Waterfront Comm NY v. Elizabeth-Newark

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

12-29-1998

Waterfront Comm NY v. Elizabeth-Newark

Precedential or Non-Precedential:

Docket 98-6127

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Recommended Citation

"Waterfront Comm NY v. Elizabeth-Newark" (1998). 1998 Decisions. Paper 286.

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Filed December 29, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-6127

WATERFRONT COMMISSION

OF NEW YORK HARBOR,

on behalf of itself and of the State of New Jersey

v.

ELIZABETH-NEWARK SHIPPING, INC.,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 96-cv-03662)

(District Judge: Hon. William H. Walls)

Argued December 14, 1998

Before: SLOVITER and COWEN, Circuit Judges,

and OBERDORFER, District Judge*

(Filed December 29, 1998)

Scott R. Johnston (Argued)

Poles, Tublin, Patestides & Stratakis

New York, New York 10006

Attorney for Appellant

_________________________________________________________________

*Hon. Louis F. Oberdorfer, United States District Court for the District

of Columbia, sitting by designation.

David B. Greenfield (Argued)

Gerald P. Lally

Waterfront Commission of New York

Harbor

New York, N.Y. 10004

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

At issue in this case is the application of regulatory

provisions of the Waterfront Commission Compact ("the

Compact") to a company that transports by water certain

merchandise, primarily trucks and automobiles, that it

claims it owns. The Compact is an interstate agreement

entered into between New York and New Jersey with the

consent of Congress. See N.J. Stat. Ann.S 32:23-1 et seq.;

N.Y. Unconsol. Law S 9801 et seq. (McKinney); Waterfront

Commission Compact, ch. 407, 67 Stat. 541 (1953). The

Compact, which regulates the employment of waterfront

labor in the Port of New York district, established the

Waterfront Commission of New York Harbor ("the

Commission"). See N.J. Stat. Ann. S 32:23-7.

The District Court granted summary judgment in favor of

the Commission and permanently enjoined appellant,

Elizabeth-Newark Shipping ("ENS") from employing

unregistered waterfront labor. The court also assessed

statutory penalties and fees against ENS. ENS appeals.

II.

ENS purchases cars and trucks in the United States and

transports them to Haiti, where the vehicles are then sold.

In late 1994, ENS used Construction and Marine

Equipment Co. ("CME") as a stevedore to load vehicles onto

ships that ENS chartered. Because CME was not a

stevedore licensed pursuant to N.J. Stat. Ann. S 32:23-12,

2

as required by the Compact, the District Court, following

suit by the Waterfront Commission, enjoined CME from

acting as a stevedore. See Waterfront Comm'n of N.Y.

Harbor v. Construction & Marine Equip. Co., 928 F. Supp.

1388 (D.N.J. 1996). ENS thereupon moved its loading

operations to its own facility in Elizabeth, New Jersey,

where it used its own employees to load the goods onto

ships, chartered by ENS, bound for Haiti. The parties

dispute whether ENS actually owned all of the goods that it

shipped. It is undisputed that the labor that ENS used in

loading its ships was not registered pursuant to the

Compact.

After an investigation, the Commission, in a series of

letters to ENS, advised it that although ENS was not

required to hold a stevedore's license, the company could

not legally employ unlicensed and unregistered waterfront

labor for the loading of the ships. When ENS failed to

conform its practices as directed, the Commission brought

suit in the United States District Court for the District of

New Jersey against ENS, seeking injunctive relief, statutory

penalties, and assessments. The District Court granted a

preliminary injunction in favor of the Commission in

September 1996. In May 1998, the District Court granted

the Commission's motion for summary judgment and

permanently enjoined ENS from employing unlicensed pier

superintendents and unregistered longshoremen for the

loading of its ships. See Waterfront Comm'n of N.Y. Harbor

v. Elizabeth-Newark Shipping, Inc., 3 F. Supp. 2d 500

(D.N.J. 1998). ENS timely filed this appeal.

Subject-matter jurisdiction exists under 28 U.S.C.

S 1331. Although the Compact is a creature of state

legislatures, it is federalized by virtue of congressional

approval pursuant to the Compact Clause of the

Constitution, art. I, S 10, cl. 3. See Carchman v. Nash, 473

U.S. 716, 719 (1985) ("[A] congressionally sanctioned

interstate compact within the Compact Clause . . . is a

federal law subject to federal construction."); Cuyler v.

