The opinion of the court was delivered by: GARTH
Plaintiffs sue to set aside, enjoin and annul an order of the Interstate Commerce Commission ordering plaintiffs to cease and desist its operations as a freight forwarder in violation of Section 410(a) of the Interstate Commerce Act.
A statutory Three Judge Court was duly empaneled pursuant to 28 U.S.C. § 2325. On January 27, 1972, an order was entered continuing a restraint against the enforcement of the Commission's order pending the final determination by this Court.
Section 402(a)(5) of the Interstate Commerce Act defines the term "freight forwarder."
Section 402(c)(2) of the Act contains a "clarifying provision" which, in effect, exempts from the operation of § 401 et seq. a "shippers' agent" whose services and responsibilities to shippers with respect to such operations are "confined to the terminal area."
Section 410(a)(1) prescribes that a "freight forwarder" cannot engage in such services unless he first obtains a permit from the Commission.
After extensive hearings, the Commission determined that Metropolitan Shipping Agents of Illinois, Inc. was, in fact, a "freight forwarder" as defined by the Act. Since Metropolitan Shipping was operating without a permit in violation of § 410(a)(1), the Commission ordered plaintiff to cease and desist operations in violation of the Act. Plaintiffs contend that they were operating merely as a "shippers' agent" and thus were under the protective umbrella of § 402(c)(2).
The test of judicial review of an order of the Commission is whether the action of the Commission is supported by "substantial evidence" on the record viewed as a whole. Substantial evidence is "enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Illinois C.R. Co. v. Norfolk & W.R. Co., 385 U.S. 57, 66, 87 S. Ct. 255, 260, 17 L. Ed. 2d 162 (1966); Consolo v. F.M.C., 383 U.S. 607, 621, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966); Smith & Solomon Trucking Co. v. United States, 255 F. Supp. 243 (D.N.J. 1966). Moreover, the Commission's order is a product of expert judgment which carries a presumption of validity. Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 513, 64 S. Ct. 1129, 88 L. Ed. 1420 (1944).
It is the obligation of this Court to decide whether the conclusion of the Commission that Metropolitan is a "freight forwarder" within the meaning of the Interstate Commerce Act is based upon "substantial evidence." That this Court might have reached a different conclusion is irrelevant if the Commission's order is based on adequate findings which are warranted in the law and facts under review. Smith & Solomon Trucking Co., supra, 255 F. Supp. at 249. See also Columbia Shippers & Receivers Ass'n, Inc. v. United States, 301 F. Supp. 310 (D. Del. 1969); Freight Forwarders Institute v. United States, 263 F. Supp. 460 (S.D.N.Y. 1967).
It is clear that all the elements of § 402(a)(5) of the Act must be present if Metropolitan is to be within the statutory definition of "freight forwarder." That section sets forth in detail the definition of "freight forwarder," to wit:
"Any person which . . . holds itself out to the general public as a common carrier to transport or provide transportation of property, or any class or classes of property, for compensation, in interstate commerce, and which, in the ordinary and usual course of its undertaking,
(A) Assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments, and
(B) Assumes responsibility for the transportation of such property from point of receipt to ...