Isbrandtsen Co., Inc. v. United States

BAZELON, Before WASHINGTON Judges. DANAHER, PER CURIAM.

Appellants judg- seek reversal aof against personal ment entered in a them injury suit. We find no merit either in main

their contention that the trial denying abused its discretion in jury’s their motions to set aside ver- grant a new dict and trial on grounds newly fraud discovered evidence, or in the other contentions urged for reversal. judgment is therefore

Affirmed. Washington, McGovern,

Mr. William L. C., O’Connor, D. Messrs. John J. Thur- Washing- Krash, man Arnold and Abe ton, C., brief, petitioner. D. on

Asst, Ralph Spritzer, Special Mr. S. Atty. Gen.,

to the a member of the bar Appeals York, pro the Court of of New vice, by special Court, hac Mr. leave Asst, Weston, Special Charles H. to the Atty. Gen., brief, respondent on the United States. Halpern,

Mr. Max E. Asst. Gen. Coun- sel, Washing- Board, Federal Maritime ton, C.,D. member the bar of Supreme York, pro Court of hac New vice, special Court, leave Al- Dawson, Washington, C., on len C. D. brief, respondent Mari- time Board. Turk, City, Mr. Elkan New York Y., Turk, Jr., Brooklyn,

Messrs. Elkan N. George Washington, Galland, F. D. C., brief, Japan- on the for intervenors Freight Conference, Atlantic and Gulf et al. Brooks, Solicitor,

Mr. Neil Associate Washington, C., Camp- D. Mr. Donald A. bell, Attorney, Depart- United States Agriculture, Washington, C., ment of D. brief, for intervenor Ezra Taft Benson, Agriculture Secretary of United States. PRETTYMAN, Before BAZELON FAHY, Judges. Circuit

