333 U.S. 103 (1948), 78, Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp.

Docket Nº:No. 78
Citation:333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568
Party Name:Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp.
Case Date:February 09, 1948
Court:United States Supreme Court

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333 U.S. 103 (1948)

68 S.Ct. 431, 92 L.Ed. 568

Chicago & Southern Air Lines, Inc.


Waterman Steamship Corp.

No. 78

United States Supreme Court

Feb. 9, 1948

Argued November 19, 1947



Section 1006 of the Civil Aeronautics Act, authorizing judicial review of certain orders of the Civil Aeronautics Board, does not apply to orders granting or denying applications of citizens of the United States for authority to engage in overseas and foreign air transportation which are subject to approval by the President under § 801. Pp. 104-114.

(a) Orders of the Board as to certificates for overseas or foreign air transportation are not mature, and therefore are not susceptible of judicial review until they are made final by presidential approval, as required by § 801. P. 114.

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(b) After such approval has been given, the final orders embody presidential discretion as to political matters beyond the competence of the courts to adjudicate. P. 114.

159 F.2d 828, reversed.

The Circuit Court of Appeals denied a motion to dismiss a petition seeking review of certain orders of the Civil Aeronautics Board granting and denying certificates of public convenience and necessity authorizing certain American air carriers to engage in overseas and foreign air transportation after such orders had been approved by the President under § 801 of the Civil Aeronautics Act. 159 F.2d 828. This Court granted certiorari. 331 U.S. 802. Reversed, p. 114.

JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the Court.

The question of law which brings this controversy here is whether § 1006 of the Civil Aeronautics Act, 49 U.S.C. § 646, authorizing judicial review of described orders of the Civil Aeronautics Board, includes those which grant or deny applications by citizen carriers to engage in overseas and foreign air transportation which are subject to approval by the President under § 801 of the Act. 49 U.S.C. § 601.

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By proceedings not challenged as to regularity, the Board, with express approval of the President, issued an order which denied Waterman Steamship Corporation a certificate of convenience and necessity for an air route and granted one to Chicago and Southern Air Lines, a rival applicant. Routes sought by both carrier interests involved overseas air transportation, § 1(21)(b), between Continental United States and Caribbean possessions and also foreign air transportation, § 1(21)(c), between the United States and 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 intervened. Both the latter and the Board moved to dismiss, the grounds pertinent here being that, because the order required and had approval of the President under § 801 of the Act, it was not reviewable. The Court of Appeals disclaimed any power to question or review either the President's approval or his disapproval, but it regarded any Board order as incomplete until court review, after which "the completed action must be approved by the President as to citizen air carriers in cases under Sec. 801." 159 F.2d 828, 831. Accordingly, it refused to dismiss the petition, and asserted jurisdiction. Its decision conflicts with one by the Court of Appeals for the Second Circuit. Pan American Airways, Inc. v. Civil Aeronautics Board, 21 F.2d 810. We granted certiorari both to the Chicago and Southern Air Lines, Inc. (No. 78) and to the Board (No. 88) to resolve the conflict.

Congress has set up a comprehensive scheme for regulation of common carriers by air. Many statutory provisions apply indifferently whether the carrier is a foreign air carrier or a citizen air carrier, and whether the carriage involved is "interstate air commerce," "overseas air commerce," or "foreign air commerce," each being appropriately defined. 49 U.S.C. § 401(20). All air carriers by similar procedures must obtain from the Board certificates

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of convenience and necessity by showing a public interest in establishment of the route and the applicant's ability to serve it. But when a foreign carrier asks for any permit, or a citizen carrier applies for a certificate to engage in any overseas or foreign air transportation, a copy of the application must be transmitted to the President before hearing, and any decision, either to grant or to deny, must be submitted to the President before publication, and is unconditionally subject to the President's approval. Also, the statute subjects to judicial review

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.

It grants no express exemption to an order such as the one before us, which concerns a citizen carrier but which must have Presidential approval because it involves overseas and foreign air transportation. The question is whether an exemption is to be implied.

This Court long has held that statutes which employ broad terms to confer power of judicial review are not always to be read literally. Where Congress has authorized review of "any order" [68 S.Ct. 434] or used other equally inclusive terms, courts have declined the opportunity to magnify their jurisdiction, by self-denying constructions which do not subject to judicial control orders which, from their nature, from the context of the Act, or from the relation of judicial power to the subject matter, are inappropriate for review. Examples are set forth by Chief Justice Hughes in Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 384. Cf. Rochester Telephone Corporation v. United States, 307 U.S. 125, 130.

The Waterman Steamship Corporation urges that review of the problems involved in establishing foreign air routes are of no more international delicacy or strategic importance than those involved in routes for water

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carriage. It says, "It is submitted that there is no basic difference between the conduct of the foreign commerce of the United States by air or by sea." From this premise, it reasons that we should interpret this statute to follow the pattern of judicial review adopted in relation to orders affecting foreign commerce by rail, Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U.S. 654; News Syndicate Co. v. New York Central R. Co., 275 U.S. 179, or communications by wire, United States v. Western Union Telegraph Co., 272 F. 893, or by radio, Mackay Radio & Telegraph Co. v. Federal Communications Commission, 68 App.D.C. 336, 97 F.2d 641, and it likens the subject matter of aeronautics legislation to that of Title VI of the Merchant Marine Act of 1936, 46 U.S.C. § 1171, and the function of the Aeronautics Board in respect to overseas and foreign air transportation to that of the Maritime Commission to such commerce when water-borne.

We find no indication that the Congress either entertained or fostered the narrow concept that air-borne commerce is a mere outgrowth or overgrowth of surface-bound transport. Of course, air transportation, water transportation, rail transportation, and motor transportation all have a kinship in that all are forms of transportation, and their common features of public carriage for hire may be amenable to kindred regulations. But these resemblances must not blind us to the fact that legally, as well as literally, air commerce, whether at home or abroad, soared into a different realm than any that had gone before. Ancient doctrines of private ownership of the air as appurtenant to land titles had to be revised to make aviation practically serviceable to our society. A way of travel which quickly escapes the bounds of local regulative competence called for a more penetrating, uniform and exclusive regulation by the nation than had been thought appropriate for the more easily controlled commerce of the past. While transport

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by land and by sea began before any existing government was established, and their respective customs and practices matured into bodies of carrier law independently of legislation, air transport burst suddenly upon modern governments, offering new advantages, demanding new rights, and carrying new threats which society could meet with timely adjustments only by prompt invocation of legislative authority. However useful parallels with older forms of transit may be in adjudicating private rights, we see no reason why the efforts of the Congress to foster and regulate development of a revolutionary commerce that operates in three dimensions should be judicially circumscribed with analogies taken over from two-dimensional transit.

The "public interest" that enters into awards of routes for aerial carriers, who in effect obtain also a sponsorship by our government in foreign ventures, is not confined to adequacy of transportation service, as we have held when that term is applied to railroads. Texas v. United States, 292 U.S. 522, 531. That aerial navigation routes and bases should be prudently correlated with facilities and plans for our own national defenses and raise new problems in conduct of foreign relations is a fact of common knowledge. Congressional hearings and debates extending over [68 S.Ct. 435] several sessions, and departmental studies of many years, show that the legislative and administrative processes have proceeded in full recognition of these facts.

In the regulation of commercial aeronautics, the statute confers on the Board many powers conventional in other carrier regulation under the Congressional commerce power. They are exercised through usual procedures, and apply settled standards with only...

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