This сase is before the court on a petition to review an order of the Federal Maritime Commission issued and served on May 16, 1966, pursuant to the Shipping Act of 1916, 39 STAT. 728 (1916), as amended, 46 U.S.C. § 801 et seq. (1964). The order deals with certain provisions of the truck and lighterage tariffs filed by the petitioners here, the New York Terminal Conference, and grows out of the New York waterfront investigation ordered by the Commission in October 1963. The purpose of the investigation was to determine whether the rates, rules, regulations and practices contained in petitioners’ Lighter Tariff No. 2 and Truck Tariff No. 6 violated
A full and Ienghty hearing was conducted at which petitioners and various intervenors were permitted to introduce evidence, cross-examine witnesses and present oral argument. The hearing examiner filed an extensive initial decision and exceptions were taken. On Mаy 16, 1966, the Commission issued its report and order, which generally adopted the findings and recommendations of the examiner. The Commission found that several of petitioners' practices were in violation of the Act and ordered petitioners to modify certain provisions of their tariffs so as to comply with the requirements of the Act. Petitioners object on several grounds to virtually every segment of the Commission’s order. Before assessing the order and the objections thereto, it is necessary to summarize briefly the workings of the New York waterfront and the role which petitioners perform there as terminal operators.
Petitioners are companies which operate maritime terminals in New York Harbor. They are associated in the New York Terminal Conference and operate under a Conference Agreement
When a trucker arrives at the pier he must check in with a clerk employed by the terminal operator. Once his papers are processed he receives a gate pass and takes his place in line. Though all truck loading must be done by the terminal operators, the trucker has an option either to unload his truck himself or, for an additional charge, to have the terminal operator perform or assist in the unloading. But the so-called “three o’clock rule” of petitioners’ truck tariff assures the same-day services of forklift operators and checkers, who must be terminal employees, at straight-time rates only if the unloading is done exclusively by terminal employees. No matter who does the initial unloading, the cargo is then moved by hilo or forklift from the base of the truck to a place of rest on the pier or, occasionally, directly to the hold of the ship. These forklift operators, as well as the checker who inventories the cargo, must be employees of the terminal operators. Though the piers are under their direct authority and control, the operators in Item 16 of Truck Tariff No. 6 disclaim all liability for truck delays, whatever their cause.
Lighter loading and unloading is also done in one of two ways — “over the side” or “to the pier.” When the lighter
When a lighter is loaded (or unloaded) “over the side,” it is moored along the non-pier side of the oceangoing vessel and the cargo is transferred directly from the hold of the ship to the deck of the lighter (or vice versa), usually with the use of the ship’s rigging. This work is always performed by longshoremen employed by the terminal operator in its stevedoring capacity. When the lighter is loaded or unloaded alongside the ship, the lighterman is required under the tariff to pay the terminal operator for the services of its men. Since the cargo need not be transferred either to or from the pier, this procedure avoids one step in the process of getting cargo on or off the ship. The method by which a lighter will be worked and when it will be worked are entirely within the control of the terminal operator who has, by contract, assumed the stevedoring function for the ship. Yet there is no provision in the lighterage tariff for compensation to lightermen for delays within the terminal operator’s control.
It is primarily with the foregoing practices that the Commission’s investigation and order are concerned.
(1) The truck detention rule.
Much of the testimony before Hearing Examiner Jordan concerned the congestion and excessive delays experienced by truckers waiting to load and unload their trucks at the piers. Petitioners do not take issue with the Commission’s amply supported finding that the problem of truck delay is a very serious one,
The examiner, after hearing several witnesses testify of inordinate delays, concluded that the “truckmen have a right to expect handling as expeditiously as possible, and they have a right to get better handling than they have had in many specific cases.” He found that the terminal operators’ failure to include a reasonable detention rule in their truck tariff violated Section 17 of the Shipping Act,
The Commission adopted the examiner’s findings and conclusions.
