Petition for Writ of Certiorari — World Airways, Inc. v. Pan American World Airways, Inc.

y

‘BOPREME COURT. U. & No. «| Oifiee Supreme oe

—

Be

IN THE - NOV’ 2 1967

Supreme Court of the ited Phe en

| ~ OcToBER TERM, 1967

>

Si ‘Wort AIRWAYS, ING, TRANS INTERNATIONAL AIRLINES, -

: INnc., SATURN AIRWAYS, INC.; PURDUE AERONAUTICS .

CORPORATION, CAPITOL INTERNATIONAL AIRWAYS, INC., ;

and AMERICAN. FLYERS, me <2. ;'

ie Petitioners, 7 |

° &* Se eee Be ©

. .PAN AMERICAN, WORLD ATRWAYs, INC., TRANS WORLD.

. ATRLINEs,. INC., and sapenatay AIRLINES, ee FO

es ~ Respondents, =e

_ -

| PETITION FOR: WRIT OF cualianr TO THE

UNITED STATES COURT OF APPEALS _ .

Paget 25 FOR THE ‘SECOND: CIRCUIT. . |

edi

: " RaYMONnD J. RASENBERGER, es

ee Scoutt &: Rasenberger_

Vga Washington, D. C..

is Ge CLAYTON L. BURWELL es

avon <3 _ Burwell, Sherman & “Hansen .

om eS Gera Washington, D.C.

° 'Jgonap N. BEBCHICK °

‘1 °° Bebehick & Sher - Cae

Washington, D. Fa lie

| | GEORGE BERKOWITZ

a , “New York, New York

» carta bet “rein D. Ports:

iy | Shaw, ‘Pittman, Potts, -

Trowbridge & Madden. -

_ Washington, D. Beta

ssp; Coun _ Petitioners

~ Opinion Below shen ionnnnapnsetinnneenisnaabiomamabtaiean anebtlietias

J urisdiction sini henaeannbraensnatteanimiinesnoint cshaseniecennilinipaapeniien ress

y, Reasons for Gianting the Writ cotateladia REE,

a

Conclusion aanlies Spaadeaeies ace Se AA range i oat Woe aD EEN |

. *

| Appendix A

Opinion ‘of ie Second Circuit Tee pa PONE: siinbdalode ‘

“Appendix B.

— of the District of Columbia Circuit aes

Appendix C, ie ome, hee 2

* Statutes Involved soi lesonieieapestntehsseincalihdndpiateinaesion snarl i

“Appendix D ae ; :;

IR i: epeichcigiind canted

Se ere eee | CITATIONS

. Cases: . ‘ 3

Amegjean Air Tines, Inc. v. Civil Aeronautics

Board, 365 F.2d 989 .......:..:

“American Air Lines, Inc. v. Civil Aeronautics

MU re i iateence ens

C&S Airlines Vv. Waterman SS Corp, 333.U.S.-

108 .<...:.: OE SEE TER Eig OR ASU NE Neo Re :

“Caledonian. Airways Pranic Ltd., C.A.B. ”

‘Order E-25017, April 21, 1967 «:.....0....00.-2.0..0000.... :

Duplex Printing Press. Co. v. — U.S.

TE weet | ?

. &

2 eines

ee INDEX (Continued)

Page —

—~

National Bus Traffic Assn. V. United States, 143

fe EE RE ERTS RO ESE. OAD eer cere « §,

_ Nicholas v. Denver & R:G.W.R. Co., i96 F.2d 428.. -, WD.

- Reopened Transatlantic Charter Investigation, we.

CAB Order E-24240-1, September 30, 1966 ...... 4, 5} 6

_ Sudflug Suddeutsche’ Fluggesellshaft, CAB Order .

' BOGOF, Pammary Sl, LOG iocec ci. cscs kc. 18

Supplemental Air Service Proceeding, CAB Order Si

E-23350, March 11, 1966, Orders E-24240-2, ee

I i a cetnccennciones 4,5,6

Transatlantic Charter Investigation, CAB Orders . ws

. E-20530-1, I, i SE seesersiptchiomminsesnsimnneronsiions - @*

. United Air Lines Vv. Civil Aeronautics Board, 278:

| RRR Et.” AOR ed 4a ae, Beane Al ae

United States-v. International Union United Auto; ' -

. ete. Workers, = Be i clciotetennssinscidnenmetnin 10

‘Statutes: :

Federal Aviation Act of 1958.

