Port of Bandon v. Oliver J. Olson & Co.

• Decision Date: 25 June 1959
• Docket Number: Civ. No. 9896.
• Citation: 175 F. Supp. 736
• Court: U.S. District Court — District of Oregon
• Parties: PORT OF BANDON, a municipal corporation, Libelant, v. OLIVER J. OLSON & CO., a California corporation, Respondent.

175 F. Supp. 736

PORT OF BANDON, a municipal corporation, Libelant, v. OLIVER J. OLSON & CO., a California corporation, Respondent.

Civ. No. 9896.

United States District Court D. Oregon.

June 25, 1959.

William F. White, White, Sutherland & White, Portland, Or., for libelant.

Curtis W. Cutsforth, King, Miller, Anderson, Nash & Yerke, Portland, Or., for respondent.

EAST, District Judge.

This admiralty matter came on for trial before this Court upon the following admitted facts and the contentions of libelant and respondent respectively.

Admitted Facts

(1) That now and at all times herein mentioned, libelant, Port of Bandon, is and was a municipal corporation organized and existing pursuant to ORS 777.010 of the laws of the State of Oregon, and as such conducts certain affairs maritime at Bandon, Oregon.

(2) That now and at all times mentioned respondent is and was a corporation organized and existing under the laws of the State of California, and as such operates vessels engaged in interstate commerce, which vessels regularly ply the waters of the Pacific Ocean and the waters within the State of Oregon, including the navigable waters of the United States at and near Bandon, Oregon.

(3) That this cause is in personam and is within the admiralty and maritime jurisdiction of the above entitled Court.

(4) That libelant's Commissioners, by resolution of its Board on September 11, 1957, adopted its Port of Bandon Tariff No. 1,¹ and thereafter caused it to be issued and published on September 23, 1957, to become effective on October 28, 1957; copies of said Tariff were delivered to the United States Maritime Board for filing and received by said Board. That a copy of said Tariff was mailed to respondent and received by it on or about October 25, 1957; that a copy of said Port of Bandon Tariff No. 1 is contained in libelant's pretrial Exhibit 1.

(5) That respondent's vessels called at the Port of Bandon on or about each of the dates set forth in paragraph II of the libel filed herein.

Contentions of Libelant

(1) That respondent with knowledge of the Tariff and charges contained therein used the Port of Bandon and its facilities and libelant performed or made available to respondent the said services for which said charges were levied; that its Tariff is lawful and that there is now due and owing from respondent to libelant the sum of $24,523.88 for port charges through December 31, 1958, the sum of $______ paid for dockage and the sum of $______ paid for water and electricity, together with interest thereon, all as more particularly set forth in libelant's pretrial Exhibit 2.

(2) Libelant further contends that respondent's contentions numbered 4, 5, 9, and 11, pertaining to reasonableness, classification of vessels, discrimination or computation of charges, are not properly matters to be urged or defenses to be made in this cause and before this Court, but, rather, that the United States Maritime Board has initial, exclusive and primary jurisdiction to determine such matter.

(3) Libelant denies the contentions of respondent.

Contentions of Respondent

(1) Respondent denies the contentions of libelant.

(2) The charges contained in libelant's purported "Tariff No. 1" and upon which libelant's alleged claim against respondent herein is based, are for services which are fictitious and which, in fact, have not been rendered.

(3) Said charges are for services which were and are of no value to respondent and which respondent has at no time desired, requested, accepted, or used.

(4) Said charges bear no reasonable relation to, have not been computed on the basis of, and are grossly disproportionate to either the cost or value of the services for which the same purport to be assessed and, as applied to respondent and other carriers similarly situated, are so unreasonably high as to be oppressive and confiscatory.

(5) The method of computing the amounts of such charges as set forth in said purported Tariff is based upon an arbitrary classification of vessels having no reasonable relation to the cost or value of the services purported to be performed therefor.

(6) Said charges, although purportedly assessed in consideration for the performance of designated services, were conceived, established and are now sought to be enforced by libelant solely as a means of raising revenue, and the enforcement thereof would operate to impose a charge for the privilege of entering, trading in or lying in the navigable waters of the United States constituting the port or harbor adjacent to the City of Bandon, Oregon.