Petitioners contend that the Commission’s order is arbitrary because inconsistent with its findings. They argue that the order requiring them to frame a rule of liability for truck delays is inconsistent with the finding that “[i]t is virtually impossible to determine responsibility for truck delay because of the many and varied factors which may or do contribute toward a particular instance of delay.” But the Commission also found that “ * * * most of the delays are within the control of [petitioners].” It has not told the terminal operators that to free themselves of liability they must prove what the cause of the delay was and that the delay was beyond their control. The Commission may well be satisfied with a rule exonerating the operators upon a showing that they are free from fault. Certainly it is eminently reasonable that the operators should be liable for unusual delays within their control, and essentially the Commission has simply ordered that they frame a rule making them liable for such delays. Otherwise stated, the Commission thus accorded to the operators an opportunity in the first instance to evolve a workable plan tо dissipate the adverse aspects of the present plan.
Petitioners go on to argue that the Commission arbitrarily rejected their “proposed solution” — the truck appointment system which is developed in Truck Tariff No. 7.
Petitioners also contend that the order cannot be understood and is void for vagueness and ambiguity. They point out that the order leaves unanswered such questions as: What will be the measure of damages and what sort of tribunal will fix them? What is an unusual delay? Who shall have the burden of proof of causation? And what does “under the control of the terminal” mean?
Despite these questions, we perceive no legitimate basis for complaint about the order’s indefiniteness. Rather petitioners should welcome the leeway and flexibility the Cоmmission has given them in framing a truck detention rule. Any vagueness in the Commission’s order should make compliance with it that much easier. The Commission has simply given petitioners, who control and are most familiar with the conditions on the piers, broad initial authority to construct a rule and an enforcement procedure which is fair to all the parties concerned. It hardly behooves them to complain that they have been left too many options in undertaking this task. Any indefiniteness complaint petitioners or their Conference may have against the order is certainly premature pending a good faith effort on their part to comply with it.
Nor is there any merit in petitioners’ argument that the Commission’s order exceeds its statutory authority under Section 17 of the Shipping Act to “enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property.” Petitioners’ theory is that, since the truck has a fixed tariff rate for carriage of cargo irrespective of delay, any compensation for truck detention will enure to the truckers, not to the cargo. Thus any detention rule would simply provide for a settlement of accounts between transportation agencies and is not a practice or regulation relating to the “ * * * delivering of property.”
But this argument misses the point. For though the truckers cannot collect from the particular shippеr for each delay associated with transporting its cargo,
Finally, petitioners argue that the truck dеtention order constitutes an exercise of the Commission’s rule-making authority and that the Commission failed to comply with the rule-making procedures required by the Administrative Procedure Act — particularly Section 4, 5 U.S.C. § 553 (Supp. II 1965-66) (formerly 5 U.S.C. § 1003 (1964 ed.)), which requires that notice of a proposed rule be published in the Federal Register or served personally on all interested parties.
The line between rule-making and adjudication is, of course, an uncertain one, and it is difficult — in some cases meaningless — to try to characterize particular administrative action as one or the other. It simply will not fit precisely in either mold. See Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 HARV.L.REV. 921, 924-925 (1965). Here, however, we think the Commission’s action was essentially adjudicatory. It prescribed no specific rule — in fact this is one of petitioners’ сomplaints. It merely held that the petitioners’ failure to prescribe one violated the Shipping Act, and ordered them to remedy this violation. See Philadelphia Co. v. Securities and Exchange Com’n,
(2) The three o’clock rule.
The Commission found that Item 10 of petitioners’ Truck Tariff No. 6, the so-called “three o’clock rule,”
The terminal operators maintain that this portion of the rule is necessary because unless their employees are used they cannot control the speed of unloading operations, and a slow unloader will unduly tie up the terminal operator’s checker and forklift operator, who must be available to remove the unloaded cargo no matter who does the initial unloading.
