Appendix — Carnation Co. v. Pacific Westbound Conference
Supreme Court brief1966
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SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1964/7265
No. 57 2o
CARNATION COMPANY, PETITIONER,
vs.
PACIFIC WESTBOUND CONFERENCE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INDEX
Original Print
Record from the United States District Court for
the Northern District of California, Southern
Division
Docket entries 1 1
SIA aca es LR ce OO NR 6 9
Motion to dismiss of defendants, members and
former members of the Far East Conference,
SRS EE ES Fete ee oe 23 26
Schedule of defendants on whose behalf this
motion is made inlets siah ailisRsbstidedsbrsmaficune 26 28
Notice of hearing of motion to dismiss pro-
ceedings Sennen eer sr 27 29
Motion to dismiss of defendants Pacific West-
bound Conference, W. C. Galloway, et al. 28 30
Notice of hearing of motion to dismiss pro-
- SAE EERE ee Fa A 30 32
Recorp Press, Printers, New York, N. Y., Apri 30, 1965
INDEX
Record from the United States District Court for
the Northern District of California, Southern
Division—Continued
Motion of Federal Maritime Commission to in-
tervene as defendant _....-.----
Notice of hearing of motion str
Motion of Federal Maritime Commission to
ESSE SRE SS
Notice of hearing of motion =
IT OI ante
Affidavit of Thomas Lisi, Secretary, Federal
Maritime Commission as to authenticity of
Federal Maritime Board proceedings ___
Exhibit 1—Order of Federal Maritime
Board in Docket No. 872, dated October
26, 1959 for investigation
Exhibit 2—Petition of Carnation Company
to intervene in Docket No. 872 —....
Exhibit 3—Ruling granting petitions to in-
tervene in Docket No. 872 .
Exhibit 4—Extract from Page 8 “of Brief
dated October 5, 1962, filed by Carnation
Company in Federal Maritime Commis-
sion Docket No. 872 - d
Exhibit 5—Federal Maritine Board “Agree-
ment No. 8200, approved December 29,
1952, Far East Conference and Pacific
Westbound Conference _... Ps nse AAS UN
Plaintiff’s objection to motion of the Federal
Maritime Commission for leave to intervene as
defendant
Transcript of hearing on motion te dmies and
motion of Federal Maritime Commission for
leave to intervene as defendant, April 8, 1963
Aen nena
Colloquy between Court and counsel - as
Statement by Mr. Ransom on behalf of aelen-
dant, Westbound Conference, et al. mn
Statement by Mr. Dunne on behali of plaintiff
Argument by Mr. Turk on behalf of co-defen-
dant, Far East Conference .
Original Print
32 33
33 34
34 34
35 35
36 36
38 37
40 39
42 41
45 44
46 45
47 45
57 60
61 62
62 62
64 64
65 65
76 72
1 al
INDEX
Record from the United States District Court for
the Northern District of California, Southern
Division—Continued
Transcript of hearing on motion to dismiss and
motion of Federal Maritime Commission for
leave to intervene as defendant, April 8, 1963
—Continued
Appearances __
Statement by the Court cs
Statement by Mr. Dunne on behalf of plaintiff
Statement by Mr. Hocd on behalf of Federal
Maritime Commission
Statement of Mr. Turk on behalf of Far East
ps abe gp ee OE OS OD eG
opie: Oe NTE ee Seren Tae I
Memorandum of opinion, Sweigert, J.
Order and judgment of dismissal
Mn Or WI ieee
Bond on appeal (omitted in printing) —__
Statement of points on which plaintiff intends to
rely on appeal and designation of record, ete.
Appellees’ designation of additional portions of
OP I iccathticctae te
Proceedings in the United States Court of Appeals
Ti I a
Statement of points on which appellant intends to
rely and designation of record =
Original Print
107 93
111 96
115 98
128 107
130 108
131 108
133 110
134 110
135 111
139 114
149 121
159 127
168 133
174 137
176 138
178 140
180 141
181 141
188 147
192 150
192 150
iv INDEX
Original Print
Minute entry of order directing filing of opinion
and filing and recording of judgment 208 156
Opinion, Pope, J. 204 7
Judgment . 232 187
Petition for rehearing 233 18s
Minute entry of order denying petition for rehear-
ing M46 200
Opinion on petition for rehearing 247 200
Clerk's certificate 249 202
Order allowing certiorari 250 208
[fol. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
[fol 2
DATE
1962
Dee 4
6
»1
SOUTHERN DIVISION
41158
FILINGS PROCEEDINGS
Filed complaint, issued summons
Kiled order appointing W. J. Kelley of
San Francisco, Calif, for the purpose of
serving summons in this action (Weigel)
Filed summons, exeented as to American
Mail Line, Ltd. Daido Kaiun Kaisha,
Ltd. The East Asiatic Company, Ltd.
Nippon Yusen Kaisha, aka NUY.K.
Line, Pacifie Westkound Conference,
States Steamship Co. United States
Lines Co, Dee. 6, 1962; American Presi
dent Lines, Ltd. Far East Conference,
Fern-Ville Far East Lines—-Fearnley &
Keer, AL FL Klaveness & Co, AUS, Skib-
saktieselskapet Varild, Skibsaktieselska.
pet Marina, Aktieselskabet Glittre, Damp-
skibsintoressentskabet Garonne, Skibsak
tieselskapet Sangstad, Skibsaktieselska.
pet Solstad, Skibsaktieselskapet Siljestad,
Dampskibsaktieselskabet International,
Skibsaktieselskapet) Mandeville, Skibsak-
tieselskapet Goodwill, Aktieselskabet
Standard, Fearnley & Egers Bef ragtning-
sforretning A/S, TINO) Kaiun Kaisha,
Ltd, Java Pacitie & Hoegh Lines—Joint
Service, N. V. Stoomvaart Maatschappij
“Nederland”, Koninklijke: Rotterdamsche
Llevd, NV. Skibsaktieselskapet Arizona,
Skibsaktieselskapet Astrea, Skibsaktiesel.
skapet Aruba, Skibsaktieselskapet Nor.
~ i
2
DATE FILINGS—PROCEEDINGS
1962
Dee 21 3 euga, Skibsaktieselskapet Abaco, A/S At-
(Cont) lantiea, Kawasaki Kisen Kaisha, Ltd.,
Klaveness Line-Joint Service, Skibsaktie-
selskapet Sangstad, Skibsaktieselskapet
Solstad, Skibsaktieselskapet Siljestad,
Dampskibsaktieselskapet International,
Skibsaktieselskapet Mandeville, Skibsak-
tieselskapet Goodwill, Knutsen Line-Joint
Service. Dampskibsaktieselskapet Jean-
ette Skinner, Skibsaktieselskapet Pacific.
Skibsaktieselskapet Marie Bakke, Damp-
skibsaktieselskapet Golden Gate, Damp-
skibsaktieselskapet Lisbeth, Skibsaktiesel-
skapet Ogeka, Hvalfangstaktieselskapet
Suderoy, Lykens Bros. S.S. Co. Ine.,
A. P. Moller-Maersk Line-Joint service,
Dampskibsselskabet AF 1912, Akticsel-
skabet Dampskibsselskabet Svendborg,
Nitto Shosen Co. Ltd., Pacifie Far East
Line, Inc., Pacific Transport Lines, Inc.,
Shinnihon Steamship Co., Ltd., Trans-
ocean Transport Corp. (sometimes d/b/a
Magsaysay Lines), United Philippine
Lines, Ine., and Yamashita Kisen Kaisha
December 7, 1962; as to Isthmian Lines,
Inc.; Mitsubishi Kaiun Kaisha, Ltd., Mit-
subishi Shipping Co. Ltd., Kokusai Line-
Joint service, Mitsui Steamship Co., Ltd.
Nippon Kisen Kaisha, Ltd. (sometimes
d/b/a Nissan Pacific Line), Nissan Kai-
sen Kaisha, Ltd., Osaka Shosen Kaisha,
Ltd., Prince Line Ltd., States Marine
Corp., States Merine Corp. of Delaware,
| States Marine Lines, Ine. (a/k/a Global
| Bulk Transport Corp.), Waterman Steam-
ship Corp., Wilhelmsens Dampskibsak-
biti ope amet LOT RENT RSREE< aEmenmae eH Re <A
Biers: SAAR PRT are PRAM ot Lay
DATE
1962
Dee 21 3
(Cont)
FILINGS—PROCEEDINGS
tieselskab, A/S Den Norski Afrika-Og¢
(fol. 3] Australieline, A/S Tonsberg, A/S
Tankfarti I. A/S Tankfart IV, A/S
Tankfart V, A/S Tankfart VI, December
10, 1962; as to Maritime Co. of the Philip-
pines, Ine., Orient Mid-East Lines, Pacific
Orient Express Line-Joint Service, Skip-
saktiesselskapet Nordheim, Skipsaktiese!-
skapet Vito, Skipsaktiesélskapet Kirkoy,
Skipsaktieselskapet Skagerek ( Ditley-
Simonsen Lines), Transatlantic Steam-
ship Co. Ltd. of Gotbenburg and Philip-
pine National Lines December 11. 1962;
as to Canadian Pacifie Ry. Co., De La
Rama Lines-Joint Service, The De La
Rama Steamship Co. Inc., The Swedish
Kast Asia Co. Ltd., The Ocean Steamship
Co. Ltd., The China Mutual Steam Navi-
gation Co. Ltd., Nederlandsehij Stoom-
vaart Maatschappij “Oceaan” N. V., Eller-
man & Bucknall Associated Lines—joint
service, Ellerman Lines, Ltd., Ellerman
& Bucknall Steamship Co. Ltd., The City
Line Ltd. Hall Line. Ivaran Lines-Far
Kast Service-Joint service, Skibsaktiesel-
skapet Igadi, Aktieselskapet Ivarans
Rederi, A/S Besco, A/S Lise, Orient
Steam Navigation Co. Ltd.. and P & O
Orient Lines December 12, 1962: and Un-
served as to The Bank Line, Compagnie
De Transports Oceaniques, Compagnie
Maritime Des Chargeurs Reunis, James
A. Dennean, W. C, Galloway, Kokusai
Kain Kaisha, Ltd. and Toho Kaiun
Kaisha, Ltd.
4
DATE
1962
Dec 26 4
.
1963
Jan 4 6
:; i |
31 «8
Mar 1 9
1 10
| oe
BI ERT RELL INE SLT I
FILINGS—-PROCEEDINGS
Filed stip. & Order ext. time for Deft.
Pacific Westbound Conference, W. C. Gal-
loway and member carriers, to plead, to
Feb. 1, 1963. (Carter)
Filed stip. & order ext. time for Deft.
Far East Conference and member Car-
riers to plead, to Feb. 1, 1963. (Carter)
Filed stip. & order ext. time for deft.
Canadian Pacific Ry. Co. to plead, to Feb.
1, 1963. (Carter)
Filed stip. & order ext. time for Pacific
Westbound Conference, W. C. Galloway,
Canadian Pac. Ry. and member carriers,
to plead, to March 1, 1963. (Carter)
Filed stip. & order ext. time for Far East
Conference and member carriers to plead,
to March 1, 1963. (Carter)
Filed stip. & order ext. time for Deft.
Canadian Pacific Ry. and East Asiatic
Co. to plead, to Mar. 8, 1963. (Harris)
Filed stip. & order ext. time for Deft.
Nissan Kaisen Kaisha, Toho Kaium
Kaisha, Lino Kaiun Kaisha, Mitsubishi
Kaiun Kaisha, Kokusai Kaium Kaisha to
plead, to Mar. 8, 1963.
»
Filed notice & Motion by Far East Con-
ference to dismiss, Mar. 11, 1963, 10:00
A. M. with supporting memo and copy of
proposed order.
~—
) |
12
13
14
19
FILINGS—PROCEEDINGS
Filed notice & Motion by Pacific West-
bound Conference, W. C. Galloway to dis-
miss, Mar. 11, 1963, 10:00 A.M. with copy
of proposed order, and supporting memo.
Filed notice & Motion by Federal Mari-
time Commission to intervene, Mar. 11,
1963, 10:00 A.M. with proposed order at-
tached.
Filed memo by Fed. Maritime Comm.
supporting mo to intervene.
Lodged proposed answer of Fed. Mari-
time Comm.
Filed notice & Motion by Federal Mari-
time Commission to dismiss, Mar. 11,
1963, 10:00 A.M. with copy of proposed
order attached.
Filed memo by Fed. Maritime Comm. sup-
porting mo to dismiss.
Filed receipt of service by parties of
copies of mos. Mar. 1, 1963.
Filed stip. & order ext. time for Carna-
tion Co. to file memo in opposition to mo-
tions to dismiss to Mar. 21, 1963; defts.
& deft-intervener to reply by Apr. 3, 1963
and hrg. calendared on Apr. 8, 1963.
