absorption agreement is an indication of an agency
relationship (a defense to the instant action), while a joint
rate agreement is an indication of principal status (and thus
liability in the instant action). The essence of the instant
issue between the parties is a factual dispute as to whether
the defendant was paid under an absorption agreement or under
a joint rate agreement.
The Commission in its prior opinion, has defined the term
"joint rate" and has laid down guidelines for determining when
a carrier participates in a joint rate tariff as opposed to an
absorption agreement. See Automobile to Southern Parts for
Export, 225 I.C.C. 225 (1937); Allied Asphalt & Mineral Corp.
v. Hoboken Manufacturers R. R., 194 I.C.C. 265 (1933);
Trucking Less-Than-Carload Freight in Lieu of Rail Service In
Chicago District, 185 I.C.C. 71 (1932); Louisiana, A. & T. by
Co-Operation, 170 I.C.C. 602 (1931); Canton R. R. v. Ann Arbor
R. R., 163 I.C.C. 263 (1930); Absorption of Switching Charges,
153 I.C.C. 656 (1921); see also Missouri Pacific R. Co. v.
Reynolds-Davis Grocery Co., 268 U.S. 366, 45 S.Ct. 516, 69
L.Ed. 1000 (1925). Thus, there is apparently no need for
referral to the Interstate Commerce Commission because the
Commission's prior rulings are sufficiently clear on the
matter and the defendant has failed to present a clear need
for further administrative expertise at such a late date in
the proceedings. See Thompson v. Baltimore & Ohio R. Co.,
59 F. Supp. 21 (E.D.Mo. 1945), modified in 155 F.2d 767 (8th Cir.
Accordingly, it is hereby ordered that the defendant's
motion to stay the proceedings is denied.
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