Anglo-Canadian Shipping Co. Ltd. v. Federal Maritime Com'n

Decision Date02 November 1962
Docket NumberNo. 17787.,17787.
Citation310 F.2d 606
PartiesANGLO-CANADIAN SHIPPING COMPANY LIMITED, Canadian Occidental Shipping Co., Ltd., et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents.
CourtU.S. Court of Appeals — Ninth Circuit

Graham, James & Rolph, Leonard G. James, and Robert L. Harmon, San Francisco, Cal., for petitioners.

Lee Loevinger, Asst. Atty. Gen., Antitrust Division, Richard A. Solomon, Atty., Dept. of Justice, James L. Pimper, Gen. Counsel, Robert E. Mitchell, Deputy Gen. Counsel, and Thomas D. Wilcox, Atty., Federal Maritime Commission, Washington, D. C., for respondents.

Gerald H. Ullman, New York City, for intervenor, New York Foreign Freight Forwarders and Brokers Ass'n, Inc.

Dorr, Cooper & Hays, San Francisco, Cal., and John Tilney Carpenter, New York City, for intervenor States Marine Lines, Inc.

J. Richard Townsend, San Francisco, Cal., for intervenor Pacific Coast Customs and Freight Brokers Ass'n.

Herman Goldman and Elkan Turk, New York City, and J. Richard Townsend, San Francisco, Cal., for intervenor Customs Brokers and Forwarders Ass'n of America, Inc.

Orrick, Dahlquist, Herrington & Sutcliffe, George Herrington, Christopher M. Jenks, and Robert Keller, III, San Francisco, Cal., for intervenors Port of New York Authority, City of New York, and State of New York.

Leo A. Larkin, Corp. Counsel, Samuel Mandell and Sidney Brandes, Asst. Corp. Counsel, New York City, for intervenors City of New York.

Sidney Goldstein, General Counsel, F. A. Mulhern, New York City, Arthur L. Winn, Jr., Samuel H. Moermann, J. Raymond Clark, Burton Fuller, and James M. Henderson, Washington, D. C., for intervenors Port of N. Y. Authority.

Louis J. Lefkowitz, Atty. Gen. of New York, New York City, and J. Bruce MacDonald, Albany, of counsel, for intervenors Dept. of Commerce, State of New York.

Before CHAMBERS, POPE and JERTBERG, Circuit Judges.

POPE, Circuit Judge.

This matter is here upon the petition of the Pacific Coast European Conference and its several shipping lines and shipowning members, seeking review of an order of the Federal Maritime Commission dated January 18, 1962, wherein and whereby the respondent Commission concluded, found and ordered that "agreements between common carriers by water in the export foreign commerce which prohibit brokerage or limit the amount thereof to less than 1¼% of freight charges, operate to the detriment of the commerce of the United States, and are contrary to the public interest, in violation of § 15 of the Shipping Act, 1916, as amended." It was ordered that all conferences of the common carriers by water in the outborne trades in foreign commerce of the United States, including the Pacific Coast European Conference, are "required to conform their brokerage practices to this ruling."

The order in question was entered in a proceeding instituted by the Commission referred to as Docket No. 831 in which numerous conferences, including the one here petitioning, were made respondents. It was ordered that all conferences, including Pacific Coast European Conference, "shall prior to March 23, 1962, modify their conference agreements, regulations and tariffs, so as to eliminate therefrom any provisions which are not in compliance with the findings and conclusions" quoted above.

The background of this case goes back a good many years. It has to do with the payment of brokerage fees to freight forwarders. Numbers of freight forwarding organizations and persons interested in or allied with them have intervened in this proceeding. We shall not undertake to describe at length the nature and functions of freight forwarders; that subject is discussed at length by Prof. John J. Frederick, Professor of Transportation at the University of Maryland in the book entitled "Ocean Transportation", McGraw-Hill Book Co., 1954, pp. 145 to 155. We assume the readers of this opinion have some familiarity with that business.

Primarily the freight forwarder prepares, processes and generally attends to the necessary shipping papers in connection with export ocean transportation, a function which he performs especially for the shipper. The freight forwarder looks after the booking of or arranging for cargo space for export shipments on ocean carriers, and performs a number of the other related functions including clearance of export shipments under government regulations and procuring certification of consular documents. Customarily also, when the freight forwarder books space on a vessel for a particular shipment, although he does so as an agent for the shipper, he generally collects freight brokerage from the carrier. Traditionally this has amounted to 1¼% of the freight charges.

