*1 UNITED et al. v. CORP. S. S. NEWTEX et al. STATES Court States York. D. New
Sept. 15, 1952.
Judgment
Dee.
Affirmed
See
McGohey, J., dissented. Donovan, Jr., New City, York John J. Eisen,
S. S.
New
City,
plaintiffs.
York
for
Myles
Lane,
City,
New York
J.
defendantUnited States.
Crenshaw,
Allen
Washington, D.C., Dan
. Knowlton,
iel W
Washington, D.C., of
counsel,
for defendant
intervenor
Inter
state Commerce Commission.
Kirlin, Campbell & Keating, New York
City,
Price,
Warren
Jr., Washington,
C.,D.
for defendant
intervenor Pan-Atlantic S.S.
Corp.
Kirlin, Campbell Keating,
&
New York
Crooker,
City, Fullbright,
&
Freeman
D.C.,
White, Washington,
for defendant
Corp.,
Atlantis Sales
intervenors
Frank
Distilleries, Inc., Magnolia
fort
Petroleum
Pipe
Co.,
Magnolia
Phelps
Line
Co. and
Rice,
Corp.,
Dodge
Inc.,
Converted
Sher
*2
389
which,
Commissioner
Inc.,
one
.dis-:
mission
Co., Congoleum-Nairn,
win-Williams
grant
report
and
Sears, senting,-issued its
Co.,
Bagging
&Bag
Lone Star
the-
issue before
application.2 The
ing the
Co.,
County Houston
Harris
&
Roebuck
limited
Houston, court, severely narrowed
Dist.,
Navigation
Ship Channel
order of the-
an
scope
Galveston,
of its review3
and
Tex.,
Board
City of
Commission, is.mere
Interstate Commerce
Wharves.
Galveston
Commissioners of
report of the
ly
and
whether the order
Judge,
Mc
SWAN,
and
Chief
Before
encompass
ultimate find
Commission
EDELSTEIN, District
GOHEY,
and
statute,
required by
founded
ings
Judges.
evidentiary findings
adequate
or
basic
-by
supported
substan
which are in turn
Judge.
EDELSTEIN, District
grava
record.
tial evidence in the
by two certificated
This is an action
face,
that,
its
complaint
is
men of
Corpo-
carriers,
Steamship
water
report
basic
fatally defective
the-
Lines, Inc.,
to set
ration
Seatrain
and
by the
findings
and established
were made
Inter-
enjoin an order
aside and
support the ultimate
evidence which do
Commission,
August
dated
Commerce
state
posi
merit in this
find no
We
conclusion.
authority
prior
whereby
tion.
Corporation
plicant
Steamship
Pan-Atlantic
required by law4
findings
The ultimate
its
it to extend
to authorize
amended
fit,
(1)
applicant
willing,
are that
“the
inland
to include
water
properly
perform
able
the service
and
passengers
transportation
freight and
proposed”,
(2)
and
ports
Atlantic and Gulf
specified
between
certificate,
-the
to the extent authorized by
Galveston,
and the
Houston and
ports of
present
required by
or
is or will
under
invoked
Texas.
Jurisdiction
necessity”.
and
future
convenience
1336,
provisions
28,.U.S.Code,
Title
§§
explicitly
made in
were
1398,
to 2325 inclusive.
2284 and '2321
statutory language, and
terms of the
an ex
Interstate Commerce
report
amination of
discloses that
applicant Pan-Atlantic; representatives of
rationally
by adequate
supported
are
basic
ports
Houston and Galveston and
findings,
supported by
substan
are
shippers
granted
were
leave
number of
' n
tial evidence.
to intervene as defendants.1
In examining
we
bear
hearings
After extensive
had in mind that
the Commission is not re
Examiner,
been
held before
the issues quired to
or detailed
make formal
find
argued
were
before Division 4
the Com
ings
so;
of fact.5
has not done
on the
County
Ship
1. The Harris
Houston
Chan-
Alabama
Railroad
3.
Great Southern
Co.
Navigation District, Houston,
nel
Texas
States,
216,
v. United
340 U.S.
71 S.Ct.
(a political subdivision of the State of
264,
225;
95
United States
L.Ed.
v.
Texas);
City
Galveston, Texas;
Freight Lines,
515,
Pierce Auto
327 U.S.
'
the Board of Commissioners of the Gal-
687,
821;
66 S.Ct.
90 L.Ed.
States
Wharves;
veston
The Atlantis Sales
Navigation Co.,
Cor-.
v. Detroit & Cleveland
poration;
Distilleries,
Inc.;
Frankfort
236,
75,
90
326
66 S.Ct.
L.Ed. 38.
Magnolia
Magnolia
Petroleum
Co.
Interstate
Commerce
v.
Pipe
Phelps
Co.;
Didge Corp.;
Line
Parker,
1490, 89
326 U.S.
Rice, Inc.;
Converted
The Sherwin-Wil-
2051.
L.Ed.
Co.; Congoleum-Nairn, Inc.;
liams
Lone
4. Part
III of
Interstate
Commerce
Bag
Bagging Co.; Sears,
Star
Roe-
Act,
309(e),
909(c),
Sec.