§ 101 (33) (49 USC 1301 (83)) 2.02. a

-§ 801 (49 USC 1461) ..... 3 — . s.

§ 1006 (49 USC. 1486) ........ 2,6

Public Law 87-528 (1962), Act of July 10; 1962, -

76 Stat. IID css sseisowrentssisemsignsehensesnonenccaniaesnecnsenness 3 3

. Committee Reports: | | ao

S. Rept, No, 1567, 86th Cong. 2nd. ON cncsinnceies. oe

S. Rept. No. 688, 87th CGO, BOE TOIB Sc cceniscccccecce 3,4

H. Rept. No. 1177, 87th Cong. ist ee %.... 3,4

| IN THe

| Supreme Court of the United States :

Ocroper TERM; 1967

t

No. z 3°

WorLD AIRWAYS, INC., "TRANS INTERNATIONAL AIRLINES, .

- INC., SATURN AIRWAYS, INC., PURDUE AERONAUTICS -

CORPORATION, CAPITOL INTERNATIONAL AIRWAYS, INC,

and AMERICAN FLYERS, INC. °o oe

pee Petitioners, °.

= Vv. :

PAN AMERICAN WORLD AIRWAYS, INC., TRANS - WORLD

AIRLINES, ‘INC., and AMERICAN AIRLINES, ING.,

; Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

- Petitioners, | | intervenors below, pray that a writ of cer- -

tiorari issue to review the judgment of the United States

Court of Appeals for. the eee Circuit in the above

entitled case. |

a ts: OPINION BELOW 3

The opinion of the United States Court of Appeals for

the Second Circuit is not yet reported, but is printed as

er A to this petition.

‘ 2 ‘

oe _ JURISDICTION |

' The judgment. of the United States Court of Appeals

for the Second Circuit was entered July 20, 1967. A

timely petition for rehearing was denied. on September

29, 1967. The goog of ‘this court is invoked. under’

Title 28 U.S.C. 1254 (1). a :

“QUESTION PRESENTED

Whether the Civil Aeronautics Board, in conformity

with Presidential approval, may issue certificates of public

convenience and necessity. for overseas and foreign “sup- | -

plemental air transportation” (defined by Section 101 (33)

of the Federal: Aviation Act as “charter trips’in air -

transportation : . . to supplement .. . scheduled service”)

which authorize ‘ ‘inclusive tour charters” as defined and

limited in the orders. at issue.”

STATUTE IN iaadeiaccael

The pertinent portions of the Federal Aviation Act of

1958 are set forth in Appendix C to this petition.

STATEMENT OF CASE

The Second Circuit and the District of Columbia Cir-

-cuit have reached diametrically opposed conclusions with .

Pega to an important question of - statutory intérpreta- Si

tion. ey

1 Consideration of this eeue of necessity invokes the threshold -

jurisdictional question of whether the Court below proceeded in

violation of 49 U.S.C. 1486(a) as amplified by C&S Airlines v.

Waterman SS Corp., .333 U.S. 103 (1948) which precludes review -

- of CAB Orders bearing Presidential approval. Petitioners beliéve

‘that the government’s consent to jurisdiction’ below was legally

ineffective, and Petitioners intend fully to brief and argue this

critical jurisdictional pease which, of course, is — for deter-

mination. : ; ;

~

_ The statute, PL’ 87-528 (1962), was the culmination of -

"a series of proceedings by..the. Civil. Aeronautics Board °

to determine the proper role for the so-called large irreg-

ular air carriers. The Board’s conclusions were over- ©

‘turned in court,’ and legislation was enacted. <r

- In considering such legislation, Congress examined de

novo the role. of these carriers. It found them to be a.

__-—“‘significant and valuable part of the nation’s air trans-

portation system.” * It concluded, however, that the his-

' toric participation of these carriers in individually ticket-

ed services should be terminated and that these carriers .

