River Plate & Brazil Conf. v. Pressed Steel Car Co.
| Decision Date | 04 November 1955 |
| Docket Number | Docket 23352.,No. 62,62 |
| Parties | RIVER PLATE AND BRAZIL CONFERENCES, Plaintiffs-Appellants, v. PRESSED STEEL CAR COMPANY, Inc., Defendant-Appellee, Federal Maritime Board, Intervening Petitioner. |
| Court | U.S. Court of Appeals — Second Circuit |
Kirlin, Campbell & Keating, New York City (Louis J. Gusmano, Elmer C. Maddy, New York City, of counsel), for plaintiffs-appellants.
Olwine, Connelly & Chase, New York City (John Logan O'Donnell, Leo P. Arnaboldi, Jr., David P. Seaman, New York City, of counsel), for defendant-appellee.
Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit Judges.
The plaintiffs, River Plate and Brazil Conferences, are two conferences of common carriers by water organized under basic conference agreements approved in 1923 by the United States Shipping Board, predecessor of the present Federal Maritime Board. Although numerous modifications of the conference agreements as to such matters as membership and procedure were filed with the Board and approved from time to time, there is nothing in the record to show that the Board or any of its predecessors under the Shipping Act ever approved any system of preferential rates or the particular contract signed by the two conferences with the defendant Pressed Steel Car Company, Inc. in 1947 which was automatically renewed from year to year.
The complaint alleges breach of the contract by reason of defendant's shipping in September 1953 some 430 box cars with a non-conference carrier and seeks liquidated damages for the resulting dead freight in the amount of approximately $500,000. The defendant added to a general denial of breach of the contract the affirmative defenses that the contract was in violation of the Shipping Act, and that the contract is illegal and unenforceable under the anti-trust laws. The Shipping Act, 46 U.S.C.A. § 814 provides as follows:
In support of the motion for summary judgment defendant's counsel produced the basic agreements and numerous modifications thereof, together with the certification of the Board's assistant secretary that these were all the approved modifications of the conference agreement up to March 18, 1954. Also submitted and certified was a statement filed by the conference in March 1953, pursuant to General Order 76 of the Board, 46 Code Fed.Regs. Sec. 236.1 which merely gave the Board general information with respect to rates in effect in November 1952. This general statement regarding rates was stamped "received" by the Board and was never approved or disapproved. Plaintiffs do not urge that this filing under General Order 76 constituted approval. Defendant also submitted a letter from Lloyd Tibbott, Chief, Regulation Office, Federal Maritime Board, stating that the certified documents described above "constitute the entire agreement of that Conference and that no collateral or related agreements have been filed by that Conference for approval pursuant to Section 15 of the Shipping Act." This letter was merely cumulative, adding nothing substantial to the certification of the Board's assistant secretary.
The plaintiffs came forward with nothing to combat the obvious conclusion from the record that the Board never approved any agreement of these conferences to contract for reduced rates for exclusive patronage and never approved any such contract with the defendant.
After defendant had moved for summary judgment plaintiffs moved to stay all proceedings "pending the conclusion of appropriate proceedings before the Federal Maritime Board." Simultaneously the Board moved to intervene under Rule 24(a) (2) and 24(b), Federal Rules of Civil Procedure, 28 U.S.C.A. and for a stay pending the conclusion of appropriate proceedings before it regarding the defense that "the freight agreement is illegal and unenforceable because it is in violation of the Shipping Act of 1916, which is a matter within the exclusive preliminary jurisdiction" of the Board. The affidavit of the Board's counsel in support of its motions stated that defendant's assertion of illegality raised "issues of fact not within the conventional experience of judges" which required the exercise of administrative discretion and which should therefore be passed upon by the Board. Although counsel stated that he was familiar with the proceedings, he set forth no facts whatever with regard to approval of the contract in question. Indeed counsel's affidavit did not even raise a suspicion that the facts were otherwise than as defendant's papers had alleged and as has been summarized above.
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...at 481, 52 S.Ct. 247.8 A more apt comparison to the instant case is the Second Circuit's decision in River Plate and Brazil Conf. v. Pressed Steel Car Co., 227 F.2d 60 (2d Cir.1955). Distinguishing Far East and Cunard, the Second Circuit in River Plate concluded that a breach of contract ac......
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