(Weigel)
Filed stip. & order ext. time for Carna-
tion Co. to file memo on mo to intervene;
interner to reply by Apr. 3, 1963 and hrg.
calendared Apr. 8, 1963. Fur. Stip. &
order if time for hrg. on mo to dismiss is
; a
6
DATE FILINGS—PROCERDINGS
1963
Mar 5 19 extended, the time for hrg. on mo to inter
(Cont) vene will also be ext. to same date,
(Weigel)
§ 20 Filed stip. & order of dismissal without
prejudice as to defts, Canadian Pacitic
Railway Company and The East Asiatic
Co, Ltd. (Weigel)
12 21 Filed stip. & order that stip, ext. time to
Mar. 8, 1963 for defts. Nissan Kaisen
Kaisha, Ltd, Toho Kaium Kaisha, Ltd.
lino Kaiun Kaish, Ltd. Mitubishi Kaiun
Kaisha, Ltd., Lokusai Kaiun Kaisha Ltd,
d/b/a Kokusai Line-Joint Servier to
plead, was not intended to and is not ap
plicable to any party other than Wokusai
Line-Joint Serviee. (Harris)
12 22 Filed stip. & order dismissing without
prejudice the deft. Kokusai Line-Joint
Service. (Harris)
21 2% Filed memo by PIt{l. opposing motions to
dismiss.
21 24 Filed memo by PIttl. objecting to mo of
Federal Maritime Commission for leave
to intervene as deft.
Apr 3 2 Filed reply brief of defts. Pacific West
bound Conference, et al.
3 26 Filed reply memo of defts. Far Mast Con
ference, et al.
3 27 Filed reply memo by Fed. Maritime Com
mission supporting mo to dismiss as te
Pacifie Westbound Conf.
DATE
1963
Apr 3
[fol. 5]
Apr 8
30
May 27
Jun 0
y=
a
20.4
34
“wr
oh)
FILINGS—PROCEEDINGS
Filed reply memo by Fed. Maritime Com-
Mission supporting mo to dismiss as to
Far East Conf,
Ord after hearing, motion to dismiss and
motion of Fed. Maritime Commission to
intervene is submitted. (Sweigert)
Filed order granting mo of Federal Mari
time Commission to intervene Counsel to
arrange a hearing time with the Clerk for
further argument, if not possible the
Court will fix a time. (Copies mailed)
(Sweigert)
Miled answer of Fed. Maritime Commis
sion, intervener
Filed memo of Fed. Maritime Commis.
sion, Deft.-Intervener on further argu
ment,
Miled suppl. memo by deft. Pacifie West-
bound Conf, et al. on question raised by
Court.
Filed memo by deft. Far Kast Conf, sup-
porting mo to dismiss.
Miled memo by Pt, on further argument
of mo to dismiss,
Ord. aft hrg, mo to dismiss stand submit-
ted. (Sweigert)
Filed memorandum of opinion, (Motions
to dismiss are granted; moving parties to
present orders.) (Copies mailed) — (Swei-
ert)
Entered order granting mos to dismiss
and Judgment of dismissal, filed June 26,
1963, dismissing action, (Harris)
eee
DATE FILINGS—-PROCEEDINGS
Jul 18 36 Filed notice of appeal by plaintiff.
18 37 Filed appeal bond, sum of $250.00 by
pitff.
18 38 Filed designation of record on appeal and
statement of points to be relied upon on
appeal.
19 Mailed notice of notice of appeal to coun-
sel of record.
29 39 Filed designation by defts. of additional
portions of record on appeal.
Aug 16 40 Filed Reporter’s. Trans. mo to disiniss &
mo of Fed. Maritime Commiss. for leave
to intervene as deft., Apr. 8, 1963.
22 41 Filed stip. & order for withdrawal of ree-
ords for duplication. (Weigel)
22 42 Filed Reporter’s. Trans. Fur hrg. on mo
to dismiss, Jun. 11, 1963.
26 «43 Filed order ext. time to file record &
docket appeal, to Wednesday, Sept. 25,
1963. (Sweigert)
[fol. 6] [File endorsement omitted ]
Arthur B. Dunne, Wallace R. Peck, James R. Baird, Jr.,
William H. Birnie, Dunne, Dunne & Phelps, 333 Mont-
gomery Street, San Francisco 4, California, Telephone:
YUkon 6-4812; Attorneys for Plaintiff, Carnation Company.
In THE Unitep States District Court
For THE Nortuern District or CALIFORNIA
SouTHERN Division
Civil Action File No. 41153
CARNATION Company, a corporation, Plaintiff,
vs.
Paciric WestBounp CONFERENCE, an unincorporated as-
sociation, Far Kast CONFERENCE and unincorporated
association ; the following corporations, individually and
as members of said associations (as hereinafter ap-
[fol.7] pears): N. V. StoomvaarT MaatscHappry
“NEpER Lanp”, KonInkuiske RotrerpaMscue Lioyp
N. V., SKIBSAKTIESELSKAPET ArIzoNA, SKIBSAKTIESELSKA-
PET ASTREA, SKIBSAKTIESELSKAPET Arusa, SKIBSAKTIE-
SELSKAPET NoORUEGA, SKIBSAKTIESELSKAPET Asaco, A/S
ATLANTICA, doing business as Java Paciric & HorcH
Lines—Joint SERVICE; SKIBSAKTIESELSKAPET Sanesrap,
SKIBSAKTIESELSKAPET Sotstap, SKIBSAKTIESELSKAPET S11-
JESTAD, DAMPSKIBSAKIESELSKAPET INTERNATIONAL, SKIB-
SAKTIESELSKAPET MANDEVILLE, SKIBSAKTIESELSKAPET Goop-
WILL, doing business as KLaveness Line—Jornt Srr-
VICE; DAMPSKIBSAKTIESELSKAPET JEANETTE SKINNER,
SKIBSAKTIESELSKAPET Paciric, SKIBSAKTIESELSKAPET
Marie Bakke, DAMPSKIBSAKTIESELSKAPET GoLpEN Garr,
DAMPSKIBSAKTIESELSKAPET LIsBETH, SKIBSAKTIESELSKAPET
OGEKA, HVALFANGSTAKTIESELSKAPET Superoy, doing busi-
ness as Knutsen Lins—Joint Service; SkIPsaKTIESEL-
SKAPET NORDHEIM, SKIPSAKTIESELSKAPET Vito, SKIPSAK-
TIESELSKAPET Kirkoy, SKIPSAKTIESELSKAPET SKAGEREK
(Dittey-Simonsen Lives), TransaTLantic STEAMSHIP
Company, Ltp., or GoTBENBURG, doing business as PacrFic
Ortent Express Line—Joint Service; AMERICAN Mat. }
Ling, Lp. ;Mirsusisui Suiprine Co., Lrp., Nippon Kisen
KalsHa, . (sometimes doing business as and known
as Nissan Paciric Line); Nitro SHosen Co., Lro.;
Paciric Far East Line, Inc.; Paciric Transport Lives,
Inc.; States STEAMSHIP ComPANy; T'RANSOCEAN TRANS-
PorT Corp. (sometimes doing business as Magsaysay
Liygs) ; Canapian Pacific Rartway Company; THe East
Asiatic Company, Lrp.; Compacnie Maritime Des
Cuarceurs Revunis; Orient Steam Navication Co., Lrp.;
P & O—Onrtent Livres; ELLeRMAN Lives, Limitep, ELLER-
MAN & Bucknauy STeEAmMsuiP Co, Limirep, THe Crry Liyz,
Limitep, Hatt Line, doing business as ELLermMan &
Bucknatt Associatep Lines—Jornt Service; Nissan
Kaisen Kaisa, Lrp., Tono Karun Kaisna, Lrtp., Inno
Karun Katsna, Lrp., MitsusisH1 Karun Kaisua, Ltp.,
Koxusar Karun Kaisua, Lrp., doing business as Koxv-
sar LinE—Jornt Service; THe Bank Line; Lykes Bros.
S. S. Co., Inc.; Mirsupisnr Karun Katsua, Lrp.; Orrent
Mip-EKast Lives; Prince Liye Lrp.; Unirep States Lines
Company; THe De La Rama Steamsuip Co., Inc., THE
Swepiso East Asia Co., Lrp., THe Ockan STEAMSHIP
Co., Ltp., THe Cuorna Mutua Steam Navigation Com-
PANY, Ltp., NEDERLANDSCHI STOOMVAART MAATSCHAPPIJ
“OcEeAan” N. V., doing business as De La Rama Lines—
Joint SERVICE; SKIBSAKTIESELSKAPET VARILD, SKIBSAK-
TIESELSKAPET Marina, AKTIESELSKABET GLITTRE, DAmp-
SKIBSINTFRESSENTSKABET GARONNE; SKIBSAKTIESELSKA-
PET SANGSTAD, SKIBSAKTIESELSKAPET SOLSTAD, SKIBSAK-
{fol. 8] TIESELSKAPET SILJESTAD, DAMPSKIBSAKTIESELSKA-
BET INTERNATIONAL, SKIBSAKTIESELSKAPET MANDEVILLE,
SKIBSAKTIESELSKAPET GOODWILL, AKTIESELSKABET STAND-
ARD, FEARNLEY & Kcers BreFrraGTNINGSFORRETNING A/S,
doing business as Fern-ViLtur Far East Lines—Ferarn-
LEY & Ecer and A. F. Kuavrness & Co. A/S; Skrpsak-
11
TIESELSKAPET [Gap1, AKTIESELSKAPET IVARANS Revert, A/S
Besco and A/S Lisr, doing business as Ivaraw Lines—
Far East Service—Jornt SERVICE; DAMPSKIBSSELSKABET
AF 1912, AKTIESELSKAB, AKTIESELSKABET DAMPSKIBSSEL-
SKABET SveNnpBorG, doing business as A. P. Motuer-
Maersk Line—Joint Service; A/S Den Norsk1 AFRIKA-
Oa AUSTRALIELINIE, A/S Tonspere, A/S Tankrart I,
A/S Tayxrart IV, A/S Tanxrart V, A/S Tanxrart
VI, doing business as WiLHELMSENS DAMPSKIBSAKTIESEL-
SKAB; AMERICAN PRESIDENT Lixzs, Lp.;-Compaanre De
TRANSPORTS Oceaniques; Damo Karun IXAISHA, Lrp.;
Istumian Linxzs, Inc.; Kawasaxt Kisen Katsua, Lrp.;
Iino Karun Kaisua, Lrp.; Maritime Company OF THE
Puiuiprines, Inc.; Mirsvur STEAMSHIP Company, Lrp.;
Nissan Kalisen Kaisua, Lrp.; Nippon Yusrn KaAIsHA
(also known as N. Y, K. Line); Osaka Suosen KalsHa,
Lrp.; Paciric Transport Lines, Inc.; Pumping Na-
TIONAL LINES; SHINNIHON STEAMSHIP Co., Lrp.; States
Marre Linzs, Inc. (also known as GLosaL BuLK Trans-
PoRT CorPoRATION) ; STATES MARINE Corporation ; States
Marine Corporation or Detaware; Uniren Puivippixe
Lines, Inc.; Waterman STEAMSHIP Corporation and
Yamasuita Kisen Kaisua: and also W. C. Gattoway
and JAMrEs A. DrenneEAN, Defendants.
CompLaint—Filed December 5, 1962
Complaint for Damages and Other Relief on Account
of Violation of the Antitrust Laws of the
United States
Comes now Carnation Company, a corporation, and com-
plaining of the defendants brings this civil action against
defendants based upon defendants’ violation of the antitrust
laws of the United States and for treble the amount of
[fol.2] damages suffered by it by reason of defendants’
violations of the antitrust laws of the United States, and
in this behalf shows as follows:
12
1. This action is brought for treble damages and arises
under the Act of Congress of July 2, 1890, e. 647, 27 Stat.
209 as amended (15 USC §§ 1-7, commonly known as the
Sherman Antitrust Act), and the Act of Congress of Oc-
tober 15, 1914, c. 323, 38 Stat. 730, as amended (15 USC
§§ 12-27 commonly known as the Clayton Act). The juris-
diction of this Court is invoked under the provisions of said
statutes and the laws of the United States in such cases
made and provided.
2. This action is brought against the defendants above
named and hereinafter identified. Statements herein in the
present tense refer to, and are made as of, all times herein
mentioned except when hereafter specific and particular
times are stated.
3. Each of the defendants, except as hereinafter stated,
maintains an office, transacts business, has an agent and/or
is found within the above named District and Division.
