Waterman SS Corporation v. Civil Aeronautics Board, 11765.

Decision Date14 February 1947
Docket NumberNo. 11765.,11765.
Citation159 F.2d 828
PartiesWATERMAN S. S. CORPORATION v. CIVIL AERONAUTICS BOARD.
CourtU.S. Court of Appeals — Fifth Circuit

Francis H. Inge, of Mobile, Ala., and Joseph M. Paul, Jr., of Washington, D. C., for petitioner.

H. Don Reynolds, Chief Enforcement & Lit. Section, Civil Aeronautics Board, of Washington, D. C., Edw. J. Hickey, Jr., Sp. Asst. to Atty. Gen., and Robert Weinstein, Asst. U. S. Atty., of New Orleans, La., for respondent.

R. Emmett Kerrigan, of New Orleans, La., for intervener, Chicago & Southern Air Lines, Inc.

Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

On May 17, 1946, the Civil Aeronautics Board made a proposed decision and order on its consolidated docket No. 525 in which some fifteen applications for certificates to engage in air transportation between points in the United States and points in Latin America, including Mexico, Columbia, Venezuela, Brazil, Cuba, and Puerto Rico, were disposed of. The President approved the order on May 22, 1946, and it was served on the parties affected on May 24, 1946. By the order Waterman Steamship Corporation was denied a certificate of public convenience and necessity for the route it sought, and one was granted to a rival applicant, Chicago and Southern Air Lines, Inc. The latter we will refer to as C. and S. and the former as Waterman. On September 6, 1946, Waterman filed in this court a petition for review of certain portions of the order affecting it and C. and S. under Section 1006 of the Civil Aeronautics Act, 49 U.S.C.A. § 646, and a copy was transmitted to the Board. The Board on November 4, 1946, moved to dismiss the petition mainly on the ground that this order, because approved by the President, was not subject to judicial review; and alternatively that if the petition be not dismissed the order be forthwith affirmed for the same reason. On November 29, 1946, C. and S. was allowed to intervene, and moved to dismiss the petition on the same grounds; and also because C. and S. was an indispensable party and had not been served with formal notice of it; and because the petition was not filed within sixty days from service of the order on May 24, 1946, as required by Section 1006. A skeleton record only has been filed, to save the preparation of a very voluminous one if the petition is to be dismissed. The motions to dismiss only are now presented for decision.

1. As to timeliness, it appears that the order was published as such on May 24, 1946; on June 24, 1946, a motion for reconsideration was filed by Waterman, which the Board entertained and considered on its merits and overruled on July 12, 1946. The petition for review was well within the sixty days allowed by the statute from the latter date. The rules of procedure of the Board provide for such a motion filed within thirty days after the service of the order, or at a later date by leave of the Board. It is argued by Waterman that the thirty days expired on a Sunday and for that reason an extra day was by a general principle permitted. We do not think it matters. The Board did not reject the motion because not in accord with its rule, but decided it on its merits. It does not now raise any such contention. We think the motion, although it did not by the Board's rules supersede or suspend the order, operated to retain the Board's authority over the order, so that the order overruling the motion should be taken as the final "entry of such order" intended by the statute to start the running of the sixty-day period for judicial review. Braniff v. Civil Aeronautics Board, 79 U.S.App. D.C. 341, 147 F.2d 152; Saginaw Broadcasting Co. v. Federal Communications Commission, 68 App.D.C. 282, 96 F.2d 554.

2. C. and S. is manifestly interested in the review and entitled to be heard. Section 1006, however, does not provide for any service except upon the Board. We should perhaps rightly have ordered some service or notice to C. and S., but this is not now necessary for it has voluntarily appeared by intervention. The petition should not be dismissed on a question of parties.

3. There remains the larger question whether an order of the Board which has the approval of the President under Section 801 of the Act1 may be reviewed by this court under Sec. 1006. By Sec. 401, 49 U.S.C.A. § 481, certificates must (with exceptions not here material) be obtained from the Board by "air carriers", including those undertaking foreign transportation, and the Board may revoke them. By Sec. 402, 49 U.S.C.A. § 482, "foreign air carriers" must obtain permits from the Board in a similar manner. We learn from the definitions in Sec. 1, 49 U.S.C.A. § 401, (2), (19), that "air carrier" means a citizen of the United States who undertakes air transportation, while "foreign air carrier" means a person not such citizen who engages in foreign air transportation. The former is granted a certificate and the latter a permit under different sections of the Act. But by the precise terms of Sec. 801 if the certificate of the United States citizen covers foreign air transportation its issuance, denial, revocation, etc., are subject to the approval of the President, and so also are such matters as to any permit issuable to any foreign air carrier. We are emphasizing the separateness of the provisions as to the certificates of the citizen from those as to the permit of the foreigner. Now Sec. 1006(a), 49 U.S.C.A. § 646(a), we think is equally clear and precise: "Any order, affirmative or negative, issued by the Board under this act, except any order in respect of any foreign air carrier subject to the approval of the President as provided in section 801 of this act, shall be subject to review by the circuit courts of appeals of the United States * * *". The language here shifts from certificates and permits to orders affirmative or negative of the Board, but it is evident that certificates and permits are to be issued, denied, revoked, or otherwise dealt with by the Board through orders, which are frequently so named throughout the Act. All such orders are reviewable with one exception — an order in respect of a foreign air carrier subject to approval of the President as provided in Section 801. The words are too plain to be misunderstood. If Congress had intended to except all orders made subject to Presidential approval by Section 801, fewer words would have sufficed. To make that meaning we must eliminate the words "in respect of any foreign air carrier", or we must change them to read "in respect of any foreign air transportation". Though we might think this change would make a better law, we have no right thus to amend it. The Bill which passed both the House and the Senate and was approved by the President does not read that way.2 That Bill became the law, by the express provision of the Constitution, Art. 1, Sec. 7. Since no foreign air carrier is here concerned and no order has been made concerning such a...

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5 cases
  • Chicago Southern Air Lines v. Waterman Corporation Civil Aeronautics Board v. Same
    • United States
    • U.S. Supreme Court
    • February 9, 1948
    ...foreign countries. Waterman filed a petition for review under § 1006 of the Act with the Circuit Court of Appeals for the Fifth Circuit. 159 F.2d 828. Chicago and Southern intervended. Both the latter and the Board moved to dismiss, the grounds pertinent here being that because the order re......
  • Civil Aeronautics Board v. Delta Air Lines, Inc Lake Central Airlines, Inc v. Delta Air Lines, Inc
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    ...appropriate step in the proceeding, 'operate(s) to retain the Board's authority over the (original) order,' Waterman S.S. Corp. v. Civil Aeronautics Board, 5 Cir., 159 F.2d 828, 829, 'reopen(s) the case,' Black River Valley Broadcasts v. McNinch, 69 App.D.C. 311, 316, 101 F.2d 235, 240, and......
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  • Aeromar, C. Por A. v. Department of Transp.
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    • U.S. Court of Appeals — Eleventh Circuit
    • July 26, 1985
    ...order, affirmative or negative" has been judicially restricted to encompass only final FAA orders. Waterman Steamship Corp. v. Civil Aeronautics Board, 159 F.2d 828, 830 (5th Cir.1947), rev'd on other grounds sub nom. Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. ......
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