The Commission rejected this contention. It viewed the three o’clock rule as objectionable unless its coverage were extended to cases where the trucker unloads his own truck. It found- — -and there is evidence in the record to support its findings — that the rule effectively compels truckers to use the unloading services of thе terminal operators for a fee and renders illusory the option nominally available to the trucker to unload his own truck. So long as there is substantial evidence in the record to support its conclusions,
Petitioners also argue that the Commission’s order is arbitrary in that it fails to give adequate consideration to the impact of petitioners’ proposed appointment system on the operation of the new three o’clock rule contained in Truck Tariff No. 7. Under this tariff the rule is limited to trucks arriving without appointments. Petitioners argue that, if the Commission’s order is held to apply to the new rule, it will undermine the entire appointment system. They read the order as requiring them to service at straight-time rates all trucks that aрpear before 3:00 P. M. even if the appointment system is in operation and no appointment was made.
But the Commission did not pass on the validity of the three o’clock rule in Tariff No. 7, for this tariff was not within the scope of its investigation. The Commission simply found that the rule as contained in Tariff No. 6 discriminated unjustifiably against truckers seeking to unload their own trucks. If the new rule does not so discriminate, then it is presumably valid. Nowhere in the Commission’s report or order is there any intimation that if a workable appointment system is devised the operators cannot discriminate between those truckers who arrive with an appointment and those who do not.
(3) The lighter detention rule.
In the terminal operators’ Lighter Tariff No. 2 there is no provision assuring compensation to lightermen for delays, though the tariff, unlike the truck tariff, does provide that nothing therein shall preclude lighters from asserting detention claims against steamships. The Commission found — and the evidence supports its finding- — -that the record indicated many instances of lighter detention which could be attributed to the terminal operators, for the operators determine in what manner and with what priority a certain lighter will be loaded or unloaded. These delays tie up men and equipment and result in added costs to the lighterage companies.
The terminal operators object that there is insufficient evidence in the record to indicate that collection from steamship companies has proved unsatisfactory, and that there is no adequate reason why they should be forced to serve as a collection agency for the lightermen. But petitioners’ objection misconceives the thrust of the Commission’s findings and order. The Commission did not conclude that the terminal operators should be liable for lighter detention because it found that collection from steamship companies had been unavailing ; rather, it fixed liability on the terminal operators themselves because it found that most delays were within their control and thus concluded that they should bear the added expense of such delays. By assuming the ocean carriers’ traditional obligation of loading and unloading, petitioners also must assume responsibility for insuring that just and reasonable rules govern performance of this task. The Commission reasoned that where the stevedoring function is assumed by the terminal operator, it should not escape liability for delays within its control.
Here, just as with respect to a truck detention rule, the Commission did not direct petitioners to include a specifically worded provision in their tariff. It directed only that a provision be included which places liability on the terminal operators where delays are within their control. If the delays are due to weather conditions, the actions of the shipper or steamship company, or any other causes beyond the control of the terminal operators, there will be no obligation on the terminal operators to pay detention. Moreover, petitioners’ objections, like their objections to constructing a truck detention rule, are premature. Before they can legitimately complain they should make a good faith effort to construct the required provision and include it in their lighter tariff. Then if the Cоmmission decides it is not a just or reasonable one, its decision may be reviewed in another proceeding.
The Commission also found that the terminal operators’ tariff provisions on the issue of detention claims against shippers gave an unreasonable preference to lighter traffic over truck traffic. Petitioners’ truck tariff states that no claim for delay will be honored, while the lighter tariff makes clear that nothing therein affects the lighterage companies’ rights against the steamship companies.
Petitioners claim that the Commission has decreed the impossible by ordering them to conform their truck tariff to a lighter tariff which has itself been found to violate Section 17. But clearly the Commission’s orders are not contradictory. Petitioners hаve not been told that the permissive rule as to collection from steamship companies in the lighter tariff must be altered, but only that it must be supplemented. While it is true that the situations where a trucker can make a legitimate claim for detention from a steamship company may be infrequent, this fact at worst makes the Commission’s order on this point trivial, not unsupported or unauthorized.
(4) Petitioners’ “to the pier” operations.