Adams, 449 U.S. 433, 440 (1981) ("[W]here Congress has

authorized the States to enter into a cooperative agreement,

and where the subject matter of that agreement is an

appropriate subject for congressional legislation, the

3

consent of Congress transforms the States' agreement into

federal law under the Compact Clause.").

We have appellate jurisdiction under 28 U.S.C. S 1291.

Our review of the District Court's grant of summary

judgment is plenary.

III.

The Compact was enacted to eliminate corrupt hiring

practices on the New York Harbor waterfront. See Hazelton

v. Murray, 21 N.J. 115, 120-23, 121 A.2d 1, 3-5 (1956)

(reviewing legislative history). To this end, the Compact

regulates the employment of waterfront labor by, inter alia,

requiring that stevedoring companies and pier

superintendents be licensed by the Commission in order to

perform their functions in the Port of New York District,1

and that laborers be placed on the Commission's register of

longshoremen before they can load and unload waterborne

freight in the district. See N.J. Stat. Ann.SS 32:23-19

(stevedores), 32:23-12 (pier superintendents), 32:23-27

(longshoremen). The Commission may refuse, revoke or

suspend registration to longshoremen with certain criminal

backgrounds or who constitute a danger to public peace

and safety. N.J. Stat. Ann. SS 32:23-29, -31, and -45 to -51.

The Commission may seek civil penalties and injunctive

relief for violations of the Compact's requirements. See N.J.

Stat. Ann. SS 32:23-89 (civil penalties), 32:23-90 (civil

enforcement).

The parties disagree as to whether ENS falls within the

regulatory purview of the Compact. The principal dispute

between the parties concerns whether ENS is a "carrier of

freight by water" within the intendment of the Compact,

and thus subject to its requirements with respect to

waterfront labor. The parties are, however, united in their

disagreement with the reasoning of the District Court,

which concluded that the controversy could be decided

without reference to that term.

_________________________________________________________________

1. The geographical boundaries of the Port of New York District are

described in N.J. Stat. Ann. S 32:1-3. The area covered includes the New

York and New Jersey sides of the New York Harbor.

4

A.

The Compact provides that "no person shall employ

another to work as a longshoreman within the Port of New

York district unless at the time such other person is

included in the longshoremen's register." N.J. Stat. Ann.

S 32:23-27. With respect to pier superintendents, the

Compact directs that "no person shall act as a pier

superintendent or as a hiring agent within the port of New

York district without first having obtained from the

commission a license." N.J. Stat. Ann. S 32:23-12. To

determine whether a person is a longshoreman or a pier

superintendent, and thus employable only under the

specified conditions, it is necessary to consult the statutory

definitions.

The Compact defines "pier superintendent" as

any natural person other than a longshoreman who is

employed for work at a pier or other waterfront

terminal by a carrier of freight by water or a stevedore

and whose work at such pier or other waterfront

terminal includes the supervision, directly or indirectly,

of the work of longshoremen.

N.J. Stat. Ann. S 32:23-6.

The Compact defines "longshoreman" in relevant part as

a natural person, other than a hiring agent, who is

employed for work at a pier or other waterfront

terminal, either by a carrier of freight by water or by a

stevedore,

(a) physically to move waterborne freight on vessels

berthed at piers, on piers or at other waterfront

terminals . . . .

N.J. Stat. Ann. S 32-23-6. Under both of those definitional

sections, the employee, whether "longshoreman" or "pier

superintendent," must be employed by either a"stevedore"

or a "carrier of freight by water."

The Compact also contains a number of "supplementary

definitions" that were enacted in 1969. Among these is a

further definition of "longshoreman":

5

"Longshoreman" shall also include a natural person,

other than a hiring agent, who is employed for work at

a pier or other waterfront terminal

(a) either by a carrier of freight by water or by a

stevedore physically to perform labor or services

incidental to the movement of waterborne freight on

vessels berthed at piers, on piers or at other waterfront

terminals . . . or

(b) by any person physically to move waterborne

freight to or from a barge, lighter or railroad car for

transfer to or from a vessel of a carrier of freight by

water which is, shall be, or shall have been berthed at

the same pier or other waterfront terminal, or

(c) by any person to perform labor or services

involving, or incidental to, the movement of freight at a

waterfront terminal as defined in subdivision (10) of

this section.

