The question involved in this litigation requires the application of the provisions of the Interstate Commerce Act (49 U.S.C.A. §§ 301-327), sometimes known as the Motor ■ Carrier Act, to the .facts' disclosed in the complaint. The Court below held the complaint to be insufficient under Rules 12(b), 12(c) and 56 F.R.Civ. P., 28 U.S.C.A., to present a justiciable issue. A brief statement of facts is set out below.
During the period from January 1953 to February 1955, the appellant delivered to the appellee at Buffalo and New York City numerous unrouted shipments of cartons containing foam rubber pads for transportation between the two above cities. The service was performed by the appellee over an interstate route. The freight charges, in accordance with the filed tariff for such route, were paid by appellant who seeks to recover some $10,-000 which represents the excess of said charges over those applicable to an alternate intrastate route.
The appellee, hereinafter referred to as “Eastern,” is a certified common carrier by motor vehicle, possessing operating rights between Buffalo and New York City over both interstate and intrastate routes. The applicable rates for the interstate movement were somewhat higher than the rates for the intrastate movement as fixed in the tariffs filed with the Interstate Commerce Commission and the Public Service Commission of the State of New York.
The complaint alleges specifically that the action “arises under Part II of the Interstate Commerce Act, U. S. Code, Title 49, Sections 301 to 327.” It is further alleged therein that the “ * * * rates charged * * * and the practice of the defendant in misrouting the shipments * * * were unjust and unreasonable in violation of Section 216, Part II, of the Interstate Commerce Act. (U. S.Code, Title 49, Section 316).” Other allegations are found in the complaint asserting the unreasonableness of the rates charged, all of which are put in issue by the answer. The appellant recognizes the jurisdiction of the Interstate Commerce Commission in the matters referred to in the above allegations. The complaint requests a stay of the deter*207mination of the issues involved until the Interstate Commerce Commission could determine “the reasonable and just rates for the transportation of the aforesaid shipments” in a proceeding to be instituted by appellant upon the commencement of the action. It may be stated that such a proceeding was taken and an administrative determination was made holding that Eastern’s routing practice, as indicated above, was unreasonable. A cease and desist order to operate prospectively was entered. Such determination is challenged by Eastern in an action to review same. The action is pending in the United States District Court for the District of New Jersey.
Subsequent to the commencement of this action, the Supreme Court handed down the decision reported as T. I. M. E. Inc. v. United States, 859 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952. The lower court relied upon that decision in holding that the complaint, insofar as it is based upon the statute, does not state a claim upon which relief may be granted. The appellant’s argument that this action may be distinguished from the holding in the T. I.M.E. case, because the later decision involved rates which were intrinsically unreasonable while here the rates are unreasonable by reason of misrouting, is not persuasive. Under Part 1 of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., “Whether the practice of the carrier of shipping over the interstate route was reasonable, when a lower intrastate route was open to it, presents an administrative question, * * * ” Northern Pacific Ry. Co. v. Solum, 247 U.S. 477, 482-483, 38 S.Ct. 550, 552, 62 L.Ed. 1221.1 The same practice when arising under the Motor Carrier Act § 201 et seq., Part II of Interstate Commerce Act, 49 U.S.C.A. § 301 et seq.,2 must necessarily be an administrative question. For there is no significant difference of language between the applicable sections of Part 1 of the Interstate Commerce Act and of the Motor Carrier Act. It follows that the rationale of the T.I.M.E. case, 359 U.S. at pages 472, et seq., 79 S.Ct. at page 909 is directly applicable here: if, as T.I.M.E. holds, under the saving clause of § 216(j) of the Motor Carrier Act, 49 U.S.C.A. § 316(j), no common law remedy is saved to a shipper aggrieved by an unreasonable rate, which was an administrative question, no such remedy is saved to a shipper aggrieved by the application of an unreasonable route, which was also an administrative question as held in Northern Pacific Ry. Co. v. Solum, supra.
Affirmed.
. Part 1 of the Interstate Commerce Act, 49 U.S.C.A. § 1(5), with respect to carriers by rail provides that “all charges * * * shall be just and reasonable, and every unjust and unreasonable charge * * * is prohibited and declared to be unlawful.” 49 U.S.C.A. § 1(6) provides • that “every unjust and unreasonable * * * practice is prohibited and declared to be unlawful.” 49 U.S.C.A. § 15(1) provides that whenever “* * * the Commission shall be of opinion that any individual or joint * * * practice whatsoever * * * is or will be unjust or unreasonable * * * the Commission is authorized and empowered to determine * * * what individual * '* * practice is or will be just, fair, and rea- : sonable.”
. Similarly, the Motor Carrier Act, § 216 (b) and (d), 49 U.S.C.A. § 316(b) and (d) , provides that it “shall be tbe duty of every common carrier of property by motor vehicle * * * to establish • * * just and reasonable rates * * * and practices * * * ” and that all such charges “shall be just and reasonable and every unjust and unreasonable charge * * * is prohibited and declared to be unlawful.” And § 216 (e) of the Motor Carrier Act, 49 U.S.C.A. § 316(e), provides that whenever “the Commission shall be of the opinion that any individual * * * rate * * * or practice * * * is or will be unjust or unreasonable * * * it shall determine * * * iawfui rate * * * or the lawful * * * practice,”