Flying Tiger Line v. Atchison, T. & SF Ry. Co.

• Decision Date: 29 December 1947
• Docket Number: Civ. No. 7788-PH.
• Citation: 75 F. Supp. 188
• Court: U.S. District Court — Southern District of California
• Parties: FLYING TIGER LINE, Inc., et al. v. ATCHISON, T. & S. F. RY. CO. et al.

75 F. Supp. 188

FLYING TIGER LINE, Inc., et al. v. ATCHISON, T. & S. F. RY. CO. et al.

Civ. No. 7788-PH.

District Court, S. D. California, Central Division.

December 29, 1947.

Hoag & Mack and Richard H. Keating, all of Los Angeles, Cal., for plaintiffs.

Robert W. Walker and L. W. Butterfield, both of Los Angeles, Cal., for defendant Atchison, T. & S. F. Ry. Co.

Sheppard, Mullin, Richter & Balthis, James C. Sheppard, Jr., Cameron W. Cecil and Roy Littlejohn, all of Los Angeles, Cal., for defendant Santa Fe Skyway, Inc.

HALL, District Judge.

I indicated that I thought I would be ready for a decision on certain phases of the matters which had been argued, and I have come to a conclusion and have endeavored to rough out a memorandum here which I will try to follow.

The plaintiffs, by their complaint, seek to permanently enjoin and restrain the defendants from asserted violations of Section 401(a) of the Civil Aeronautics Act as amended, 49 U.S.C.A. § 481. Their motion for an injunction pendente lite, and their motion for the production of documents under the discovery provisions of the Federal Rules of Civil Procedure was noticed and set for hearing, along with the defendants' motions to dismiss, last Monday. But in accordance with the understanding of counsel, argument was confined to the motions to dismiss, at the conclusion of which on Wednesday the other motions were continued until today for argument and disposition.

After setting forth the corporate status of the various parties, the complaint in substance alleges that the plaintiffs are authorized common carriers of property only under Letters of Registration, duly issued by the Civil Aeronautics Board, pursuant to the Act and applicable regulations; that they are parties in interest, as that phrase is used in the Civil Aeronautics Act; that the defendant Santa Fe Skyway is operating as a common carrier of property only without authorization of any kind from the Civil Aeronautics Board and in violation of the Civil Aeronautics Act and the applicable regulations; that the defendant Santa Fe Skyway is a wholly owned subsidiary of the defendant Atchison, Topeka and Santa Fe Railway Company, and that both defendants are parties interested in or affected by the instant complaint.

Each of the defendants filed motions to dismiss. While they are stated in different language, the several grounds are as follows: improper joinder of plaintiffs; improper joinder of defendants; that neither of the plaintiffs are parties in interest; that the defendants are not common carriers, and that the complaint fails to show what, if any, injury or damage will result to the plaintiffs from the asserted conduct of the defendants.

The first two points may be disposed of without extended discussion.

Under Federal Rules of Civil Procedure, rules 18, 19, 20 and 21, 28 U.S.C.A. following section 723c, wide latitude is given in the joinder of parties, either permissively or by order of the Court, to the end that multiple litigation of similar or identical controversies may be avoided.

By the complaint each plaintiff has the same status and occupies the same relationships as the other towards both defendants. They seek the same relief. Their basis for relief arises out of the same series of occurrences, transactions and conduct of the defendants. The questions of law and fact are common to each of them. In short, if either of them are in court each of them is entitled to be in court in a separate action. There is thus no improper joinder of the plaintiffs.

It seems to me that under the rules, the allegation in the complaint that Skyway is the wholly owned subsidiary of the Railway company is sufficient to properly join them both as defendants. By such allegation Skyway is completely the creature and agent of the railway company, and a mere actor for it in the transactions complained of. But even if the railway company were not properly joined under the rule, the Civil Aeronautics Act, by Section 1009, 49 U.S.C.A. § 649, permits such joinder. It provides: "In any proceeding for the enforcement of the provisions of this chapter * * * begun originally in any court of the United States, it shall be lawful to include as parties * * * all persons interested in, or affected by the matter under consideration."

It needs no comment to show that if the relief asked by the plaintiffs were granted, the Railway would be "interested in" and "affected by" the judgment. I conclude that the railway is properly joined.

