Household goods: 49 CFR 1056 was amended by addition of a regulaon requiring that no motor common carrier of household goods shall have in Efect for its account more than one level of rates, whether local or joint, or the same transportation service in interstate or foreign commerce between e same two points in the same direction (49 CFR 1056.21).-Practices of otor Common Carriers of Household Goods, 118 M.C.C. 762 (769-70).

Rates for Special Classes of Service; Practices

460. Demurrage.—District court upheld Commission's order prohibitng carriers from specifying in their tariffs that certain warehousemen, teamship agencies, and others similarly situated, who were neither consignors or consignees, are liable under certain circumstances for detention charges n trucks loaded or unloaded at their premises. -Middle Atlantic Conference United States, 353 F. Supp. 1109 (1122-233)*.

735.

Classification of property; rules, regulations

Household goods. -Commission herein adopted a regulation (49 FR 1056.21) permitting the use of credit card systems by motor common cariers of household goods. The credit card has become an American economic nstitution and Commission believes that use of credit card programs will enefit the American public. This regulation requires approval of credit card ystems by this Commission, but purposely omits cumbersome filing requirements and formalized procedures which would, in our opinion, influence carriers not to seek such systems. No formal filing requirements are prescribed and notice only of approval or disapproval will be given in the Federal Register, but carriers participating in an approved plan must file a quarterly report. Because the Commission believes that credit card systems should be offered to all carriers on an equal basis, we will not approve plans offered by a financial institution to a single carrier or limited group of carriers except in usual circumstances and on an experimental basis. -Practices of Motor Common Carriers of Household Goods, 118 M.C.C. 746 (751-54).

5217(a).

TARIFFS OF COMMON CARRIERS BY MOTOR VEHICLE; FILING, POSTING,
PUBLICATION

1. Construction and interpretation.—Proposed tariff, insofar as it attempted to impose liability for demurrage charges upon an agent who was not a party to the contract of transportation, was unlawful. Before such assessments as detention charges can be imposed on a party on a prescribed basis there must be some legal foundation for such liability outside mere fact of handling the goods shipped. -Middle Atlantic Conference v. United States, 353 F. Supp. 1109 (1116-119)*.

Since persons liable for demurrage charges are to be determined by ordinary rules of common law, parties to a contract of carriage are free among themselves to contract with respect to payment of demurrage; ; but where they have not become contractually obligated to pay demurrage because common-law

principles exonerate them from liability, and they are not liable by statute or custom, liability cannot be imposed through device of a tariff.-Id., p. 1119-120.

Although warehousemen are free to assume liability for detention charges by contractual undertaking, absent any custom, statutory, or contractual basis, it would be unlawful to impose such liability on a party outside transportation contract by means of a tariff as a tariff is an inappropriate instrument to legislate liability with respect to a non consenting party. Id., p. 1121-122.

$223. COLLECTION OF RATES AND CHARGES; EXTENSION OF CREDIT; LIABILITY OF AGENT OR BENEFICIAL OWNER

3. Prescription of regulations by Commission. -Commission herein adopted a regulation (49 CFR 1056.21) permitting and encouraging motor common carriers of household goods to use credit card systems inasmuch as the credit card has become an American economic institution and the use of credit cards in such transportation will benefit the American public. To facilitate the use of such systems, the Commission did not prescribe cumbersome filing requirements but will publish its approval or disapproval in the Federal Register and will require a quarterly report by carriers using such systems.Practices of Motor Common Carriers of Household Goods, 118 M.C.C. 746 (751-54).

Since numerous shippers had not paid their freight bills within the current 7-day free period, the Commission modified the regulations (49 CFR 1322.1) to require household goods carriers to publish tariff provisions extending credit beyond the 7-day free credit period to 30 calendar days subject to the assessment of a 1-percent service charge, minimum $10, for the additional period of credit. -Payment of Rates and Charges of Motor Carriers, 118 M.C.C. 778 (798, 800).