. (“supplemental air carriers”) should be “tharter” spe-

eialists. “Supplemental air transportation” was defined

as “charter trips . . .,” but disagreement arose concerning |

whether and how to define “charter.” a e )

a

The Senate ‘Committee’s bill would have enacted a -

~ “common law” definition of charter withjadded language’

* to the effect that services- 6fferéd to individual members .

of the. general public would not be included except in the

case of “an all expense paid tour.”‘ -The Committee |

* United Air Lines Vv. CAB, 276 F.2d 446 (D.C. Cir. 1960). A -

_ brief summary of events leading up to the legislation may be found--—--——___

in the report of the House Committee. H. Report 1177, 87th Cong., “8

‘Ast Session (1961), pp. 7-10 (JA 1152a-1158a). ;

°S. Rept. No. 1567, 86th Cong., 2nd Sess., p. 5; H. Rept, No..

1177, 87th Cong., Ist Sess., p. 16 (JA 1135a). .

‘The Senate Committee definition was as follows:

-“ ‘Charter service’ means: air transportation performed by an

air carrier holding a certificate of public convenience and

necessity where the entire capacity of one or more aircraft has

‘been engaged for -the movement of property on‘a time, mileage, - ‘

‘or trip basis, but shall not include transportation services

offered by an air carrier to individual members of the general

public or performed ‘by an air carrier under an arrangement

with any person who provides or offers to provide transporta-

. tion. services to individual members of the general public,

_ other than as a member of an all-expense-paid tour.” §. 1969

as reported by Committee. S. Report No. 688, 87th Cong. Ist ..

Sess., p. 1 (JA 1210a). Phi ey © ee

é

4

Report mene that all expense tour poem “conform to

_ the traditional concept of charter”and represent “a very

different sort of service from individually ticketed, trans-

portation.” S. Report No. 688, 87th* Cong., 1st Sess., Pp.

13-14. (JA 1238a-1239a).

——-e~House-Gommittee did not r the Senate's ap-

proach. Rather it abandoned entirely the idea of enacting

_ a specific definition of “charter.” The Committee Report

stated: “This is’a very difficult subject and any effort to

freeze a definition of charter service into law could well

lead to complications.” H.Rept. 1177, 87th. Cong., 1st

Sess., p. 11 (JA 1160a). 7

The Conference -adopted the House Committee’ s version

of the bill without explanation. However, at the time the . :

Conference bill came up for action on the floor of ach

house a number of statements were made by members

connected with the bill.to the effect that all — four

charters were not intended to be authorized.

The question of Congressional intent as to all expense

tour charters (now called “inclusive: tour. charters”)

arose promptly in two proceedings conducted by the Board |

to consider. applications to ony in supplemental air |

transportation. The Supplemental Air Service Proceeding

"(Docket 18795) dealt with the requirements for supple-.

mental air transportation domestically and internationally

except fof transatlantic service. The Transatlantic. Char-

ter Investigation (Docket 11908); which had been com-

-menced prior to the legislation, . became the vehicle for

od Because of the early popularity of seieileniie charters, the ,

Board had determined in 1960 to consider awards for such service

(JA 617a) under its basic authority to issue certificates for air: ~ .

transportation. In its first decision in the Transatlantic proceeding © ~

in 1963 the Board decided on a policy against authorizing all-expense

tour charters. This aspect of the decision was, however, not passed

‘ upon by the President (who approved only a portion of the awards

recommended by the Board). The issue therefore remained for

reconsideration by the Board i in the Reopened Transatlantic Charter |

snvestigation. °

™

5

‘ > Bo

determining the requirements for supplemental air trans-

portation in that part of the world. The Reopened Trans-

atlantic and Supplemental cases were ultimately consoli-

dated by the Board for oral axgement, which was held -

on October 13-14, 1965. 7

> The Board decided the Supplemental case on March 11,

1966: It found, as had its Hearing Examiner, that it had

the power to authorize such charters and that, considering

- the benefit to the public and to the supplemental carriers, ~

and the absence of adverse effect on other carriers, it

should do. so at least for an ‘experimental . period of 5 —

years. ‘(JA 336a et seq.). Two opinions agd orders were

adopted, one containing domestic authority, the other

covering foreign and overseas. The opinion and order

covering the domestic awards (Order E-23350, JA 332a)

_was made public. At the same time a new regulation

(Part 378, JA 41la) was issued defining “inclusive tour

" charter” and setting forth detailed terms and conditions

under which such-charters could be operated. These pro-

. Visions were designed to-insure that the services being

_ authorized were bona fide “charter trips.”

