American Mail Line Ltd. v. Federal Maritime Com'n, AFL-CIO
| Citation | 503 F.2d 157,164 U.S.App.D.C. 235 |
| Decision Date | 28 June 1974 |
| Docket Number | AFL-CIO,73-1334,Nos. 73-1252,73-1401,73-1400,73-1395,s. 73-1252 |
| Parties | , 1974-2 Trade Cases 75,140 AMERICAN MAIL LINE LTD. and American President Lines, Ltd., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondent, R. J. Reynolds Tobacco Co. et al., Intervenors. AMERICAN EXPORT LINES, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, R. J. Reynolds Tobacco Co. et al., Intervenors. WALTER KIDDE & COMPANY, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, R. J. Reynolds Tobacco Company et al., Intervenors. UNITED STATES of America, Petitioner, v. FEDERAL MARITIME COMMISSION, Respondent, R. J. Reynolds Tobacco Company et al., Intervenors. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,, et al., Petitioners, v. UNITED STATES of America and Federal Maritime Commission, Respondents, R. J. Reynolds Tobacco Company et al., Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Warner W. Gardner, Washington, D.C., for petitioners in No. 73-1252.
James R. Withrow, Jr., and Sanford M. Litvack, New York City of the bar of the Court of Appeals of New York pro hac vice by special leave of court with whom Andrew J. Kilcarr, Edward Schmeltzer, Robert A. Peavy, Washington, D.C., and Kenneth E. Newman, New York City, were on the brief for petitioner in No. 73-1395 and intervenors Walter Kidde & Co., Inc., and U.S. Lines, Inc.
Irwin A. Seibel, Atty., Dept. of Justice, with whom George Edelstein, Washington, D.C., was on the brief, for petitioners in No. 73-1400 and respondent, United States of America.
Edward G. Gruis, Deputy Gen. Counsel, Federal Maritime Commission, with whom James L. Pimper, Gen. Counsel and William H. Smith, Atty., Federal Maritime Commission, were on the brief, for respondent, Federal Maritime Commission.
Edward M. Shea, with whom John Mason, William F. Ragan, Paul J. McElligott and Gary R. Edwards, Washington, D.C., were on the brief for intervenors R. J. Reynolds Tobacco Co., RJI Corp. and Sea-Land Service, Inc.
Richard W. Kurrus, Washington D.C., was on the brief for petitioner in No. 73-1334.
Louis Waldman and Seymour M. Waldman, New York City, were on the brief for petitioners in No. 73-1401.
Ronald Rosenberg, Washington, D.C., and Howard Schulman entered appearances for intervenor Seafarers International Union of North America.
Abraham E. Freedman, New York City, entered an appearance for intervenor National Maritime Union of America.
Before McGOWAN and MacKINNON, Circuit Judges, and CHRISTENSEN, * United States Senior District Judge for the District of Utah.
Petitioners challenge the authority of the Federal Maritime Commission (the Commission) to approve Agreement No. 9827-1 under which the world's two largest containership operators-- Sea-Land Service, Inc. and United States Lines, Inc.-- would become subsidiaries of the same corporate parent-- ,R. J. Reynolds Tobacco Company. The Commission approved the acquisition agreement on condition that the subsidiaries remain independent companies in competition with each other, except as the Commission same corporate parent-- R. J. Reynolds
The dispositive issue is whether the Commission has jurisdiction to approve such an agreement under section 15 of the Shipping Act of 1916, 39 Stat. 733, as amended, 46 U.S.C. 814, 2 which requires all persons subject to the Act to file with the Commission 3 every agreement within specified categories reached with any other person subject to the Act. The statute empowers the Commission to disapprove, cancel or modify any agreement which it finds to be unjustly discriminatory, detrimental to the commerce of the United States, contrary to the public interest, or violative of the terms of the Act, and directs the Commission to approve all other agreements.
Of primary importance in the present case is the express provision in section 15 that agreements approved by the Commission are exempt from the antitrust laws. If the agreement in this case is within the Commission's jurisdiction, then the acquisition is effectively shielded from antitrust attack. See FMC v. Seatrain Lines, Inc., 411 U.S. 726, 728-729 & n. 3, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973); Transamerican Trailer Transport, Inc. v. FMC, U.S.App.D.C., 492 F.2d 617, 624 (1974). We conclude that the acquisition agreement in this case is not the type of agreement encompassed by section 15 and that the Commission therefore lacked jurisdiction to approve the transaction.