(7) By reason of the foregoing, said charges, and the ordinance or other act of libelant establishing or seeking to enforce the same, are illegal, unconstitutional and void as purporting to impose a duty on tonnage, contrary to and in violation of Article I, Section 10, Clause 3, of the United States Constitution.

(8) Said charges, although purportedly assessed in consideration for the performance of designated services, were conceived, established and are now sought to be enforced by libelant solely as a means of raising revenue, and the enforcement thereof would operate to obstruct, impede and interfere with the free flow of commerce and unduly burden the same, by reason whereof said charges, and any ordinance or other act of libelant establishing or seeking to enforce the same, are illegal, unconstitutional and void as contrary to and in violation of Article I, Section 8, Clause 3, of the United States Constitution.

(9) The method of computing the amounts of said charges as set forth in said purported Tariff is based upon an arbitrary classification of vessels having no reasonable relation to the objects or purposes for which said charges purport to be assessed, or to the cost or value of the services purported to be performed therefor, with the result that said charges unfairly discriminate against respondent and its vessels, as compared with others occupying the same relation to said services and benefits claimed by libelant to be received in consideration for said charges.

(10) By reason of the foregoing, and the operation of said charges, if enforced, to take from respondent its private property for a public use without fair or just compensation, said charges, and the ordinance or other act of libelant establishing or seeking to enforce the same, are illegal, unconstitutional and void as depriving respondent of its property without due process of law, contrary to and in violation of the United States Constitution, Amendment Fourteen, Section 1.

(11) The method of computing the amounts of said charges as set forth in said purported Tariff is based upon an arbitrary classification of vessels having no reasonable relation to the objects or purposes for which said charges purport to be assessed, or to the cost or value of the services purported to be performed therefor, with the result that said charges unfairly discriminate against respondent and its vessels, as compared with others occupying the same relation to said services and benefits claimed by libelant to be received in consideration for said charges.

(12) By reason of the foregoing, and the operation of said charges, if enforced, to deny to respondent the equal protection of the laws, said charges, and the ordinance or other act of libelant establishing or seeking to enforce the same, are illegal, unconstitutional and void as contrary to and in violation of the United States Constitution, Amendment Fourteen, Section 1.

(13) The establishing and enforcement of the charges contained in libelant's purported "Tariff No. 1" and upon which libelant's alleged claim against respondent herein is based are in excess of the powers granted libelant by the statutes of the State of Oregon and, therefore, such charges are illegal, void and of no force and effect.

(14) The matter of the reasonableness, propriety and validity of the charges asserted by libelant against respondent herein, and particularly libelant's so-called "Port Charges," is not within the jurisdiction of the United States Maritime Board and may properly be determined by this Court in this cause.

(15) In the event the Court determines that any of respondent's contentions herein raise matters concerning which the United States Maritime Board has initial, exclusive jurisdiction, then this cause should be stayed for the purpose of allowing such matters to be presented to the United States Maritime Board for decision.

The Court has recited the pretrial order contentions of the respective parties in full so that the reader may have a complete picture of the issues placed before the Court in this matter.

Findings of Fact

This Court finds from the evidence adduced that:

I.

Libelant owns and operates a dock in a proprietary capacity at the Bandon harbor, for the use of which libelant makes certain specified charges. Libelant has also for some years owned and operated a tugboat, the Port of Bandon, whose services have been made available, at designated rates, to vessels and others desiring the same.

II.

For an extended period prior to June, 1957, respondent had utilized libelant's said tug to assist respondent's vessels to enter and leave the Bandon harbor. The use of said tug was pursuant to respondent's request therefor, and libelant was paid for the use of its tug in accordance with its designated rates. During said period respondent's vessels called at the Port of Bandon on an average of about four or five times a month and paid libelant, for the use of libelant's tug on each such call, the specified charge of $500. Respondent thus was paying libelant for the use of libelant's tug during said period approximately $2,000 to $2,500 a month.

III.

Commencing on or about June, 1957, respondent determined that its business would best be served by making other arrangements for tug services and, accordingly, discontinued using the services of libelant's tug in connection with its...