Plaquemines Port, Harbor and Terminal Dist. v. Federal Maritime Com'n, s. 86-1517

Decision Date02 February 1988
Docket Number86-1622,Nos. 86-1517,s. 86-1517
Citation838 F.2d 536,267 U.S. App. D.C. 238
Parties, 267 U.S.App.D.C. 238 PLAQUEMINES PORT, HARBOR AND TERMINAL DISTRICT, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, New Orleans Steamship Association, Intervenors. NEW ORLEANS STEAMSHIP ASSOCIATION, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, Association of Ship Brokers and Agents, Inc., Plaquemines Port, Harbor and Terminal District, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Edward S. Bagley, for petitioner in No. 86-1622 and intervenor in No. 86-1517, New Orleans Steamship Assn.

Edward J. Sheppard, for petitioner in No. 86-1517 and intervenor in No. 86-1622, Plaquemines Port, Harbor and Terminal Dist.

Robert J. Wiggers, Atty., Dept. of Justice, with whom John P. Powers III, Atty., Dept. of Justice, was on brief, for respondent, U.S. Kenneth G. Starling, Atty., Dept. of Justice, also entered an appearance for respondent, U.S.

John M. Binetti, Atty., Federal Maritime Com'n, with whom Robert D. Bourgoin, Gen. Counsel, Federal Maritime Com'n, was on brief, for respondent, Federal Maritime Com'n J. Alton Boyd, for intervenor Association of Ship Brokers and Agents (U.S.A.), Inc., in No. 86-1622.

Before WALD, Chief Judge, BORK, Circuit Judge, and GIBSON *, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

I.

These consolidated cases arise from petitions for review of a Federal Maritime Commission ("FMC") order. The FMC ruled that, under the Shipping Act of 1984 ("1984 Act"), it had jurisdiction over Plaquemines Port, Harbor and Terminal District ("Port") and therefore had the authority to review the tariff imposed by the Port. The FMC found the tariff lawful in most respects but ruled that three exemptions to the tariff violated the anti-discrimination and reasonableness standards of the 1984 Act. New Orleans Steamship Association ("NOSA"), the complainant below, also argued to the agency that the tariff violated the tonnage clause of the U.S. Constitution. The FMC declined to reach that issue.

The Port petitions for review of the FMC order, arguing that its exemptions do not violate the reasonableness and anti-discrimination standards of the 1984 Act. NOSA also seeks review of the order, contending that the provisions of the tariff which impose liability on vessel agents and vessels operating under FIO 1 contracts are unreasonable and violate the 1984 Act. Before this court, NOSA renews its claim that the tariff violates the tonnage clause.

We affirm the FMC's order in all respects. Furthermore, we reach the constitutional issue and hold that the tariff does not violate the tonnage clause of the U.S. Constitution.

II.

A.

Plaquemines Parish (the "Parish") has a unique geographical position. A peninsula surrounded by the Gulf of Mexico, it is the southernmost parish in Louisiana, and is dominated by the Mississippi River. Virtually all of the Parish lies below sea level; habitation is possible only because of massive levees which keep back the waters of the Gulf of Mexico. The permanent population of the Parish consists of 26,000 people. Ninety-four percent of the Parish lies outside the protection of the levees and is susceptible to tides. Most points on dry land are no more than one or one-half of a mile from the river. There are no bridges but two highways run north and south, one on each side of the river. New Orleans S.S. Ass'n v. Plaquemines, Port Harbor & Terminal Dist., 23 S.R.R. (P & F) 705, 707-08 (I.D.1985) [hereinafter "NOSA Initial Decision "], adopted, 23 S.R.R. (P & F) 1363 (FMC 1986) [hereinafter "NOSA Order "]. From the northern limits of the Parish to the southwest pass of the river which empties into the Gulf, the Parish extends a total of 102 miles. NOSA Initial Decision, 23 S.R.R. (P & F) at 708.

Every oceangoing vessel serving any port on the Mississippi (for example, New Orleans, Baton Rouge, Gramercy, Destrehan, and St. Rose) passes through the Parish going upriver and again going downriver. Approximately 9,200 such vessels arrive and depart through the Parish annually, for an average of approximately one oceangoing vessel each hour. NOSA Initial Decision, 23 S.R.R. (P & F) at 708. Approximately 3,876 of those vessels either dock or anchor within the Parish.

The Port is a political subdivision of the State of Louisiana and is geographically coextensive with the Parish. Thus, the Port is actually a 102-mile stretch of river. The governing body of the Port is the same as the governing body of the Parish. NOSA Initial Decision, 23 S.R.R. (P & F) at 707.