4. The evaporated milk manufactured, sold and shipped
by plaintiff, as hereinafter stated, regularly moves by com-
mon carrier by water from Pacific Coast ports of the United
States to the Philippine Islands in commerce and trade with
foreign nations. The defendants other than Pacific West-
bound Conference, Far East Conference, Dennean and Gal-
loway are herein sometimes referred to as the carrier de-
fendants. The business of the carrier defendants is the
business of providing transportation as carriers by water
in commerce with foreign nations. The price fixing combi-
nation and conspiracy and the price fixing hereinafter
averred was in respect of said business of said carrier de-
fendants and operated directly in and on and restrained
said business and on the transportation of evaporated milk
manufactured, sold and shipped as aforesaid by plaintiff,
and restrained commerce and trade with foreign nations.
[fol.10] 5. Plaintiff, Carnation Company, is a Delaware
corporation, licensed to do business and doing business in
the State of California and in the above District and Divi-
sion. It has its principal office in the State of California.
-
It is engaged in the business, among other things, of manu-
facturing and processing fluid milk into evaporated milk,
packing said evaporated milk and selling and shipping it in
trade and commerce with foreign nations. More particu-
larly plaintiff so sells said evaporated milk to buyers in
the Philippine Islands and so ships it from Pacific Coas‘
ports of the United States to the Philippine Islands and to
said buyers in the Philippine Islands by carriers by water
and by carrier defendants who served said trade and who
are members of the Pacific Westbound Conference. The
evaporated milk shipped by plaintiff as hereinafter averred
was so shipped and transported.
6. Defendants N. V. Stoomvaart Maatschappij “Neder-
land”, Koninklijke Rotterdamsche Lloyd N. V., Skibsak-
tieselskapet Arizona, Skibsaktieselskapet Astrea, Skibsak-
tieselskapet Aruba, Skibsaktieselskapet Noruega, Skib-
saktieselskapet Abaco and A/S Atlantica are corporations
associated together in business and doing business under
the name Java Pacific & Hoegh Lines—Joint Service. De-
fendants Skibsaktieselskapet Sangstad, Skibsaktieselskapet
Solstad, Skibsaktieselskapet Siljestad, Dampskibsaktiesel-
skabet International, Skibsaktieselskapet Mandeville and
Skibsaktieselskapet Goodwill are corporations associated
together in business and doing business under the name
Klaveness Line—Joint Service. Defendants Dampskibsak-
tieselskapet Jeanette Skinner, Skibsaktieselskapet Pacific,
Skibsaktieselskapet Marie Bakke, Dampskibsaktieselskapet
Golden Gate, Dampskibsaktieselskapet Lisbeth, Skibsak-
tieselskapet Ogeka and Hvalfangstaktieselskapet Suderoy
are corporations associated together in business and doing
business under the name Knutsen Line—Joint Service. De-
fendants Skipsaktieselskapet Nordheim, Skipsaktieselska-
pet Vito, Skipsaktieselskapet Kirkoy, Skipsaktieselskapet
(fol. 11] Skagerek (Ditley-Simonsen Lines) and Transat-
lantic Steamship Company, Ltd., of Gothenburg are corpo-
rations associated together in business and doing business
as Pacific Orient Express Line—Joint Service. Defendants
American Mai! Line, Ltd., Mitsubishi Shipping Co., Ltd.,
14
Nippon Kisen Kaisha, Ltd. (sometimes doing business as
and known as Nissan Pacifie Line), Nitto Shosen Co., Ltd.,
Pacific Far East Line, Inc., Pacifie Transport Lines, Inc.,
States Steamship Company, Transocean Transport Corp.
(sometimes doing business as Magsaysay Lines), Canadian
Pacific Railway Company, The Kast Asiatic Company, Ltd.,
Compagnie Maritime des Chargeurs Reunis, Orient Steam
Navigation Co., Ltd., and P. & O,—Orient Lines are cor-
porations. In and after January 1953 said defendants were
common carriers by water in foreign commerce and as such
provided transportation by water in such commerce from
the Pacifie Coast ports of the United States to the Far
East, and particularly Manila in the Philippine Islands,
for various commodities including evaporated milk,
7. Defendants Ellerman Lines, Limited, Ellerman &
Bucknall Steamship Co. Limited, The City Line, Limited,
and Hall Line, Limited, are corporations associated to-
gether in business and doing business as Ellerman & Buck-
nall Associated Lines—Joint Service. Defendants Nissan
Kaisen Kaisha, Ltd., Toho Kaiun Kaisha, Ltd., lino Kaiun
Kaisha, Ltd., Mitsubishi Kaiun Kaisha, Ltd., and Kokusai
Kaiun Kaisha, Ltd., are corporations associated together
in business and doing business as Kokusai Line—Joint
Service. Defendants The Bank Line, Lykes Bros. 8S. 8. Co.,
Inc., Mitsubishi Kaiun Kaisha, Ltd., Orient Mid-East Lines,
Prince Line Ltd. and United States Lines Company are
corporations, In and after January 1953 said defendants
were carriers by water from Atlantie Coast and Gulf of
Mexico ports of the United States to the Far East.
8. Defendants The De La Rama Steamship Co., Ine.,
The Swedish East Asia Co., Ltd., The Ocean Steamship
Co., Ltd., The China Mutual Steam Navigation Company,
Ltd. and Nederlandschi Stoomvaart Maatschappij
[fol. 12] “Oceaan” N. V. are corporations associated to-
gether in business and doing business as De La Rama Lines
—Joint Service, Defendants Skibsaktieselskapet Varild,
Skibsaktieselskapet Marina, Aktieselskabet Qlittre, Damp-
skibsinteressentskabet Garonne, Skibsaktieselskapet Sang-
—
15
stad, Skibsaktieselskapet Solstad, Skibsaktieselskapet Sil-
jestad, Dampskibsaktieselskabet international, Skibsaktie-
selskapet Mandeville, Skibsaktieselskapet Goodwill, Aktie-
selskabet Standard and Fearnley & Egers Bef ragtningsfor-
retning A/S are corporations associated together in busi-
ness and doing business as Fern-Ville Far Kast Lines-—
Fearnley & Eger and A, F. Klaveness & Co. A/S. Defen-
dants Skibsaktieselskapet Igadi, Aktieselskapet Ivarans
Rederi, A/S Besco and A/S Lise are corporations associ-
ated together in business and doing business as Ivaran
Lines—Far East Service—JointServiee,_Defendants
Dampskibsselskabet Af 1912, Aktieselskab and Aktiesel-
skabet Dampskibsselskabet Svendborg are corporations as-
sociated together in business and doing business as A. P.
Moller-Maersk Line—Joint Service. Defendants A/S Den
Norski Afrika-Og Australielinie, A/S Tonsberg, A/S Tank-
fart I, A/S Tankfart IV, A/S Tankfart V and A/S Tank-
fart VI are corporations associated together in business
and doing business as Wilhelmsens Dampskibsaktieselskab,
Defendants American President Lines, Ltd., Compagnie De
Transports Oceaniques, Daido Kaiun Kaisha, Ltd., Isthmian
Lines, Ine., Kawasaki Kisen Kaisha, Ltd. Iino Kaiun
Kaisha, Ltd., Maritime Company of the Philippines, Inc.,
Mitsui Steamship Company, Ltd., Nissan Kaisen Kaisha,
Ltd., Nippon Yusen Kaisha (also known as N. Y. K. Line),
Osaka Shosen Kaisha, Ltd., Pacific Transport Lines, Inc.,
Philippine National Lines, Shinnihon Steamship Co., Ltd.,
States Marine Lines, Inc. (also known as Global Bulk
Transport Corporation), States Marine Corporation, States
Marine Corporation of Delaware, United Philippine Lines,
Inc., Waterman Steamship Corporation and Yamashita
Kisen Kaisha are corporations. In and after January 1953
(fol. 13] said defendants were common earriers by water in
foreign commerce and as such provided transportation by
water in such commerce from the Atlantie Coast, Gulf of
Mexico and Pacifie Coast ports of the United States to the
Far Fast, and particularly Manila in the Philippine Islands,
for various commodities including evaporated milk.
16
9. Before January 1953 common carriers by water in
foreign commerce, providing water transportation as such
from Pacifie Coast ports of the United States and of Canada
to the Far East (including Manila in the Philippine Islands)
and as such carriers serving the trade from said ports of
the United States and Canada to the Far East, associated
themselves together in a conference and under and pursu-
ant to the terms of a written agreement known as Pacific
Westbound Conference Agreement No. 57 formed the defen.
dant voluntary association and conference, known as the
Pacific Westbound Conference (hereafter referred to as
PWC), for the purpose of acting as a group to regulate said
commerce and the transportation service of said trade and
particularly for the purpose of fixing, by tariffs by and
through said association and conference, the rates at which
the members of said association and conference would serve
said trade by transportation of commodities in said trade
and commerce. PWC is a conference only of carriers serv-
ing said trade. In and by said Agreement No. 57 it was pro-
vided that PWC should fix said rates and issue a tariff
thereof. Said agreement was filed for approval with, and
was approved by, the United States Shipping Board agree-
ably to the provisions of section 15 of the Shipping Act,
1916 and thereafter remained approved and in full foree and
effect. Only carriers serving said trade from Pacifie Coast
ports of the United States and of Canada to the Far East
are members of PWC. Thereafter the rates of the mem-
bers of defendant PWC for transportation of commodities
in said trade and commerce and from the Pacific Coast
ports of the United States to the Far East (Manila, Philip-
pine Islands, included), including the rates applicable to
(fol. 14] the transportation of evaporated milk, were fixed
by PWC acting agreeably to and under said Agreement No.
57, except as hereinafter averred.
10. In and after January 1953 the carrier defendants
named in paragraphs 6 and 8 were parties to said Agree-
ment No. 57 and members of defendant PWC. None of the
carrier defendants named in paragraph 6 above was or is a
ay ae i Sete EKG A RREEN ILL CI RINT rang ame
a
|
17
member of defendant Far East Conference. In and after
January 1953 defendant W. C. Galloway was Chairman of
defendant PWC.
11. Since before January 1953 the members of defendant
PWC were the only common carriers by water providing
general cargo and regular berth service and transportation
service on substantially regular routes and with regular
sailings, from Pacifie Coast ports of the United States to
the Far Kast.
12. Since before January 1953 defendant PWC has main-
tained its headquarters and its office and has conducted its
business at San Francisco, California. At no time was it a
carrier or a common carrier or in the business of forward-
ing or furnishing wharfage, dock, warehouse or other termi-
nal facilities in connection with any common carrier by
water, Its business was and is, among other things, that of
investigating and accumulating data with respect to the
business of transportation by water from Pacific Coast
ports of the United States to the Far East, ineluding rates
to be charged for such service and of fixing rates for such
service by its members.
13. Before January 1953 carriers by water providing
transportation service from the Atlantic Coast and Gulf of
Mexico ports of the United States to the Far East (inelud-
ing Manila in the Philippine Islands) and as such carriers
serving the trade from said ports of the United States to
the Far East, associated themselves together in a confer-
ence and formed the defendant voluntary association and
conference known as Far East Conference (hereafter re-
ferred to as FEC) for the purpose, among other things, of
fixing transportation rates for transportation in said trade
by its members who served said trade. Only carriers serv-
ing said trade from the Atlantic Coast and Gulf of Mexico
(fol. 15] ports of the United States to the Far East are
members of said association and conference and FEC is a
conference only of carriers serving said trade. In and
after January 1953 the carrier defendents named in para-
. Ta aa a ee Ye
— ee
graph 7 and 8 above were members of said association and
conference, and none of the defendants named in paragraph
7 above was a member of defendant PWC. Defendant
James A. Dennean is Chairman of defendant FEC.
18
14. At no time was defendant FEC a carrier or a com-
mon carrier or in the business of forwarding or furnishing
wharfage, dock, warehouse-or-other terminal _facilities_in__
connection with any common carrier by water. Its business
was and is that, among other things, of acting for its mem-
bers in connection with the fixing of rates for transporta-
tion of commodities, by carriers by water from Atlantic
Coast and Gulf of Mexico ports of the United States to the
Far East as herein stated and at no time was it lawfully
authorized or empowered to fix any rates from Pacific
Coast ports of the United States nor was it agreed that it
should have any part in fixing said rates except as averred
in paragraph 18 below.
15. The carrier defendants are sued herein individually
and as members of the association or associations of which
they were members as herein stated.
16. The business and trade in commodities from the
Atlantic Coast and Gulf of Mexico ports of the United
States to the Far East is naturally competitive with the
business and trade in commodities from the Pacific Coast
ports of the United States to the Far East and PWC and
FEC are conferences of carriers serving said different
trades that are naturally competitive and would in fact
be competitive and the transportation services for said dif-
ferent trades would be competitive and is competitive ex-
cept as restrained as herein stated.