N.J. Stat. Ann. S 32-23-85. There is no comparable

supplementary definition for "pier superintendent."

The District Court, relying on subsection (c) of this

supplementary definition of longshoreman, as well as a New

Jersey Supreme Court decision interpreting this provision,

ruled that there was no need to determine whether ENS

qualifies as a "carrier of freight by water" because " `the

1969 amendments eliminated from the definition of

longshoreman [and hiring agent] the requirement that a

person be employed by a carrier of freight by water.' "

Elizabeth-Newark Shipping, Inc., 3 F. Supp. 2d at 502-03

(quoting Waterfront Commission of N.Y. Harbor v. Mercedes-

Benz of North America Inc., 99 N.J. 402, 493 A.2d 504 (N.J.

1985)). The District Court noted that the 1969 amendments

did not effect a comparable redefinition of "pier

superintendent" but concluded that pier superintendents

were "subsumed by the updated definition of

`longshoreman.' " 3 F. Supp. 2d at 503. Accordingly, the

District Court held that a finding that ENS was a "carrier

of freight by water" was unnecessary with respect to the

question whether ENS was required to utilize licensed pier

superintendents for the supervision of longshore workers.

6

In their briefs, both parties argue that the District Court

erred in its legal conclusion that the 1969 amendment to

the definition of "longshoreman" obviates the need to

determine whether ENS is a "carrier of freight by water" as

a prerequisite for application of the Compact's rules

regarding pier superintendents and longshoremen. We

agree.

The New Jersey Supreme Court's decision in Mercedes-

Benz provides a elucidative discussion of the background of

the 1969 amendments. In that case, the Commission

sought to enjoin Mercedes-Benz from employing

unregistered hiring agents and longshoremen who prepared

automobiles that had been imported by ocean carriers for

delivery to dealers. The trial court, as well as the

intermediate appellate court, had concluded that the

Compact's requirements did not apply to Mercedes-Benz

because the employees did not work at a pier or other

waterfront terminal and did not involve the movement of

freight. The Supreme Court of New Jersey reversed. The

Court noted that before the 1969 amendments, the

Compact required registration only for those longshoremen

"who physically handled waterborne cargo on the piers and

in the holds of ships but overlooked those who performed

tasks incidental, but nevertheless essential, to the smooth

flow of the freight." 99 N.J. at 411, 493 A.2d at 509

(quoting Waterfront Commission of New York Harbor,

Annual Report - 1968/69 at 11). After the industry turned

to containerization, contractors and companies could

handle cargo in warehouses located away from the piers.

The containerization process involves the loading of

freight into large metal boxes, which are in turn loaded

onto a truck frame or railroad car and then raised onto a

ship. See N.L.R.B. v. International Longshoremen's Ass'n,

AFL-CIO, 473 U.S. 61, 64 (1985). The advent of the

containerization phenomenon created a problem for the

Commission in that the contractors and workers who

loaded containers were not "stevedores" or "longshoremen"

as then defined under the Compact because they did not

load ships berthed at piers, but rather loaded containers

that later were hoisted onto ships; thus the Compact

"overlooked those who performed tasks incidental, but

7

nonetheless essential to, the smooth flow of the freight."

Mercedes-Benz, 99 N. J. at 411; 493 A.2d at 509. This left

new positions uncovered, subject to infiltration by those

very elements the Compact was designed to exclude.

Consequently, acting on the Commission's proposal, the

legislatures of the two states expanded the definition of

longshoreman in 1969 to bring these workers within the

Commission's jurisdiction. Mercedes-Benz, 99 N.J. at 413,

493 A.2d at 510. The legislation was amended to cover, in

addition to traditional longshore workers who load goods

directly onto ships, those workers who handle freight

ultimately destined for ships but which was loaded into

containers at locations other than piers. Id. It effected this

change by including as longshoremen those who work for

entities other than stevedores or carriers of freight by

water, but who nonetheless handle freight that will be or

was carried by a carrier of freight by water. When the

Mercedes-Benz Court stated that "the 1969 amendments

eliminated from the definition of longshoreman the

requirement that a person be employed by a carrier of

freight by water or by a stevedore," id. at 413, it explained

that change as representing "a means of asserting

jurisdiction over employees who had been removed from

pier employment because of misconduct but who

subsequently returned to the waterfront to work on cargo in

warehouses and consolidating depots." Id. at 413-14, 493

A.2d at 510. In fact, the Mercedes-Benz Court then stated

that its consideration of "the policy of the [Compact] in its

entirety, as disclosed by its legislative history," id. at 414,

493 A.2d at 510, led it to conclude that "those employee of

[Mercedes-Benz] who performed services on vehicles

`incidental to their movement' as freight were subject to

registration as longshoreman and that the persons by

whom they were selected for employment were subject to

licensing as hiring agents." Id. at 416-17, 493 A.2d at 512.