BAZELON, Judge. Petitioner, Isbrandtsen, steamship is a company flying flag of the United engaged transportation States and freight Japan, Korea and Oki- ports .nawa Gulf-Atlantic of competes United States. with Japan-Atlantic Freight and Gulf Con- ference this route. The Conference voluntary composed is a association agreements lines, steamship eighteen lines. with Conference carrier common sailing patronage contract under once exclusive lines of which are thirteen single ship- into, foreign flags Unit had been entered even five of which any pri registered carrier ment with It exists non-Conference lines. ed States being action, shipper’s re- marily establish, would in the result concerted liqui- charged by quired Conference, pay the mem as be uniform agreement damages, fifty per cent dated basic ber lines. freight charge shipper operates would first was which which the Conference shipment paid made approved by Maritime have had such been the United States If such viola- of the in a Conference vessel. 1934 under Commission any once 2Isbrandtsen tions occurred more than Act of 1916.1 agreement year, signatory shipper’s with the contract neither a this and he cancelled Conference would be nor a member of the Conference. permitted into a to enter would be 24, 1952, the Confer On December agreement liquidated dam- until the new Board, ence filed a statement ages paid in full. Is- had Since been requirements pursuant Gen brandtsen, slightly carrying less than 76, proposing on initiation Order eral third volume of trade one total patron January an exclusive 1953 of route, Japan-Atlantic is the system age contract/noncontract competing with Confer- non-member line Japan-Atlantie Un trade.3 2 vessels, impact of this ence shippers proposed system, who der the readily apparent. upon Isbrandtsen agree writing employ refused to procedure, exclusively would be In accordance with Conference lines filing transportation charged, the Conference's identical notice for the published service, proposal in the Federal which nine and was and tariffs were higher Register.4 Attorney per and the than Isbrandtsen one-half cent those charged General, shippers on behalf of the who had executed such date; “(b) effective as 39 Stat. 733 Reorganization “(c) for the use of con- The reasons C.A. amended par- rates in the Plan 64 Stat. 1273 traet/non-contract ticular involved, and basis 814 note. The trade spread predecessor or between for differential Maritime Commission was the rates; and the Federal Maritime Board. “dual Hereafter referred to as the “(d) Copies con- form all system.” pertaining thereto. tracts ***** explains 3. In brief the Board Gen promulgated eral Order 76 was because Notice. All information 236.6 “§ “[f]ollowing the decision in Isbrandtsen part pursuant shall filed F.Supp. 883, inspection interested available for the Board has deemed Regulation parties Office filing at necessary to be informed as to reason A notice of the Board. spread or ableness differential be required under §§ statement 236.2 (46 tween the dual rates.” That published in the Feder- 236.3 will be Fed.Regs. part (Cum.Supp. Code 1952)), ax, Registe® practicable. as soon as 11, 1952, effective November inso Except provided pertinent here, provides: far as arising 236.4, under § in cases inter- Filing 236.3 initiation con- “§ parties twenty (20) ested days shall have Steamship tract rates. /non-contract publication date of such freight proposing to estab- conferences within to submit written com- lish rates to be- contract/non-contract relating to information filed ments come effective after the effective date pursuant part. with the Board part of this shall file with the Federal may include Said comments a state- days prior Maritime least Board at respect ment of rates, to the initiation of state- disapproval proval, modification, containing: ment together request hearing, with a “(a) spread The amount of the should sueh be desired.” percentages differential terms of Fed.Reg. (1952). cents; dollars services; and that the nine and one-half filed written comments per hearing, provided in requested cent differential between contract charged They shippers non-contract was reason- 76.5 General Order dual rate able because Isbrandtsen’s rates are com- puted per at ten cent below Conference was unlawful and January approve such a rates. On without a lacked system. charged hearing, and based information Isbrandtsen up- pursuant injury irreparable inflicted comments filed to General per- 76,7 Order were the Board issued the order if this dual permitted go under attack here. The order to into effect. mitted system go proposed the dual rate to into argu particulars of the far as the So forty-eight effect within It hours.8 also pro and before con ments by requests denied the Isbrandtsen and hand, Isbrandtsen, concerned, one Attorney the immediate General purpose of the contended that hearing prior of the issues the initia- by im of business to drive it out was posing penalty suspension tion of the of any shippers upon who system pending hearing. the such a line; Conference that the its used .did, however, grant hearing aat date justify the reasonableness had failed subsequent system. of institution the with in accordance of the differential January 22, 1953, day On the follow- statutory requirements.6 the other 7On ing entry order, defending of the Board’s Isbrandt- Conference, hand, in the petition sen filed this review under 5 exclusive proposal, that such maintained day 10329 and on the same previously patronage been had rates granted temporary stay we Conference; of the the Con by that used the order under application provided attack until Isbrandtsen’s steamship the have lines ference injunc- interlocutory for an stability, from rate freedom trade tion could heard and determined. improvements progressive in wars, and Department gee of Justice and of Isbrandt- supra. note 3 suspension pro- Co., Inc. for a sen of the gee States, D.C. Isbrandtsen posed of contract/non-contract F.Supp. affirmed Freight Japan Gulf Atlantic Con- Japan, in ference between the trade Korea and Okinawa and United States Atlantic ports, pending supra. and Gulf and de- note 3 denied; termination be discussing order, after Board’s Ordered, “It Further Is that the re- application filing of Conference quests Department of the of Justice and' petition- protests -and of of the comments Co., of Isbrandtsen Inc. for a Justice, Department and the of and the er grant- Protest said and Comments be papers, consideration Board’s ;ed and Appearing that “It therefrom states: Ordered, “It Further Is filed Decem- of the Conference Statement hearing be held Examiner require- complies ber Federal Maritime Board at a time andi 76; and General Order ments place to be fixed.” any Appearing of the Hot “It information or other 9. 