_ The Board’s opinion and orders in “the Supplemental

" case’ pertaining to foreign and: overseas air transportation.

were at the same time transmitted, without public dis-

closure, to the President for his approval as required by

the ‘statute. (Section 801 of the Federal Aviation Act

(49 U.S.C. 1461) ). These documents incorporated by’

reference the Board’s. Opinion on the legal issues in the

domestic order. On the same day, March: 11, 1966, the

Board also adopted and transmitted to the President an

order in the Reopened Fransatlantic case (Order E-24240,.

JA 1060a) authorizing ‘inclusive tour. charters in the

transatlantic market. The Board disposed of the chal-

lenge to its power to authorize such tours by. referring to

. its opinion in the Supplemental case... (JA 1077a): It

~ also ‘adopted the same regulation for the international

———————————————eeorrrrrrrereee

. 6

inclusive tour - -charters—transatlantic and other—as it

had. issued for the domestic charters,

. + On September 30, 1966, the Board’s orders with respect

to the Reopened Transatlantic. case and the. foreign. and

‘ overseas portions of ‘the Supplemental. case, having been ~ ‘:

approved by.the President, were issued. Orders E-24240-2

“TSA 1060a) and E-24237-9 (JA 548a).

3

Judicial review of the Board’s decision in- the dosneatic ee

phase of. the Supplemental case was sought ‘by. eleven

scheduled air carriers ir? the Distpict of Columbia Circuit

in May 1966. The sole issue concerned the agency’s power 4

to authorize inclusive tour charters ‘as “supplemental air _

_ transportation.” In an opinion of July 19, 1966, the court |

sustained the Board’s orders. ‘American ‘Airlines v. Civil

Aeronautics Board, 365 F.2d 939. (The full opinion is

\

7 reprinted as Appendix B hereto.)

In ivanher 1966 the petitioners. below—American, ;

Pan American, and TWA—sought to have the orders of

September 30, 1966, pertaining to: foreign and overseas —

transportation, set aside by the Second Circuit.* . These

three carriers had also been petitioners in the D. C..Cir-

' cuit. The principal ground for review was the same ques-.

tion of statutory power raised in the D. C. Circuit. The

Second Circuit, in an opinion of July 20; 1967, -rejected - -

the suggestion of the Board that it should not take juris-

~ diction because of res judicata. It addressed itself to the

statutory issue and reached an opposite conclusion. from.

that of the D. C. Circuit. os was denied on

September 29, 067. 7 r

® The jurisdiction of the Circuit Court was taken ‘under section

1006(a) of the Federal Aviation Act, 49 U.S.C. 1486(a). That sec-

tion is reproduced in Appendix C hereto.

¢

7

REASONS FOR GRANTING THE WRIT

1. There. is a clear conflict between the decision of the

court below and the District of Columbia Circuit.

| The court below described the i issue before : it-as follows:

“The question before us ‘is whether the Board’s |

statutory authority to issue™ certificates of’ public .

convenience and necessity for ‘supplemental air trans-

_ portation,’ defined as ‘charter trip$ in air transpor-

_.,, tation,’ (Section 101(83) of the Act, 49 U.S.C. § 1301

(33) ) includes the. power to authorize inclusive tour

_ charters.” Appendix A, p. 18 A. (footnote omitted) .

- The D: C. Circuit. opinion described the issue: s before it

as follows:

=

“It is the uncertainty. over the meaning of the

term ‘charter trips’ which prompts the necessity for —

interpretation of. the statute, particularly © as to

whether such term embraces ‘inclusive tour char-

ters’.” American Airlines, Inc. v. C.A.B., 365 F.2d

~ 939, 941 (1966) (Appendix B, p.27A).

‘Thereafter. the similarity between the two opinions:

ends. : The following is a brief description of the approach |

tdken by each: reviewing court and. the’ agency. © |

The Civil Aeronautics Board found, as had its Hearing

_ -Examiner, that all-expense tour charters were required

' by the public and that the scheduled. carriers had little

incentive to operate them. It also found that such charter

authority would provide badly. needed economic ‘strength

tothe suppleméntal carriers and would not have a sig-

nificant adverse effect on - emule carriers. . (E. é. .

JA 140a-141a).° aa

In concluding that all-expense tour charters: were “char- : age 3

ter trips” within the _meaning of the statute, the Board

‘

e « . , °

rere? mi

relied upon » holdings under tlie Movie Carrier Act? and

upon a recent opinion .of ‘the D. C. Circuit dealing with «

the same statutory provisions. American Airlines Inc. v.

