Secretary of Agriculture v. United States Utah Poultry & Farmers Cooperative/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

It seems desirable to state, summarily, the basis on which I join the court's opinion.

The starting-point of the Court's determination of the issue in this case is recognition of the fact that the Cummins Amendment to the Interstate Commerce Act, § 20(11), does not constitute an affirmative congressional formulation of a carrier's liability for damage to goods transported by it. The legal import of that Amendment is to bar the Interstate Commerce Commission from legalizing tariffs limiting the common-law liability of a carrier for such damage. The common law, in imposing liability, dispensed with proof by a shipper of a carrier's negligence in causing the damage. But for breakage unavoidable in the nature of things whether nature be operating within a thing or from without, it is equally an 'inherent vice'-there would be no liability since the common law did not impose a liability unrelated to the carrier's conduct.

These are the general principles to be deduced from the cases decided at common law. A situation as complicated as the one before us precludes mechanical or mathematical application of these generalities. At common law, if a shipper sued for damage to eggs, the carrier might be able to introduce evidence demonstrating an established percentage of loss not in any sense caused by it. Such fact of inevitable loss could be established by adequately supported averages and would not require demonstration of the incidence of inevitable preshipment or in-transit damage in a particular shipment. To be sure, the shipper might then reply by proving an inevitable percentage of damage caused by the railroad which was undetected or undetectable at destination. One would have to reason from principle, as it is called, to conclude whether the common law would throw on the carrier the burden of showing that the total amount of such loss was inevitably represented in the shipper's damage claim or whether it would allow the carrier to subtract this inevitable damage from whatever damage claim was made and thus throw on the shipper the burden of finding all the damage if he wanted a full recovery.

Likewise, if the common law allowed a carrier to urge that the shipper suffered no loss from the undetected or undetectable damage because he could get full price for the cases containing such damage, it might be equally open to the shipper to urge that the average inevitable loss which was being subtracted from his damage claim was made up in large part of damage which was equally undetectable by ordinary commercial inspection and could therefore not be represented in the damage claims that were being made. A further complicating factor is the fact that the grade specifications prescribed by the Department of Agriculture allow prescribed percentages of damage. See 284 I.C.C., at 401. For example, 5% shell damage is permitted in Grade AA and Grade A eggs, so that the presence of such damage does not prevent a shipper from receiving full price.

The Cummins Amendment requires that common-law principles of liability be not impaired. But the difficulties of proof and the presence of numerous complicating factors, some of which have been indicated, do not permit dogmatic views regarding the common law's treatment of such a situation as this. The unsuitability of common-law proceedings for the trial of such complicated issues was one of the main reasons why the Interstate Commerce Commission was established to deal with problems pertaining to railroad tariffs and the conflicting interests they entail. As long as the Commission is guided by the common-law principles governing the carriers' liability and takes due account of all the factors thereby involved, this Court must stay its hands. The order of the Commission in this case, however, is set aside because the Commission has not made clear the basis on which it approved the allowable 'tolerances' in the sanctioned tariffs. Since the basis of the Commission's order is not clear, the foundation for the review of the order is wanting. United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510-511, 55 S.Ct. 462, 467, 79 L.Ed. 1023.

This precondition of clarity for the findings of the Commission as a basis for review does not require us to establish the frailty of particular findings or to examine the correctness of alternative meanings to be attributed to dubious findings. An order of the Commission cannot stand if we cannot tell what it has decided or if it leaves foggy the basis of its conclusions.

In joining the opinion of the Court, therefore, I do not read it as implying that, because any proof of tolerances may have infirmities as a matter of mathematical demonstration or may offend theoretical arguments based on laws of probability, it may not satisfy the cruder standards of proof by which adjudications are made in courts of law and which may sustain determinations by the Interstate Commerce Commission. Specifically, I assume that the various inadequacies which generate the uncertainty in which the Commission's report leaves us are not to be deemed controlling rules of law in allowing the Commission to ascertain inevitable preshipment or in-transit damage to eggs, i.e., tolerances, by such substantiality of proof as is appropriate to the subject matter.

Mr. Justice MINTON, with whom Mr. Justice REED and Mr. Justice BURTON join, dissenting.