This history bears out the Commission's argument before

us that "[t]his case has nothing to do with the waterfront

activities which gave rise to the 1969 Amendments . . . but

is concerned with `traditional' waterfront operations."

Appellee's Brief at 8. In contrast to the issue that was

before the Court in Mercedes-Benz, we are concerned here

8

with employees who are performing traditional

longshoremen waterfront activity.

As noted above, the district court ruled that the 1969

amendments redefined "longshoreman" so as to eliminate

the employment by a "carrier of freight by water" as a

prerequisite for falling within the regulatory authority of the

Compact. We focus on subsection (c) of the supplementary

definitions of "longshoreman" in S 32:23-85, as it is plain

that subsections (a) and (b) contain the "carrier of freight by

water" qualification. Subsection (c) defines "longshoreman"

broadly as "a natural person, other than a hiring agent,

who is employed for work at a pier or other waterfront

terminal . . . by any person to perform labor or services

involving, or incidental to, the movement of freight at a

waterfront terminal as defined in subdivision (10) of this

section." Significantly, this definition specifically limits the

definition of "longshoreman" to one who moves "freight" as

defined in subsection (10). That provision reads: " `freight'

means freight which has been or will be, carried by or

consigned for carriage by a carrier of freight by water." N.J.

Stat. Ann. S 32:23-85(10).

Accordingly, we agree with the parties that the term

"carrier of freight by water" remains an essential term in

the definition of a longshoreman. Even though, under the

1969 amendments, a laborer need not be employed by a

carrier of freight by water in order to qualify as a

longshoremen, a laborer who "perform[s] labor or services

involving or incidental to, the movement of" goods that are,

or will be, carried by a carrier of freight by water falls

within the definition of a longshoreman.

It follows that the District Court erred insofar as it

concluded that the amendments dispensed with the term

"carrier of freight by water" as an essential term in that

definition. That is, it failed to acknowledge that although

the 1969 amendment eliminated the requirement that a

longshoreman be employed by a stevedore or carrier of

freight by water, the amendment continued to ensure that

the Compact's purview extended to those who handle

freight "which has been or will be carried . . . by a carrier

of freight by water." N.J. Stat. Ann. SS 32:23-85(6)(c) & (10).

9

In sum, the Compact defines "longshoremen" as those

laborers who either (1) handle waterborne freight as

employees of a "stevedore" or a "carrier of freight by water,"

N.J. Stat. Ann. S 32:23-6, or (2) handle freight destined for

carriage by a "carrier of freight by water" while employed by

"any person." S 32:23-85 (c). As the parties agree, ENS is

not a stevedore. But as long as the ENS employees hired to

load vehicles onto its chartered ships are employees of a

carrier of freight by water or are handling freight bound for

carriage by such an entity, they must be registered

pursuant to the Compact.

Furthermore, as previously pointed out, the 1969

amendment did not change the definition of "pier

superintendent." Thus, "pier superintendents" continue to

be defined as supervisors of waterfront labor employed by

a stevedore or carrier of freight by water. The District Court

acknowledged that the 1969 amendment did not broaden

the definition of pier superintendent as it did with respect

to longshoremen, but concluded that "that vocation is now

subsumed by the updated definition of `longshoreman.' "

However, it is doubtful that the legislatures would have, by

means of a supplementary definition of "longshoreman,"

undertaken, sub silentio, to render a separate definition in

another section of the statute superfluous. But there is no

need to decide this question. Even if we assume arguendo

that the supplementary definition of "longshoreman"

was meant to trump the earlier definition of "pier

superintendent," our analysis would not differ. Because the

1969 amendment retains "carrier of freight by water" as an

essential term in the definition of "longshoreman," this

essential term perforce applies to "pier superintendents" as

well.

Therefore, the question that remains for decision is

whether ENS is a "carrier of freight by water."

B.