17. In November 1952 defendants, who were members of
PWC, and defendants, who were members of FEC, entered
[fol. 16] into an agreement in writing, known as Agreement
No. 8200, wherein and whereby it was provided that said
defendant members of defendant PWC and of_ defendant
FEC should meet and make rules for joint action by said
defendants which should include “the provision of ma-
19
chinery for the change of any rates, rules and regulations”,
but wherein and whereby it was provided that defendant
PWC retained the right of independent action in respect of
rates and that if defendant PWC “should determine that
conditions affecting its operations require” a “change in
its tariffs” it might notify defendant FEC of such proposed
change, specifying the change, and thereafter and after the
expiration of a maximum time of 72 hours after such notice
defendant PWC “inay make such changes”. In and by said
Agreement No. 8200 it was further provided that said agree-
ment should not apply to 12 named commodities when
shipped in bulk, referred to as “excepted commodities”.
Evaporated milk was not specified as one of said “excepted
commodities”. Said Agreement No. 8200 was filed for ap-
proval by, and was approved by, the Federal Maritime
Board.
18. The provisions of said Agreements No. 57 and No.
8200 notwithstanding and contrary thereto, in January 1953
defendants met at Santa Barbara, California, and then and
there secretly and unlawfully associated themselves to-
gether and secretly and unlawfully combined, conspired
and agreed to restrain commerce with foreign nations and
to act and to fix rates for transportation of commodities,
by the defendant carriers who were members of defendant
PWC, from Pacifie Coast ports of the United States to the
Far East, not as provided in said Agreement No. 57 and not
as provided in said Agreement No. 8200, and thereafter,
said Agreements No. 57 and No. 8200 being still in effect,
met and secretly and unlawfully renewed and continued
said association, combination, conspiracy and agreement,
and so associated together and so combining, conspiring and
agreeing, agreed as follows:
(a) That neither defendant PWC nor defendant FEC nor
(fol. 17] any member of either of said Conferences should
disclose to any shipper information regarding rate changes
and/or the position of either Conference or of any member
of either Conference regarding rate requests, and agreed
to a written “Joint Memorandum of Decisions” wherein
20
and whereby it was provided “that unauthorized disclosure
to shippers of information regarding rate changes and/or
the position of an individual Conference or any Member
thereof, regarding rate requests is contrary to the spirit
of the Joint Agreement” ;
(b) That defendants (and not PWC alone agreeably to
i Yo..57) would fix.and agree upon-the-rates——_}-
for transportation of commodities by water by members
of defendant PWC in said trade from Pacific Coast ports
of the United States to the Far East (the Philippine Islands
included) and that the rates so fixed and agreed upon
should then be given out and to shippers by defendant
PWC falsely pretending to act as such and under said
Agreement No. 57 and should be adhered to and charged
by defendants providing transportation by water from
Pacific Coast ports of the United States to the Far Kast
and the Philippine Islands;
(c) That defendant PWC, contrary to the provisions of
said Agreement No. 57 and said Agreement No. 8200, would
make no change in any rate established by it or fixed as
aforesaid and to be charged by its members for transporta-
tion of commodities by water from Pacific Coast ports of
the United States to the Far East (Manila, Philippine
Islands included), without the concurrence of defendant
FEC, except a rate for a commodity included in a list
established by defendants acting pursuant to said secret
and unlawful association, combination, conspiracy and
agreement and known as a “list of initiative items” in re-
spect of which defendant PWC might establish rates with-
out the concurrence of defendant FEC; and
(d) That certain specified commodities should be on the
said list of initiative items.
19. The above referred to list of initiative items did not
[fol. 18] include condensed and/or evaporated milk until
“Item No. 1350—Milk, condensed and evaporated” was
included in said list by joint action of defendants in May
1961, as hereinafter averred.
21
20. The said association, combination and conspiracy
referred to in paragraph 18 above never submitted to the
jurisdiction of the Federal Maritime Board or its successor
the Federal Maritime Commission and was never a carrier
or a common carrier, by water or otherwise, and never car-
ried on the business of forwarding or furnishing wharfage,
__ dock, warehouse, or other terminal-faeilities-in-eonnection———#
with a common carrier by water. There was never filed
with said Board or Commission nor filed with said Board
or Commission for approval, nor approved by it, said
agreement averred in paragraph 18 above, or a true copy
thereof, or any true or complete or any memorandum there-
of.
21. Defendants, associated together and combining, con-
spiring and agreeing as hereinabove averred and while said
Agreements No. 57 and No. 8200 were in effect, did the
things they had combined, conspired and agreed to do and
the things hereinafter averred to have been done by them
and for that purpose and for the purpose of carrying out
the association, combination, conspiracy and agreement re-
ferred to in paragraph 18 above agreed upon and fixed
rates for transportation by water from Pacific Coast ports
of the United States to the Far East, and in so acting
and issuing rates for evaporated milk as hereinafter
alleged, acted by and through defendant PWC at San Fran-
cisco, California.
22. In 1951 PWC, acting agreeably to said Agreement
No, 57 fixed and established the rates to be charged by its
members for transportation of evaporated milk by water
\ from the Pacific Coast ports of the United States to the
Philippine Islands. Said rates were adhered to and charged
by the members of PWC except as hereinafter averred.
Before May 1957 defendants, acting as alleged in para-
graph 18 above, agreed that the rates for transportation
by water by members of defendant PWC from Pacific
[fol. 19] Coast ports of the United States to the Philippine
Islands for evaporated milk should be increased by $2.50
per ton and that defendant PWC, pretending to act agree-
22
ably to the provisions of said Agreement No. 57, should
state and circulate said increase as effective May 1, 1957.
23. Before May 1, 1957, and effective as of May 1, 1957, |
PWC did, in fact, so announce and circulate said increase
in said rates, and over plaintiff’s protest defendants put
into effect and applied said increased rates. In so doing
defendants falsely pretended that PWC was-acting taw-————
fully and agreeably to said Agreement No. 57. In truth
and in fact, in so doing, defendants were acting agreeably
and pursuant to said unluwful combination, conspiracy
and agreement averred in paragraph 18 above and the said
agreement of defendants averred in paragraph 22 above.
Said increased rates were thereafter charged and collected
from plaintiff by the members of PWC for transportation
by water of evaporated milk from the Pacific Coast ports
of the United States to the Philippine Islands, until said
rates were reduced as hereinafter stated.
24. In November 1957, plaintiff, in order to help it in
meeting European competition in the sale of evaporated
milk in the Philippine Islands and upon that ground which
was then stated to defendant PWC, requested of defendant
PWC that it reduce said increased rates on evaporated
milk by $2.50 per ton and reduce them to the rates estab-
lished and in effect before May 1, 1957.
25. Acting upon said request of plaintiff and on Febru-
ary 19, 1958, defendant PWC determined that said request
should be granted and that the said rates on evaporated
milk should be reduced as requested subject, however, to
the concurrence of defendant FEC and thereupon requested
of defendant FEC that it concur in said reduction. Defen-
dant FEC declined to concur in said reduction so requested
by defendant PWC and defendant PWC thereupon, and
agreeably to the association, combination, conspiracy and
agreement hereinabove averred in paragraph 18, withdrew
[fol. 20] its said request for concurrence and no reduction
in said rates was made except as hereinafter stated.
23
26. Thereafter defendant PWC, by writing, advised
plaintiff that plaintiff’s said request for reduction of the
rates on evaporated milk was refused end represented to
plaintiff as follows: “The members of the Pacific West-
bound Conference have given long and careful study to
your request that the rate for canned milk be reduced by
$2.50 per ton. * * * our member lines were initially dis-
poset to grant a reduction in the rate * * * This position
has, however, been again reviewed and the required ma-
jority of the lines are now of the view that a reduction
in the ocean freight rate would not materially affect the
competitive position of American versus European sup-
plier. * * * This entire matter has nevertheless again
been carefully reviewed and the members of this Confer-
ence have agreed that at this time no further downward
adjustment can be made in the freight rate applicable to
canned, condensed and evaporated milk in the United States
to Orient trade.” Said statement and representation was
false, and was then known to defendant PWC to be false,
and defendant PWC then knew, and it was the’ fact, that
plaintiff’s said request for reduction of rates, as aforesaid,
was declined by reason of the refusal of defendant FEC
to concur in the said reduction. Said statement and rep-
resentation was made agreeably to the association, com-
bination, conspiracy and agreement averred in paragraph
18, and to that part thereof that “information regarding
rate changes and/or the position of an individual Confer-
ence or any Member thereof regarding rate requests” not
be disclosed to shippers.
27. Plaintiff had no knowledge of said secret association,
combination, conspiracy or agreement or of the reason for
said increase in the said rates on evaporated milk or of
the true reason why its request for reduction of the said
rates was declined, or of any facts which might have led
to the discovery of those facts until it first became aware
of the facts in May 1961 through disclosure made in May
1961 in the course of a proceeding being conducted by the
(fol. 21] Federal Maritime Board and its successor and
could not have discovered the same earlier by reason of the
——
24
agreement of defendants that the said facts be kept secret
and by reason of the fact that defendants did in fact keep
them secret from shippers as they had agreed to do, and
theretofore plaintiff had in fact relied upon the representa-
tions made to it by defendant PWC.
98. The said rates on evaporated milk fixed and increased
; ° : 9
In May 1961, defendants agreed that condensed and evapo-
rated milk be included on the list of initiative items herein-
above referred to, and thereupon condensed and evaporated
milk were so included as “Item No. 1350 Milk, Condensed
and Evaporated”. Thereafter effective on May 7, 1962 de-
fendant PWC reduced the rates on evaporated milk for
transportation by water from the Pacific Coast ports of
the United States to the Philippine Islands by $2.50 per ton
and to the rates which had applied prior to May 1, 1957
and after May 7, 1962 the said reduced rates were charged
and collected for said transportation.
29, From before May 1, 1957, plaintiff sold to buyers in
the Philippine Islands and shipped to Manila in the Philip-
pine Islands from Pacific Coast ports of the United States
evaporated milk and did so by defendant carriers who were
members of defendant PWC. Plaintiff was forced to so
ship by said defendant carriers by reason of the fact that
said defendant carriers were the only carriers providing
the type of transportation herein alleged to have been pro-
vided by them and were the only carriers by whom plain-
tiff, in the course of its said business, could ship to the
Philippine Islands. For said shipments plaintiff was
charged, and was forced to and did pay, the rates for trans-
portation of evaporated milk fixed and made effective as
hereinabove alleged. Plaintiff did not increase the price at
which it sold its said evaporated milk in the Philippine
Islands by reason of the said increased ocean freight rates
which it was required to and did pay.
[fol. 22] 30. By reason of the premises and as a result of
the aforesaid unlawful association, combination, conspiracy
a
25
and agreement in violation of the antitrust laws‘of the
United States and the aforeaverred violations by the de-
fendants of the antitrust laws of the United States and the
aforesaid exacting from plaintiff the aforesaid increase in
rates on evaporated milk plaintiff has been injured in its
business and property in the amount of Three Hundred
Forty-three Thousand Two Hundred Seventy-si
70/100 Dollars ($343,276.70). It has been necessary for
plaintiff to employ, and it has employed, attorneys to bring
and prosecute this action under the antitrust laws of the
United States.
Wherefore plaintiff prays:
1. That the association, combination, conspiracy and
agreement of defendants, and their conduct and acts in
pursuance thereof be decreed violations of*the antitrust
laws of the United States; and
2. That plaintiff do have and recover from defendants
its damages in the sum of Three Hundred Forty-three
Thousand Two Hundred Seventy-six and 70/100 Dollars
($343,276.70) trebled to One Million Twenty-nine Thousand
Kight Hundred Thirty and 10/100 Dollars ($1,029,830.10)
agreeably to the antitrust laws of the United States; plus
3. Plaintiff’s cost of suit, including a reasonable attor-
ney’s fee; and have
4. Such other, further and different relief as, the prem-
ises considered, is proper.
Arthur B. Dunne, Wallace R. Peck, James R. Baird,
Jr., William H. Birnie, Dunne, Dunne & Phelps,
By Arthur B. Dunne, Attorneys for Plaintiff, Car-
nation Company.
26
[fol. 23] {File endorsement omitted]
Edward D. Ransom, William H. King, Lillick, Geary,
Wheat, Adams & Charles, 311 California Street, San Fran-
cisco 4, California, GArfield 1-4600,
Herman Goldman, Elkan Turk, Elkan Turk, Jr., Sol
LD roe bh ah Ww
York 5, New York,
Attorneys for Defendants, Members and former Members
of the Far East Conference.
Ly tue Unrrep Srares District Court
For tue Norruern District or CAuirorNiA
Soutuern Division
' Civil No. 41153
CaRNATION CoMPANy, a corporation, Plaintiff,
Vs.
Paciric WrestpouNpD CoNnFERENCE, an unincorporated associa-
tion, Far East Conrerence, an unincorporated associa-
tion, et al., Defendants.
