DISTRICT COUN. OF PT. OF PHILA., ILA v. Seatrain Lines, Inc., Civ. A. No. 73-812.

• Decision Date: 12 November 1973
• Docket Number: Civ. A. No. 73-812.
• Citation: 377 F. Supp. 1278
• Parties: DISTRICT COUNCIL OF the PORT OF PHILADELPHIA, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, et al. v. SEATRAIN LINES, INC., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

377 F. Supp. 1278

DISTRICT COUNCIL OF the PORT OF PHILADELPHIA, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, et al. v. SEATRAIN LINES, INC., et al.

Civ. A. No. 73-812.

United States District Court, E. D. Pennsylvania.

November 12, 1973.

Abraham Freedman, Philadelphia, Pa., for plaintiffs.

Peter Hearn, F. Hasting Griffin, Edward W. Mullinix, Patrick T. Ryan, Philadelphia, Pa., for defendants.

MEMORANDUM OPINION

WEINER, District Judge.

Before the Court in the above captioned action are the following motions:

(a) Plaintiffs' motion to Maintain Action as a Class Action. Fed.R.Civ.P. 23.

(b) Defendants' motion to dismiss filed pursuant to Rule 12(b) or in the alternative to stay all claims, and

(c) Petition of the Federal Maritime Commission (FMC) for leave to intervene as a party defendant. Rule 24(a).

The instant case is predicated upon alleged violation of the Shipping Act, 1916, 46 U.S.C. § 801 et seq.; Merchant Marine Act of 1920, as amended, 46 U. S.C. § 867 and of the Sherman Anti-Trust Act §§ 1, 2, 15 U.S.C. §§ 1, 2; The Clayton Act §§ 1, 2, as amended, 15 U.S.C. §§ 12, 13 and The Robinson-Patman Act, §§ 1, 3, 15 U.S.C. §§ 13, 13a.

Initially, we deem it advisable to concentrate on the defendants' motion to dismiss or stay. Here, the area of controversy is clearly delineated. The defendants contend that the Maritime Commission has primary jurisdiction over the cause of action and also asserts plaintiffs' lack of standing to sue under the Sherman, Clayton and Robinson-Patman Acts. The plaintiffs, acknowledging that FMC has the duty and power to examine and approve or disapprove practices covered by the Shipping Act, argue that the existence of this administrative power, under the alleged claims made in this action, will not deprive or oust this Court of jurisdiction or in the alternative that Federal Court jurisdiction is concurrent with that of the administrative agency. In order to bring into focus the issues stated, it is first necessary to review the relevant allegations as written in the complaint. Briefly summarized, the complaint alleges an unlawful agreement among the defendants to divert cargo from the Port of Philadelphia to other ports of exit and entry by transporting cargo inland at their own expense. Plaintiffs also allege that said actions are detrimental to commerce, discriminatory to the Port of Philadelphia and the individuals dependent upon it for livelihood and business. In addition the plaintiffs charge a conspiracy in restraint of foreign commerce, to discriminate between ports, to substantially lessen and destroy competition, to create a monopoly in commerce, and, in furtherance of such conspiracy and discrimination, to grant special favors, prices, services, allowances, etc. in violation of the anti-trust and price discrimination laws.¹

The alleged "Shipping Act" violations present a fact situation similar in all material respects to that present in Delaware River Port Authority v. United States Lines, Inc., 331 F. Supp. 441 (E.D.Pa.1971). It is only in the relief sought that the Delaware case is distinguishable from the instant action.² The root question of primary jurisdiction is not influenced by the nature of the requested relief. In the Delaware River Port Authority case this Court, speaking through Judge VanArtsdalen, concluded that the determination of whether or not the ocean carriers' practice constituted a violation of the provisions of the "Shipping Act" is to be adjudicated by the FMC "as the competent administrative board to determine if the conduct alleged . . . is in fact illegal" 331 F.Supp. at 447. We see nothing in the circumstances of this suit to distinguish it from the force and effect of Judge VanArtsdalen's decision. We believe that our colleague's observation that: "This Court is not permitted to adjudicate the ultimate issues in this case" id. at 447, is applicable to the issue prevalent in the matter sub judice.

Plaintiffs have cited a number of cases which they claim support their contention. We have examined the cases and do not find them as persuasive as plaintiffs do. We are impelled to reject the plaintiffs' assertion that the defendants' conduct was not "arguably lawful". It is for the Commission to determine whether the defendants' activities violated the provisions of the "Shipping Act". Port of New York Authority v. Federal Maritime Commission, 429 F.2d 663 (5th Cir. 1970), cert. denied, 401 U.S. 909, 91 S.Ct. 867, 27 L.Ed.2d 806 (1971); United States Navigation Co., Inc. v. Cunard Steamship Co., Ltd., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408 (1932).

Turning now to a consideration of the issues associated with alleged violations of the antitrust laws we are persuaded that case law precedents compel a conclusion that the defendants' position is sound. Here, again, the area of conflict is a narrow one. The defendants argue that the antitrust claims should be stayed pending review by the FMC. The plaintiffs contend that we have concurrent jurisdiction and should independently proceed to a determination of whether the defendants violated the antitrust acts. In Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 86 S.Ct. 781, 15 L.Ed.2d 709 (1966) we were informed ". . . that courts must refrain from imposing antitrust sanctions for activities of debatable legality under the Shipping Acts in order to avoid the possibility of conflict between the Courts and the Commission" id. at 220, 86 S.Ct. at 786. The plaintiffs dispute the defendants' contention that their activities are of debatable legality. To justify their premise the defendants maintain that there are circumstances, which if established, would require a finding that the defendants practices conformed to the provisions of the Shipping Act and hence exempted them from liability for any violation of antitrust laws. Specifically, the defendants suggest that their activities were implementations of an existing approved agreement and therefore immune from antitrust penalties. Section 15, Shipping Act, supra. Cf. Hughes Tool Co. v. Transworld Air Lines, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973); Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973). Complementing the above the defendants also argue that the challenged practices may be held to be nonviolative of the antitrust law. We believe the resolution of the contentions relied upon...