Pan American Airways Co. v. Civil Aeronautics Board, 266.
| Decision Date | 16 July 1941 |
| Docket Number | No. 266.,266. |
| Citation | 121 F.2d 810 |
| Parties | PAN AMERICAN AIRWAYS CO. v. CIVIL AERONAUTICS BOARD et al. |
| Court | U.S. Court of Appeals — Second Circuit |
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Root, Clark, Buckner & Ballantine, of New York City (Henry J. Friendly and Richard E. Manning, both of New York City, of counsel), for petitioner Pan American Airways Co.
Francis M. Shea, Asst. Atty. Gen., and L. Welch Pogue, Gen. Counsel, Civil Aeronautics Board, of Washington, D. C., (Sidney J. Kaplan, Asst. to the Atty. Gen., and Martin Norr, Sp. Atty., Department of Justice, George C. Neal, Asst. Gen. Counsel, Civil Aeronautics Board, John G. Sarber, Associate Atty., Civil Aeronautics Board and Robert W. Oliver, Senior Atty., Civil Aeronautics Board, all of Washington, D. C., of counsel), for respondent Civil Aeronautics Board.
Chadbourne, Wallace, Parke & Whiteside, of New York City (Gerald B. Brophy, Charles Pickett, and Carl S. Rowe, all of New York City, of counsel), for respondent American Export Airlines, Inc.
Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
The petitioner, Pan American Airways Company (hereafter called Pan American), is engaged in the transportation of persons, property and mail by air across the Atlantic. Its operations are conducted under a certificate of public convenience and necessity issued by the Civil Aeronautics Board. American Export Airlines, Inc. (hereafter called Export), organized in 1937 as a subsidiary of American Export Lines, Inc., a common carrier by water, filed an application with the Board on May 9, 1939, for a certificate permitting it to engage in the transportation of property and mail between the United States and France. Shortly before October 30, 1939, the date set for the hearing, Export filed an amendment to its application in which it sought permanent certificates for transportation of passengers as well as property and mail to France and to Ireland and England, and likewise a temporary certificate for transportation to France, by way of the Azores and Lisbon, Portugal, of property and mail only. On October 24, 1939, Pan American filed a petition for leave to intervene in Export's proceeding to obtain certificates, which was granted by the Board. On October 23, 1939, Export filed an additional application with the Board pursuant to Section 408 of the Civil Aeronautics Act asking for approval of the control of Export by American Export Lines, Inc., if such approval should be deemed necessary. This application was consolidated with the other applications of Export to obtain certificates of convenience and necessity and the applications were thereafter heard together.
Shortly after the hearings began Congress enacted the Neutrality Act of 1939, 22 U.S. C.A. § 245j to 245j — 19, making it illegal for American citizens to carry on air transportation to France and England, and the President made a proclamation defining combat areas which made it also unlawful to carry on air transportation to Ireland. On November 10, 1939, Export filed a second amendment to its application for certificates and therein asked for a temporary certificate for the transportation of passengers, property and mail by Route 4 between the United States and Rome, Italy, via Lisbon, Portugal, and Barcelona; and for the transportation of mail and property by Route 5 to the same points with, however, an additional stop at the Azores. Hearings were conducted before the Board up to January 10, 1940. On July 12, 1940, the latter rendered a decision dismissing the applications for permanent certificates of transportation to Ireland and England and France, but without prejudice to the right to have the applications reconsidered "when the present legal barriers of operation to those countries are removed." The applications for temporary certificates for transportation of passengers, property and mail so far as they related to Spain and Italy were denied, but the two applications for temporary certificates in so far as they related to service to Lisbon, Portugal, were granted. The one issued under the application for Route 4 was to remain in effect "for such time as the conduct of the operations to France, England, Ireland and Italy, or to any one or more of such states, shall be rendered unlawful by reason of a proclamation or proclamations issued pursuant to the provisions of the Neutrality Act of 1939, or any act amendatory thereto, and for sixty days after such proclamation or proclamations shall have ceased to render the conduct of such operations unlawful", and thereafter pending action on any application for alteration, amendment or modification of the certificates. The certificate issued under the application for Route 5 was to terminate September 1, 1941.
The Board dismissed the application of Export filed under Section 408 for approval of acquisition of control by American Export Lines, Inc., on the ground that no approval of acquisition of control by the steamship company was required.
On July 30, 1940, the petitioner filed a petition for a rehearing which questioned the correctness of the dismissal of the application under Section 408 and likewise the findings of the Board relating to public convenience and necessity on which the temporary certificates for Routes 4 and 5 were based because the findings were made under conditions essentially different from those existing after the invasion of the Low Countries, the entrance of Italy into the war and the fall of France. The petition for rehearing likewise laid stress upon the decline of American trade in continental Europe, decreases in rail and passenger movements and the effect of the war upon Pan American traffic to show that no further means of transportation by air were needed. A rehearing was denied by the Board on August 14, 1940. Pan American thereupon filed the present petition (1) to review the order of the Board dated July 12, 1940, granting the application of Export for temporary certificates in so far as they related to service to Lisbon, Portugal, and dismissing its application for approval of control by American Export Lines, Inc., and (2) to review the order of the Board dated August 14, 1940, denying the motion of Pan American for a rehearing.
The Board moved to dismiss, for lack of jurisdiction, the petition of Pan American to review (1) the order of the Board dated July 12, 1940, granting the application of Export for certificates of convenience and necessity, under Section 401, to the extent of issuing temporary certificates for transportation between the United States and Portugal, and dismissing the application of Export, under Section 408, for approval of the acquisition of control of Export by its parent American Export Lines, Inc., and (2) the order of the Board dated August 14, 1940, denying a petition for rehearing made by Pan American.
The temporary certificates granted were approved by the President, as was the order for the same.
The petition for review was filed under Section 1006(a) of the Act, 49 U.S. C.A. § 646(a), which reads as follows: * * *"
Section 1006(a) would on its face seem to make the orders of July 12 and August 14, 1940, appealable. Pan American, as the only American carrier engaged in foreign air transportation, had a substantial interest in the issue of a certificate because it would be adversely affected by the diversion of traffic to a prospective competitor. Texas & Pac. Ry. Co. v. Gulf, etc., R. Co., 270 U.S. 266, 277, 46 S.Ct. 263, 70 L.Ed. 578; Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 84 L.Ed. 1037. Moreover, the orders did not fall within the exception in Section 1006(a) limited as the exception is to a "foreign air carrier" which, under Section 1 (19), 49 U.S.C.A. § 401 (19), "means any person, not a citizen of the United States, who undertakes, whether directly or indirectly * * * to engage in foreign air transportation."
But it does not follow merely from the broad language of Section 1006(a) that there may be a review of orders for the issuance of certificates which the President shall approve or disapprove under Section 801, 49 U.S.C.A. § 601. That section provides in part that: "The issuance, denial, transfer, amendment, cancelation, suspension, or revocation of, and the terms, conditions, and limitations contained in, any certificate authorizing an air carrier to engage in overseas or foreign air transportation, or air transportation between places in the same Territory or possession, or any permit issuable to any foreign air carrier under section 402 482, shall be subject to the approval of the President."
Subject to the approval of the President required by Section 801, certificates of public convenience and necessity are issuable under subdivisions (d) (1) and (2) of Section 401, which read as follows:
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