Morton vo Dismiss—Filed March 1, 1963
The defendants, members and former members of the
Far East Conference who raise no question regarding the
validity of the service of process upon them, and who are
named in the schedule annexed hereto, move the Court
to dismiss the action on the grounds;
(1) That the complaint herein fails to state a claim
upon which relief can be granted, in that the complaint
charges that the acts therein alleged constitute viola-
tions of the antitrust laws, whereas the acts alleged in
27
the complaint constitute charges of violations of the
[fol. 24] provisions of the Shipping Act, 1916, as
amended, which, to the extent of said acts and charges,
supersedes the antitrust laws mentioned and referred
to in the complaint and the remedy for said acts and
charges is that afforded by the Shipping Act, 1916,
as amended; and
(2) That this Court is without jurisdiction of the
subject matter
(a) in that agreements between common carriers by
water and conferences of common carriers by water in
foreign commerce in respect of competition and, co-.
operative arrangements and the practices adopted by
such carriers in connection with rates established by
them pursuant to such agreement between common
carriers by water and/or conferences of such carriers
in the foreign commerce are within the exclusive juris-
diction of the Federal Maritime Commission under the
Shipping Act, 1916, as amended; and
(b) in that the alleged acts of the defendants set
forth in the complaint are alleged to have occurred
in respect of matters subject to the jurisdiction, super-
Vision and regulation of the Federal Maritime Commis-
sion, which is authorized by the Shipping Act, 1916, as
amended, to afford complete remedy by means of in-
vestigation, decision and appropriate order: and
(3) That there is pending a quasi-judicial proceeding
before the Federal Maritime Commission in which the
plaintiff herein has intervened, adduced evidence, cross-
[fol. 25] examined witnesses, and submitted briefs, and
in which substantially the same issues tendered by the
complaint herein will be decided by the governmental
agency having primary jurisdiction of the subject mat-
ter, whose decision will be subject to judicial review
in an appropriate United States Court of Appeals,
28
The motion is based upon the attached Memorandum in
Support and upon all of the pleadings herein.
Dated: This 28th day of February, 1963.
Lillick, Geary, Wheat, Adams & Charles, Edward D.
Ransom.
Herman Goldman, Elke irk, Elkan Turk, Jr. Sot D-—
Bromberg, Of Counsel, 120 Broadway, New York 5, N. Y.
[fol. 26]
ATTACHMENT TO MorTIoNn
DEFENDANTS ON Wuosk Benaur Tats Motion Is Mave
Ellerman Lines, Limited, Ellerman & Bucknall Steamship
Co., Limited, The City Line, Limited and Hall Line, Limited,
doing business as Ellerman & Bucknall Associated Lines—
Joint Service; Lykes Bros. S. S. Co., Inc.; Mitsubishi Kaiun
Kaisha, Ltd.; Orient Mid-East Lines; Prince Line, Ltd. ;
United States Lines Company; The De La Rama Steamship
Co., Inc., The Swedish East Asia Co., Ltd., The Ocean
Steamship Co., Ltd., the China Mutual Steam Navigation
Company, Ltd. and Nederlandschi Stoomvaart Maat-
schappij “Oceaan” N.V. doing business as De La Rama
Lines—Joint Service; Skibsaktieselskapet Varild, Skid-
saktieselskapet Marina, Aktieselskabet Glittre, Dampskib-
sinteressentskabet Garonne, Skibsaktieselskapet Sangstad,
Skibsaktieselskapet Solstad, Skibsaktieselskapet Siljestad,
Dampskibsaktieselskabet International, Skibsaktieselskapet
Mandeville, Skibsaktieselskapet Goodwill, Aktieselskabet
Standard and Fearnley & Egers Befragtningsforretning
A/S, doing business as Fern-Ville Far Kast Lines—Fearn-
ley & Eger and A. F. Klaveness & Co., A/S; Skibsaktiesel-
skapet Igadi, Aktieselskapet Ivarans Rederi, A/S Besco,
and A/S Lise, doing business as Ivaran Lines—Far East
Service—Joint Service; Dampskibsselskabet Af 1912, Ak-
tieselskab and Aktieselskabet Dampskibsselskabet Svend-
borg, doing business as A. P. Moller-Maersk Line—Joint
—
Service; A/S Den Norski Afrika-Og Australielinie, A/S
Tonsberg, A/S Tankfart I, A/S Tankfart IV, A/S Tank-
fart V, A/S Tankfart VI, doing business as Wilhelmsens
Dampskibsaktieselskab; American President Lines, Ltd.;
Daido Kaiun Kaisha, Ltd.; Isthmian Lines, Inc.; Kawasaki
Kisen Kaisha, Ltd.; lino Kaiun Kaisha, Ltd.; Maritime
Company of Philippines, Inc.; Mitsui Steamship Company,
Ltd.; Nissan Kaisen Kaisha, Ltd.; Nippon Yusen Kaisha
(also known as N.Y.K. Line); Osaka Shosen Kaisha, Ltd.;
Pacific Transport Lines, Ine.; Philippine National Lines;
Shinnihon Steamship Co., Ltd.; States Marine Lines, Inc.
(fol. 27] (also known as Global Bulk Transport Corpora-
tion) ; States Marine Corporation; States Marine Corpora-
tion of Delaware; United Philippine Lines, Ine.; Water-
man Steamship Corporation; Yamashita Kisen Kaisha;
and The Far East Conference.
29
Notice or Motion To Dismiss Proceepines
Please Take Notice that the undersigned will bring the
above motion on for hearing before the Law and Motion
Department of the above-entitled Court on the 11th day of
March, 1963, at 10:00 o’clock a.m. or as soon thereafter
as counsel can be heard.
Dated at San Francisco, California, the 1st day of March,
1963.
Edward D. Ransom, Lillick, Geary, Wheat, Adams &
Charles, Herman Goldman, Elkan Turk, Jr., Of
Counsel, Attorneys for Defendant Far East Con-
ference, et al.
30
[{fol. 28] [File endorsement omitted]
Edward D. Ransom, Lillick, Geary, Wheat, Adams &
Charles, 311 California Street, San Francisco 4, California,
GArfield 1-4600, Attorneys for Defendants as Named Below.
In tHe Unrrep States District Court
For tur NortTHern District oF CALIFORNIA
SoutTHerN Drvision
Civil No. 41153
Carnation Company, a corporation, Plaintiff,
vs.
Pactric WestBounp ConFERENCE, an unincorporated associa-
tion, Far East Conrerence, an unincorporated associa-
tion, et al., Defendants.
Motion to Dismiss—Filed March 1, 1963
Defendants named below pursuant to the Rules of Civil
Practice of this Honorable Court and the Federal Rules of
Civil Procedure move this Court to dismiss the complaint
herein on the ground that the Shipping Act, 1916, as
amended, 46 U.S.C., Seetions SOL-S40, provides the exelu-
sive remedy for each and every wrong alleged by said com-
plaint and that, as a consequence, this Court is without
jurisdiction to proceed as the matter is subject to the exelu-
sive primary jurisdiction of the Federal Maritime Commis-
sion.
The motion is based upon the attached Memorandum in
Support and upon all of the pleadings herein.
The defendants on whose behalf this motion is brought
are: Pacific Westbound Conference, W. C. Galloway and
the following carriers individually and as members of the
{fol. 29] Pacifie Westbound Conference: N.V. Stoomvaart
—
Maatschappij “Nederland,” Koninklijke Rotterdamsche
Lloyd N.V., Skibsaktieselskapet Arizona, Skibsaktiesel-
skapet Astrea, Skibsaktieselskapet Aruba, Skibsaktiesel-
skapet Noruega, Skibsaktieselskapet Abaco and A/S Atlan-
tica doing business under the name Java Pacific & Hoegh
Lines—Joint Service; Skibsaktieselskapet Sangstad, Skib-
saktieselskapet Solstad, Skibsaktieselskapet Siljestad,
Vampskibsaktieselskabet International, Skibsaktieselska pet
Mandeville and Skibsaktieselskapet Goodwill doing business
under the name of Klaveness Line—Joint Service: Damps-
i kibsaktieselskapet Jeanette Skinner, Skibsaktieselskapet
Pacific, Skibsaktieselskapet Marie Bakke, Dampskibsaktie-
selskapet Golden Gate, Dampskibsaktieselskapet Lisbeth,
Skibsaktieselskapet Ogeka and Hvalfangstaktieselskapet
Suderoy doing business under the name Knutsen Line—
Joint Service; Skipsaktieselskapet Nordheim, Skipsaktie-
selskapet Vito, Skipsaktieselskapet Kirkoy, Skipsaktiesel-
skapet Skagerek (Ditley-Simonsen Lines) and Transatlan-
tie Steamship Company, Ltd. of Gothenburg doing business
as Pacifie Orient Express Line—Joint Service; American
Mail Line, Ltd.; Mitsubishi Shipping Co., Ltd.; Nippon
Kisen Kaisha, Ltd. (sometimes doing business as and known
as Nissan Pacifie Line); Nitto Shosen Co., Ltd., Pacific
Far East Line, Ine.; Pacific Transport Lines, Inc.; States
Steamship Company; Transocean Transport Corp. (some-
times doing business as Magsaysay Lines): Orient Steam
Navigation Co., Ltd.; PRO—Orient Lines; The De La Rama
Steamship Co., Inc., The Swedish East Asia Co., Ltd.. The
Ocean Steamship Co., Ltd., The China Mutual Steam Navi.
gation Company, Ltd., and Nederlandschi Stoomvaart Maat-
schappij "Oceaan” N.V, doing business as De La Rama Lines
—Joint Service; Skibsaktieselskapet Varild, Skibsaktiesel-
skapet Marina, Aktieselskapet Glittre, Dampskibsinteres-
sentskabet Garoone, Skibsaktieselskapet Sangstad, Skibs-
aktieselskapet Solstad, Skibsaktieselskapet Siljestad,
Dampskibsaktieselskapet International, Skibsaktieselskapet
[fol. 30] Mandeville, Skibsaktieselskapet Goodwill, Aktiesel-
skabet Standard and Fearnley & Egers Befragtningsfor-
retning A/S doing business as Fern-Ville Far East Lines
31
: |
—Fearnley & Eger and A. F. Klaveness & Co. A/S; Skibs-
aktieselskapet Igadi, Aktieselskapet Ivarans Rederi, A/S
Besco and A/S Lise doing business as Ivaran Lines—Far
East Service—Joint Service; Dampskibsselskabet Af 1912,
Aktieselskab and Aktieselskapet Dampskibsselskabet Svend-
borg doing business as A. P. Moller-Maersk Line—Joint
Service; A/S Den Norski Afrika-Og Australielinie, A/S
Tonsberg, A/S Tankfart I, A/S Tankfart IV, A/S Tankfart
V and A/S Tankfart VI doing business as Wilhelmsens
»mpskibsaktieselskab; American President Lines, Ltd.;
Vaido Kaiun Kaisha, Ltd.; Isthmian Lines, Inc.; Kawasaki
Kisen Kaisha, Ltd.; Iino Kaiun Kaisha, Ltd.; Maritime
Company of the Philippines, Inc.; Mitsui Steamship Com-
pany, Ltd.; Nissan Kaisen Kaisha, Ltd.; Nippon Yusen
Kaisha (also known as N.Y.K. Line) ; Osaka Shosen Kaisha,
Ltd.; Pacific Transport Lines, Ine.; Philippine National
Lines; Shinnihon Steamship Co., Ltd.; States Marine Lines,
Ine. (also known as Global Bulk Transport Corporation) ;
States Marine Corporation; States Marine Corporation of
Delaware; United Philippine Lines, Inc.; Waterman Steam-
ship Corporation and Yamashita Kisen Kaisha.
Dated: This lst day of March, 1963.
Edward D. Ransom, Lillick, Geary, Wheat, Adams &
Charles, Attorneys for Defendants, Pacific West-
bound Conference, et al.
Notice or Motion to Dismiss PROCEEDINGS
Please Take Notice that the undersigned will bring the
above motion on for hearing before the Law and Motion
Department of the above entitled Court on the 11th day
[fol. 31] of March, 1963, at 10:00 o’clock a.m. or as soon
thereafter as counsel can be heard.
Dated at San Francisco, California, the 1st day of March,
1963.
Edward D. Ransom, Lillick, Geary, Wheat, Adams &
Charles, Attorneys for Defendants, Pacific West-
bound Conference, et al.
iin
[fol. 32] [File endorsement omitted]
In tHe Unirep Srates District Court
For tue Nortuern Districr OF CALIFORNIA
Soutuern Division
Civil Action No. 41153
Carnation Company, a corporation, Plaintiff,
v.
Paciric Westsounp CONFERENCE, an unincorporated
association, et al., Defendants.
Motion To INTERVENE AS Derenpant—Filed March 1, 1963
The Federal Maritime Commission moves this honorable
Court for leave to intervene herein pursuant to Rule 24 of
the Federal Rules of Civil Procedure as a defendant in this
proceeding for the purpose of moving this Court to dismiss
the complaint herein on the grounds stated in the motion to
dismiss submitted herewith.