The vast bulk of lighter-pier work is performed on a negotiated rate
Petitioners complain that the order is unlawful because, contrary to prior Commission decisions, it requires them to publish a tariff which would not set forth clearly the conditions of its application. They argue that the Commission has not ordered them to perform “to the pier” stevedoring at all and that a tariff applicable only “when such services are performed” is unlawfully indefinite, citing Empire State Highway Transportation Ass’n v. American Export Lines, swpra. Petitioners admit that, given the report and the record, it is clear that what is contemplated by the Commission is a tariff requiring petitioners to undertake to furnish “to the pier” services at a fixed rate when Spencer Company labor is unavailable and the terminal operator itself can spare its men. But petitioners urge that even this sort of condition is unlawfully indefinite, first because Spencer’s availability varies with the price the lightermen are willing to pay it, which in turn depends in part on the terminal operator’s tariff rate, and second because whether the terminal operator can spare labor is a subjective concept which cannot be cast in objective terms.
Petitioners’ first objection is purely speculative. There is no evidence that the terminal operators’ negotiated contracts with the lightermen when Spencer labor is unavailable have resulted in a discernible trend away from use of Spencer labor. Since petitioners’ tariff rate for such services will be compensatory and need not be competitive with Spencer’s, there is no reason to expect a change in Spencer’s share of “to the pier” operations. As to petitioners’ second objection, while “availability of labor” may be a subjective concept, since the Commission has left it for petitioners to gauge, their objection is an unseemly one. They cannot legitimately complain that the Commission did not go further than it did by ordering petitioners to stevedore “to the pier” whenever such services are requested.
Petitioners also contend that the order is invalid because it creates a patent and glaring discrimination by compelling the pier operators to publish a tariff for stevedoring lighters when Spencer, for the same services, is allowed to continue to charge any price it can negotiate. It is, they maintain, arbitrary and an abuse of discretion to require a tariff of the stevedore who “rarely” performs a service while leaving the one who “usually” performs it free to do business at secret, negotiated, rates.
There is nothing, however, which requires the legislature or an administrative agency to confront and remedy all
(5) Charges for “over the side” steve-doring.
Petitioners’ Lighterage Tariff No. 2 provides for a payment to be made by the lighterman to petitioners when cargo is transferred directly between the hold of the ship and a lighter moored alongside. This stevedoring is performed by the terminal operator’s employees, and the charge is presumably for the use of its labor. The Commissioner in effect ruled that any charge to lightermen for this service, no matter what the amount, violated the Shipping Act,
Despite some indications to the contrary, there was certainly substantial evidence in the record to support the Commission’s finding that the terminal operators’ expenses in stevedoring directly to a lighter are no greater than those involved where the comparable work is performed to the pier.
It is impossible to say that the industry of the terminal operators, the carriers, or the lightermen is responsible for this added efficiency; consequently no particular party can be said to have earned the increment which derives from it. Certainly the terminal operators cannot reasonably claim they are in any sense entitled to double compensation for over' the side stevedoring. Thus they are reduced simply to objecting that the Commission’s order transfers a windfall.
(6) Alleged violations of the Administrative Procedure Act.
Finally petitioners maintain that the whоle of the Commission’s order is void because the proceedings of which it is the culmination were vitiated by violations of the Administrative Procedure Act strictures against commingling of functions. Petitioners charge that the Commission’s internal structure violates Section 5(c) in that it places hearing examiners under the “supervision or direction” of staff members having investigatory responsibility.
Affirmed.
Notes
. The order, 9 F.M.C. 505 (1966), Commission Docket No. 1153, is entitled • “Truck and Lighter Loading and Unloading Practices at New York Harbor.” No Section 15 (46 U.S.C. § 814) violations are at issue here. Sections 16 (46 U.S.C. § 815) and 17 (46 U.S.C. § 816) are reproduced in relevant part at Notes 18 and 9 infra.
. Conference Agreement, F.M.C. No. 8005.
