Trans-Pacific Frgt. Conf. of Japan v. Federal Maritime Bd., 16423.

• Decision Date: 12 April 1962
• Docket Number: No. 16423.,16423.
• Parties: TRANS-PACIFIC FREIGHT CONFERENCE OF JAPAN, American Mail Line, Ltd., et al., Petitioners, v. FEDERAL MARITIME BOARD, now Federal Maritime Commission, and United States of America, Respondents, States Marine Lines, Inc., and Global Bulk Transport Corporation, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

302 F.2d 875 (1962)

TRANS-PACIFIC FREIGHT CONFERENCE OF JAPAN, American Mail Line, Ltd., et al., Petitioners, v. FEDERAL MARITIME BOARD, now Federal Maritime Commission, and United States of America, Respondents, States Marine Lines, Inc., and Global Bulk Transport Corporation, Intervenors.

No. 16423.

United States Court of Appeals District of Columbia Circuit.

Argued November 27, 1961.

Decided April 12, 1962.

Mr. Charles F. Warren, Washington, D. C., with whom Mr. Alexander D. Calhoun, Jr., San Francisco, Cal., was on the brief, for petitioners.

Mr. Robert E. Mitchell, Deputy Gen. Counsel, Federal Maritime Commission, with whom Messrs. James L. Pimper, Gen. Counsel, Federal Maritime Commission, and Richard A. Solomon, Atty., Dept. of Justice, were on the brief, for respondents. Mr. Edward Aptaker, Asst. Gen. Counsel, Federal Maritime Commission, also entered an appearance for respondent, Federal Maritime Commission. Mr. Irwin A. Seibel, Atty., Dept. of Justice, also entered an appearance for respondent, United States.

Mr. George F. Galland, Washington, D. C., with whom Mrs. Amy Scupi, Washington, D. C., was on the brief, for intervenors. Mr. Robert N. Kharasch, also entered an appearance for intervenors.

Before WILBUR K. MILLER, Chief Judge, and WASHINGTON and BASTIAN, Circuit Judges.

WASHINGTON, Circuit Judge.

This case raises questions as to the authority of the Federal Maritime Board¹ to issue restraining orders against a regulated group, pending final determination of complaints made against it.

The order now before us on appeal directs petitioners, the Trans-Pacific Freight Conference of Japan and its members, to refrain from assessing fines against intervenors, States Marine Lines, Inc., and its affiliate, Global Bulk Transport Corporation, or taking any action to collect such fines, pending the final disposition of proceedings which intervenors instituted against the Conference before the Board.

The Conference is a group of steamship companies operating from Japan, Korea and Okinawa to Hawaii and the Pacific Coast ports of North America. Petitioners act in concert in the conduct of their business by authority of an agreement filed with and approved by the Federal Maritime Board pursuant to Section 15 of the Shipping Act of 1916, 46 U.S.C.A. § 814. So long as approved by the Board, such agreements are exempted from the antitrust laws. Petitioner's Section 15 agreement permits them to combine to fix tariff rates and trade practices, and sets out a code of business practices. It also contains a schedule of monetary penalties, payable to the Conference, for violating various provisions. As a means of enforcement, an amendment to the agreement provides for employment of a "neutral body," empowered to investigate the complaint of any member line and to impose a fine upon discovery of an infraction of the agreement. One of the offenses for which a fine may be imposed is the refusal of a Conference member to make its business records available to the neutral body on demand.