The grounds of this motion are set forth in the attached
memorandum.
Dated this 1st day of March, 1963.
James L. Pimper, General Counsel, Robert E.
Mitchell, Deputy General Counsel, Robert B. Hood,
Jr., Attorney Federal Maritime Commission, By
Robert B. Hood, Jr., Attorneys for Defendant-
Intervener, Federal Maritime Commission.
34
[fol. 33]
Notice or Motion
To:
Arthur B. Dunne, Esq., Attorney for Plaintiff, Dunne,
_ Dunne & Phelps, 333 Montgomery Street, San Francisco 4,
California.
Please take notice, that the undersigned will bring the
above motion on for hearing before this Court at Room ,
United States Court House, Seventh and Mission Streets,
San Francisco, California on the 11th day of March, 1963,
at 10:00 o’clock in the forenoon of that day or as soon there-
after as counsel can be heard.
Signed: Robert B. Hood, Jr., Attorney for Defen-
dant-Intervener, Federal Maritime Commission,
Washington 25, D. C.
[fol. 34] [File endorsement omitted]
In tHe Unitrep States District Court
For THE NortHERN District oF CALIFORNIA
SoutTHERN Division
Civil Action No. 41153
CarnaTION CoMPANy, a corporation, Plaintiff,
v.
Pactric WESTBOUND CONFERENCE, an unincorporated
association, et al., Defendants,
and
THe FeperaL Maritime Commission,
Defendant-Intervener.
Motion To Dismiss—Filed March 1, 1963
The Federal Maritime Commission, defendant-intervener,
moves this Court to dismiss the complaint herein on the
_————
35
ground that the Shipping Act, 1916, (46 U.S.C. 801 et seq.)
provides the exclusive remedy for the wrongs alleged in the
complaint and therefore this honorable Court is without
jurisdiction in this matter.
The arguments and authorities in support of this motion
are set forth in the attached memorandum.
Dated this 1st day of March, 1963.
James L. Pimper, General Counsel, Robert E.
Mitchell, Deputy General Counsel, Robert B. Hood,
Jr., Attorney, Federal Maritime Commission, By
Robert B. Hood, Jr., Attorneys for Defendant-
Intervener, Federal Maritime Commission.
[fol. 35]
Notice or Motion
To:
Arthur B. Dunne, Esq., Attorney for Plaintiff, Dunne,
Dunne & Phelps, 333 Montgomery Street, San Francisco 4,
California.
Please take notice, that the undersigned will bring the
above motion on for hearing before this Court at Room,
United States Court House, Seventh and Mission Streets,
San Francisco, California on the 11th day of March, 1963,
at 10 o’clock in the forenoon of that day or as soon there-
after as counsel can be heard.
Signed: Robert B. Hood, Jr., Attorney for Defen-
dant-Intervener, Federal Maritime Commission,
Washington 25, D. C.
— Seated
36 }
[fol. 36] [File endorsement omitted]
In tHe Unirep States District Court
For tHE NortHern District or CALIFORNIA
SoutTHerN Drvision
Civil Action No. 41153
Carnation Company, a corporation, Plaintiff,
Vv.
Paciric WEsTBoOUND CONFERENCE, an unincorporated
association, et al., Defendants,
and
Tue FeperaL Maritime ComMIssION,
Defendant-Intervener.
INTERVENER’s ANSwER—Lodged March 1, 1963
and Filed April 30, 1963
The Federal Maritime Commission, defendant intervener,
has pending before it an evidentiary investigatory proceed-
ing entitled Docket 872, which involves substantially the
same issues and defendants as in the complaint on file in this
court. For defendant intervener either te admit or to deny
the factual allegations of the complaint might be construed
as, in effect, pre-judging its own proceeding. Defendant
intervener’s sole purpose in participating in this proceed-
ing is to move the court to dismiss the complaint because
the exclusive primary jurisdiction of the matters alleged in
the complaint are in the Federal Maritime Commission.
[fol. 37] To the extent that the rules of pleading require
an assumption of the admission or denial of the allega-
—
37
tions of the complaint for purposes of a motion to dismiss
on jurisdictional grounds, such assumption is made.
Dated this day of February, 1963.
James L. Pimper, General Counsel, Robert E.
Mitchell, Deputy General Counsel, Robert B. Hood,
Jr., Attorney, Federal Maritime Commission, By
Robert B. Hood, Jr., Attorneys for Defendant-
Intervener, Federal Maritime Commission.
[fol. 38]
AFFIDAVIT oF THOMAS Lisi, Secretary,
FeperaL Maritime Commission
District of Columbia gs.
Thomas Lisi, being first duly sworn, deposes and says:
1. I am the Secretary of the Federal Maritime Commis-
sion and as such am acquainted with the files and records
of the Federal Maritime Commission and proceedings
brought before that Commission. By order of October 26,
1959 of the Federal Maritime Board, predecessor agency to
the Federal Maritime Commission, an investigatory pro-
ceeding was instituted to ascertain whether FMB Agreement
No. 8200 between the member lines of the Far East Confer-
ence and the members lines of the Pacific Westbound Con-
ference should continue to be approved, whether the parties
have entered into agreements outside Agreement 8200,
whether there has been a violation of Sections 15, 16, or 17
of the Shipping Act, 1916, and other matters as set forth
in the order. A true copy of the order instituting such
investigation, which proceeding is designated Docket No.
872, is attached to this Affidavit as Exhibit 1.
2. The Carnation Company petitioned the Federal Mari-
time Board to intervene in Docket 872. A ruling authorizing
such intervention was issued. Thereafter Carnation Com-
pany participated in the proceeding. A true copy of the
Petition to Intervene and the ruling authorizing such inter-
vention are attached as Exhibits 2 and 3.
EEE
38
3. On adoption of Reorganization Plan No. 7 of 1961
(which became effective August 12, 1961) by which the
Federal Maritime Board was abolished and the Federal
Maritime Commission created, the Federal Maritime Com-
[fql. 39] mission on August 12, 1961 by General Order No. 1
took over and continued all proceedings of the Federal Mari-
time Board, including the proceeding in Docket 872.
4. The current status of Docket 872 is that extensive hear-
ings before Chief Examiner Basham in various places in the
United States have been held, briefs by the parties, includ-
ing the Carnation Company have been filed, and the matter
has been submitted for decision by the Examiner, following
which it will be considered by the Commission.
5. A true copy of a portion of Carnation Company's
brief in Docket 872 is attached hereto as Exhibit 4.
6. A true copy of Agreement 8200 between the member
lines of the Pacific Westbound Conference and the Far Kast
Conference is attached marked Exhibit 5.
Thomas Lisi
Subscribed and sworn to before me this 21st day of
February, 1963.
Ruth May Burroughs, Notary Public in and for the Dis-
trict of Columbia. My Commission Expires May 31, 1967.
[Seal]
[fol. 40}
Exuisir 1 to Arrmavir
(SERVED
( OCTOBER 26, 1959 )
(Federal Maritime Board)
ORDER
At a Session of the FEDERAL MARITIME BOARD, held
at its Office in Washington, D. C., this 26th day of October
1959.
DOCKET NO. 872
AGREEMENT NO. 8200—JOINT AGREEMENT
BETWEEN THE M&sMBER LINES OF THE FAR
EAST CONFERENCE AND THE MEMBER LINES
OF THE PACIFIC WESTBOUND CONFEREN CE
IT APPEARING, that the member lines of the Far East
Conference and Pacifie Westbound Conference are parties
to a certain Agreement No. FMB 8200 approved by the
Federal Maritime Board pursuant to section 15 of the
Shipping Act, 1916 (46 U.S.C. 814), and pursuant to that
agreement act jointly for the purpose of establishing the
rates and rules and regulations relating to the transporta-
tion by them of commodities exported from the United
States to Far East destinations, and
IT FURTHER APPEARING, that protests against said
agreement have been received from shippers and other per-
sons, and
IT FURTHER APPEARING, that the publie interest
requires an investigation and hearing by this Board for
the purpose of determining whether said Agreement No.
8200 should be (1) granted continued approval, (2) modified,
or (3) disapproved,
NOW THEREFORE, pursuant to sections 15, 16, 17, and
22 of the Shipping Act, 1916, as amended (46 U.S.C. 814,
815, 816 and 821),
40
IT IS ORDERED, that the Board, upon its own motion,
enter upon an investigation and hearing to determine
whether said Agreement No. 8200 is a true and complete
{fol. 41] agreement of the parties within the meaning of
said section 15 and whether it is being carried out in a
manner which makes it unjustly discriminatory or unfair
between carriers, shippers, exporters, or ports, or between
exporters from the United States and their foreign com-
petitors, or to operate to the detriment of the commerce of
the United States, or to be in violation of the Shipping Act,
1916, as amended,
IT IS FURTHER ORDERED, that the member lines
of the Far East Conference and Pacific Westbound Confer-
ence be, and they are hereby, made respondents in this pro-
ceeding, and
IT IS FURTHER ORDERED, that this order be pub-
lished in the Federal Register and that a copy of such
order be served upon all respondents herein, and
IT IS FURTHER ORDERED, that, this proceeding be
set for hearing before an examiner of the Board’s Hearing
Examiners Office at a place and date to be fixed by the
Chief Examiner.
By the Board.
S/ James L. Pimper
Secretary
(SEAL)
USCOMM-MA-DC
-
[fol. 42]
Exuusit 2 To AFFIpaviT
[Stamp—Received—Aug 22 3:33 PM ’60—Hearing Ex-
aminers’ Office—Federal Maritime Board—Acknowledged
]
[Stamp—Served—Sep 3 1960—Federal Maritime Board]
BEFORE THE
FEDERAL MARITIME BOARD
Se
PETITION OF CARNATION COMPANY
TO INTERVENE
Docket No. 872
AGREEMENT NO. 8200—JOINT AGREEMENT
BETWEEN THE MEMBER LINES OF THE
FAR EAST CONFERENCE AND THE
MEMBER LINES OF THE PACIFIC
WESTBOUND CONFERENCE
—_—_——
Your petitioner, CARNATION COMPANY, respectfully
represents that it has an interest in the matters in contro-
versy in the above entitled proceeding and desires to inter-
vene in and become a party to said proceeding, and for
grounds of the proposed intervention says:
I. That petitioner is now and at all times herein men-
tioned has been a corporation organized, existing and doing
business under and by virtue of the laws of the State of
Delaware, with its principal office in the City of Los An-
geles, State of California, whose principal business is manu-
facturing and processing of various food products, includ-
ing animal and poultry feeds, the said product of petitioner
being sold throughout the United States and elsewhere.
42
[fol.43] II. That petitioner has for many years past
shipped and expects to continue shipping its products from
the Pacific Coast range of ports to the Phillipine Islands
and other destinations, subject to the rates, rules and regu-
lations as found in tariffs issued by member lines of the
Pacific Westbound Conference.
III. That petitioner has reasonable grounds to believe
that the said rates, rules and regulations, as hereinabove
referred to in Section II have been the subject of and re-
sulted from negotiations between the member lines of the
Far East Conference and member lines of the Pacific West-
bound Conference to the detriment of petitioner and ship-
pers in a position similar to that of petitioner with respect
to shipping similar products to the Far Kast.
IV. That petitioner can, if allowed to become a party to
this proceeding, without unduly broadening the issues
therein, take proper steps to safeguard petitioners future
shipments to the Far East which undoubtedly will continue
to be transported ad litem and after termination of the
instant proceeding.
WHEREFORE, said petitioner, CARNATION COM-
PANY, respectfully requests leave to intervene and be
treated as a party hereto with the right to have notice
of and appear at the taking of testimony, produce and
cross-examine witnesses, and be heard in person or by
counsel upon brief and at the oral argument, if oral argu-
ment is granted.
Dated at Los Angeles, California, this 16th day of August,
1960.
H. E. Orson (Signed)
H. E. Olson, Vice President
Carnation Company
5045 Wilshire Boulevard
Los Angeles 36, California
C. 8. Connotiy (Signed)
C. S. Connolly, Attorney
For Petitioner
=
Communications in regard to this Petition should be
addressed to:
C. S. Connolly, Esq.
5045 Wilshire Blvd.
Los Angeles 36, California
43
[fol. 44]
VERIFICATION
STaTeE OF CALIFORNIA )
) SS.:
_ Crry anp County or Los ANGELEs)
f H. E. Olson, being first duly sworn on oath deposes and
says that he is Vice President of CARNATION COMPANY,
a Corporation, and is the person who signed the foregoing
| petition; that he has read the petition and that the facts
set forth without qualification are true and that the facts
stated therein upon information received from others, affiant
believes to be true. ©
H. E. Orson (Signed)
H. E. Olson
Subscribed and sworn to before me, a notary public in and
for the State of California, City and County of Los Angeles,
this 16th day of August, A. D. 1960.
