Montship Lines, Limited v. Federal Maritime Board, 15783-15809

• Decision Date: 30 June 1961
• Docket Number: 15904,15947,15902,15920,15982,15911,15860,15938,15838,15879,15857,15917,No. 15783-15809,15814,15922,15880,15901,15983.,15783-15809
• Citation: 295 F.2d 147
• Parties: MONTSHIP LINES, LIMITED, et al., Petitioners, v. FEDERAL MARITIME BOARD and the United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

295 F.2d 147 (1961)

MONTSHIP LINES, LIMITED, et al., Petitioners, v. FEDERAL MARITIME BOARD and the United States of America, Respondents.

Nos. 15783-15809, 15814, 15838, 15857, 15860, 15879, 15880, 15901, 15902, 15904, 15911, 15917, 15920, 15922, 15938, 15947, 15982, 15983.

United States Court of Appeals District of Columbia Circuit.

Argued January 16, 1961.

Decided June 30, 1961.

Mr. Burton H. White, of the bar of the Court of Appeals of New York, New York City, pro hac vice, by special leave of Court, who was on the brief for petitioners in cases numbered 15808, 15814, 15901, 15902, 15904, 15938, 15947, 15982 and 15983, and intervenors in case numbered 15802, argued for all petitioners except petitioners in cases numbered 15879, 15880 and 15917.

Mr. Elmer C. Maddy, New York City, with whom Mr. Ronald A. Capone, Washington, D. C., was on the brief, for petitioners in cases numbered 15801 and 15838, argued for all petitioners.

Mr. Leonard G. James, of the bar of the Supreme Court of California, San Francisco, Cal., pro hac vice, by special leave of Court, for petitioners in cases numbered 15802, 15879, 15880 and 15917.

Mr. Charles F. Warren, Washington, D. C., also entered an appearance for petitioners in cases numbered 15802, 15879 and 15880, and intervenor Wegal A.B. (Totem Line) in case numbered 15802.

Mr. Russell B. Pace, Jr., Washington, D. C., with whom Mr. Arthur J. Phelan, Washington, D. C., was on the brief for petitioners in cases numbered 15800, 15802, 15803, 15809, 15857, 15904, 15938, 15947, 15982 and 15983, and for intervenors in case numbered 15802.

Mr. Frederick M. Bradley, Washington, D. C., also entered an appearance for petitioners in cases numbered 15800 and 15803.

Mr. Charles W. Halleck, Washington, D. C., also entered an appearance for petitioners in case numbered 15809.

Mr. Morton Zuckerman, of the bar of the Court of Appeals of New York, New York City, pro hac vice, by special leave of Court, with whom Mr. Morton Liftin, Washington, D. C., was on the brief, for petitioners in cases numbered 15804, 15805, 15920 and 15921.

Mr. Edward Aptaker, Asst. Gen. Counsel, Federal Maritime Board, with whom Messrs. James L. Pimper, Gen. Counsel, Federal Maritime Board, and Robert E. Mitchell, Asst. Gen. Counsel, Federal Maritime Board, were on the brief, for respondent Federal Maritime Board.

Mr. Richard A. Solomon, Atty., Dept. of Justice, for respondent United States of America.

Mr. Morton Liftin, Washington, D. C., was on the brief for petitioners in cases numbered 15783 through 15798, and 15922.

Mr. Harry A. Inman, Washington, D. C., was on the brief for petitioners in cases numbered 15799 and 15860.

Messrs. Elkan Turk and Elkan Turk, Jr., New York City, were on the brief for petitioners in cases numbered 15806 and 15911.

Messrs. J. Joseph Noble, New York City, and Roy Leifflen Washington, D. C., were on the brief for petitioners in case numbered 15807.

Mr. Arthur E. Tarantino, Washington, D. C., entered an appearance for petitioners in cases numbered 15802, 15808, 15814, 15901, 15902 and 15947.

Before PRETTYMAN, BAZELON and WASHINGTON, Circuit Judges.

BAZELON, Circuit Judge.

Pursuant to the Judicial Review Act of 1950, 5 U.S.C.A. §§ 1031-1042, one hundred and eighty-three alien corporations engaged in the common carriage of cargo and passengers by water between the United States and foreign countries¹ bring these petitions to review an order of the Federal Maritime Board entered April 11, 1960, under § 21 of the Shipping Act of 1916.² This order requires every common carrier by water subject to the Act to file "a list identifying every contract, agreement or understanding, involving the water-borne commerce of the United States," which was in effect as of January 1, 1960, between the carrier and "any other common carrier by water * * * or with any freight forwarder, terminal operator, stevedore, or ship's agent * * * which related or pertained to" seven specified subjects.³ In addition, each carrier was required to file with the Board copies of every such agreement not previously filed. The carriers were required to certify under oath that the documents submitted were true and complete records of the agreements called for.

