(dissenting in part):
I agree with the majority decision on the palletized cannon munitions but also *179think C & H and International were engaged in a clear and patent attempt to circumvent operating regulations by hauling the 500 and 750 pound bombs.
The regulation of the commercial trucking industry is entrusted to the Interstate Commerce Commission by Congress. The ICC has been specifically granted the authority to establish classifications of carriers. 49 U.S.C. § 304(b). In the exercise of this authority the ICC has created some 17 classifications of carriers; among these are the heavy haulers and the munitions haulers. The test for inclusion in the authority of the heavy haulers’ certificates is generally whether the commodity, by virtue of its size or weight, necessitates the use of special equipment, primarily in loading and unloading. The so-called munitions haulers carry explosives and other dangerous articles. The classification of carriers is generally oriented toward the type of commodity carried, however with the heavy haulers, the classification' has become descriptive of the type of service that they offer. The heavy haulers have tried to take advantage of this change in their status to expand the type of commodities which they carry. The ICC however has remained consistent in its refusal to allow the heavy haulers to enter into the carriage of classes of commodities which have been the subject of specialized certification, i. e. household goods1 and bulk fungibles 2
The heavy haulers had not engaged in this type of hauling before and they should have, in the interest of orderly procedure, applied to the ICC for a permit or a change in regulations before invading a field heretofore reserved to the special permit carriers of explosives. Palletization is undoubtedly a beneficial technological advance in the cargo field and the public should reap the benefit from such a technological advance. However, in the interest of the regulatory scheme and to prevent chaos in the transportation field, the ICC should have control of any changes sought to be imposed by those taking advantage of palletization techniques in other classified fields. This is in accord with the Congressional scheme of entrusting the ICC with the overall supervision of public carriers and their classifications.
Judge Hunter correctly set forth the criteria for classifying cargo and recognized the historical evolution of the use of palletization in the transportation field.3 The Commission has consistently refused to recognize the size and weight standard as the sole standard in determining heavy haulers’ certificated rights and has emphasized the nature of the commodity to determine if the defendants’ carriage of a commodity is a “clear and patent” violation of their eertificat-*180ed authority. The fact that the commodity carried is one which has historically been the subject of a specialized certificate, coupled with the ICC’s refusal to allow expansion of the heavy haulers’ certificates into existing commodity classifications, should give a reasonable person notice to proceed cautiously before invading another specialized field and the violation would appear to be clear and patent. Earlier the Commission in W. J. Dillner Transfer Co., Investigation of Operations, 79 M.C.C. 335, decided April 10, 1959, dealt with the problem of aggregating or palletizing as follows:
“(3) In bundling, aggregating, or palletizing, it should be the general rule of construction (1) that the individual ‘commodity, itself’ is the controlling consideration as respects a carrier’s authority; (2) that the limited exception which the Black case, 64 M.C.C. 443, represents, where commodities are bundled for protection or as otherwise required by their ‘inherent nature’ must be maintained within its strictest limits; (3) that the minimum bundle which is required by the ‘inherent nature’ of the commodity is the size or type of bundle which must be considered in any determination whether necessity exists for the use of special equipment; and (4) that in order reasonably to maintain these limits it shall be presumed, in the absence of a sound basis for concluding to the contrary, that commodities tendered to the carrier, in bundles or aggregations, are within the general rule and not within the limited exception thereto . . . .”79 M.C.C. at page 358.
“Thus, only under unusual circumstances may aggregation or bundling result in a situation where such commodities may thereby be recognized as requiring special equipment. This is a special exception to the long-recognized general rule which looks at ‘the commodity itself,’ it is no sense applicable where bundling is done on the basis of economy and efficiency; * * * and we wish to emphasize the obvious necessity for maintaining such exception within its strictest limits.” 79 M.C.C. 352.
While the effect of Dillner was somewhat obscured by the Moss Trucking Co., Inc., Investigation of Operations, 103 M.C.C. 91 (1966), allowing the heavy haulers to carry aluminum tanks, 20 feet in length and weighing 273 pounds, the Commission made clear in Moss that size and weight were not to be the determining factors by stating:
“On the other hand, it has been contended from time to time in heavy-hauler cases that any time special equipment is utilized in loading and unloading, or for over-the-road movement, the transportation falls within the permissible range of heavy-hauling operations, regardless of whether the use of such equipment can be said in any sense to be ‘required.’ Such a construction goes too far in that direction, of course, not only because it would render the word ‘require’ virtually meaningless, but also because it would enable the shippers, solely at their discretion, to open up, through palletization or otherwise, a field of service to the heavy haulers which has never been a part of heavy-hauling service and which would constitute an unwarranted invasion of traffic traditionally handled by general-commodity carriers.” 103 M.C.C. at 107. (Emphasis added).
