C. Tennant & Sons, Inc. v. New York Terminal Conference

• Decision Date: 04 March 1969
• Docket Number: No. 68-Civ. 4740.,68-Civ. 4740.
• Parties: C. TENNANT & SONS, INC., et al., Plaintiffs, v. NEW YORK TERMINAL CONFERENCE et al., Defendants. UNITED STATES of America and Federal Maritime Commission, Plaintiffs-Intervenors, v. NEW YORK TERMINAL CONFERENCE et al., Defendants.
• Court: U.S. District Court — Southern District of New York

299 F. Supp. 796

C. TENNANT & SONS, INC., et al., Plaintiffs, v. NEW YORK TERMINAL CONFERENCE et al., Defendants.

UNITED STATES of America and Federal Maritime Commission, Plaintiffs-Intervenors, v. NEW YORK TERMINAL CONFERENCE et al., Defendants.

No. 68-Civ. 4740.

United States District Court S. D. New York.

January 30, 1969.

Supplemental Memorandum March 4, 1969.

Zelby & Burstein, New York City, for plaintiffs, Herbert Burstein, New York City, of counsel.

Burlingham, Underwood, Wright, White & Lord, New York City, for defendants, Elkan Turk, Jr., and Joseph A. Byrne, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty., Louis E. Greco, Atty. in Charge, Admiralty and Shipping Section, Dept. of Justice, New York City, for plaintiffs-intervenors, Peter Martin Klein, Robert N. Katz, Sol., Federal Maritime Commission, H. B. Mutter, Asst. Sol., of counsel.

MEMORANDUM

CROAKE, District Judge.

A motion for a preliminary injunction was brought in this action to enjoin a rate increase for certain services provided by the defendants pending a determination of the legality of the rates by the Federal Maritime Commission. After hearing arguments, studying the testimony and exhibits, and reviewing affidavits, this court concludes that the motion must be denied.

The action was brought by twenty-three importers and exporters of goods through the Port of New York and four trucking firms which transport those goods to and from the piers. The Federal Maritime Commission has intervened in support of the plaintiffs. The defendants are the New York Terminal Conference, an association of terminal operators and steamship companies, and its sixteen members.¹

It appears from the evidence that moving cargo from the hold of a ship to a truck for land delivery can be described for purposes of this motion as a two-step operation. The usual practice is for the steamship company to arrange with the terminal operator or a stevedoring company to unload the cargo to a point on the pier, usually designated by the terminal operator or stevedore and known as the "point of rest." The work is done by longshoremen employed by the contracting stevedore or terminal operator and is billed to the steamship company. A different gang of longshoremen is engaged by the stevedore or terminal operator to load the cargo into the truck. The trucker is charged by the stevedore or terminal operator for this service and passes it on to his customer.

The New York Terminal Conference was formed to set a uniform rate for the second part of this operation.² It has issued a detailed set of tariffs setting rates for various commodities for "* * * the service of moving cargo from a place of rest on the terminal facility, elevating the cargo onto the truck and stowing of the cargo in the truck, but the service shall not include, among other things, special stowage, sorting or grading of, or otherwise selecting the cargo for the convenience of the trucker or the consignee, nor the loading of cargo onto consignee's pallets."³ On October 30, 1968, the Conference issued Supplement No. 6 to Tariff No. 7 which announced a 23% surcharge, effective December 1, 1968.⁴ It is this surcharge that the plaintiffs seek to enjoin.

The Federal Maritime Commission is now considering the legality of the Truck Loading and Unloading Tariff. In October of 1965 an association of truck operators complained to the Commission that the five and twelve percent surcharges put into effect in November of 1964 and October of 1965 were illegal.⁵ Shortly thereafter the Commission began its own investigation of the rates⁶ and consolidated the proceedings. The investigation has been expanded to include the surcharge announced in Supp. No. 6.⁷

The plaintiffs contend that the surcharge is illegal in that it is detrimental to the commerce of the United States and unreasonable,⁸ and that they will be injured by it. Because the Commission will eventually determine the legality of the rates, including the surcharge, plaintiffs have asked for relief pending a decision by the Commission. They have, moreover, asked that the preliminary injunction expire when the Commission hands down its decision or within 180 days after an order of this court is issued, whichever is sooner.

