# Petition for Writ of Certiorari — World Airways, Inc. v. Pan American World Airways, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1111%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 391 U.S. 461 ## Text 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 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 ‘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. . a ey? ig 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1111%3A04. Public record. Not legal advice.