§
49 U.S.C.
buck & Co.
,
909(c).
.§
U.S.C.A.
petition
reopening
2. A
and reconsider-
ing
argued
Except
damages
was
before the
entire Commis-
5.
case where
are
denied,
sion and was
with two Com-
awarded.
Part
III of
the Interstate
dissenting.
subsequent
Act,
pe-
316(c),
missioners
Commerce
§
§
49 U.S.C.
reopening
916(c),
916(c).
tition for
and for a
Alabama
U.S.C.A. §
further
hearing
proof
to receive
Co.
discon-
Great Southern Railroad
v. Unite
d
applicant
page
supra,
tinuation
was
340 U.S. at
page
likewise denied.
S.Ct. at
informally
is' nevertheless
quite
negatively, the statement
are
contrary, its
ability, if not
a tech a
of fitness
a discussion
incorporated in
impli-
face,
-byreasonable
then at
problem,
com
least
transportation
nical
*3
in con-
cation,
certainly
read
-summary,
and
when
statement
mingled with factual
by
.
precluded
the
finding
Nor
this
exposition and evaluation
is
text.
of
issue and
in
perform
A
record.
failure to
piece-meal,
A
conflicting
of
evidence.
past
compel
logical inference
the
does not
a
requi
hypercritical
extract the
reading to
per-
may that
a
failure to
done,
there will be
similar
it can be
findings,
site
while
in the future. A
form different -service
possibility
a
of dis
dangerous
lead
the
applicant’s past
the
favorable
conveyed by
reference
torting
meaning otherwise
the
operations
increasing patronage
and
the
significance
the
from
words not divorced
existing
its
service as the result of a
of
lent
In the use of words to
context.
program
the
vigorous solicitation
discloses
greater
express
not
thought, if the whole is
upon
re-
evidence
which the Commission
parts;
its
at least the true
than.the
of
sunt
jected
that Pan-Atlantic
contention
-separate
the
significance
parts
of the
is a
public
profit
would sacrifice
-service
the
matter,
determined
relative
-to -be
expedient operation.
the
of
The nature of
after
of the whole.
a consideration
peculiarly
scope
within
issue is
the
of ex-
meant, however,
may
not
that
be
pert judgment
specialized field,
and
undiscernable,
nonexistent,
vague or
ab
expert body
the
the
decision of
dicating
generalized
their function
upon such
be disturbed when based
evi-
impression
conveyed by the
said to be
dence.
report.
question
is whether
whole
essential,
-of
basis
[the Commission’s]
finding
argue
Plaintiffs
that the ultimate
judgment
sufficiently
in .its
disclosed
public
necessity
ar-
of
convenience and
i®
“
report”
report,
and
‘the
whether
read as
bitrarily
evi-
illegally
and
based
whole, sufficiently expresses
a
the conclu
existing
that
the
dentiary
(1)
upon sup
sion of the
based
n service
adequate,
(2)-
the
and
’
* *
*
porting data
”. Alabama Great
operated
service cannot
without en-
Co. v. United
R.
340 U.
Southern
operation's-
dangering
impairing
or
the
216, 228,
95 L.Ed.
S.Ct.
existing
contrary
carriers
to» the-
report
225. Reading
whole,
the
as a
we
report
reading
interest.
of the
dis-
that
essential findings clearly
think
the
no
findings.
closes
such
After an exten-
appear.
exposition,
report pro>-
the-
sive factual
ceeds to “Discussion and
fitness,
Conclusions?’-'cen-
willingness
finding on
The basic
principal
tered about two
issues::: whether
applicant’s ade-
forth the
ability sets
existing
adequate
the
service is
and' wheth-
equipment, fa-
position,
quacy of financial
er
is room
there
for another carrier in.
record
personnel experienced
cilities,
the trade.
“Discussion:-
and Conclu-
trade,
operations in
past
the coastwise
is in
general
sions”
the nature of a
eva-lm
supporting
abundance'
is an
and there
ation of relevant considerations'
and'
for
urged,
how-
record.
the
in
against
application,
the
and the “findings”'
willing-
fitness
finding of
ever,
no
that
by plaintiffs
urged
pieces;
no more-
are
than:
ability, has been
from
ness,
distinguished
as
surgically
discussion
dissected' from
record such a
that
made, and
That the Commission
context.
found?the-
unwarranted,
would
finding
existing
inadequate
service
is clear.
large number of authori-
a
applicant holds
exercise,
largely
in
de-
viola-
In the section
does not
which it
ties
evidence,
summary
the New-
conditioned
which is
certificate
voted to
tion of
“scant?’,
authority sped-,
with'
was described
service
exercise of
tex
upon such limited' serv-
“hampering
argu-
considered
effect
The Commission
fied.