25. Third person's liability.-Statute relating to collection of rates and charges and liability of agent of beneficial owner speaks only to "nonliability" in certain narrow situations of warehousemen and others similarly situated, who appear as consignees on a bill of lading, and does not impose liability on an agent not a party to the contract. To make shippers and others liable to carrier in connection with transportation of goods requires a stronger direct contractual base between the parties than maritime contracts, and land carriers in the United States must rely upon liabilities created according to common law principles.—Middle Atlantic Conference v. United States, 353 F. Supp. 1109 (1115, 1120)*.

5. Charter or special operations.—A "charter party" is a contract of affreightment whereby the owner of a ship lets the whole, or part of her, to a shipper for conveyance of goods in consideration for payment of freight.Middle Atlantic Conference v. United States, 353 F. Supp. 1109 (1113)*.

PART IV

411.

ACQUISITION OF CONTROL; INVESTIGATION; JURISDICTION; INJUNCTION; SUP-
PLEMENTAL ORDERS

2. Construction and interpretation.-Since applicant and Republic arloading (a freight forwarder) are separate entities controlled by yet a hird entity, RIC, and RIC controlled the motor carrier (applicant) prior to btaining control of the forwarder, the common control is permissible pursuant o $411(g) provisions.-Sullivan Lines, Inc., Extension--Far West, 118 M.C.C. 501 (811-12).

$205.

SUPPLEMENTAL ACTS

BANKRUPTCY ACT

11 USC

REORGANIZATION OF RAILROADS ENGAGED IN INTERSTATE COMMERCE

6. Jurisdiction. -The only statutory basis for paying counsel fees by an estate in reorganization is $77(c)(2), and under that provision Commission must set reasonable maximum limits for such payment. The nature of the legal work performed does not invalidate Commission's jurisdiction to set such limits.—New York, N.H. and H. R. Co. Reorganization, 342 I.C.C. 632 (637-38).

115. Counsel; compensation.-In fixing the maximum limits of compensation, Commission reviews time spent by counsel, nature and complexity of the work, need and relative importance in relation to other estate needs, benefit to estate, availability of estate funds, individuals, performing the service, and fixed and variable expenses involved in rendering service.New York, N.H. and H. R. Co. Reorganization, 342 I.C.C. 632 (639).

Maximum limits for compensation of petitioner herein set at $627,017.90. Petitioning counsel and his associates rendered 8,756 hours of service in arbitration proceedings designed to determine the fair market value of a subsidiary railroad to be sold by debtor-railroad's estate which service resulted in a distinct and extraordinary benefit to said estate in that the final award exceeded the original offer for the subsidiary line by $14,038,896.—Boston & Maine Corp., Reorganization, 342 I.C.C. 760 (762-64).

Commission herein modified maximum limits of compensation and reimbursement for services rendered in connection with debtor railroad's reorganization previously set by the Administrative Law Judge. In basing counsel's compensation upon the standard of "wages of federal government attorneys" the Judge did not consider other factors, set forth in 228 I.C.C. 499 (504), nor did he consider the economic risks facing private attorneys or the fringe benefits a government attorney receives. -Boston & P. R. Corp. Reorganization, 342 I.C.C. 859 (868-69).

However, the Commission affirmed the Judge's finding that activities of Herring to be legislative in nature, and as such, not compensable. We have previously found that such activities have insufficient connection with the proceedings and plan to warrant recompense from debtor's estate. See 295 I.C.C 169. Not only is the service itself remote to the proceeding and plan, but the value of such service, if any, would be nearly impossible to determine.-Id., p. 869-70.

Also, efforts by Rood for which compensation is sought have failed to produce any definable benefit to debtor's estate. Only where services have conferred measurable benefits to estate, and to success of reorganization, should estate bear the cost. See 434 F. 2d 804. Unsuccessful challenges to approved plan do not constitute a compensable benefit and are undertaken at challenger's risk. Efforts on behalf of a limited group of stockholders cannot be construed as increasing benefits to all parties of estate. -Id., p. 871-72.

JUDICIARY AND JUDICIAL PROCEDURE

28 USC

DIVERSITY OF CITIZENSHIP; AMOUNT IN CONTROVERSY

$1332.

3.

