Caribbean Shippers Ass'n, Inc. v. Surface Transp. Bd., 97-1346
| Decision Date | 12 June 1998 |
| Docket Number | No. 97-1346,97-1346 |
| Parties | CARIBBEAN SHIPPERS ASSOCIATION, INC., Petitioner, v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents, NPR, Inc. and TAG/ICIB, Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Rick A. Rude argued the cause and filed the briefs for petitioner.
Craig M. Keats, Associate General Counsel, Surface Transportation Board, argued the cause for respondents, with whom Joel I. Klein, Assistant Attorney General, United States Department of Justice, Robert B. Nicholson and Robert J. Wiggers, Attorneys, and Henri F. Rush, General Counsel, Surface Transportation Board, were on the brief.
Dennis N. Barnes and John J. Mullenholz were on the joint brief for intervenors NPR, Inc. and TAG/ICIB, Inc.
Before: SILBERMAN, HENDERSON, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Caribbean Shippers Association, Inc. petitions for review of a Surface Transportation Board order dismissing its complaint against NPR, Inc. and TAG/ICIB, Inc. (TAG). Caribbean alleges that NPR and TAG violated the statutory provision which prohibits federally regulated water carriers or their agents from disclosing confidential commercial information regarding shippers' goods to competitors. We deny the petition.
Caribbean Shippers Association's members are non-vessel operating common carriers that ship containerized freight between the continental United States and Puerto Rico. These "carriers" are similar to surface freight forwarders; they aggregate small shipments at origin, buy space on a vessel, and provide distribution services at destination. NPR and two other vessel operating carriers--Sea-Land Service, Inc. and Crowley American Transport, Inc.--control approximately 90% of the market in the United States/Puerto Rico route. All three utilize TAG, a private policing organization which inspects cargo, to ensure tariff compliance. TAG obtains from the carriers the information that customers furnish along with their cargo. It may open and examine the contents of shipments to verify the accuracy of that information and thus assure that customers like Caribbean's members are adhering to the carriers' tariffs, which are on file with the STB.
In 1996, Caribbean complained to the Board that NPR and TAG had disclosed shipment and routing information to its members' competitors and to other water carriers in violation of 49 U.S.C. § 14908(a)(1), which provides:
A [water carrier or broker subject to regulation by the Surface Transportation Board] or an officer, receiver, trustee, lessee, or employee of that carrier or broker, or another person authorized by that carrier or broker to receive information from that carrier or broker may not disclose to another person, except the shipper or consignee, ... information about the nature, kind, quantity, destination, consignee, or routing of property tendered or delivered to that carrier or broker for transportation ... without the consent of the shipper or consignee if that information may be used to the detriment of the shipper or consignee or may disclose improperly to a competitor the business transactions of the shipper or consignee.
(Emphasis added.) Although Caribbean initially contended that TAG directly disclosed information gained in the process of conducting inspections for carriers, its later theory was that NPR's disclosure of confidential information to TAG was tantamount to disclosure to Sea-Land and Crowley, the other carriers for which TAG performs inspections. According to petitioner, because TAG policed for the three different carriers, it impermissibly served as an "informational clearinghouse" with "a vast archive of confidential commercial information," which it used for the benefit of its clients. It asked the Board to issue a cease and desist order and to further require TAG to return all of the records it had obtained from NPR to the carrier's customers. The Board characterized Caribbean's argument in the following manner:
when it is working for Crowley, TAG may pay particular attention to a shipper that it knows, as a result of its work for NPR or Sea-Land, has a history of misdescribing shipments. It is this ability to use information it has obtained while working for one [carrier] in the course of inspections for another [carrier] that [Caribbean] characterizes as an unlawful disclosure of information.
Caribbean Shippers Ass'n, Inc., No. WCC-100 (Mar. 18, 1997) (emphasis added). Caribbean never made quite clear to the Board why the arrangement between the three water carriers and TAG caused it "detriment"--or harm of any sort. The only harm it identified was its assertion that the carriers used TAG to purposefully delay their members' shipments--and thereby induce their customers to ship directly with the water carriers. But it did not explain why TAG would be better able to delay shipments because it inspected for all three carriers.
The Board dismissed Caribbean's complaint as not stating "reasonable grounds for investigation and action." 49 U.S.C. § 14701(b) (1994). The Board reasoned that the statute was aimed at "actual disclosures of information" not the transfer of information among TAG employees concerning lessons learned about the practices of certain shippers. And even if TAG's operations constituted a disclosure within the meaning of § 14908(a)(1), it was not a prohibited disclosure. TAG should be encouraged to use the experience it gained in working for all three carriers to prevent fraud.
Petitioner challenges the Board's statutory interpretation, suggesting that § 14908(a)(1)'s "disclosure" has a plain meaning that includes TAG's internal use of information acquired from inspecting for one carrier in conducting inspections for another carrier. We disagree. THE RANDOM HOUSE COLLEGE DICTIONARY (REVISED ED.1980) 378 defines "disclose" to mean: "1. to make known; reveal or uncover. 2. to cause to appear; lay open to view." Under this definition, it does not seem that TAG discloses a shipper's confidential information to anyone. TAG does not "reveal" or "make known" any information it receives from one carrier to other carriers; indeed, its contracts with its clients explicitly prohibit TAG from doing so. And it certainly does not lay such information open to public view. We think the statute's term "disclosure" is at least ambiguous as applied to this situation and therefore under Chevron we must defer to the Board's construction if it is a permissible one. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
That the Board's interpretation of "disclosure" is permissible we have no...
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