64 Stat. documents 5 U.S.C.A. above pertinent partr the differential the Board that This section in now before appeals “The said court of shall have exclusive between contract/non-contract unreasonable, unjustly arbitrary, jurisdiction enjoin, aside, suspend' dis- set criminatory, (in part), the initiation of nor or in whole to determine the * * * sys- validity (c) such final orders of' contract/non-contract * * * discriminatory unjustly or un- will be the Federal Maritime tem * * * Commerce fair detrimental entered under of the- * * Shipping Act, 1916, or will be in violation the United as amended Act, 1916, alleged as amended Isbrandtsen this court damage irreparable jurisdiction to Is- cause or will under the had Administrative- ; Co., Act, Inc. brandtsen Procedure 60 Stat. 5 U.S.C.A.. Ordered, requests Is “It stay- granted, jurisdiction This application was later has ing final orders of the Board.14 much of the so statutory require approve purported institution Whether or not any agreement.10 finality Petitions ments of are satisfied given by depends upon certiorari, Board and the label filed case by Conference, the Su- affixed to administra were denied its action agency preme tive a realistic the United States.11 but rather Court respondent appraisal consequences ac of such here as repre 1034,12 and reviewabili tion. “The ultimate test of under 5 U.S.C.A. § General, ty Attorney is not be found in an overrefined sented technique, but of the review need substantial accord injury primary protect irreparable relates concern Isbrandtsen. Its sys inconsistency exceptional ad of the dual threatened case legal protection rulings Act’s13 ministrative which attach the Sherman tem with place. consequences market taken advance freedom action Agriculture hearings adjudications Secretary of the of other intervenor, reg States, follow, an here as the results of which the purport position Thus, adopts His of Isbrandtsen. ulations control.”15 ad large shipper ordinarily are re interest is that a ministrative orders obliga goods attempting “they impose best com viewable obtain when legal petitive price tion, deny right, price, believes a which he or fix some re a lationship dual as a consummation of to be threatened 16 agreement. system process.” The Confer rate administrative Under intervenor, supports ence, necessarily here as an test, need not a final order Board. very be the last order.17 only there two issues We think We think the order review challenged (1) or- does the be decided: finality. meets the test finality ju- requisite possess der declining suspend the insists “that Shipping (2) does the dicial review? and rates, only interlocutory ac took [it] approval require the dual Act discretionary as nature such tion of it can become ef- rate before ordinarily reviewable.”18 That fective? U.S.App.D.C. -, Comm., 1953, injunction 93 interlocutory did not 10. This 829, grant 833-834. 208 F.2d aft- affect the Board’s dual er institution Chicago Air v. 16. Lines Water & Southern agreement. such We are advised that 103, Steamship Corp., 1948, man 333 U.S. progress. is now 568; 113, 431, L.Ed. see 68 S.Ct. 92 Philadelphia 1122, Ex 1953, 975, Co. v. Securities and 11. 73 S.Ct. 97 345 U.S. change U.S.App.D.C. Comm., 1947, 82 L.Ed. 1391. 897-900, 343-346, 889, 335, 164 F.2d provides that action in section 1948, 828, denied U.S. 68 certiorari 333 aggrieved party court, 1113; 452, Pollak Pub S.Ct. final administrative Comm., 1951, U.S.App. 89 lic Utilities brought against Board, “shall be Maritime 454, 450, 191 D.C. F.2d reversed Stat. States.” 64 1130 1952, grounds, 451, on other U.S. 72 343 5 813, S.Ct. 96 L.Ed. 1068. Stat. 209 15 26 U.S. Algonquin Gas Transmission Co. v. seq. 1 et C.A. .§ Cir., 1953, Comm., Power 337; supra. 334, note F.2d also Columbia see Broad casting System note 15 Broadcasting System Columbia v. Unit- Telephone supra; Corp. Rochester States, 1942, 425, ed States, 1939, 143- L.Ed. 1563. S.Ct. See also 1147; L.Ed. Phil Powell v. United Exchange lips Comm., v. Securities and 284-285, 643; Cir., 1948, 171 180, 183. F.2d B. F. Goodrich v. Federal Trade brief, p. 18. Board’s grave think, however, action, however, conse We attaches view is with the inconsistent quences and other business to contractual language denying By clear relations of Isbrandtsen. pertinent opera postpone Act. That section request to Isbrandtsen’s grant part: system and to tion of the dual rate hearing, vir an immediate agreements, modifications, or “All tually removed Isbrandtsen organ- made cancellations shipping involved. Whether market ization of commission [board] permanent, Is temporary or removal was shall and as when “real, inevitably suffer brandtsen would long approved the commission harm.19 incalculable” immediate [board], or aft- just as deter was The Board’s action disapproval er unlawful shall be rights minative of Isbrandtsen’s carry part, in whole di- out or specifi had the would have been agree- rectly indirectly, any affirmatively approved cally dual ment, modification, or cancellation. in accordance “Every modification, agreement, requirements statutory or cancellation lawful under this sec ap next, ruled that we discuss excepted pro tion shall be “In cir required. these proval was not vision of anti-trust [the laws].” cumstances, hardly be said it can “Agreements” Ship referred to in the review, ripe is not action assailed ping Act are defined to include “under [here, Isbrandtsen] Unions arrangements.” conferences, standings, and other required exhaust a dubious to should be Clearly, scheme of 22 them opportunity offered to dual like that here is an involved ** ax had fallen “agreement” in this can hard sense. It as final for the order Since we view ly be as an classified interstitial sort review, purposes we must next of our adjustment of it since introduces an en Shipping Act re- the determine whether tirely of new scheme rate combination sys- approval quires dual rate of not and discrimination embodied they agreements can become tem agreement. basic But if it even were operative. here is The Board’s agreement, certainly not a new it would go agreement to allow the it be as a classed “modification” the approval formal into advance effect existing agreement. case, In basic either agreement Conference the basic because agreements requires that such § agreements. rate authorizes dual “shall be modifications lawful when the basic Conference It maintains that long approved” by and as the Board.23 agreement with it the “cover of carries approval obtained, Until such is the changes authority” subsequent Shipping illegal makes it Act to institute language of the basic system. the illegality rates since the this agreement away spirited by as that of the is as broad cannot be action which * ** so, “interlocutory is no ad- If this then itself. labels statute discretionary necessary approval nature.” to would ditional go rate into the dual allow In addition to its “cover of author ity” argument, jus effect. the Board seeks to Refugee Committee Anti-Fascist 19. Joint 64 Stat. Plan McGrath, 1951, C.A. § (Concurring Ibid. Douglas). opinion of Justice agree 23. We understand Board to Electrical Radio & U.S.App. Farmer v. agreement requires if dual rate here Workers, Machine approval agreement under D.C. -, 211 F.2d 36. not be validated could the General procedure prior Order 21. 39 Stat. Reorganization proval. brief, p. as amended C.A. go prior agreement into in ment to effect tify initiation of meaning is a analogizing final order within the to that action issue judicial statute, and that review Commission Interstate Commerce of the contrary specificrequirement is regard Under orders. with making Shipping Act, Act ef § are Interstate Commerce filing.24 approval necessary precedent merely upon condition fective and agreement. an The to initiation of such contrast, seen we have In marked agreement question governs itself is whether the Shipping above, which Act Shipping Act must await entirely violative contemplates different here Board in exercise regulation. decision orders It makes scheme jurisdiction.29 primary agreements of its respect until unlawful allowing ap ini- action of the Board pre-approval proved.25 ille system agree- tiation of the dual gality fact stems ment will be set aside and intervenor specifically ma Act acting enjoined legalizing Conference will chinery that which agreement pursuant illegal until and anti-trust under the approved by unless is Board under which such laws.26 The condition granted agency is that the is duty protect the entrusted So ordered. agreement public interest scrutinize Judge FAHY, (dissenting le make that the conduct thus sure prohibitions galized j grounds). not invade the uris does dictional any more than is anti-trust laws jurisdiction extends necessary purposes of the to serve the only, orders, of final regulatory But until statute.27 Federal Maritime Board. 64 Stat. subject done, op I do think the U.S.C.A. § laws, anti-trust eration of the January 21, 1953, is a final order of illegal fixing agreements price application (a) one. denies