The particular controversy which this case brings here has to do with a certain Rule 21 which is a part of the Pacific Coast European Conference traffic agreement. Copy of that Rule is set forth in the margin.1 It will be noted that through the adoption of this rule the members of the Pacific Coast European Conference have prohibited payment of brokerage exceeding certain stated percentages and in some cases have prohibited the payment of brokerage altogether. Thus Rule 21 is in violation of the Commission's order in respect to all those items which are specially listed as calling for something less than 1¼%.

At all times here mentioned § 15 of the Shipping Act, (46 U.S.C.A. § 814), to and including its amendment on October 3, 1961, by Public Law 87-346, § 2, 75 Stat. 763, has provided that common carriers by water, are required to file with the Commission, (or with its predecessor Board or Commission), copies of every agreement with other carriers by water, and the section provides that the Commission shall by order after notice and hearing, disapprove, cancel, or modify any agreement, whether or not previously approved by it, that it finds "to operate to the detriment of the commerce of the United States."

The order here in question was purportedly issued pursuant to the provision just referred to, and upon the basis of a finding that concerted action by a group of carriers in the nature of Rule 21 above referred to, did operate to the detriment of the commerce of the United States. The emphasis here must be placed upon the word "concerted". The parties here agree that there is no law, rule or regulation which requires an individual carrier to pay brokerage to any one.2

On April 1, 1947, the predecessor Maritime Commission undertook an investigation involving public hearings with respect to the payment and non-payment of brokerage by carriers. Some 21 outbound conferences and their member lines were made respondents. For some reason which is not clear, perhaps because of oversight, the presently petitioning Conference was not made a respondent. In these proceedings it appeared that these conferences in their basic conference agreements prohibited the payment of brokerage to forwarders. The Commission found that "concerted prohibition against the payment of brokerage results in detriment to the commerce of the United States in that it has had and will have a serious effect upon the forwarding industry."

It would appear that behind this finding was the view of the Commission that freight forwarders must be able to collect such brokerage in order to be able to stay in business in that compensation collected from the shippers alone was inadequate to support them. The hearing resulted in an order that the respondents should remove prohibitions against the payment of any brokerage from their conference agreements. This order was attacked by certain of the respondent conferences in Atlantic & Gulf/West Coast, etc. v. United States, D.C., 94 F. Supp. 138, heard by a three-judge district court in the Southern District of New York and the order was affirmed.

The order therein reviewed dealt solely with agreements not to pay any brokerage. However, the Commission added a dictum as follows: (p. 141, 94 F.Supp.) "On the other hand, as we have found that a prohibition against any payment of brokerage results in detriment to the commerce of the United States, we believe that any limitation below 1¼% of the freight involved, which is the amount generally paid by carriers in the various trades over a period of years, would circumvent our finding, and result in the detriment condemned."

The reviewing court noted that this was a dictum and carefully refrained from expressing any view as to whether the Commission could validly prohibit agreements to pay brokerage at a rate less than 1¼%.3 The same order reviewed in that case was also reviewed on the petition of certain other conferences by a three-judge district court in the Northern District of California in Pacific Westbound Conference v. United States, D.C., 94 F.Supp. 649. That court approved the decision of the district court for the Southern District of New York, above referred to, and denied relief against the order of the Commission.

Subsequently the successor Federal Maritime Board in a proceeding entitled The Joint Committee of Foreign Freight Forwarders v. Pacific Westbound Conference, Docket Nos. 718 and 719, had before it that Conference's Rule 30(b) which limited conference members to the payment to qualified forwarders of brokerage not in excess of certain stated amounts, less than 1¼%. For instance, on certain products the brokerage was limited to ¾% and on other commodities to 10 cents per ton. In this case, decided March 24, 1953, the Board, relying on the Commission's dictum in the proceedings previously mentioned, and calling it a "fundamental ruling" invalidated the provisions of Rule 30(b) and thereby actually decided that a limitation of brokerage rates to less than 1¼% was invalid.4 Thereafter, in a proceeding instituted October 22, 1954, in which the presently petitioning Pacific Coast European Conference was the respondent, the Board had before it for...

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