The petitioners filed motions for reconsideration of the Board's order. In each instance the Board denied these motions on the merits without hearing. The orders denying these motions are also before us on review.

Petitioners and respondents join issue on a number of matters. We shall deal first with those questions pertaining to our jurisdiction to review the Board's § 21 order. Then we shall consider the general issues affecting all petitioners. Finally we shall turn to the special issues which are raised by and which affect only certain of the petitioners.

I. Jurisdiction.

A. Effect of 28 U.S.C. § 2112.

On June 8, 1960, the first of the instant petitions to review the Board's § 21 order were filed in this court. On the same date a similar petition was filed by States Marine Lines in the United States Court of Appeals for the Second Circuit. Two days later another petition was filed in the Second Circuit by Kerr S. S. Co.

A certified index of the record was filed in this court on October 3, 1960. This is equivalent to filing of the record itself, under 28 U.S.C. § 2112(a). We are advised that neither the record nor any index of the record was at any time filed in the Second Circuit. On October 31, 1960, the Second Circuit upheld the Board's order and denied Kerr's petition. Kerr S. S. Co. v. United States, 284 F.2d 61. The question initially presented is whether in light of the applicable statutory provisions the Second Circuit's action precludes our review.

Section 1036 of Title 5 U.S.C.A., provides in part:

"* * * the agency shall file in the office of the clerk of the court of appeals in which the proceeding is pending the record on review, as provided in section 2112 of Title 28."

Section 2112(a) of Title 28 provides in part:

"* * * If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency * * * concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed. For the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals."

It is clear, in light of these statutory provisions that we have jurisdiction. The mere fact that petitions for review of the same order were filed in the Second Circuit and that that court has already upheld the order does not oust this court of jurisdiction. The question whether the Second Circuit had jurisdiction to decide Kerr in light of 28 U.S. C. § 2112(a) and 5 U.S.C.A. § 1039(a),⁴ is not before us.

B Timeliness of Certain Petitions to Review.

Section 4 of the Review Act, 5 U.S.C.A. § 1034, provides in part:

"Any party aggrieved by a final order reviewable under this chapter may, within sixty days after entry of such order, file in the court of appeals * * * a petition to review such order."

Eleven of the petitioners⁵ sought judicial review of the order of April 11 more than sixty days after the order was served, but within sixty days after the Board acted upon their motions for reconsideration of that order. The Maritime Board asserts that these petitions to review are untimely and seeks their dismissal. We think it clear, however, that the petitions in question were timely filed under our decision in Outland v. Civil Aeronautics Board, 1960, 109 U.S.App.D.C. 90, 284 F.2d 224, 227, where we held that the statutory sixty-day period for seeking judicial review of Civil Aeronautics Board orders did not commence until the Board acted upon Outland's motion for rehearing.⁶

The Maritime Board urges, however, that Outland is inapplicable since none of the motions for reconsideration we discuss were filed with the Board within the thirty-day period provided by Rule 16 of its Rules of Practice and Procedure. But we agree with petitioners that the Board's consideration of these motions on their merits constituted a waiver of the Board's own limitation period. Cf. Bowman v. Loperena, 1940, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177; City of Pittsburgh v. Federal Power Comm., 1956, 99 U.S.App.D.C. 113, 237 F.2d 741. Although a court's or agency's consideration of an untimely motion for rehearing or reconsideration may not constitute a waiver of a limitation period fixed by Congress,⁷ we think the rule is otherwise when the limitation period is imposed by the agency.

C. Intervention.

Section 8 of the Review Act, 5 U.S.C.A. § 1038, provides in part:

"* * * any party or parties in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review such order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the agency\'s order, may intervene in any proceeding to review such order."

A number of the carriers subject to the Board's order filed notices of intention to intervene⁸ or motions for leave to intervene in the instant review proceedings. Most of them also filed petitions to review which we hold above to be timely.⁹ But four of the carriers seeking intervention did not file petitions to review.¹⁰

Assuming arguendo that these four are not "parties in interest in the proceeding before the agency" as is required for intervention as a matter of right, it is clear that they are parties "whose interests are affected by the agency's order" and we have discretion under the statute to permit...