. In return for comprehensive regulation by the F.M.C., the Conference Agreement, if approved by the Commission, is given exemption from the antitrust laws. Section 15 of the Shipping Act, 46 U.S.C. § 814. See also Carnation Co. v. Pacific Westbound Conference,
. In many instances the terminal operator is simply an arm of a steamship company owning and operating its own piers.
. The lighters involved in this case are-non-self-propelled vessels about 115 feеt long and 35 to 40 feet wide. They carry their cargo on an open deck which is about 87 feet by 32 feet.
. Item 16 of Truck Tariff No. 6 provides: “The Terminal Operator assumes no responsibility for delay to motor vehicles; and no claims for such delay will be honored.”
. The Commission found that:
“The record shows that there is congestion and excessive delay in truck loading at the piers, that normal delays run from 1 to several hours, and that the trucks begin arriving at the piers more than one hour before they open in order to offset the delay they will experience. * * *
“Delay is perhaps the greatest single problem involving truck traffic. * * ” 9 F.M.C. at 509.
. The Commission also found that:
“ * * * Witness after witness testified to the inconvenience and expense to motor carriers resulting from the chronic delay of vehicles at the piers. These delays are a serious problem to the motor carriers because the inefficient use of equipment and labor tend to increase operating costs, thus affecting their ability to compete with other modes of transportation. They are problems to shippers and receivers because the increased costs are necessarily passed on to them in the form of higher rates.” Hid.
. Section 17, 46 U.S.C. § 816, in pertinent part, provides:
“Every such carrier and every other person subject to this chapter shall establish, observe, and enforce just and*966 reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Board finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and order enforced a just and reasonable regulation or practice.”
. Petitioners maintain that the order with respect to truck detention is arbitrary in that it fails to give findings and reasons as required by Section 8(c) of the Administrative Procedure Act, 5 U.S. C. § 557(c) (Supp. II 1965-66) (formerly 5 U.S.C. § 1007(b) (1964 ed.)). But clearly there was in the record before the Commission “such relevant evidence as a reasonable mind might accept as adequate to support [its] conclusion.” Consolidated Edison Co. of New York v. N. L. R. B.,
. Petitioners’ proposed Truck Tariff No. 7, which would supersede the tariff under investigation, had been filed with the Commission by the time it issued its report and order. While the Commission, in its brief before this court, does rely on the fact that petitioners have proposed an appointment system as evidence for its claim that “petitioners themselves recognize that because of their control of the terminals, they are in a position to prevent delays,” the investigation itself was limited to those regulations and practices contained in Truck Tariff No. 6. Its rulings, however, to the extent they are relevant to the practices outlined in Tariff No. 7, presumably apply to that tariff as well.
. By this we do not mean to say that rather than challenge the Commission’s order petitioners should simply have sat back and done nothing, as the petitioners did in Outward Continental North Pacific Freight Conference v. F. M. C., 128 U.S.App.D.C.-,
. Petitioners point to the Interstate Commerce Commission’s report and order in Detention of Motor Vehicles— Middle Atlantic and New England Terri
. MAC’s rule does not designate who should be liable for truck detention. Because of the terminal operators’ disclaimer of liability in Truck Tariff No. 6, which immunizes the steamship companies and others operating piers at New York Harbor, the truckers’ only recourse has been to try to collect the charges from the shipper who has entered the contract of transportation with the motor carriers. But since the shipper is in no way responsible for delay at the piers, the shippers refuse to pay such charges. Consequently, the costs of delays are reflected in generally higher rates and charges for motor carrier service.
. Item 10 of Truck Tariff No. 6 provides :
“A truck in line to receive or discharge cargo by 3 P.M. and which has been checked in with the Receiving Clerk or Delivery Clerk, as the case may be, and is in all respects ready to be loaded or unloaded, is entitled to be serviced until completion at the straight-time tariff rates. This rule shall not apply to trucks unloaded without the services of the terminal operator.”