United States Lines, Inc. (USL) and Sea-Land Service, Inc (Sea-Land) are the two largest containership operators in the world. 4 USL, the second largest containership operator, is wholly owned by Walter Kidde & Company, Inc. (Kidde), a conglomerate. USL owns 16 modern containerships and 14 modern breakbulk ships, maintains the largest containership operation between Atlantic ports and Western Europe, and also provides through-service between Europe, the Atlantic coast, the Pacific coast, Hawaii and the Far East. Despite this extensive operation, there is some evidence that the company has experienced liquidity problems in recent years.
Sea-Land, the largest containership operator in the world, is wholly owned by McClean Industries, Inc., which is wholly owned by R. J. Reynolds Tobacco Company (Reynolds), which in trun is a subsidiary of R. J. Reynolds, Inc., a conglomerate. At the time of the Commission hearing Sea-Land either owned or chartered 61 containerships and had 10 modern containerships under construction. Sea-Land services the Atlantic coast, Northern Europe, the Mediterranean, the Pacific coast, the Far East, Alaska and the Caribbean. USL is its only direct competitor in total United States foreign commerce. However, many of Sea-Land's ships are converted World War II vessels and Sea-Land needs more modern containerships.
In 1969 Sea-Land and USL agreed to a 20-year charter of USL's entire containership fleet to Sea-Land, with an option to purchase at the end of the charter period. Related equipment would be similarly leased and certain terminal facilities would be transferred from USL to Sea-Land. The parent corporations guaranteed the obligations of their subsidiaries.
In November 1970 the transaction was restructured into a merger-charter agreement. This agreement provided that RJI Corporation, a corporation wholly owned by Reynolds, would merge with USL and that RJI would cease its corporate existence, leaving USL as a wholly owned subsidiary of Reynolds. In return for delivering all outstanding stock of USL to Reynolds, Kidde would receive a promissory note for $65 million. A Supplemental Agreement provided that if the transaction were disapproved by a federal agency, Reynolds would find a substitute purchaser. After the merger, USL would lease its containerships to Sea-Land as in the 1969 agreement.
In December 1970 the Department of Justice filed an action in the United States District Court for the District of New Jersey seeking to enjoin this transaction on the ground that it violated the antitrust laws. United States v. R. J. Reynolds Tobacco Co., 325 F.Supp. 656 (D.N.J.1971). The FMC intervened, seeking a stay or dismissal of the court's action pending completion of the FMC's consideration of the transaction, but on April 7, 1971 the court declined to stay the action, concluding that the FMC lacked jurisdiction over the merger embodied in the November 1970 agreement.
In March 1972, during final oral argument before the Commission on the November 1970 agreement, the attorney for Reynolds proposed a modified plan which the Commission eventually approved. Under this plan USL would merge with RJI Corporation as in the November 1970 plan, but USL would continue to operate independently of Sea-Land in all respects. The Commission reopened the proceeding and received comments on this new proposal.
On February 12, 1973 the Commission approved Reynolds' acquisition of USL upon the condition that USL and Sea-Land operate as independent carriers in all respects in competition with each other, except as the Commission might otherwise approve. The Commission expressed concern over USL's financial condition, found that the public interest would be served by maintaining USL as a viable domestic shipper, and concluded that acquisition by Reynolds offered the best opportunity to restore USL's financial strength. With a nod toward the anticompetitive effects of the acquisition, the Commission imposed certain restrictions designed to insure that Reynolds would operate USL and Sea-Land as separate carriers in competition with each other. These restrictions are set forth in the Appendix to this opinion and are further discussed in part III of this opinion.
Petitioners challenge the Commission's jurisdiction under section 15 to approve an acquisition of this type. They also contend that the Commission's procedure in approving the plan suggested at oral argument was insufficient and that neither the evidence nor the Commission's reasoning supports its decision. We find the jurisdiction issue dispositive.
The first decision to consider the Commission's section 15 jurisdiction over mergers or acquisitions was Matson Navigation Co. v. FMC, 405 F.2d 796 (9th Cir. 1968), which upheld the Commission's jurisdiction to approve a merger between American Mail Line, Ltd., American President Lines, Ltd. and Pacific Far East Lines, Inc. Under the terms of the merger American Mail Line would remain either a subsidiary of the new corporation or a separate division for steamship operations. The Matson decision asserted reliance primarily on the earlier Supreme Court decision in Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d (1968), in which the Supreme Court refused to adopt an 'extremely narrow view of a statute (section 15)...
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