per se.”28 Department of Jus- Isbrandtsen and the suspend requesting a tice the Board to of the Board We hold that the action agree conference was allowing the dual rate Keogh Chicago 1051; & amended, v. N. 24. 24 Stat. 380 49 U.S. 161-162, Co., 156, 1922, given U.S. Express authority W. 260 0(3). R. A. § C. 183; 47, 67 States 43 S.Ct. L.Ed. United the Interstate Commerce Commission 1898, 505, Ass’n, “suspend” operation v. Traffic 171 U.S. Joint 15(7) § 259; 25, L.Ed. States 19 United S.Ct. 43 use of new schedule and to “defer” the Freight Ass’n, 1897, pending v. Trans-Missouri not new rates “but 290, 540, beyond L.Ed. 1007. longer 166 17 S.Ct. 41 period U.S. than seven months go into time when would otherwise Trucking States, v. 27. Co. United McLean amended, effect.” 36 Stat. 552 67, 87, 370, 1944, 64 88 U.S. S.Ct. 321 suspension, 15(7). Absent 49 U.S.C.A. Pennsylvania 544; Water L.Ed. see carrier-made rates become the railroad Comm., v. Power & Power Co. subject by operation of law U.S.App.D.C. 240-241, 235, 1951, 193 89 post-operative to a veto of the Commis 234-235, 1952, 230, affirmed 343 F.2d 15(1), after a 34 sion 843, 414, U.S. L.Ed. S.Ct. (1906), as 49 U.S.C.A. Stat. 589 Ayrshire Corp. 15(1). Socony-Vacuum See Collieries v. v. Oil 573, States, 1949, U.S. 1940, 150, 218, 581- Co., 811, U.S. 243; 583, 278, L.Ed. 69 S.Ct. Algoma States, & v. Coal Coke Co. United F.Supp. 487, v. 1935, Isbrandtsen Co. D.C. D.C.E.D. Va. F.Supp. 544, 546, ap Isbrandtsen-Moller dismissed, Co., peal Rederi v. Isbrandtsen 407, 1937, 57 S.Ct. 69 S.Ct. 93 L. L.Ed. 562. Agency Apgar 1099; Travel Ed. In Pennsylvania Transport Ass’n, Co., Georgia Air R. ternational D.C.S.D. F.Supp. N.Y.1952, 709-711. sought hearing compose properly to be it seems effect, (b) place sets impact of such in a District Court. against rates. Notwith- protests industry should rate action standing not construe I do its recitals legal contemplation attributable to or as approving this order the. make Board so as to this order of the final. it final for our review. it seems Assuming putting rates into not construe to me also that we should unlaw- the conference effect statutory of this the limited Is- ful without Board enjoin power court to include thereby, eq- injured brandtsen would conference because the Board has re- against relief the conference uitable suspending fused issue an order industry those members of the which rates.

Case Details

Case Name: Isbrandtsen Co., Inc. v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 1, 1954

Citation: 211 F.2d 51

Docket Number: 11679

Court Abbreviation: D.C. Cir.