Kerr Steamship Company v. United States

• Decision Date: 31 October 1960
• Docket Number: No. 122,123,Dockets 26334,26429.,122
• Parties: KERR STEAMSHIP COMPANY, Inc., et al., Petitioners, v. UNITED STATES of America and Federal Maritime Board, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

284 F.2d 61 (1960)

KERR STEAMSHIP COMPANY, Inc., et al., Petitioners, v. UNITED STATES of America and Federal Maritime Board, Respondents.

Nos. 122, 123, Dockets 26334, 26429.

United States Court of Appeals Second Circuit.

Argued September 30, 1960.

Decided October 31, 1960.

Elkan Turk, Jr., Brooklyn, N. Y., Herman Goldman, New York City, for petitioners; Elkan Turk, Sol. D. Bromberg, New York City, of counsel.

Edward Aptaker, Robert A. Bicks, Acting Asst. Atty. Gen., Richard A. Solomon, Atty., Dept. of Justice, E. Robert Seaver, Gen. Counsel, Robert E. Mitchell, John E. Cograve, Attys., Federal Maritime Board, Washington, D. C., for respondents.

Before LUMBARD, Chief Judge, and HAND and FRIENDLY, Circuit Judges.

HAND, Circuit Judge.

This is a joint appeal in the form of a petition to review several orders of the Federal Maritime Board under § 21 of the Shipping Act of 1916, which required a number of common carriers by water to file "a list identifying every contract * * * involving the waterborne commerce of the United States" which they had made "with any other common carrier by water * * * or with any freight forwarder, terminal operator, stevedore, or ship's agent * * * which relates or pertains to" seven specified activities in the "commerce of the United States." The orders also required a "copy" to be filed of every "contract" so identified, of which the carrier had not already filed a copy and added that if "any such contract * * * is oral, it shall be set forth in a memorandum in sufficient detail to represent a true and complete record of the contract."

The first question raised is whether § 21¹ on which the orders purport to rest supports them. Section 15 of the Act requires all "water borne" carriers to file with the Board contracts made between them and other such carriers, or between a carrier and any other "person subject to this Act," whom § 1 of the Act, defines as anyone not a carrier, "carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water." Thus it would seem that, so far as concerns contracts between the carriers themselves and other "persons subject to the Act," § 21 was not necessary; such contracts fell within § 15. The petitioners argue that for this reason we should not hold that the "transactions" as used in § 21 included "contracts between carriers." That would seem to us a wanton perversion of the natural meaning of the words, even if both sections had the same scope. Every "contract" presupposes a "transaction," for it results from some mutual dealing between the parties, and to limit its scope to such dealings as do not result in a contract would, especially in this setting, do the utmost violence to its normal meaning. Any significance of the substitution of "transaction" in § 21 as a limitation disappears when we remember that that section covers more than "contracts," and in addition that it covers more contracts than those covered by § 15. There is likewise no significance in the provision of § 407(a) of the Federal Aviation Act of 1958, 49 U.S.C.A. § 1377(a), which was previously in the same section of the Civil Aeronautics Act of 1938, empowering the Civil Aeronautics Board to "require any air carrier to file with it a true copy of each or any contract, agreement, understanding, or arrangement, between such air carrier and any other carrier or person, in relation to any traffic affected by the provisions of this chapter." Since the Aviation Act contains no provision of the breadth of § 21 of the Shipping Act, the specific grant to the Civil Aeronautics Board of the power to require the filing of contracts of air carriers implied no recognition that the general language of § 21 had not conferred such a power upon the Maritime Board with respect to carriers by water.

Nor can we agree that the orders were too vague to be valid. It is of course true that they are in general terms and that their ambit is not defined with verbal exactness; but precisely limited demands would have been impossible in an investigation of the kind proposed. Decisions of a carrier as to what "transactions" were within the orders if made in good faith, would not necessarily result in fines of $100 a day, although the court disagreed with the carrier's understanding of what "transactions" were covered. It appears to us that the orders are as definite as the subject-matter permitted, and did not impose any unreasonable risk upon a carrier who in good faith should submit all contracts that seemed to it to be within the intent of the orders.

Next, the petitioners complain that the orders were beyond the competence of the Board because they required the petitioners to produce copies of contracts that were outside the United States. It is to be noted in...