Delaware River Port Auth. v. United States Lines, Inc.

• Decision Date: 01 September 1971
• Docket Number: Civ. A. No. 71-1725.
• Citation: 331 F. Supp. 441
• Parties: DELAWARE RIVER PORT AUTHORITY et al., Plaintiffs, v. UNITED STATES LINES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

331 F. Supp. 441

DELAWARE RIVER PORT AUTHORITY et al., Plaintiffs, v. UNITED STATES LINES, INC., et al., Defendants.

Civ. A. No. 71-1725.

United States District Court, E. D. Pennsylvania.

September 1, 1971.

Martin Heckscher, Herbert Smolen, M. Carton Dittmann, Jr., Abraham E. Freedman, Francis A. Scanlan, Philadelphia, Pa., Gordon Shaw, Washington, D. C., for plaintiffs.

Harrison G. Kildare, Raymond K. Denworth, Jr., Philadelphia, Pa., Marjorie Marinoff, Gordon Gallon, Washington, D. C., Allan Berdon, New York City, Charles Warren, Washington, D. C., Raymond T. LeTulle, John T. Biezup, Alfred J. Kuffler, Raymond K. Denworth, Jr., Philadelphia, Pa., for defendants.

OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

VANARTSDALEN, District Judge.

Plaintiffs have moved for a preliminary injunction. Hearing has been held, briefs filed, and oral argument heard on the motion. Plaintiffs seek a preliminary and thereafter a permanent injunction until a final decision is rendered by the Federal Maritime Commission on a complaint filed before it by plaintiffs against defendants alleging illegal and discriminatory shipping practices against the Port of Philadelphia. Plaintiffs assert that unless such injunctive relief is granted promptly, the alleged illegal shipping practices will have a disastrous effect upon the Port of Philadelphia, thereby causing irreparable harm to all plaintiffs and to many, if not all, citizens and residents of the Philadelphia Port area. The pertinent allegations of the complaint are set forth as follows:—

"12. Each of the defendants has in the past or is continuing at present to divert or to attempt to divert cargo away from the Port of Philadelphia, to other ports of exit or entry, as is more fully set forth in Exhibit "A" to this Complaint, which is a Complaint against these practices filed by plaintiffs with the Federal Maritime Commission.

"13. The foregoing actions of defendants are unlawful and illegal under Sections 15, 16, 17 and 18 of the Shipping Act, 1916 and Section 8 of the Merchant Marine Act of 1920, and under the general laws (including anti-trust laws) and Constitution of the United States.

"14. Plaintiffs have filed with the Federal Maritime Commission a Complaint referred to above, a copy of which is attached and marked Exhibit "A". The Federal Maritime Commission does not have the power to prohibit the diversion of cargo from Philadelphia to other ports of exit and entry during the pendency of the proceeding before it or before any appellate court reviewing its decision.

"15. The diversion of cargo from Philadelphia to other ports of entry or exit during the pendency of the proceeding before the Federal Maritime Commission will drastically alter previously established patterns of commerce by diverting traffic from areas naturally tributary to the Port of Philadelphia away from the said Port through defendants' diversionary activities.

"16. If cargo is diverted from Philadelphia during the pendency of the proceeding before the Federal Maritime Commission as aforesaid, irreparable injury will be done thereby to the Port of Philadelphia, plaintiffs, longshoremen, other persons and businesses interested in and dependent upon the said Port, and the general public, as follows:

"a. Loss of job opportunities, employment, wages and employment benefits by longshoremen and other workers dependent either directly or indirectly on activity in the port; loss of economic livelihood to a great many families within the Port of Philadelphia whose breadwinners are workers and longshoremen dependent for their employment on activity in the port; and a drastic curtailment of the pension and welfare programs of the unions of said workers and longshoremen which depend for their vitality upon full employment of their members.

"b. Placing in jeopardy the investment by local and state governments, private concerns and individuals in the facilities of the Port of Philadelphia;

"c. Substantial and continuing loss of tax revenue by the Commonwealth of Pennsylvania, States of New Jersey and Delaware, Cities of Philadelphia, Trenton, Camden, Gloucester, Paulsboro and Wilmington, and other governmental entities.

"d. Substantial impairment in the value of the port facilities located in the cities and states referred to above.

"e. Change in long-established patterns of traffic so that the Port of Philadelphia will be critically damaged or destroyed as a viable economic operation and will no longer be in a position to service and handle cargo to and from areas naturally tributary to the said Port.