“by
repeated'
the-
aggravated
require
being
it did “not
ice”
that
but found
ment
to -sail on sched-
vessels
applicant
fit
of Newtex
is not
and failure
that the
finding
outright cancel-
numerous
operations
ule and
willing
perform
available-tom-
sailings where the
phrased
authority.” Though
lations
seeks
it here
sentence, which
parently start
warrant
with this
insufficient
considered
nage was
fine-comb
“finding”
label a
head-
Under
vessel.”
dispatch of the
finding that a
subsequent
language for
and Conclusions”
“Discussion
ing of
larger”
be de-
“substantially
volume will
disregarding
after
that
report concludes
veloped. Failing
to discover
existing
criticisms
certain vulnerable
the Commis-
insist that
language, they
such
substantial
“there remains
forced
sion has found
fully meet
do
protestants’ services
trade,
possible
into a
retirement
ex-
shippers and
the needs
We, do
application.
allowance
'pro-
applicant’s
tension
*4
report.
the
The discussion
so read
improve the situation.”
posed would
con-
that the
clearly
judgment
discloses a
con-
might
approach
incur
piecemeal
After
indi-
required will be met.
dition
imme-
reading the sentence
fusion
tonnage had not
potential
cating that
the
hand,
that “On the other
following,
diately
proportionately, to the
declined
ap-
oppose the
ratio
who
.borne
patrons
protestants
of
by
greater
tonnage
the
to
existing
the
adequacy
the
the
of
plication vouch for
much
pre-war
tonnage,
it was concluded
in
meet
their needs
existing
to
presently
in
trade
moving
“the volume
this
the
respects.”
of
all
But an evaluation
regarded
is not
to be
as the maximum
the
context discloses
entire discussion in
transportation.”
available
for -coastwise
merely a
this sentence as
significance of
-
addition of a vessel
to the service
The
way
contrary
in
no
statement of
Seatrain,
capacity,
operating at or near
inadequate
detracting
finding
from
of
the
pointed
demonstrating
out
the avail-
con-
service. For there follows
further
a
ability
of “more business.”
was found
irregularity
of the
the
sideration
of
New-
providing regular,
that “a breakbulk line
tex
and the
that Sea-
statement
dependable
frequent
reasonably
sail-
train “too
to meet
needs of the
fails
the
ings
engender
and reliance
confidence
shippers here concerned” because of a ten-
upon coastwise service and attract addi-
dency
“selectivity”
offering
toward
in
no
-supported by
tional traffic.” This view
shippers
of less-than-
accommodations
reference to the increasing patronage of
Finally, relating
carloa-d lots.
to a con-
Pan-Atlantic’s existing
Isolating
service.
sideration of the issue earlier in the re-
context, and,
these statements from
labeled
port,
it
shippers
is set forth that
at or
as “findings”, considering them cumula-
adjacent
ports
to
other
than New York
tively, we are constrained to hold that the
through
ports
are entitled to service
the
(cid:127)
Commission
sufficiently conveyed
has
the
logically tributary,
plain
-are
idea that enough
Implication
will be
business
devel-
of a
of
finding
inadequacy
the
oped
preclude
Newtex’s retirement
existing
of
from
.the
service.
¡discussion
the trade.6 Considering the statements in
The
of whether there is room
context, that
inescapable.
conclusion is
To
in the trade -for another carrier
is based
n a contrary conclusion,
draw
in
light
the
of
prospect
.an -evaluation of the
the
report,
the
indulge
would be to
pre-
¡development of new
indi-
business.
sumption
¡on
that the
disregarded
only
present
cated that
the basis
public
Cf.,
the
interest.
United States v.
tonnage, .an .-additional line in the trade is
nn unwarranted,
Lines,
Pierce Auto Freight
substantially
and “Unless a
¡overall
standard. that future I only findings as to are these: to discover able
am do not protestant’s services “that 1. shippers and needs
fully meet the applicant’s
that extension improve the situa- proposed would
tion;" supplied.) (Emphasis providing “a break-bulk line
2. reasonably dependable fre-
regular * * * quent sailings will attract traffic,” sup- (Emphasis
additional
plied.) pro- solicitation vigorous “a building up materially in
gram will aid traffic volume.”
substantial on testi- finding is based
This last representative.
mony In of Pan-Atlantic’s me to mean it
context seems program” will
Pan-Atlantic’s “solicitation
produce traffic for it- “substantial volume” *6 This, course, be accom-
self. could
plished by merely taking over the traffic driving it
now Newtex and thus handled business; out result which under- I —a stand, the 'Commission to hold “would
unwarranted.” findings, which I think fall .far standard,
short of the Commission’s do not
support its ultimate conclusion.
I would reverse order. Myles Lane, City, New York J.
petitioner. City, Mitchell, New York for re- Robert spondent.
EDELSTEIN, Judge. 41(e) Defendant moves under Rule Procedure, the Federal Rules of Criminal UNITED STATES v. MOORE. U.S.C.A., directing for an $1,500 currency return of and one dia- Court States District $1,800 ring. Cash in excess of mond was New York. D. from her at the time of taken husband his Sept. 23, arrest, which occurred after he had shot mortally an F.B.I. agent wounded apprehend seeking to agents while- were outstanding him warrant charging on robbery him of Kansas bank of with $60,000. The than defendant more was charged subsequently arrested be-