Delta Air Lines, Inc. v. CAB, 14798
| Decision Date | 10 December 1959 |
| Docket Number | 14812,14822.,14804,No. 14798,14798 |
| Citation | 275 F.2d 632 |
| Parties | DELTA AIR LINES, INC., Petitioner v. CIVIL AERONAUTICS BOARD, Respondent, City of Nashville and The Nashville Chamber of Commerce, City of Tampa, Florida, and The Greater Tampa Chamber of Commerce, City of Kansas City, Missouri, City of St. Louis, Missouri, and The Chamber of Commerce of Metropolitan St. Louis, Trans World Airlines, Inc., Eastern Air Lines, Inc., Intervenors. AMERICAN AIRLINES, INC., Petitioner v. CIVIL AERONAUTICS BOARD, Respondent, City of Tampa, Florida, and The Greater Tampa Chamber of Commerce, City of Kansas City, Missouri, City of St. Louis, Missouri, and The Chamber of Commerce of Metropolitan St. Louis, Trans World Airlines, Inc., Eastern Air Lines, Inc., Intervenors. EASTERN AIR LINES, INC., Petitioner v. CIVIL AERONAUTICS BOARD, Respondent, City of Tampa, Florida, and The Greater Tampa Chamber of Commerce, City of Kansas City, Missouri, City of St. Louis, Missouri, and The Chamber of Commerce of Metropolitan St. Louis, Trans World Airlines, Inc., Delta Air Lines, Inc., Intervenors. NATIONAL AIRLINES, INC., Petitioner v. CIVIL AERONAUTICS BOARD, Respondent, City of Tampa, Florida, and The Greater Tampa Chamber of Commerce, City of Kansas City, Missouri, City of St. Louis, Missouri, and The Chamber of Commerce of Metropolitan St. Louis, Trans World Airlines, Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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Mr. Joseph J. O'Connell, Jr., Washington, D. C., with whom Messrs. Robert Reed Gray and James W. Callison, Washington, D. C., were on the brief, for Delta Air Lines, Inc., petitioner in No. 14798 and intervenor in No. 14812.
Mr. Howard C. Westwood, Washington, D. C., with whom Messrs. Peter S. Craig and J. William Doolittle, Jr., Washington, D. C., were on the brief, for petitioner in No. 14804.
Mr. Harold L. Russell, Atlanta, Ga., with whom Messrs. E. Smythe Gambrell and W. Glen Harlan, Atlanta, Ga., were on the brief, for Eastern Air Lines, Inc., petitioner in No. 14812 and intervenor in Nos. 14798 and 14804.
Mr. Richard A. Fitzgerald, Washington, D. C., with whom Messrs. John W. Cross and Andrew T. A. MacDonald, Washington, D. C., were on the brief, for petitioner in No. 14822.
Mr. O. D. Ozment, Asst. Gen. Counsel, Litigation and Research, Civil Aeronautics Board, with whom Mr. Franklin M. Stone, General Counsel, Civil Aeronautics Board, Mr. John H. Wanner, Associate General Counsel, Civil Aeronautics Board, Mr. Robert L. Toomey, Attorney, Civil Aeronautics Board, and Mr. Richard A. Solomon, Attorney, Department of Justice, were on the brief, for respondent. Messrs. Monte Lazarus and Morris Chertkov, Attorneys, Civil Aeronautics Board, and Mr. Daniel M. Friedman, Attorney, Department of Justice, also entered appearances for respondent.
Mrs. Dorothy F. Fardon, Kansas City, Mo., with whom Messrs. Dick H. Woods, Kansas City, Mo., and J. Parker Connor, Washington, D. C., were on the brief, for intervenor City of Kansas City, Missouri.
Mr. Aloys P. Kaufmann, St. Louis, Mo., of the bar of the Supreme Court of Missouri, pro hac vice, by special leave of court, for intervenors City of St. Louis and Chamber of Commerce of Metropolitan St. Louis. Messrs. Hugh Lynch, Jr., Charles E. Channing, Jr., and Edward J. Gorman, Jr., Washington, D. C., also entered appearances for intervenors City of St. Louis, Missouri, and Chamber of Commerce of Metropolitan St. Louis.
Mr. James K. Crimmins, New York City, with whom Mr. Warren E. Baker, Washington, D. C., was on the brief, for intervenor Trans World Airlines, Inc. Mr. William Caverly, Washington, D. C., also entered an appearance for intervenor Trans World Airlines, Inc.