Intervenors are members of the Conference. On January 13, 1959, the accounting firm of Lowe, Bingham & Thomsons, which was acting as the "neutral body" under the Conference agreement, sought to examine the books of States Marine in Tokyo. Lowe-Bingham claimed that it was acting upon the complaint of a member line that intervenors had engaged in "malpractices" in connection with the 1958 movement of mandarin oranges from Japan. Although the Tokyo office of States Marine acquiesced in the request for examination, intervenors refused to give access to their New York records to Lowe-Bingham's designee in New York, the firm of Price, Waterhouse & Co.² For this refusal, Lowe-Bingham subsequently levied a fine against intervenors in the amount of $10,000, the maximum assessment authorized for a first offense under the Conference agreement. Approximately six months later, on February 22, 1961, Lowe-Bingham claimed that it had received a second complaint relative to alleged misbehavior of intervenors during the 1960 movement of mandarin oranges from Japan, and again demanded access to States Marine's business records. States Marine again refused and Lowe-Bingham assessed a fine in the amount of $15,000, the maximum for a second offense. After imposition of each of the fines, States Marine gave notice of withdrawal from the Conference, and filed a formal complaint with the Maritime Board. Both complaints prayed, inter alia, that the Conference be enjoined from using Lowe-Bingham as a neutral body, and requested interim relief. The complaints were consolidated, and hearings were held. During the pendency of the hearings, the Board entered an order directing that petitioners show cause why they should not be ordered to cease and desist pendente lite from taking action to collect the second fine and from using Lowe-Bingham as a neutral body, or why "such other order as may be deemed appropriate" should not issue. As provided for in the order, affidavits and memoranda of law were submitted and oral argument was heard. Thereafter, the Board issued the cease and desist order here under review. After stating that intervenors (complainants before the Board) were threatened by Lowe-Bingham and the Conference with irreparable injury, the order in part provides:

"It is Ordered, that from the date of this order and until the Board issues a final order in this proceeding, respondents shall cease and desist: (1) from assessing or collecting any fines against complainants; and (2) taking any action to collect fines heretofore assessed against the complainants * * *."

Respondents and intervenors contend that the Board's order is not final and consequently not reviewable under the Administrative Orders Review Act of 1950 (the Hobbs Act), 5 U.S.C.A. § 1031 et seq. But, as we said in the Isbrandtsen case —

"Whether or not the statutory requirements of finality are satisfied in any given case depends not upon the label affixed to its action by the administrative agency but rather upon a realistic appraisal of the consequences of such action. `The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control.\' Thus, administrative orders are ordinarily reviewable when `they impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process.\' Under this test, a final order need not necessarily be the very last order." (Footnotes omitted.)³

Here, during the indefinite period of time which might elapse before the Board issued a "final" order, the Board sought to deny the Conference by the terms of the order the right to assess or collect any fines from intervenors. The issuance of the order was thus intended to deprive petitioners of the most important means of enforcement of the Conference agreement.⁴ We believe that an order which so threatens, for an indefinite period of time, to undermine the very functioning of the Conference is "final" for purposes of the Review Act.⁵

This brings us to the question whether the Board has the power to maintain the status quo by the order now under appeal. The Board relies for its authority on Sections 22 and 15 of the Shipping Act, 46 U.S.C.A. §§ 821 and 814. When a sworn complaint has been filed, Section 22 gives the Board power to investigate it "in such manner and by such means, and to make such order as it deems proper," including an order for reparations to the complainant for the injury caused by the violation of the Act.⁶ Section 22 must be read in conjunction with Section 23, which provides that orders of the Board relating to any violation of the Act "shall be made only after full hearing * * *." We need not decide here whether the "full hearing" contemplated by the statute was held in this case. We think it clear, however, from both the wording and context of Section 22, that the "order" which the Board may issue under that section is one which must be premised upon a finding of violation of the Act. But no such finding was made by the Board. On the contrary, the only justification advanced for the Board's order was a finding of "irreparable injury."

Nor does Section 15 support the Board's order.⁷ That section provides for the submission to the Board of an "agreement" between carriers or a "modification" of such an agreement. But the action here enjoined (the assessment and collection of fines) does not appear in itself to be an "agreement" or "modification" of an agreement. If it were, Section 15 empowers the Board to disapprove, cancel, or modify the agreement or modification. But nothing is said about enjoining it pending a "final" order. Moreover, the Board may disapprove or modify any agreement that it finds to be "unjustly discriminatory or unfair" (as between certain parties or ports) or that it finds to operate to the detriment of the commerce of the United States, or to be in violation of the Act. But the Board made no findings of this sort and relied, as we have pointed out, only on a conclusion that complainants were threatened with irreparable injury. Thus, neither Section 15 nor Section 22 supports the order as issued by the Board.⁸

Our conclusion is reinforced by the administrative interpretation placed on the Act by the Board. The Shipping Act was passed in 1916. But not until as recently as 1960 has the Board or its predecessors even asserted that it possessed the kind of interim injunctive powers asserted in this case.⁹ Pacific Far East Line, Inc. v. Pacific Westbound Conference, ___ F.M.B. ___ (Docket No. 915, 1960). In fact, the Board on several occasions expressly disclaimed such authority. See Isbrandtsen Co. v. United States,...