Cunard S. S. Co. v. Lucci

• Decision Date: 28 July 1966
• Docket Number: STEAM--SHIP,No. C--3544,C--3544
• Citation: 222 A.2d 522,92 N.J.Super. 148
• Parties: The CUNARDCOMPANY Limited, etc., et al., Plaintiffs, and Atlantic Cruise Line, Inc. and Viking Cruise Lines, Flagship Line Agency, Inc., Intervening Plaintiffs, and North German Lloyd, Intervening Plaintiff, v. Louis P. LUCCI, Defendant, and State of New Jersey, Intervening Defendant.
• Court: New Jersey Superior Court

Page 148

92 N.J.Super. 148

222 A.2d 522

The CUNARD STEAM--SHIP COMPANY Limited, etc., et al., Plaintiffs and Atlantic Cruise Line, Inc. and Viking Cruise Lines, Flagship Line Agency, Inc., Intervening Plaintiffs and North German Lloyd, Intervening Plaintiff, v. Louis P. LUCCI, Defendant and State of New Jersey, Intervening Defendant.

No. C--3544.

Superior Court of New Jersey Chancery Division.

July 28, 1966.

Julius Poppinga, Newark, for original plaintiffs (Bertram E. Busch and John R. Drosdick, Newark, on the brief, McCarter & English, Newark, attorneys).

Allan H. Klinger, Englewood Cliffs, for intervening plaintiffs Atlantic Cruise Line, Inc. and Viking Cruise Lines, Flagship Line Agency, Inc. (Lawrence S. Grossman, Jersey City, on the brief, Milton, Keane & De Bona, Jersey City, attorneys).

Ralph P. Messano, Jersey City, for intervening plaintiff, North German Lloyd, (William A. O'Brien, Jersey City, of counsel, Messano & Messano, Jersey City, attorneys).

John E. Toolan, Perth Amboy, for defendant (Toolan, Haney & Romond, Perth Amboy, attorneys).

Richard Newman, Deputy Atty. Gen., for intervening defendant State (Theodore A. Winard, Deputy Atty. Gen., on the brief, Arthur J. Sills, Atty. Gen., attorney).

OPINION

MATTHEWS, J.S.C.

In this action plaintiffs, both original and intervening, seek a declaratory judgment adjudicating that the provisions of N.J.S. 2A:170--77.13, and 2A:170--77.14, N.J.S.A. insofar as it applies to the former statute, are unconstitutional. ¹ The original plaintiffs instituting this action sought injunctive relief against defendant to restrain him from prosecuting them under eight or more complaints, alleging violation of the statutes in question in the municipal court of the City of Jersey City. On the return day of the order to show cause, the second group of plaintiffs was allowed to intervene, and an order for consensual preliminary relief was entered. Thereafter, at my direction, the matter proceeded as an action for the declaratory relief afore-mentioned. In addition to seeking the adjudication as to constitutionality, plaintiffs also ask the court to construe the provisions of N.J.S. 2A:170--77.13, N.J.S.A. with respect to certain questions raised which bear upon the determination of violations thereunder. See N.J.S. 2A:16--53, N.J.S.A. Since the constitutionality of a state statute is involved, the Attorney General has been notified and served under the provisions of R.R. 4:37--2, and has appeared herein through a deputy. ²

The original plaintiffs and intervening plaintiff North German Lloyd are foreign corporations engaged in the business of operating ocean-going vessels between ports in the United States and foreign countries. The intervening plaintiffs Atlantic Cruise Line, Inc. and Viking Cruise Lines--Flagship Line Agency, Inc. are likewise steamship operating companies which conduct their operations through vessels registered under flags other than that of the United States. Defendant Louis P. Lucci is by self-designation a member of the National Maritime Union, and is also employed by that union as a patrolman. He states in an affidavit filed in the cause that he has been a member of the union for approximately eight years. In his capacity as an employee of the union defendant, with the encouragement of his superiors, went to several travel agencies located within the cities of Jersey City, Bayonne and Hoboken for the purpose of procuring advertising brochures placed in the agencies on behalf of foreign steamship companies, and for the further avowed purpose of determining whether the same were in compliance with the statute in question. After procuring numerous brochures and folders, he proceeded to the municipal court of the City of Jersey City where he subsequently, with the sanction of his employer, filed upwards of 20 complaints against plaintiffs herein, alleging various violations of N.J.S. 2A:170--77.13, N.J.S.A. It was the filing and serving of these complaints which precipitated the present action.