Before discussing the remaining points raised by the motions to dismiss, recourse must be had to the applicable provisions of the statute.

49 U.S.C.A. § 647(a) provides, in the applicable portions, as follows: "If any person violates any provision of this chapter, or any rule, regulation, requirement, or order thereunder, or any term, condition, or limitation of any certificate or permit issued under this chapter, the Board, its duly authorized agent, or, in the case of a violation of Section 481(a) of this chapter, any party in interest, may apply to the district court of the United States, for any district wherein such person carries on his business or wherein the violation occurred, for the enforcement of such provision of this chapter, or of such rule, regulation, requirement, order, term, condition, or limitation; * * *."

That is the end of the quotation. The rest of it is not material except that the section provides for jurisdiction to enforce obedience. So that there is not required to be present in this type of case the usual other elements of jurisdiction, such as diversity of citizenship and the like, because this section confers jurisdiction if there is a violation of the chapter.

49 U.S.C.A. § 481(a) provides that: "No air carrier shall engage in any air transportation unless there is in force a certificate issued by the Board authorizing such air carrier to engage in such transportation: * * *."

And in Section 481(d) (1) it provides for the issuance of certificates of public convenience and necessity, and in Section 481 (d) (2) it provides authorization to the Board to issue limited certificates, that is, a certificate for limited periods.

49 U.S.C.A. § 401 defines the term "air carrier" to mean: "* * * any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation: Provided, That the Board may by order relieve air carriers who are not directly engaged in the operation of aircraft in air transportation from the provisions of this chapter to the extent and for such periods as may be in the public interest."

Subdivision (10) of Section 401 defines "air transportation" as follows: "`Air transportation' means interstate, overseas, or foreign air transportation or the transportation of mail by aircraft."

Subdivision (21) of Section 401 provides that: "`Interstate air transportation', `overseas air transportation', and `foreign air transportation', respectively, mean the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft, in commerce between, respectively —."

Section 421 provides for the creation of the Board, Section 402 is a declaration of policy of Congress, both of which are material in connection with the whole matter, and Section 425(a) defines the general powers and duties of the Board, and particularly in Subdivision (a) it states: "The Board is empowered to perform such acts, to conduct such investigations, to issue and amend such orders, and to make and amend such general or special rules, regulations, and procedure, pursuant to and consistent with the provisions of this chapter, as it shall deem necessary to carry out such provisions and to exercise and perform its powers and duties under this chapter."

Section 496, in Subdivisions (a) and (b) provide that:

"The Board may from time to time establish such just and reasonable classifications or groups of air carriers for the purposes of this subchapter as the nature of the services performed by such air carriers shall require; and such just and reasonable rules, and regulations, pursuant to and consistent with the provisions of this subchapter, to be observed by each such class or group, as the Board finds necessary in the public interest.

"(b) (1) The Board, from time to time and to the extent necessary, may (except as provided in paragraph (2) of this subsection) exempt from the requirements of this subchapter or any provision thereof, or any rule, regulation, term, condition, or limitation prescribed thereunder, any air carrier or class of air carriers, if it finds that the enforcement of this subchapter or such provision, or such rule, regulation, term, condition, or limitation is or would be an undue burden on such air carrier or class of air carriers by reason of the limited extent of, or unusual circumstances affecting, the operations of such air carrier or class of air carriers and is not in the public interest."

Subdivision (2) mentioned in that Subdivision (b) we are not concerned with here, as I read the matter.

The defendants contend that the plaintiffs are not parties in interest under Section 647(a), in that they do not possess a certificate of public convenience and necessity and that the Letters of Registration do not make them such.

In this connection they rely in part on Alaska Air Transport v. Alaska Airplane Charter Co., D.C.Alaska 1947, 72 F.Supp. 609, and Hawaiian Airlines, Ltd., v. Trans-Pacific Airlines, Ltd., D.C.Hawaii 1947, 73 F.Supp. 68, and point out that in each of them the plaintiffs were certified air carriers. In neither of these cases was there an inclusive or exclusive definition of the term "party in interest." The Court merely held that the plaintiffs were each a party in interest, and properly so, it seems to me, without any discussion of that subject.

Section 647(a) of the Civil Aeronautics...