"f. Creation of an undue concentration of shipping services in one or at most two areas in the North Atlantic range of ports contrary to the policies of the Congress as set forth in its various Acts, including, inter alia, Section 8 of the Merchant Marine Act of 1920, which are intended to encourage the development of ports and transportation facilities adequate to handle interstate and foreign commerce in peace time and to enhance the security of the United States in times of national emergency.

"17. Should cargo continue to be diverted from the Port of Philadelphia during the pendency of the proceeding before the Federal Maritime Commission, it will be difficult, if not impossible, for the original patterns of commerce to be restored at the conclusion of the said proceeding.

"18. The status quo must be preserved as it existed prior to the attempted diversion of cargo away from Philadelphia as an aid to the administrative processes of the Federal Maritime Commission.

"19. There is no remedy other than an injunction to prevent the diversion of cargo from the Port of Philadelphia and to prevent irreparable damage to plaintiffs and the interests they represent."

On motion by plaintiffs, a temporary restraining order was entered on July 13, 1971, against all defendants. The order restrained the defendants or any persons acting in concert with them "* * * from taking action to divert cargo from the Port of Philadelphia by way of substituted service, absorption of inland transportation charges; or any other illegal diversionary actions, pending further order of this court." A brief hearing on the motion for the preliminary injunction was held on July 15, 1971, but was continued on motion of several of the defendants in order to allow defense counsel sufficient time to undertake discovery and prepare defenses. All parties agreed to extend the temporary restraining order until August 10, 1971, at which time the motion for a preliminary injunction was rescheduled to be heard. On July 20, 1971, the temporary restraining order was amended to exclude cargo in transit as of the date of entry of the temporary restraining order. By the time of the hearing on the present motion on August 10, 1971, the plaintiffs voluntarily dismissed the Complaint against Spanish North American Line and had stipulated with eight other defendants to vacate the temporary restraining order as to them, provided the defendants would not engage in any conduct prohibited by the terms of the temporary restraining order without first giving thirty days' notice to each plaintiff. At the August 10th hearing the only remaining defendant who had not joined in the stipulation was American President Lines, Ltd.

On July 14, 1971, the Federal Maritime Commission entered an appearance as amicus curiae, and has participated actively on behalf of the plaintiffs through presentation of oral argument, submission of memoranda of law and participation in examination of witnesses, urging the Court to grant an injunction in order to preserve the status quo, until the merits of the issues can be determined by the Federal Maritime Commission.

FINDINGS OF FACT

1. Plaintiffs, Delaware River Port Authority, City of Philadelphia, and Philadelphia Port Corporation are each public corporate bodies having a direct interest in port facilities of the Port of Philadelphia.

2. Plaintiffs, International Longshoremen's Association — Philadelphia District Council, Philadelphia Marine Trade Association, and Port of Philadelphia Marine Terminal Association are various associations having direct interests in the port facilities of the Port of Philadelphia.

3. All defendants are shipping companies involved in carrying of freight by water.

4. The complaint against the defendant, Spanish North American Line, was dismissed by plaintiffs.

5. All other defendants, except American President Lines, Ltd., have entered into stipulations, not to engage in any of the practices which plaintiffs seek to enjoin without first giving plaintiffs thirty days prior notice. With such stipulations of record, plaintiffs presently seek a preliminary injunction only against American President Lines, Ltd., the only defendant unwilling to agree to discontinue the challenged practices.

6. Plaintiffs have filed a complaint, dated July 9, 1971, before the Federal Maritime Commission against all of the defendants in this action seeking a ruling by the Federal Maritime Commission that the practices alleged in the complaint are illegal and in violation of statutory authority and that the Federal Maritime Commission prohibit defendants from continuing such practices.

7. The Port of Philadelphia includes all docking facilities and port facilities in the Delaware Bay and Delaware River from Cape May, New Jersey to Trenton, New Jersey, including both sides of the bay and river. It includes among others the Cities of Philadelphia, Camden, Wilmington and Chester.

8. The Port of Philadelphia handles approximately 3 million tons of export cargo and 2 million tons of import cargo per year. Approximately 100,000 employees are directly dependent upon the port for their jobs and occupations.

9. For every ton of cargo handled through the Port of Philadelphia there is generated $26 of business for the community. For each ton of cargo so handled there is also approximately $1.00 in state taxes and $1.00 in...