Harry A. Rocaun (Signed)
H. A. Rogahn, Notary Public
My Commission expires January 28th, 1961.
(SEAL)
[fol. 45]
Exuisit 3 To AFFIDAVIT
S E RV ED
( SEPTEMBER 8, 1960
(Federal Maritime Boar«
FEDERAL MARITIME BOARD
WASHINGTON 235, D. C.
September 8, 1960
No. 872
AGREEMENT NO. 8200—JOINT AGREEMENT
BETWEEN THE MEMBER LINES OF THE
FAR EAST CONFERENCE AND THE
MEMBER LINES OF THE PACIFIC
WESTBOUND CONFERENCE
a
RULING ON PETITIONS TO INTERVENE
Petitions to intervene herein having been filed by T!
Northern California Ports and Terminals Bureau, Inc., ar
Carnation Company, and good cause appearing, said pet
tions are hereby granted.
Interveners are reminded that documents filed in this pr
ceeding such as motions, petitions, ete., must be serve
upon all parties of record, a list of whom are on file in tl
Board’s Office of Hearing Examiners, Washington, D. C.
/s/ G. O. Basham
G. O. Basham
Presiding Examiner
USCOMM-MA-DC
— ,
(fol. 46]
Exuisit 4 To AFFIDAVIT
Extract From Page 8 of Brief Dated October 5,
1962, Filed by Carnation Company in Federal
Maritime Commission Docket No. 872.
“As far as Carnation Company is concerned, it has never
had any say as to whether or not the rates on evaporated
milk should be granted local initiative or not. As a matter
of fact, our source of knowledge on the existence and opera-
tion of local initiative arrangements comes only as a result
of the Commission’s institution of the present investigation.
Here is an action by the Respondents which goes to the very
heart of rate making, and without doubt had this rate mak-
ing procedure been known to Carnation Company, a com-
plaint would have been filed with the Commission against
this unfair, unjust and discriminatory conference activity.
Here is a rate procedure which has had tremendous affect
upon Carnation Company efforts to meet European competi-
tion in the Philippine Islands and we have had no notice
of such procedure operating within the conference.”
[fol. 47]
Exuisit 5 To AFFIDAVIT
Copy of
Federal Maritime Board
Agreement No. 8200
‘ Approved 12/29/52
Far East Conference
and
Pacific Westbound Conference
AGREEMENT made in the City of New York this fifth
day of November, 1952, by and between the parties who
shall execute this AGREEMENT at the foot hereof under
F ee
46
‘the caption “Members of the Pacifie Westbound Confer-
ence”, who are hereinafter sometimes collectively referred
to as the PACIFIC LINES, and the parties who shall exe-
eute this AGREEMENT at the foot hereof under the cap-
tion “Members of the Far East Conference”, who are here-
inafter sometimes collectively referred to as the ATLAN-
TIC/GULF LINES.
WITNESSETH:
1. The PACIFIC LINES are parties to an agreement
which has been designated Federal Maritime Board Agree-
ment No. 57, as amended, which designates the parties there-
to as the Pacifie Westbound Conference; and whenever
reference is hereinafter made to action which is required or
permitted to be taken by the PACIFIC LINES, such refer-
ence is intended to refer to action such as is required to
effect the establishment or change of rates pursuant to
said Agreement No. 57, as amended.
2. The ATLANTIC/GULF LINES are parties to an
agreement which has been designated Federal Maritime
Board Agreement No. 17, as amended, which designates the
parties thereto as the Far East Conference; and whenever
reference is hereinafter made to action which is required or
permitted to be taken by the ATLANTIC/GULF LINES,
such reference is intended to refer to action such as is re-
quired to effect the establishment or change of rates pur-
suant to said Agreement No. 17, as amended.
3. The PACIFIC LINES operate vessels as common
carriers of cargo from Pacifie Coast ports of the United
States and Pacific Coast ports of Canada to certain ports
in the Far East; and the ATLANTIC/GULF LINES oper-
ate vessels as common carriers of cargo from United States
Atlantic and Gulf ports to some of the same ports in the
Far East; and action taken hereunder shall apply to trans-
portation of cargoes to all destinations which shall, from
time to time, be common to the scope of both Agreements
57 and 17.
FEE REID LIN I OReS SRO! 5 NOS ALE WNL GPS OIA BSG E —
_ .
[fol.48] 4. The purpose which the parties desire to ac-
complish hereby (which is hereinafter sometimes for
brevity referred to as “the purpose of this agreement”) is
to assure to the parties hereto, as well as to the manufac-
turers, merchants, farmers and labor, whose products are
exported from the United States to Far East destinations
which may, from time to time, be common to the scope of
both said Agreements 57 and 17, stability of ocean rates and
frequency, regularity and dependability of service which is
essential to their continued prosperity; and for the ac-
complishment of the purpose of this agreement it is essen-
tial that the parties shall, from time to time, establish the
rates to be charged for the transportation of commodities,
and the rules and regulations governing the application of
said rates, except for the following commodities when
shipped in bulk:
Coal Barley
| Coke Rice
Phosphate Rock Corn
| Salt Soyabeans
! Ores Oats
Wheat Rye
which expected commodities are not included within the
scope of this agreement.
NOW, THEREFORE, in consideration of the premises
and of the mutual undertakings of the parties hereto, it is
hereby agreed as follows:
FIRST: As promptly as possible after the approval of
this agreement by the Federal Maritime Board, the parties
shall hold a meeting which is hereinafter referred to as the
“initial meeting.” The initial meeting shall be held at a time
and place to be mutually agreed upon by the parties hereto.
If, however, prior to the 30th day after such approval the
parties hereto shall not so have mutually agreed upon the
time and place for the holding of the initial meeting, said
initial meeting shall be held on the 40th day after such ap-
proval at the Fairmont Hotel in the City of San Francisco,
‘ meetin
48
California; and if such 40th day shall fall on a Saturday,
Sunday or legal holiday, said meeting shall be held on the
second business day thereafter, at the same place. Such
meeting shall be attended by representatives of the
PACIFIC LINES and of the ATLANTIC/GULF LINES.
All matters coming before the initial meeting for considera-
tion and action shall be determined only by a concurrence
of the PACIFIC LINES, acting as a group, and of the
ATLANTIC/GULF LINES, acting as a group, each in ac-
cordance with the procedures prescribed by its respective
Conference Agreement, with respect to the establisiment
or change of rates. The initial meeting shall make rules,
not inconsistent with the provisions of this agreement, for
the conduct of all meetings to be held hereunder, and for
the transaction of such other business as the parties may be
permitted to conduct by virtue hereof, including the provi-
sion of the machinery for the change of any rates, rules or
regulations adopted at the initial meeting or at any subse-
quent meeting.
[fol.49] SECOND: Anything contained herein or in the
rules and regulations adopted at the initial meeting as from
time to time amended to the contrary notwithstanding, if
either group of Lines should determine that conditions af-
fecting its operations require an immediate change in its
tariffs, it may notify the other group thereof, specifying
the changes which it proposes to put into effect 48 hours
after the giving of such notice if given by telegram or 72
hours after the giving of such notice if given by air mail,
and a summary of the facts which justify the changes on
said short notice. Forty-eight hours, or 72 hours, after the
giving of such notice, dependent upon the medium by which
such notice shall have been given, the notifying group may
make such changes as stated in said notice and the other
group may, at the end of 48 hours, or at the end of 72 hours,
as the case may be, after the giving of such notice, make
such changes in its tariffs as it may see fit and the action of
the groups so taken shall not constitute a breach or viola-
LPS MICA LER NE TF SE ELE UIE OTN N RSS RAEN! Se
49
tion of this agreement. The parties shall, however, promptly
give to the Governmental agency charged with the ad-
ministration of Section 15 of the Shipping Act, 1916, as
amended, copies of any notices and information with respect
to any changes in tariffs given or made as provided for in
this Article SECOND.
THIRD: The parties hereto shall, promptly after the
adjournment of the initial meeting and of each subsequent
meeting, file with the Governmental agency charged with
the administration of Section 15 of the Shipping Act, 1916,
as amended, a record of all business transacted at said re-
spective meeting.
FOURTH: Neither the PACIFIC LINES nor the AT-
LANTIC/GULF LINES shall admit new parties to their
Conference Agreement unless such parties shali simultane-
ously become parties to this agreement by affixing their
i signatures under the appropriate caption or captions at
the foot of this agreement or a counterpart thereof. When-
ever any ‘party hereto shall have ceased to be a party to
Agreement No. 57 as amended, or a party to Agreement No.
17 as amended, or a party to both of said agreements, as the
case may be, such party by such cessation shall cease also
to be a party to this agreement; but so long as such party
shell continue to be a party to either said Agreement No. 57
as amended, or Agreement No. 17 as amended, it shall also
continue to be a party to this agreement. Prompt notice
ot the change of parties hereto shall be given by each group
to the Governmental agency charged with the administra-
tion of Section 15 of the Shipping Act, 1916, as amended.
FIFTH: Any notice required or permitted hereby to be
given shall be given by telegram if telegraphic communica-
tion be available, otherwise by air mail, and if given to the
PACIFIC LINES shall be addressed to the Secretary-Man-
ager of the Pacific Westbound Conference at San Fran-
cisco, California, and if given to the ATLANTIC/GULF
LINES shall be addressed to the Chairman of the Far East
Conference, 11 Broadway, New York 4, New York. The
50
deposit of any such notice air mail, postage prepaid, in a
United States Post Office letter box, or the deposit of any
such telegram in an office of any telegraphic company, as
the case may be, shall constitute the giving of such notice.
Each of the groups of lines may, from time to time, change
the address to which notices to it are to be dispatched by
notice given to the other group.
[fol.50] SIXTH: This agreement shall become effective
when, but not until, the same shall have been approved by
the Federal Maritime Board, pursuant to the provisions
of Section 15, Shipping Act, 1916, as amended.
SEVENTH: Each Line, a party hereto, shall bear the
expenses of its own representatives while attending any
meetings held under the provisions hereof. The expenses of
hiring the places where the meetings shall be held and such
expenses incidental thereto as may be for the joint benefit
of all of the parties hereto, shall be borne to the extent
of one half thereof by the PACIFIC LINES as a group and
one half thereof by the ATLANTIC/GULF LINES as a
group.
EIGHTH: This agreement shall continue in effect for a
period of nine months and shall continue thereafter until
the ninetieth day after any one or more of the Lines, a
party or parties hereto, shall have given to the PACIFIC
LINES and to the ATLANTIC/GULF LINES and to the
Governmental agency charged with the administration of
Section 15 of the Shipping Act, 1916;-as amended, notice of
termination; and on said ninetieth day this agreement
shall terminate and come to an end.
IN WITNESS WHEREOF, the parties hereto have
caused this agreement to be executed by their respective
officers or representatives and duly authorized as of the
day and year hereinabove first written.
pororentans
am
51
[fol. 51]
MEMBERS of the
PACIFIC WESTBOUND CON FERENCE
AMERICAN-HAWAIIAN STEAMSHIP COMPANY
By: (signed): J. A. Srumpr
J. A. Stumpf
Title: Assistant Vice President
AMERICAN MAIL LINE
By: (signed): A. R. Linrwer
A. R. Lintner
Title: President
AMERICAN PRESIDENT LINES, LTD.
By: (signed): W. K. Varcoz
W. K. Varcoe
Title: Vice President
CANADIAN PACIFIC RAILWAY COMPANY
By: (signed): K. M. Ferrerry
K. M. Fetterly
Title: Foreign Freight Traffic
Manager
DE LA RAMA LINES—Joint Service
The De La Rama Steamship Co., Ine.
The Swedish East Asia Co., Ltd.
The Ocean Steamship Co., Ltd.
The China Mutual Steam Navigation
Company, Ltd.
Nederlandsche Stoomvaart Maatschappij
“Oceaan” N.V.
(Funch, Edye & Company, Inc.,
General Agents.)
By: (signed): V. H. Arnrsen
V. H. Arnesen
Title: Vice President
52
THE EAST ASIATIC COMPANY, LTD.
By: (signed) : Gzorce J. GMELCH
George J. Gmelch
Title: Freight Traffic Manager
ISTHMIAN STEAMSHIP COMPANY
By: (signed): James J. McCase
James J. McCabe
Title: Vice President—Traftic
JAVA PACIFIC & HOEGH LINES—Joint Service
N.V. Stoomvaart Maatschappij
“Nederland”
Koninklijke Rotterdamsche Lloyd, N.V.
Skibsaktieselskapet Arizona
Skibsaktieselskapet Astrea
Skibsaktieselskapet Aruba
Skibsaktieselskapet Noruega
Skibsaktieselskapet Abaco
A/S Atlantica
(Trans-Pacific Transportation
Company, Pacific Coast General
Agents.)