Mr. Robert E. Redding, Silver Spring, Md., was on the brief for intervenors City of Nashville and Nashville Chamber of Commerce in No. 14798.
Mr. Ralph A. Marsicano, Tampa, Fla., entered an appearance for intervenors City of Tampa, Florida, and the Greater Tampa Chamber of Commerce.
Before PRETTYMAN, Chief Judge, and BAZELON and FAHY, Circuit Judges.
These are four petitions for review of orders of the Civil Aeronautics Board made in its St. Louis-Southeast Service Case. Principally the Board awarded to Trans World Airlines, Inc. (TWA) a new route from St. Louis to Miami and other Florida coast points, and to Delta Air Lines, Inc., a new Memphis-Birmingham route.
The cases in this court fall into two main parts, one relating to each of the above-mentioned awards. The discussion, however, more aptly falls into four divisions: (I) The mutual-exclusivity contentions advanced by American, Delta and National. These carriers claim that TWA was awarded an effective southern transcontinental route without consideration of economically mutually exclusive applications. (II) Impact of the award to TWA on an existing southern transcontinental interchange arrangement. (III) Eastern's contentions concerning mutual exclusivity. Eastern claims that the Board erroneously made awards to TWA and Delta without comparative consideration of its mutually exclusive applications. (IV) The merits of the TWA and Delta awards, apart from mutual-exclusivity arguments, and some miscellaneous contentions.
Two proceedings before the Board play parts in this problem. One is the St. Louis-Southeast Service Case, which was instituted to inquire into the need for service "between St. Louis on the one hand and Florida and other southeastern points on the other". Several applications were consolidated in that case.1 As we have noted, the orders here under review were entered in that proceeding. The other case which plays a part in the contentions made to us is known as the Southern Transcontinental Service Case. It was a combination of several proceedings, which initially had various names. In its order of consolidation in the Southern Transcontinental Case2 the Board delineated the scope of the proceeding to include (1) the need for single-carrier service between Houston and West Coast points, (2) the need for "single-carrier transcontinental service" between Florida points and the West Coast, and (3) the need for single-carrier transcontinental service between Atlanta-Birmingham and the West Coast. In that order the Board repeatedly used the expression "southern transcontinental route". The Board explained that in prescribing the scope of this hearing it intended to consider new or additional through service in the southern tier of states, that is, from Florida across the southern boundary of the country to and including California. The Board said in that connection: "* * * it is necessary to establish a framework in which all major southern transcontinental service issues as a whole can be determined for the foreseeable future." As thus arranged, the case included a large number of applications.
In the St. Louis Case various preliminary motions were made by different carriers, which motions fall generally into two classes. The first class was for expansion of the proceeding to include applications for extensions westward of existing routes into St. Louis from the East, so as to add to them routes from St. Louis to the West Coast, and in the opposite direction for extensions eastward of existing routes into St. Louis from the West, so as to add to them routes from St. Louis to the Southeast. These motions were denied. The other class of motions was to impose restrictions upon any grant of a new route from St. Louis to Florida points, so as to prevent any grant of such a route from being in effect a through service Florida-California via St. Louis. In response to these motions the Board announced as a minimum restriction a requirement that service on any route granted between California points and Florida points via St. Louis must include a stop at St. Louis. And the Board further announced that the parties would not be foreclosed from advancing in the course of the hearing appropriate evidence which might reflect a necessity for more stringent limitations. Thus the Board limited the hearing in the St. Louis Case to service between St. Louis and Florida and other Southeast points.
The Board awarded to TWA the route from St. Louis to Florida points3 and imposed as the sole limitation the previously described mandatory-stop requirement at St. Louis. TWA was already certificated for through service from St. Louis to California coast points, and the new award was cast in the form of an amendment to TWA's existing Route 2, which was the St. Louis-West Coast route. The effect of the order was to authorize one-plane, one-carrier, through service from Florida coast points to California coast points via St. Louis, with a mandatory stop at St. Louis.
The Board made clear that it selected TWA as the awardee of the new route because this selection would provide for the first time single-carrier, single-plane service between the Florida coast and the California coast. For example, the Board pointed out that TWA's service, "operating nonstop from Los Angeles or San Francisco to St. Louis for expedited carriage to the Southeast onward from St. Louis, will provide a usable and convenient alternative service to the multiple-stop flights operated by the National-Delta-American Interchange, and bring important service benefits to a respectable portion of the passengers moving in these markets." And in its ruling on a motion for reconsideration the Board said:
The principal point made by petitioners as to this award is...
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