Citizenship of parties and amount in controversy.—See Land O'Lakes, Inc. v. United-Buckingham Frt. Lines, Inc., 28 USC §1336, n. 2. $1336. INTERSTATE COMMERCE COMMISSION'S ORDERS

2. Construction and interpretation.-Despite defendants' contentions to the contrary, the court has jurisdiction of shipper's suits against 19 motor carriers seeking a refund of freight charges ordered by the Commission by virtue of 49 USC SS16(2), 304a, and 305 (g) and 28 USC §§1336 and 1398. While there is no diversity of citizenship in at least some of the cases and the prayers for relief in none of the suits reaches the jurisdictional amount of $10,000, a suit to enforce or recover on the basis of a Commission order or statute needs no jurisdictional amount.-Land O'Lakes, Inc. v. UnitedBuckingham Frt. Lines, Inc., 351 F. Supp. 103 (108-09).

The scope of judicial review does not extend to matters within primary jurisdiction of the Commission. But in suit to enforce Commission order authorizing abandonment of 18-mile segment of debtor railroad's line, conditioned on sale of the properties involved within 60 days "to any responsible person for the purpose of continued operation," the court is not reviewing question of whether the Commission abused its discretion in permitting the abandonment; the only question presented for review is construction of the meaning of the condition imposed by the Commission. The sole issue involvedwhether plaintiff comes within the purview and ambit of that condition-is not beyond the court's understanding unassisted by expert guidance; and resolution thereof does not depend upon expert knowledge in the transportation industry. Thus, construction of the condition presents a purely legal issue for the court's determination. -Reed v. Meserve, 353 F. Supp. 141 (144-45).

Clear purpose of the Commission, in imposing the condition, was to reserve the line as an operating railroad and to prevent its dismantlement; nd nowhere in the proceedings is it suggested that a sale to plaintiff of orthern 8.5-mile segment of the line for planned operation of a scenic excurion railroad providing passenger service would not be "for the purpose of ontinued operation." Also, plain meaning of the words "continued operation" s to continue operation of a railroad over the abandoned line; if the Comission had intended that phrase to mean both a freight and passenger operaion, it could have used those words to signify such intention. Therefore, ince plaintiff would be a "responsible person" acquiring a segment of the bandoned rail line "for the purpose of continued operation," within meaning f the condition attached to the Commission order permitting abandonment, it s entitled to preferential consideration for a 60-day period from date of he court's decision before defendant-Trustees may proceed with free transfer f title to the segment of line in question.-Id., pp. 147-48.

Under its duty to prevent unlawful discrimination, power of Commision would extend to any person used by any common carrier, subject to Comission jurisdiction, to implement a pattern of unlawful discrimination pros ibited by the Act, but such authority would not extend to authorizing Comission to regulate persons or transactions which are not shown to involve mlawful discrimination. -Middle Atlantic Conference v. United States, 353 . Supp. 1109 (1125)*.

$2325.

INJUNCTION; THREE-JUDGE COURT REQUIRED

Jurisdiction of Courts to Restrain Enforcement
of Commission's Orders

7. Jurisdiction of district court.-See Students Challenging Regulatory Agency Procedures (S.C.R.A.P.) v. United States, $15 (7), n. 1.

14. Parties entitled to restrain enforcement of Commission's orders. —Association concerned with enhancing quality of the environment for its members has standing to bring suit for injunctive relief against Commission orders which permitted railroads to attach an interim 2.5-percent surcharge to normal tariff rates on all freight, with certain exceptions, because of the Commission's failure to issue an environmental impact statement, pursuant to the National Environmental Policy Act, on the effect of the surcharge on shipment and use of recyclable materials. Plaintiff organization clearly has standing to raise the rights of its members [citing 371 U.S. 415], and it alleges the kind of "injury in fact" to those members which would give them standing to sue. Moreover, unlike pleadings in 405 U.S. 727, plaintiff's amended complaint alleges that its members actually use the environmental resources adversely affected by the Commission action. And mere fact that plaintiff's allegations make no distinction between its members and a great many others who use the natural resources does not disqualify it as a party. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.) v. United States, 346 F. Supp. 189 (195-96)*.