ENS takes the position that it is not a "carrier of freight

by water" because it handles only its own goods, and

therefore need not hire registered longshoremen or licensed

pier superintendents. The Commission responds, arguing

10

that (1) as a matter of statutory construction, the

Compact's requirements apply to companies that handle

their own goods, and (2) the record does not support ENS's

contention that it handled its own goods.

The Compact defines "carrier of freight by water" as

any person who may be engaged or who may hold

himself out as willing to be engaged, whether as a

common carrier, as a contract carrier or otherwise. . .

in the carriage of freight by water between any point in

the Port of New York district and a point outside said

district.

N.J. Stat. Ann. S 32:23-6 (emphasis added).

In ENS's view, this definition should be understood as

being confined to carriers for hire--that is, those who carry

the goods of another for compensation. Invoking the

principle of ejusdem generis,2 ENS urges that the

qualification "whether as a common carrier, as a contract

carrier or otherwise" compels the conclusion that the

legislation is directed only toward those entities that carry

freight for others. It argues that an entity that ships its own

goods is sufficiently dissimilar from the kinds of carriers

listed in the definition that ejusdem generis principles

require us to conclude that the statute excludes those who

ship their own goods. This argument fails to persuade.

The principle of ejusdem generis, as this court has

emphasized, "is not a rule of law but merely a useful tool

of construction resorted to in ascertaining legislative intent.

The rule should not be employed when the intention of the

legislature is otherwise evident." United States v. Frumento,

563 F.2d 1083, 1090 (3d Cir. 1977).

_________________________________________________________________

2. Black's Law Dictionary defines the principle of ejusdem generis thus:

where general words follow an enumeration of persons or things, by

words of a particular and specific meaning, such general words are

not to be construed in their widest extent, but are to be held as

applying only to persons or things of the same general kind or

class

as those specifically mentioned.

Black's Law Dictionary 517 (6th ed. 1990).

11

The Compact was designed to root out corruption and to

improve the conditions under which waterfront labor was

employed. The Compact makes the following "Findings and

Declarations:"

The States of New Jersey and New York hereby find

and declare that the conditions under which waterfront

labor is employed within the Port of New York district

are depressing and degrading to such labor, resulting

from the lack of any systematic method of hiring, the

lack of adequate information as to the availability of

employment, corrupt hiring practices and the fact that

persons conducting such hiring are frequently

criminals and persons notoriously lacking in moral

character and integrity and neither responsive or

responsible to the employers nor to the uncoerced will

of the majority of the members of the labor

organizations of the employees . . . .

N.J. Stat. Ann. S 32:23-2.

Accordingly, the Compact undertakes to regulate the

employment of waterfront labor through its licensing and

registration scheme, a scheme by which those with criminal

records are disqualified from holding positions as

longshoremen or pier superintendents. N.J. Stat. Ann.

S 32:23-14(b) (making conviction of certain crimes grounds

for denying license as pier superintendent or hiring agent);

N.J. Stat. Ann. S 32:23-29(a) (allowing Commissioner to

deny application for inclusion on longshoremen's register

based on certain criminal convictions).

In light of the statutory goals, and the means chosen to

effect those goals, ENS's proffered interpretation of the

definition of "carrier of freight by water" as applying only to

those who carry freight belonging to someone else for hire

is too restrictive. It is implausible that by using the phrase

"whether as a common carrier, contract carrier or

otherwise" the drafters of the Compact sought to root out

criminality and degrading hiring conditions with respect to

laborers who are employed by carriers for hire while

excluding those companies who, like ENS, ship their own

goods for sale outside of the Port of New York.

12

ENS proffers no reason why the legislatures of New York,

New Jersey, and the United States would have done so.

Were we to narrow the reach of the statute in the name of

ejusdem generis, we would subvert the manifest purpose of

the Compact--remedying corrupt and degrading hiring

practices within the district. Ejusdem generis should not

"be applied to defeat the obvious purpose of the statute or

to narrow the targets of Congressional concern.`The rule of

"ejusdem generis" is applied as an aid in ascertaining the

intention of the legislature, not to subvert it when

ascertained.' " Frumento, 563 F.2d at 1090 (quoting Texas

v. United States, 292 U.S. 522, 534 (1934)).

