American Union Transport v. RIVER PLATE & BRAZIL CON.

• Decision Date: 30 November 1954
• Citation: 126 F. Supp. 91
• Parties: AMERICAN UNION TRANSPORT, Inc., Plaintiff, v. RIVER PLATE & BRAZIL CONFERENCES, International Freighting Corporation, Inc. (I.F.C. Lines), Lamport & Holt Line, Ltd., Lloyd Brasileiro (Patrimonio Nacional), Moore-McCormach Lines, Inc. (American Republics Line), Defendants.
• Court: U.S. District Court — Southern District of New York

126 F. Supp. 91

AMERICAN UNION TRANSPORT, Inc., Plaintiff, v. RIVER PLATE & BRAZIL CONFERENCES, International Freighting Corporation, Inc. (I.F.C. Lines), Lamport & Holt Line, Ltd., Lloyd Brasileiro (Patrimonio Nacional), Moore-McCormach Lines, Inc. (American Republics Line), Defendants.

United States District Court S. D. New York.

November 30, 1954.

George F. Galland, Washington, D. C., Becker, Maguire & Galland, Melvin Spaeth, Washington, D. C., of counsel, for plaintiff.

Kirlin Campbell & Keating, New York City, for defendants.

EDELSTEIN, District Judge.

In a treble damage suit under the anti-trust laws, the defendants and the Federal Maritime Board as intervenor move to dismiss on the ground that the complaint presents issues of fact and law within the primary jurisdiction of the board. The plaintiff is a freight forwarder in foreign commerce and complains of a conspiracy among defendants to restrain foreign trade by denying payment to plaintiff of freight brokerage on a shipment of diesel locomotives to Brazil. The defendants are a voluntary association of steamship lines and its members, operating in the foreign commerce of the United States from North Atlantic ports to ports in Brazil, pursuant to a basic agreement approved by the United States Shipping Board (predecessor of the Federal Maritime Board) under the authority of § 15 of the Shipping Act, as amended, 46 U.S.C.A. § 814. The complaint alleges, in brief, that after the plaintiff had been appointed as the broker in charge of arranging shipment of the locomotives and after it had performed its function, the Conference held a meeting at which its members agreed that no member line would thereafter be permitted to pay brokerage in any amount on the freight for this shipment. Such agreements are asserted to be unlawful under the decisions, rules and orders issued by the board and sustained by the courts. It is further alleged that the agreement was never submitted to the board for approval under § 15 of the Shipping Act and was never approved by it. Inasmuch as agreements among common carriers by water in the foreign commerce of the United States are exempted from the antitrust laws only in so far as they have been approved by the Maritime Board, under § 15 of the Shipping Act, it is alleged that the brokerage agreement among defendants, not having been submitted to or approved by the board, is not within the exemption of the antitrust laws, but is subject to them, with the plaintiff being entitled to the judicial remedies those laws afford.

The basis for the motion to dismiss is that the complaint contains allegations constituting charges of violations of the Shipping Act and the remedy is that afforded by the act, which to that extent supersedes the antitrust laws. Therefore, there is no right to a remedy under the antitrust laws and the failure of the conference to file an agreement is irrelevant to the issue of the board's primary jurisdiction. United States Navigation Co. v. Cunard S. S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408; Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. The plaintiff replies, however, that the United States Navigation and Far East Conference cases are distinguishable on their facts. In those cases injunctions were sought under the antitrust laws to prevent the future use of a dual rate system. And the doctrine of primary administrative jurisdiction was meant to apply "in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion * * *." Far East Conference v. United States, supra, 342 U.S. at page 574, 72 S.Ct. at page 494. Thus, in order to secure uniformity and consistency in the regulation of a business, an agency created by Congress for regulating the subject matter should not be passed over. Here, where no injunction is sought, but only damages for a past act, no issue of fact or discretion in technical matters is presented, nor any issue "not within the conventional experience of judges". All that is needed is a finding that an agreement which should have been filed and approved to secure exemption from the antitrust laws was not filed or approved; and, consequently, defendants failed to obtain the antitrust immunity provided for under § 15 of the Shipping Act. There can be no problem of the nullification of an injunction by future board approval of an agreement concerning enjoined conduct. The argument is appealing. The dissenting opinion of Mr. Justice Douglas, with whom Mr. Justice Black concurred, in the Far East Conference case, goes further. It expresses the view that, even where an injunction is sought, the defendants, having failed to obtain antitrust immunity by filing their agreement in the manner prescribed by § 15, were "at large, subject to all...