I

N.J.S. 2A:170--77.13, N.J.S.A., a supplement to our Disorderly Persons Act, is completely devoid of meaningful legislative history. It has been described in this cause by both the Attorney General and defendant as a consumer protection measure which has been enacted to provide for the safety of New Jersey citizens who seek passage on ocean-going vessels, by calling to their attention the foreign registry of vessels available for passage, thus alerting such would-be travelers to the supposedly known fact that the safety standards of foreign vessels do not measure up to those flying the American Flag. ³ Plaintiffs contend that the statute in question is union-sponsored and intended to reduce the bookings and profits of foreign corporations such as they. It is also claimed that the interest of defendant in prosecuting the municipal court complaints under the statute is other than altruistic. Without question, the National Maritime Union had interest in the passage and adoption of the statute in question and, indeed, similar statutes in other jurisdictions, for many reasons. ⁴

I believe that it can safely be assumed that there is self-interest attributable to defendant, and thus indirectly his union, in supporting and enforcing a statute such as that presently before the court. It is not too difficult to surmise that an organization such as the National Maritime Union, barred from conducting representation elections among crews of vessels registered in countries other than the United States, ⁵ would be interested in fostering, sponsoring and favoring legislation which might tend to encourage greater use by citizens of this State of American Flag vessels, instead of those registered in a foreign nation. As a general principle, there is nothing unlawful in such an attitude. However, it is not for this court to judge the motivation of the sponsors of the legislation, or the wisdom of the Legislature in enacting it. Such matters are, in fact, irrelevant to the ultimate question presently before this court. It can be of no moment that the statute is designed to appeal to the parochial prejudices of the American traveling public, or that Mr. Lucci, in filing his complaints, sought enforcement of the law for selfish reasons if, in fact, the law is valid.

II

Both the individual defendant and the State contend that the statute in question should be upheld as constituting a valid consumer fraud prevention measure. It is not clear from the argument of either defendant as to the extent or manner in which the ocean-going public is to be protected from the defaults of foreign steamship companies by the statutory provisions here under review. This observation is made because the arguments of defendants tend to merge the concepts of financial responsibility of foreign steamship corporations and the safety measures employed by them.

A

The power of the Federal Government to regulate national and international commerce is found in the United States Constitution, Art. I, Sec. 8, cl. 3. The extent of this power has been debated and argued in legislative halls and courts since the institution of the Republic. The oft-cited opinion in Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 6 L.Ed. 23 (1824), opened, but did not decide, the question of the validity of state regulation of interstate commerce in the absence of congressional legislation. This specific question later came before the Supreme Court of the United States in Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. (53 U.S.) 299, 13 L.Ed. 996 (1851). The Supreme Court there sustained a Pennsylvania statute regulating pilots of vessels entering and leaving the Port of Philadelphia. The Pennsylvania statute obviously was a regulation of both interstate and foreign commerce. Mr. Justice Curtis, in an opinion for the majority of the court, set forth an interpretation of the commerce clause which has never been directly repudiated. He stated:

'Either absolutely to affirm, or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.' (12 How., at p. 319)

The standard set forth in Cooley is generally not regarded as being relied on as a source of state power to regulate any part of interstate commerce; rather, such power is generally derived from either the taxing or police powers of the several states. In the exercise of the police power the state restricts personal freedom and property rights, and sometimes imposes burdens upon, or affects, interstate commerce. In the latter connection, where the burden is only incidental And the restriction warranted by local needs, it is generally held that such local legislation is valid. However, even when there is no controlling federal legislation in the given area, a state may not regulate interstate commerce so as to restrict its flow materially or to deprive it of necessary regulatory uniformity by 'simply invoking the convenient apologetics of the police power.' Kansas City Southern R. Co. v. Kaw Valley Drainage District, 233 U.S. 75, 79, 34 S.Ct. 564, 565, 58 L.Ed. 857 (1914). The test enunciated in Cooley was restated more broadly in the decision in Kelly v. State of Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937). Kelly involved state regulation of safety features of tugboats operating in both foreign and interstate commerce. The court stated the issues as follows:

'First. The first question is whether the state legislation as applied to respondents' motor-driven tugs is in all respects in conflict with express provisions of the federal laws and regulations. Wherever such...