. Joseph Adelizzi, managing director of the Empire State Highway Association, an organization of truckers, testified that “if we are not using [the terminal operator’s] services [in unloading], then he is not interested in the operation.” He explained that where the trucker, even when arriving before 3:00 P.M., unloaded his own truck, the terminal operator would delay in assigning him a checker and a hilo operator.
. When the lighter is worked over the side, delays are particularly frequent. Sometimes lighters are detained a matter of days, in which case the lightermen may incur additional wharfage charges payable to the terminal operator.
. This was found to violate Section 16 of the Shipрing Act which, in pertinent part, provides:
“It shall be unlawful for any common carrier by water, or other person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly—
“First. To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disdavantage in any respect whatsoever * * *.” 46 U.S.C. § 815.
. Petitioners also contend that a port-wide strike will ensue if they are required to publish a tariff rate for to the pier services and thereby compete with the Spencer Company, whose employees are not members of the local with which the terminals have an exclusive bargaining contract. Petitioners take the Commission to task for not considering these alleged consequences of its order.
But the terminal operators did not even bother to raise the spectre of a strike before the Commission in their exceptions to the hearing examiner’s decision. Moreover, as the Commission said in considering Spencer’s exceptions to the examiner's decision, Spencer’s position cannot relieve the terminal operators of their obligations under the Shipping Act.
. The hearing examiner found that the charge to lightermen was not authorized by the Conference Agreement because the Agreement refers only to the imposition of rates for services “on the pier.” Article 1, Agreement 8005. He also found that because direct transfer service is entirely a stevedoring function, paid for by the vessel, the imposition of another charge on the lighter for the same service was an unjust and unreasonable practice proscribed by Section 17. The Commission, however, found that the Agreement did authorize the charge, but upheld the examiner’s determination that it violated the Shipping Act.
. The Commission was unimpressed by petitioners’ cost analysis because it involved a strike period. Other studies contained cost estimates for which no adequate foundation had been laid. Finally, the Commission was persuaded by the lightermen’s evidence that several of the alleged extra expenses were compensated for and included in the charge made by the terminal operators to the steamship company.
. The examiner defined stevedoring, in the case of import cargо, as the process of breaking cargo out of stow in the ship’s hold, lifting it from the vessel and depositing it on the pier’s string piece and then carting it to the place of rest designated by the stevedore. The process is, of course, reversed in the case of export cargo. By custom of the port, the ocean carrier assumes responsibility to the shipper for performing this function. But in New York the work is actually performed by the terminal operators under contract with the carrier. The Commission found that where cargo is transferred directly to (from) the lighter from (to) the ship, this is a stevedor-ing function for which the terminal operator is paid by the carrier.
. This is so because the carrier’s freight rate to the shipper, in the absence of a special handling charge, covers and includes the stevedoring charge. Sun Maid Raisin Grоwers Ass’n v. United States, N.D.Calif.,
. Under the Commission’s order the lightermen will not pay any stevedoring charges for work done over the side. There is, then, a windfall when work is done over the side, in that the lightermen need not pay for services for which they must pay when comparable work is performed to the pier by the Spencer Company.
. It is interesting to note that petitioners did not except to the examiner’s comparable finding regarding an unloading charge to truckers where there is a direct transfer from truck to vessel. This ruling, like the ruling on charges to light-ermen, was based on the conclusion that direct transfer unloading of trucks was a stevedoring function paid for by thе vessel. Consequently, any charge to the trucker resulted in a double charge on the cargo which violated Section 17.
. Section 5(c), 5 U.S.C. § 554(d) (Supp. II 1965-66) (formerly 5 U.S.C. § 1004 (c) (1964 ed.)), provides in relevant part:
“ * * * such an employee [hearing examiner] may not — •
SjS * * * *
“(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.”
. The relevant portion of section 5(c) provides:
“An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 of this title, except as witness or counsel in public proceedings. * * * ”
Petitioners also allege that transmission of an ex parte memorandum violated the Commission’s own Rules of Practice and Procedure, particularly Rule 10 (dd), 46 C.F.R. § 502.170 (Supp.1967).