Unlike virtually all other municipal ports, the Port neither owns nor operates wharves, docks or other waterside facilities. See NOSA Order, 23 S.R.R. (P & F) at 1366; Reply Brief for New Orleans Steamship Association at 3 [hereinafter "Reply Brief"]. All the terminal facilities alongside the river are privately owned. Id. The Port, however, does operate two patrol/rescue/fire vessels. In addition to fire fighting capacity, each vessel is equipped with a boarding platform for rescuing people from the water with facilities for medical emergencies. These fire vessels are staffed twenty-four hours a day with a total crew of six deckhands, six captains, and one maintenance man. NOSA Initial Decision, 23 S.R.R. (P & F) at 724. The fire boats are available to transport emergency medical teams, firemen, and other emergency personnel. They also patrol the Port to detect pollution violations by vessels and aid in the water quality sampling program. Id. at 725.

The Port has executed a fire fighting plan with the Coast Guard, under which the Port has the primary responsibility for furnishing fire and rescue protection within the Port. NOSA Initial Decision, 23 S.R.R. (P & F) at 732. In addition, the Port has acquired a snorkel truck, bigger than that which it would otherwise need, absent the possibility of vessel fires. It has refitted a ferry, has an auxiliary fire fighting vessel, and has purchased chemical foam and land-based marine pumping units. Id. at 725-26.

The Port also owns and operates a helicopter, a seaplane, and a marine communications system. The marine communications system, like the fire vessels, is staffed twenty-four hours a day. NOSA Initial Decision, 23 S.R.R. (P & F) at 726. The cost of the Port's services, calculated separately from other Port costs, was $1,242,168.00 for the calendar year 1983, id. at 727, and $1,394,369.00 for the calendar year 1984. Id. at 729.

B.

The Port's attempts to charge a tariff for its fire and emergency services, and the attempts of various interests in the shipping industry to prevent the Port from doing so, began ten years ago. In 1977 the Port adopted the first of three tariffs. This tariff ("Tariff I"), like the tariff at issue here ("Tariff II"), was instituted for the purpose of "defraying necessary and essential, direct and indirect, port, harbor and marine services to port and harbor users and other persons located in proximity to and affected by such activities due to the unique geographic and environmental characteristics of the [Port]." NOSA Initial Decision, 23 S.R.R. (P & F) at 708-09, 716.

Tariff I, imposed two charges to defray the costs of the police, fire, and emergency services the Port provided on the Mississippi River: a "Harbor Fee" on commercial vessels over 100 feet long that docked, moored or anchored in the Port, Louis Dreyfus Corp. v. Plaquemines Port, Harbor & Terminal Dist., 21 S.R.R. (P & F) 219, 231-32 (I.D.1981) [hereinafter "Dreyfus Initial Decision "], adopted, 21 S.R.R. (P & F) 1072 (FMC 1982) [hereinafter "Dreyfus Order "], and a "Supplemental Harbor Fee" on cargo shipments over 500 tons when the cargo was handled within the Port. The Supplemental Harbor Fee could be set off against any Harbor Fee paid by the vessel carrying the cargo. Dreyfus Initial Decision, 21 S.R.R. (P & F) at 233, 239. Failure to pay Tariff I was made a misdemeanor, punishable by fine or imprisonment, id. at 237, and anyone placed on the delinquent list was "denied further use of the port or facilities by the [Port]" until payment was made. Id. at 238.

In 1978, Louis Dreyfus Corporation, a grain exporter using a terminal within the Port, filed suit in the Eastern District of Louisiana seeking to have Tariff I declared unconstitutional. That suit was consolidated with a number of suits brought by the Port to collect Tariff I and to enjoin those on the delinquent list from using the Port or any facilities until they paid the tariff. In 1979, Louis Dreyfus filed a complaint with the FMC charging that Tariff I violated the Shipping Act of 1916 ("1916 Act"). Dreyfus Initial Decision, 21 S.R.R. (P & F) at 223, 225-26. The proceeding in the Eastern District of Louisiana was stayed, on Louis Dreyfus' motion, pending a decision on its FMC complaint. Eventually, the court case was dismissed.

After an evidentiary hearing, an Administrative Law Judge ("ALJ") held that the FMC had jurisdiction over the Port and that Tariff I violated sections 16 and 17 of the 1916 Act, 46 U.S.C. Secs. 815 and 816 (1982). Dreyfus Initial Decision, 21 S.R.R. (P & F) 219. The Commission upheld the ALJ's rulings. Dreyfus Order, 21 S.R.R. (P & F) 1072. Vice Chairman Moakley, joined by Chairman Daschbach, dissented on the basis that the 1916 Act did not give the FMC jurisdiction over the Port. Id. at 1083. The Port petitioned for review in this court, but the case was settled and the petition withdrawn before argument. See Plaquemines Port, Harbor & Terminal Dist. v. FMC, No. 82-1941 (D.C.Cir. dismissed May 17, 1983).

The Port then held public hearings concerning the revision of Tariff I. In 1982, Tariff II, the tariff at issue in this case, was promulgated. NOSA Initial Decision, 23 S.R.R. (P & F) at 716.

Tariff II levied a "Harbor Fee" on ...

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