If the legislatures that drafted the Compact had intended

to restrict the definition of "carrier of freight by water" to

businesses that carry freight for others for compensation,

the linguistic tools with which to do so were readily

available. In fact, as the Commission argues, the Compact's

definition of "stevedore" contains the very kind of restriction

that ENS argues should be read into the definition of

"carrier of freight by water. The Compact, in relevant part,

defines "stevedore" as "a contractor (not including an

employee) engaged for compensation pursuant to a contract

or arrangement with a carrier of freight by water, in moving

waterborne freight carried or consigned for carriage by such

carrier." N.J. Stat. Ann. S 32:23-6 (emphasis added). That

the Compact specifically limits the definition of "stevedore"

to those who provide services to others for compensation

but omits any comparable restriction in the definition of

"carrier of freight by water" supports our conclusion that

the Compact does not contemplate an exemption from its

requirements pertaining to longshoremen and pier

superintendents for those companies that ship their own

goods out of the Port of New York district.

Accordingly, we construe the "or otherwise" language to

apply to those persons and entities that ship commercial

freight to which they hold title as well as to those who ship

freight on behalf of others.3

_________________________________________________________________

3. We note that the New Jersey Supreme Court also rejected a similar

contention by Mercedes-Benz that "freight" is confined to goods handled

by others, and ruled "the phrase `employed * * * by any person'

contained in the [1969] amendments' redefinition of `longshoreman'

clearly can include an owner of the goods, such as Mercedes-Benz."

Mercedes Benz, 99 N.J. at 416, 493 A.2d at 512.

13

We also reject ENS's contention that because

Commission Regulation 3.2(c) provides that a carrier of

freight by water shall not require a stevedore license when

it provides such services on its own account, "it follows that

one is not a carrier of freight by water" when performing

services for one's own account. By its terms, this regulation

concerns stevedores, which, as noted above, are defined as

contractors who provide loading services for others. The

import of this regulation is that a carrier of freight by water

that performs its loading services in-house, as opposed to

utilizing the services of a stevedore, need not have a

stevedore's license. This regulation does not speak to the

meaning of "carrier of freight by water," much less carve

out an exemption from the Compact's requirements

regarding the hiring of registered longshoremen and

licensed pier superintendents. Rather, as we previously

explained, this specific licensing exemption for carriers who

ship their own goods serves to make the legislatures' failure

to exempt such carriers from the Compact's requirements

regarding pier superintendents and hiring agents all the

more telling.

Similarly, we reject ENS's reliance on the Shipping Act of

1916, 46 App. U.S.C. S 801, as amended by the Shipping

Act of 1984, 46 U.S.C. SS 1701-1720, and the Commerce

Act, 49 U.S.C. S 13102. The primary purpose of the

Shipping Act, which regulates common carriers of goods by

water in interstate and foreign commerce, is to eliminate

discriminatory treatment of shippers and carriers. See

United States Navigation Co. v. Canard SS Co., 284 U.S.

474, 480-81 (1932). The Interstate Commerce Act

establishes a regulatory framework similar to that of the

Shipping Act, but the Interstate Commerce Act applies only

to inland shippers. Both of those statutes are concerned

primarily with the regulation of the rates that shippers

charge to their customers, see Thorne Bledsoe McCallister,

The Filed Rate Doctrine Under the Interstate Commerce Act

and the Shipping Acts, 19 Tul. Mar. L.J. 81, 81-82 (1994),

a feature that distinguishes them from the Compact, which

is concerned with the regulation of labor hiring within the

Port of New York district. It thus stands to reason that the

Shipping Act and the Interstate Commerce Act, in seeking

to prevent discriminatory shipping rates, are limited to

14

those entities that transport goods for others. Hence, these

statutes do not shed any light on the issue before the court.

In conclusion, we hold that the Compact's definition of

"carrier of freight by water" applies to persons who load

their own goods onto vessels within the port of New York

district and ship them for commercial purposes outside of

that district. This conclusion gives full effect to the goals

animating the Compact and therefore accords with its

construction provision, N.J. Stat. Ann. S 32:23-72, which

states: "In accordance with the ordinary rules for

construction of interstate compacts this compact shall be

liberally construed to eliminate the evils described therein

and to effectuate the purposes thereof." Because we

conclude that the Compact's requirements extend to those

who ship their own goods for commercial purposes, we

need not reach the Commission's argument that ENS has

failed to show that it was the owner of the cars that it

shipped.

IV.

For the foregoing reasons, the judgment of the District

Court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15