Civil Aeronautics Board, 348 F.2d 849 (1965) (the “split

charter” case). The Board-found the same conclusion

indicated by the legislative history, —_ both’ the

Committee reports * and floor statements.’

“The. District of Columbia Circuit. gave particular at-

| tention to’ the legislative purposes. It concluded that Con-

> gress was anxious to stabilize the supplemental carrier

~ industry and, provide a sound economic basis for jts. ‘fur-

ther development. The. court reiterated its earlier con- .

clusion in the “split charter” case that the term “charter ,

trips” did nét have a fixed meaning. but must be read in.

fy light of the statutory objective: © . |. © ;

“

“a prime concern. of Congregs was to maintain be,

[the] integrity of the. charter concept—to preserve

the distinction between group and individually tick-.

. @ted travel;.within these limits it is for the Board to

evolve reasonable definitions.” 365 .F.2d. at 949

(Appendix B, p: 33 A), quoting 348 F. 2d at 354.

7 E.g., * National Bus Trafic Assn. V. — States, 143 F. Supp.

‘689 (D.C, NJ. 1956). ‘

®§ The Board summarized its conclusions as. follows :

“In short, the Senate version of the bill as -well as the -

Senate Committee Report make clear that the Senate was

dissatisfied: with ‘the Board’s historic: refusal to: authorize in- - ~.

clusive tour charters. On the other hand, the House bill con- .

tained no reference one way or the other to all-expense tours, ;

and thé House Committee Report clearly indicates that this

matter was to be left te the Board to determine. The ultimate

adoption of the House version strongly supports a construc- -

tion of the statute: 1 ‘in line with the wes: Committee Report. “a

(JA 348a). . :

° The ‘Board found that hens: statements were to some. ‘ctent

conflicting and were not dispositive of Congressional intent in light |

of the’ Committee pers and overall tastes’ of Congress. Gg A

3438a).

= hibition by indirect means. The court examined the subs \.

“The court also dealt with the ‘weight to be neni the

floor statements. It. found: that’ these statements must. be

read in light of: the corigressional purpose to. -prohibit. _

individually ticketed services ‘and reflected a natural con- f*”

cern that the carriers not be permitted to. avoid the:pro-\. °—

stance of the new services, as defined by their detailed

_ terms and conditions, and found: them fully consistent -

with congressional purposes, In any event, the court .

found, Committee reports showing an intent to leave the -

matter to the.agency must take pr ecedence over the floor .

statements to the contrary. .

The Second Circuit found the moniter i eainadiie of daten- 7

mination on. the basis of what members of Congress said,

making it unnecessary to speculate about Congress’ basic -

objectives, or the abuses it was attempting to correct.

Since all-expense tours literally, involvée-.“the selling“ of

individual tickets to the. general public” *.( Appendix: A,

p. 17 A), the court found them.to be. “individually ticket-

ed” services. And since leading legislators had declared on

the floor that the bill excluded “all-expense” tours, the

court concluded, without -analysis,. that the particular |

type of all-expense tour charter authorized by the Board ©

_was prohibited. Consideration of congressional purposes’

_ was deemed ‘unnecessary by the court since the floor state-

._ ments represented a binding “congressional declaration. vebns

In order to rely so heavily upon’ a literal. reading of

the floor ‘statements, the court had to find—and. it did—

10 “We therefore reject the argument that the legislators’ concern:

was with abuses growing out.of the Board’s prior practice of .-

-allowing supplemental carriers to perform limited scheduled in-

dividually ticketed travel. Regardless. of the extent to which there

may have been legislative concern based on this prior experience, in- -

deed whether or not the expression. of concern. was misguidéd or

wholly unwarranted, it was in fact manifested in a congressional

‘declaration binding’on both the Board and_.this. court, that was

' ¢learly intendéd to forbid the ——e to authorize inclusive tours.” rm

(Appendix A, P. 4 |

Dither be at teste os +

10° : : *. | ae os

“no ‘conflict between these statements and the Committee

‘reports. Indeed, the. court concluded that the reports

_—

- by the D. C. Court in support of prima

“seem to support petitioners’ view” are at worst

“ambiguous.” (Appendix A,.p. 23A)..- e cases cited

i ) reliance on

Committee reports were cited “by. the court as justifying

its reliance. on floorestatements as- “authoritative indica-

‘tors of congressional intent,” _ (Appendix A, p. 23° A). _

traditional coricept of charter” ard are “a very different .