The heavy haulers’ attempt to justify new ventures into exotic fields by over-reading Moss or as construing that decision as superseding Dillner, is not justified. The Commission’s response to this overreading of Moss was set forth in Hughes Transportation Company, Inc., Extension, 107 M.C.C. 207 (1969); “Moreover, the Moss decision clearly does not authorize the incursions by heavy haulers into numerous specialized fields as chemical and explosives transportation.” Notwithstanding this history and the Commission’s consistent decisions in the heavy haulers’ field, International continued the hauling of the *181bombs in issue. The Interstate Commerce Commission had already ruled on December 31, 1968, that International did not possess authority to transport the bombs. Yet it appears only fair and reasonable that since the ICC’s decision had been made, International would continue to operate in violation of that decision only at its own risk. This it did and continued the transporting of the bombs until June 11, 1971. Having done so, it should bear the consequences. While the outcome of the referred ICC case and the subsequent affirmances on appeal are not determinative of the issue of clear and patent violation in this case, which must be resolved on the facts as they existed at the time the suit was filed, the results of these cases strongly indicate that defendants’ claim of right to haul these bombs has little merit.
Of further significance is the fact that no other heavy haulers have ever asserted any right to haul explosives, apparently applying a reasonable construction to the language of their certificates. The one exception to this is the carriage of jet thrust units, a class A or B explosive, by heavy haulers, but even this was done, not under the size and weight authority, but under the generic authority as a missile part. See, Baggett Transportation Co., Extension—Redstone Arsenal, 88 M.C.C. 3 (1965). From this record, it was most unlikely that the ICC would permit the heavy haulers to carry the bombs on the authority of their heavy haulers’ certificate. While the palletization of the bombs might have put the question into a gray area of the law with regard to size and weight authority alone, the fact that the commodities were explosives becomes the overriding consideration in determining the authority to carry them.
Also, historically the hauling of explosives has been treated as a separate and unique type of cargo. The ICC issues certificates to haul explosives only for a period of five years in order to allow a periodic review of the safety record of the carrier, on application for renewal. The fact that the heavy haulers’ certificate contains no such limitations on duration indicates that the ICC did not intend that explosives be carried under the general authority of the heavy haulers’ certificate.
The majority attaches considerable significance to the fact that the Government in its position as a statutory defendant and presumably representing the Department of Defense and not the Interstate Commerce Commission had taken issue with the Commission’s ruling on not allowing the large palletized bombs to be transported under the heavy haulers’ certificate. I would not view this of major significance because the Department of Defense was not invested with the authority to classify carriers and the Government in this posture was merely taking an adversary position in presenting what it considered to be a policy issue under the National Transportation Policy, 49 U.S.C. § 301, preface. In any event, this would call merely for a court challenge of the ICC’s expertise and should not supply the basis for violating existing regulations. Moreover, the Government’s position in the ICC proceedings and the appeal from the decision therein is more than offset by the intervention of the ICC in the instant suit on the behalf of plaintiffs. Where the ICC, as the independent agency charged by Congress with the responsibility of regulating the transportation industry, argues that a violation of operating rights is a clear and patent violation, its actions should be accorded great weight and certainly more weight than the Department of Justice which is urging a position based on the self-interest of a government agency, the Department of Defense.
If the contention of the heavy haulers is sound, they would be in a position to virtually monopolize the hauling of all commodities which lend themselves to aggregation or palletization. Recognizing this obvious danger the Commission has stated:
“[W]e must be alert to keep [the heavy haulers] reasonably within *182their recognized sphere unless and until they have established the right to depart therefrom on the basis of authority acquired therefor on a showing of a public need as required by part II of the act.” W. J. Dillner Transfer Co., supra at 357.
Invariably some plausible argument can be advanced for hauling any type of commodity under any type of permit and if we are to give credence to any attempted invasion of another carrier’s field by the mere fact that an issue is raised, the self-help statute § 322(b)(2) would be rendered meaningless as it could always be contended, despite prior Commission’s' rulings, that the violation was not clear and patent. I do not think this result is in accord with the obvious intent of § 322(b).
I would, therefore, affirm the decision of the District Court on the basis of Judge Hunter’s opinion.
. Neptune Storage, Inc., Extension—X Ray Machines, 88 M.C.C. 3 (1961).
. Ashworth Transfer Co., Extension—Cement, 64 M.C.C. 99 (1955). In Ashworth the heavy hauler alleged that it was authorized to carry dry bulk cement because it required special equipment and because of its weight. The ICC held that its certificated authority did not include the carriage of this commodity. Part of the language used by the ICC is of interest here.
“We have tended to the use of general terms in the interest of reasonable rather than burdensome regulation, and such terms have been, for the most part, fairly construed by motor carriers according to their obvious intent. However, we appear to have here a complete and deliberate misconstruction of a commodity description. . . . ” 64 M.C.C. at 100.
. Judge Hunter in his opinion refers to the prior Three-Judge Court decision International Transport, Inc. v. United States, 337 F.Supp. 985, 999 (W.D.Mo.), aff’d, 409 U.S. 904, 93 S.Ct. 235, 34 L.Ed.2d 168 (1972), in summarizing the criteria or guidelines as follows:
“The said guidelines, all of which by way of emphasis, have been developed in prior cases, may be described as follows: (1) the basic characteristics, if any, of the commodity which occasion the use of special equipment; (2) prevailing industry practice with regard to its handling; (3) the manner in which it or analogous commodities have historically been shipped, and (4) its traditional sphere of carriage.”