Howard Terminal v. United States, 15258.

• Citation: 239 F.2d 336
• Decision Date: 19 December 1956
• Docket Number: No. 15258.,15258.
• Parties: HOWARD TERMINAL v. UNITED STATES of America and Federal Maritime Board.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

239 F.2d 336 (1956)

HOWARD TERMINAL v. UNITED STATES of America and Federal Maritime Board.

No. 15258.

United States Court of Appeals Ninth Circuit.

December 19, 1956.

McCutchen, Thomas, Matthew, Griffiths & Greene, Allan P. Matthew, Gerald H. Trautman, William W. Schwarzer, San Francisco, Cal., for petitioner.

Edward D. Ransom, Gen. Coun., Fed. Maritime Bd., Edward Aptkaer, Chief Reg. Branch, Fed. Maritime Bd., Daniel M. Friedman, Attorney, Dept. of Justice, Washington, D. C., for respondents U. S. A., & Fed. Maritime Bd.

Pillsbury, Madison & Sutro, Eugene D. Bennett, San Francisco, Cal., for Encinal Terminals.

Lillick, Geary, Wheat, Adams & Charles, Harry L. Haehl, Jr., San Francisco, Cal., for Matcinal Corp.

Brobeck, Phleger & Harrison, Alvin J. Rockwell, John M. Naff, Jr., San Francisco, Cal., for the Matson Navigation Co., and Matson Terminals, Inc.

Before POPE, CHAMBERS and HAMLEY, Circuit Judges.

POPE, Circuit Judge.

Howard Terminal, petitioner here, filed a complaint before the Federal Maritime Board, in a matter entitled Howard Terminal v. Matson Navigation Company, and given the Board's docket number 796. The general purpose of the complaint was to attack and set aside agreements respecting the use of port terminal facilities made between Matson Navigation Company and the operators of certain port terminals, who are now intervenors here. It has been summarized by the parties here as alleging: "(1) That interveners had failed to disclose the complete agreements between them as required by § 15 of the Act 46 U.S.C.A. § 814; (2) that the Board had approved an agreement designated Agreement No. 8063 and had dismissed the complaint filed in Docket No. 788 alleging violations of the Act, without the hearing required by Section 23 of the Act 46 U.S.C.A. § 822; (3) that the proposed arrangements between the interveners would result in deferred rebates, undue and unreasonable preferences and advantages and unjust and unreasonable practices in violation of Sections 14, 16 and 17 of the Act 46 U.S. C.A. §§ 813, 815, 816; and (4) that the proposed arrangements would operate to the detriment of the commerce of the United States in that they would tend toward a monopoly and would substantially lessen competition in the operation of the terminal and other related businesses in the San Francisco Bay area."

On July 30, 1956, the Board made an order upon a motion to dismiss that complaint in which the Board recited that the motion was granted "as to all allegations except the allegation under section 15 of the Shipping Act, 1916, as amended, to the effect that respondents are operating under an agreement which has not been filed for approval under said section. * * *" Howard Terminal then filed its petition in this court under the provisions of the so-called Hobbs Act, Title 5 U.S.C.A. §§ 1031 to 1042, seeking a review of the Board's order mentioned. The United States and the Board were named as respondents in the petition for review and Matson Navigation Company, Encinal Terminals, Matson Terminals, Inc., and Matcinal Corporation, were permitted to intervene in the proceeding here. The interveners have moved to dismiss the petition on the ground that the order of the Board is not a final order within the meaning of the Act, and that it is not otherwise reviewable by this Court.

Our jurisdiction to review orders of the Federal Maritime Board is limited to "final orders" of that board. Title 5 U.S.C.A. § 1032. What constitutes finality of such an order is not otherwise defined, but we think it may be fairly assumed that in using the word "final" in this context, Congress intended to import to this section the same concepts which have been applied in determining the meaning of the words "final decisions of the district courts" as used in Title 28 U.S.C.A. § 1291 defining our jurisdiction of appeals from those courts.

In dealing with decisions of the district courts in cases involving multiple claims or grounds or causes of action in which the court disposes of some claims and reserves action upon others, it has long been the rule that the judgment to be appealable "should be final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved." Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347, 349, 64 L.Ed. 616.¹

Here, as we have indicated, the complaint before the Board sought relief on several different grounds. In dismissing the complaint as to several of the grounds stated but reserving action upon one of the stated reasons for relief, the Board has taken action here comparable to the action of a district court which in a suit between a single plaintiff and a single defendant dismisses part of plaintiff's causes of action but reserves for further hearing one or more claims or causes of action. We think that the circumstances here require the application of a rule which parallels that stated in Collins v. Miller, supra, and that we cannot regard the Board's order as final within the meaning of § 1032, Title 5.

As noted in the Collins case, it has been recognized by the Supreme Court that there are exceptional cases where decrees of court finally disposing of property, which decrees were subject to immediate execution, were held to be appealable although the court reserved jurisdiction of the case for the purpose of settling certain accounts pursuant to the decree. Such was the case of Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404. This and other decisions following it were reviewed at length in Radio Station WOW v. Johnson, 326 U.S. 120, 125, note 2,...