” “definition of charcer service into law.” In giving author- -

; -did—ignore the warnings. of knowledgeable judges ‘and.

In finding no difficulty with the Committee reports, the

court below had to—and did—ignore significant portions

of both-reports.. Thus the statement of the Senate Com-

mittee that all expense tour charters conferm to <“the

sort of service from individually ticketed transportation”

was not dealt: with. Nor did the court pay any heed to

the” decision of the House Committee: not to “freeze the

itative weight to floor statements, the court had to—and

_ observers ‘against “manufactured”, legislative history—

and the indications ‘of such in this. instance. ”

“Finally, in assuming that terms such as “individually:

“ticketed,” “general public, * and “all expense tour” have

fixed; literal and” commonly accepted meanings, the court

bypassed ‘the real issue before. it. Barge labels cannot

possibly sufficd to describe congressiot al intent witheut

Se the kind of anplysis, ‘such as made, by the D. C. Cireuit,

. 11 The cates are: United States v. * Silastic Gaiam United

‘Auto, etcs “Workers, 352 U.S: 567, 585 (1950) ; Nicholas v. Denver

& R. G. W. R. Co,, 195 F.2d 428 (10th Cir. 1952) ; ae i paitio

_. Press Co.\v. Deering, 254 U.S. 443, 474 (1920).

12 The fa t that two of the floor statements” in the ‘Meek were

identical—word for word—and. that powerful pressure groups =< -

were at work in opposition to, the legislation tends. to -cast: some

doubt on the court’s View of these statements as. «Spontaneous out- -

: pourings ‘of Congressional intent. -

¥

Pima ame fe, aig : “3 , ‘

* 7 . 2 «

Poa

| an

. aad

of the specific and carefully defined services at issue.

_ Even on conventional charter flights, which Congress |

clearly. intended: to authorize, the passengers are often

“individually ticketed”. They are no less members of the. 4

“general public” than passengers on inclusive tour char- |

. ters. And conventional charters are “in direct competition

with the regularly scheduled airlines,” who possess char-

ter authority.. | an Teer

-° The agency saw, as the court below did not, that the

possible arrangements for chartering aircraft are infi-

nite. Whether such arrangements ‘constitute a “char-

ter trip” therefore - depends upon their; substance, -not.

_ their form. oy their. name.” Under these circumstances +t

-. would‘have been extremely difficult for Congress to specify

' what it-meant by a “charter.” Th Committee Reports.

show that’ Congress eventually realized just that and

decided to leave the issue to jhe Board. Unfertunately, ~

__-the Court-below did not, realize it.. In attempting to dea

‘with charter transportation on the basis of loose terms

_ instead of factual details it, stumbled into a pitfall which —

' “the Congress; the agency, and a sistér circuit were ‘wise ”

'. enough to avoid. ..

¢ ‘ : . *

ais Dy a : ne ® Pere

& o Ns

J

. 8 At one extreme “all experise tour .charter”’ could be a sub-

' terfuge for individually ticketed service, cloaked by a meaningless

- tour requirement. On the other hand, ‘it could-involve not only the -

formal ‘requisites’ of -a charter hiring but other features which

establish it as bona fide group transportation—such as participation

in 4 common sightseeing itinerary, for a sustained period, with the ss

same people. The Board regulation in’ issue requires that an “in--°

elusive tour” be a round trip lasting at Jeast 7 days and stopping

at a minimum of. three places other than the point of. origin. It.”

‘must include all hotel accomodations. and all necessary surface

transportation. The tour price may not be less than 110% of the

_ lowest available fare’ by scheduled carrier. See Part 378.2(b), JA

°416a-417a ‘and -JA 1096a. These requiréments are actually more

rigid than for. participation in.conventional pro rata charters. ee ies

e

sd

12 :

2 The dnctetes below has. major significance for the

.traveling public, the air transportation industrf, and

the role of the United States in foreign air trans-

_portation. ; ‘

- As it now stands, an “inclusive tour charter” between

“points in ‘the fifty states is lawful; a charter meeting

* the identical C:A.B. definition’ but operating between the -

United States and a‘foreign point is unlawful. Neither .. .

the statute’ nor legislative history makes any distinction

between domestic or foreign “charter trips.” The anomaly ©

is solely due to the opposing views of the courts.