The earlier memorandum we filed indicated the standard by which this motion would be decided:

"* * * A preliminary injunction can be granted only if the Court, after weighing all the factors, finds that the status quo should be maintained pending disposition on the merits. Among the more important factors to be considered are the relative importance of the rights asserted and the acts to be enjoined, the harm that would result during the pendency of the action from granting or refusing to grant a preliminary injunction, the chances of success the movant has on the merits, and the public interest. Unicon Mgt. Corp. v. Koppers Co., 366 F.2d 199, 204-05 (2d Cir. 1966); West India Fruit & Steamship Co. v. Seatrain Lines, Inc., 170 F.2d 775, 779 (2d Cir. 1948); FMC v. Atlantic & Gulf/Panama Canal Zone, 241 F.Supp. 766, 778 (S.D.N.Y. 1965), quoting Communist Party of United States of America v. McGrath, 96 F.Supp. 47, 48 (D.D.C. 1951) * * *"⁹

The weight to be given to each of these factors on a motion for a preliminary injunction is not rigidly fixed; the various factors must be weighed, one against the other, to determine where the equities balance. It is not necessary, for example, that the moving party be reasonably certain to succeed on the merits. If the harm that may occur to the plaintiff is sufficiently serious, it is only necessary that there be a fair chance of success on the merits.¹⁰

I.

A permanent injunction may be granted if the plaintiff shows by a preponderance of the evidence that a threatened violation of some legal right will result in irreparable injury to him.¹¹ The chance of success on the merits of these plaintiffs thus depends on the legality of the surcharge.

Without going into the arguments for or against the legality of the surcharge, it can be said that the plaintiffs have a fair chance of establishing its illegality. The fact that the Federal Maritime Commission ordered an investigation of the rates, the ruling of the hearing examiner that data not included in the Price Waterhouse study was necessary and relevant,¹² and the opinions offered by Commission officials indicate that there is a reasonable possibility that the surcharge is unreasonable.

As the matter was presented to this court, the legality of the surcharge depends in part on the nature of certain arrangements by which steamship companies reimburse terminal operators for losses on truck loading and unloading operations, and the propriety of including these payments in the computation of a reasonable tariff.¹³ Since resolution of this issue would require the receipt of a considerable volume of testimony,¹⁴ the making of significant policy determination on the economic structure of the Port of New York,¹⁵ and a detailed analysis of matters which the Federal Maritime Commission was created to study and regulate, and since resolution of the issue is not necessary to this decision, we leave it to the Commission. We find only that there is a reasonable possibility that the surcharge may be found illegal.

The second element of the plaintiffs' case on the merits, of the harm imposition of the surcharge will cause, is discussed below.

II.

No substantial evidence was adduced that any segment of the public would be injured by the rate increase. The public is, however, presumably interested in the matter since an administrative agency has ordered an investigation and has intervened in this action.

The Commission contends that the status quo should be maintained pending its decision; otherwise "there is a reasonable likelihood that the Commission would be frustrated and rendered powerless to protect the private and public interests from being adversely affected by the New York Terminal Conference's proposed new rates."¹⁶ We are inclined to assist the Commission in fulfilling its responsibility,¹⁷ but we have no evidence before us to show that there would be any substantial injury to the public if rates were temporarily raised or that the Commission's investigation would be disrupted. We will not issue an injunction, even a preliminary one, based on speculation. There is no clear authority, moreover, for issuing an injunction to aid an administrative agency absent statutory authority without a finding that there would be substantial injury to some individuals.¹⁸

III.

To prove that they would be injured by the surcharge, the plaintiffs and the Commission presented eleven witnesses at the hearing; affidavits of two persons who did not testify had been filed with the motion. On the whole, we are not able to say that the plaintiffs will suffer irreparable harm.

Officers and employees of import firms and associations¹⁹ who testified all offered substantially the same testimony. Each testified that the previous 5 and 12% surcharges which became effective in 1966 resulted in their diverting cargo formerly shipped through New York to other ports. Factors other than the surcharges played a part in some of their decisions. One firm shifted local transportation of imported copper from trucks to lighters. Although percentage figures, and occasionally absolute figures, were given of the amount of cargo diverted, the court is unable to determine the substantiality of these diversions without an overall picture of local transportation of waterborne cargo.

The use of ports other than New York does not necessarily mean that the importers will suffer substantial losses. In only two cases witnesses for import firms testified that their firms would suffer financial losses because of the surcharge. One witness testified that the importation of honey would cease; another testified that spice grinders would import spices themselves rather than looking to his...