This conflict is of major significance. ‘Inclusive tour

| charters, despite their newness, represent:a significant —

form of public transportation. The Board, adopting its.

-Examiner’s conclusions, found that there “are still vast

areas for future development” of air transportation (JA

96a). It noted that these charters “will generally attract

a class of traveler to. air transportation. not now using

scheduled services’? (JA 345a). It agreed with its Ex-

miner that these charters “hold real promise both do-

mestically’ and internationally as the instrumentality most

likely to accomplish a significant expansion of pleasure air

travel, the ségment of the air travel market offering the

greatest ‘potential. for exploitation. ” (JA 140a): C.A.B.

- records for the short period in which this authority has

-been in effect show that, despite the damaging effect of

_the > ‘litigation surrounding the Board’s awards, the po-

‘tential is beginning to -be tapped. _ Approximately’ 600 -

inclusive tour-charters, domestic, and international, have

‘been approved by the Board. These represent approxi-.

mately 100,000 passengers, and over - million in air

transportation revenues.

Inclusive tour charter siittientiy. is also vital. to the ©

supplemental — air . carriers. ‘The’ Board has found that —

.%4 Based on a tabulation of baclinites tour charter contracts

| approved 7 the. C.A.B.. through preuaner 1, 1967.

Se a

.

these carriers are “providing a useful public service re-

sponsive .to a .public need” and are “making a valuable

contribution to the American air transportation system.” -

(JA 136a). The record before‘the Board showed, how-

ever, that supplemental air carriers are relatively small,

that. their dependence on military charters has been un-

duly great. (70% of all revenues, JA 80a), and that their

economic. well being required increased access to civil

charter revenues. . (Such revenues amounted to but $25

"million in 1964 (JA 72a)). The revenue developed thus

. far in the brief history of inclusive tour charters demon-

strates that they can contribute significantly to the eco-

nomic growth and well being of the supplemental carriers.

_ That contribution however is now stultified by the legal ©

limbo created by the Second. Circuit.

The case is also important because it affects the bal- |

-ance which the Board and President have struck between |

-inclusive tour: authority for supplemental air carriers

and foreign air carriers. Since awarding the authority

at issue the Board, with Presidential approval, has been:

. disposed to grant inclusive: tour ‘charter authority to

foreign charter carriers in order to encourage a favorable

climate for foreign operations by U. S. supplemental

carriers.© If the decision of the court below is left stand-

_ ing the entire international inclusive tour market will be ©

_ in the hands of. foreign carriers, a result obviously con-.-

trary to the intent of the President and best interests of

the United States. me

' E.g., Sudflug “Suddeutsche Fluggesellshaft; C.A.B.° Order

- E-24697, January 31, 1967, p. 5; Caledonian Airways (Prestwick) .

_. Ltd., C.A.B. Order E-25017, April 12, 1967, p. 5. These awards are

’ final and, pursuant to 49 USC 1486, are not judicially reviewable.

ace

CONCLUSION

For the foregoing reasons petitioners pray that this

petition for a writ of certiorari be granted. .

. Respeetfully submitted, ae ae .

RAYMOND J. RASENBERGER

888 17th Street, N. W.

Washington, D. C. 20006

Counsel for World Airways, Inc.

and Purdue Aeronautics Corp.

LE EAE RINE SR TE ER SRT ETN SET NSE SE

CLAYTON. L: -BURWELL _

°1815°H Street, N. W.

Washington, D. C. 20006

Counsel for. Trans International.

Airlines, Inc. .

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A

25

rcuintinne Daadetee

TON Sie Be

.

PORE) RT PL

De le Sa. tt

‘LEONARD N. BEBCHICK .

818-18th Street, N. W.

Washington, D. C. 20006

Counsel for Saturn Airways, Inc.

GEORGE BERKOWITZ

233 Broadway

New York, New York |

Counsel for Capitol. International

oe — Ine.

PAT OP TO RENT ET

A Yon ee

STEPHEN D. Ports

910 - 17th Street, N. Ww.

Washington, D. C. 20006

Counsel for American Flyers, Inc.