By: (signed): E. L. Barconzs
EK. L. Bargones
Title: Vice President
[fol. 52]
MEMBERS of the
PACIFIC WESTBOUND CONFERENCE (continued)
KLAVENESS LINE—Joint Service
Skibsaktieselskapet Sangstad
Skibsaktieselskapet Solstad
Skibsaktieselskapet Siljestad
Dampskibsaktieselskabet International
Skibsaktieselskapet Mandeville
Skibsaktieselskapet Goodwill
(A. F. Klaveness & Co., A/S)
By: (signed): C. L. Brom
C. L. Blom
Title: Director
—
KNUTSEN LINE—Joint Service
Dampskibsaktieselskapet Jeanette
Skinner
Skibsaktieselskapet Pacific
Skibsaktieselskapet Marie Bakke
Dampskibsaktieselskapet Golden Gate
Dampskibsaktieselskapet Lisbeth
(Inter-Ocean Steamship Corporation,
Pacific Coast General Agents.)
By: (signed): Harry Brown
Harry Brown
i Title: President
NIPPON YUSEN KAISHA (N.Y.K. LINE)
(James Griffiths & Sons, Inc., Agents)
By: (signed): Wa. J. CrarK
Wm. J. Clark
, Title: Vice President &
General Manager
PACIFIC FAR EAST LINES INC.
By: (signed): T. E. Curre
T. E. Cuffe
Title: President
PACIFIC ORIENT EXPRESS LINE—Joint Service
Skipsaktieselskapet Nordheim
Skipsaktieselskapet Vito
Skipsaktieselskapet Kirkoy
Skipsaktieselskapet Skagerak
(Ditley-Simonsen Lines)
Transatlantic Steamship Company, Ltd.,
of Gothenburg
(General Steamship Corporation, Ltd.,
Agents.)
By: (signed): M. Frazier
M. Frazier
Title: Assistant Vice President
54
PACIFIC TRANSPORT LINES, INC.
By: (signed):
Georce E. Tatmacg, Jr.
George E. Talmage, Jr.
Title: Vice President-Traffic
STATES MARINE CORPORATION/STATES
MARINE CORPORATION OF DELAWARE
By: (signed):
Joun Titney CARPENTER
John Tilney Carpenter
Title: Vice President
STATES STEAMSHIP CoO.
By: (signed): J. R. Dant
J. R. Dant
Title: Vice President
WATERMAN STEAMSHIP CORPORATION
By: (signed):
J. W. O. Von Hersutis
J. W. O. Von Herbulis
Title: Vice President
[fol. 53]
MEMBERS of the FAR EAST CONFERENCE
AMERICAN-HAWAIIAN STEAMSHIP COMPANY
By: (signed): J. A. Srumpr
J. A. Stumpf
Title: Assistant Vice President
AMERICAN PRESIDENT LINES, LTD.
By: (signed): A. A. ALEXANDER
A. A. Alexander
Title: Vice President
THE BANK LINE, LTD.
(Boyd, Weir & Sewell, Inc., Agents)
By: (signed): J. J. Cuark
J.J. Clark
Title: Vice President
55
DAIDO KAIUN KAISHA LTD.
(A. L. Burbank & Company, Ltd.
General Agents, U. S. Atlantic
and Gulf Ports.)
By: (signed):
A. L. Burzank, Sr.
A. L. Burbank, Sr.
Title: Chairman
DE LA RAMA LINES—Joint Service
The De La Rama Steamship Co., Ltd.
The Swedish East Asia Co., Ltd.
The Ocean Steam Ship Company, Ltd.
The China Mutual Steam Navigation
Co., Ltd.
Nederlandsche Stoomvaart Maatschappij
“Oceaan” N.V.
(Funch, Edye & Co., Ine., Agents)
By: (signed): V. H. Arnesen
V. H. Arnesen
Title: Vice President
ELLERMAN & BUCKNALL ASSOCIATED
LINES—Joint Service
Ellerman Lines, Limited
Ellerman & Bucknall Steamship Co.
Limited
The City Line, Limited
Hall Line, Limited
(Norton, Lilly & Company,
General Agents.)
By: (signed): S. S. Norton
S.S. Norton
Title: Partner
FERN-VILLE FAR EAST LINES—
FEARNLEY & EGER and
A. F. KLAVENESS & CO. A/S—
Joint Service
Skibsaktieselskapet Varild
Skibsaktieselskapet Marina
56
Aktieselskabet Glittre
Dampskibsinteressentskabet Garonne
Skibsaktieselskapet Sangstad
Skibsaktieselskapet Solstad
Skibsaktieselskapet-Siljestad
Dampskibsaktieselskabet International
Skibsaktieselskapet Mandeville
Skibsaktieselskapet Goodwill
(Fearnley & Eger, Inc., Agents)
By: (signed): Nms O. Sem
Nils 0. Seim
Title: Vice President
[fol. 54]
MEMBERS of the FAR EAST CONFERENCE
(continued)
ISTHMIAN STEAMSHIP COMPANY
By: (signed): James J. McCase
James J. McCabe
Title: Vice President—Traffic
IVARAN LINES—-FAR EAST SERVICE—
Joint Service
Skibsaktieselskapet Igadi
Aktieselskabet Ivarans Rederi
A/S Besco A/S Lise
(Stockard & Company, Inc.,
General Agents.)
By: (signed): J. J. Ho~toran
J.J. Holloran
Title: Vice President
KAWASAKI KISEN KAISHA, LTD.
(Kerr Steamship Company, Inc.,
As Agents.)
By: (signed): CorTLanp LinpER
Cortland Linder
Title: Vice President
KOKUSAI LINE—Joint Service
Nissan Kaisen Kaisha, Ltd.
Toho Kaiun Kaisha, Ltd.
Iino Kaiun Kaisha, Ltd.
ew
,
Mitsubishi Kaiun Kaisha, Ltd.
Kokusai Kaiun Kaisha, Ltd.
(Kokusai Kaiun Kaisha, Ltd.,
Operator & General Agent.)
(States Marine Corporation of
Delaware, General Agent.)
By: (signed) :
Joun Titney Carpenter
John Tilney Carpenter
Title: Vice President
*LANCASHIRE SHIPPING COMPANY, LTD.
(Castle Line)
(American-Hawaiian Steamship
Company, Agents.)
By: (signed): J. A. Srumpr
J. A. Stumpf
i Title: Assistant Vice President
*As Lancashire Shipping Company, Ltd.’s
resignation from Far East Conference
Agreement No. 17, as amended, becomes
effective on December 1, 1952, it is under-
stood that in accordance with Article
FOURTH they shall cease to be a party to
this Joint Agreement as of that date,
and notice of such cessation shall be given
to the Federal Maritime Board.
LYKES BROS. STEAMSHIP CO., INC.
By: (signed): R. C. Cotton
R. C. Colton
Title: Assistant Secretary
MOLLER-MAERSK LINE—Joint Service
Dampskibsselskabet Af 1912
Aktieselskab
Aktieselskabet Dampskibsselskabet Svendborg
By: (signed): Ta Host
Th Host
Title: Attorney-in-Fact
58
(fol. 55]
MEMBERS of the FAR EAST CONFERENCE
(continued)
MITSUI STEAMSHIP CO., LTD.
(William J. Rountree Co., Inc.,
General Agents.)
By: (signed): Lester WoLFE
Lester Wolfe
Title: President
NIPPON YUSEN KAISHA
(Boyd, Weir & Sewell, Inc., Agents.)
By: (signed): J. J. CLark
J.J. Clark
Title: Vice President
OSAKA SHOSEN KAISHA, LTD.
(American-Hawaiian Steamship
Company, Agents.)
By: (signed): W. J. Tracy
W. J. Tracy
Title: General Manager
PRINCE LINE, LTD.
(Furness, Withy & Co., Ltd., Agents)
By: (signed): J. J. Wats
J.J. Walsh
Title: Local Director
SHINNIHON STEAMSHIP COMPANY, LTD.
(Texas Transport & Terminal Co.,
Inc., Agents.)
By: (signed) : Metvin P. Bruivup:
Melvin P. Billup:
Title: Executive Vice Presiden
STATES MARINE CORPORATION/STATES
MARINE CORPORATION OF DELAWARE
: By: (signed):
Joun Trtney CARPENTE!
John Tilney Carpente:
Title: Vice President
>
ene cede
59
UNITED STATES LINES COMPANY
(American Pioneer Line)
By: (signed): P. E. McIntyre
P. E. McIntyre
Title: General Freight
Traffic Manager
WATERMAN STEAMSHIP CORPORATION
By: (signed) :
J. W.O. Vow Hersvutia
J. W.O. Von Herbulia
Title: Vice President
WILHELMSENS DAMPSKIBSAKTIESELSKAB
A/S Den Norske Afrika-Og Australielinie
A/S Tonsberg
A/S Tankfart I
A/S Tankfart IV (
A/S Tankfart V
A/S Tankfart VI
(Barber Stean..i:p Lines, Inc.,
Agents.)
By: (signed): V. G. Barnett
* V. G. Barnett
Title: President
(fol. 56]
MEMBERS of the FAR EAST CONFERENCE
(continued)
YAMASHITA KISEN KAISHA
(Norton, Lilly & Company,
General Agents. )
By: (signed): S. S. Norton
S. S. Norton
Title: Partner
USCOMM-MA-DC
60
[fol. 57] [File endorsement omitted]
In tHe Unirep States District Court
For tHe NorTHerN District oF CALIFORNIA
SouTHERN Division
Civil Action File No. 41153
CarnaTION CoMPANy, a corporation, Plaintiff,
v.
Paciric WestsounD CONFERENCE, an unincorporated as-
sociation, Far East CoNFERENCE, an unincorporated as-
sociation, et al., Defendants.
PLAINTIFF’s OBJECTION TO MOTION OF THE FEDERAL MapI-
TIME CoMMISSION FOR LEAVE TO INTERVENE AS DEFEN-
pant—Filed March 21, 1963
{fol.58] Plaintiff, Carnation Company, a corporation, ob-
jects to the granting of the motion of the Federal Maritime
Commission for leave to intervene herein as a defendant
and for ground of objection shows as follows:
1. The Federal Maritime Commission has no interest
in the subject matter of this action, or any part of the sub-
ject matter thereof or any other interest herein and does
not present or suggest any matter of interest upon its part
in any phase of this action.
2. The Federal Maritime Commission does not present,
or seek to present, any claim or defense herein or any mat-
ter in aid of or connected with any matter of ciaim or de-
fense herein and by its intervention does not seek to par-
ticipate in the determination of any issue in this action
but by its motion for leave to intervene and by its purported
answer (tendered for filing, apparently, in attempted com-
pliance with FRCP Rule 25 (c)) seeks to intervene not to
PE MISE TE SNE EI NE CTE LEN HS INT LLNS NT NETL LITE ——
-_
present any question of law or fact or any matter con-
nected with any issue of Jaw or fact in the action but solely
for the purpose of moving to dismiss the action and the
said answer sets forth no matter of claim or defense to this
action.
61
' 3. In this action plaintiff does not rely for ground of
claim upon any statute administered by the Federal Mari-
time Commission or any regulation, order, requirement or
agreement issued or made pursuant to the Shipping Act
i of 1916 or any executive order and does not rely on any
{ alleged nonapproval by the Federal Maritime Board or the
Federal Maritime Commission as alleged in the complaint
or otherwise and does not rely on any claim of violation of
the Shipping Act of 1916 but relies in this action solely
upon violation of the antitrust statutes of the United States
and sets up the nonapproval, referred to in the complaint,
only to show that there is no impediment to the claim made
by plaintiff or to the operation of the antitrust statutes
of the United States by reason of any provision of the
Shipping Act of 1916.
[fol.59] 4. The application for leave to intervene is not
properly made and should not be granted under FRCP
Rule 24 (b).
Respectfully submitted,
Arthur B. Dunne, Wallace R. Peck, James R. Baird,
Jr., William H. Birnie, Dunne, Bledsoe, Smith,
Phelps, Catheart & J ohnson, By Arthur B. Dunne,
Attorneys for Plaintiff.
Authorities
Plaintiff will rely on the authorities in authority memo-
randum which plaintiff will file in opposition to the motions
to dismiss.
Arthur B. Dunne, Wallace R. Peck, James R. Baird,
Jr., William H. Birnie, Dunne, Bledsoe, Smith,
Phelps, Catheart & J ohnson, By Arthur B. Dunne,
Attorneys for Plaintiff.
62
Receipt of a copy of the foregoing objections is acknowl-
edged this day of March, 1963.
Edward D. Ransom, William H. King, Lillick, Geary,
Wheat, Adams & Charles, By H. D. Harris, Jr.,
Attorneys for Defendants.
[fol.60] Certificate of Service by Mail (omitted in print-
ing).
[fol. 61] [File endorsement omitted]
In tae Unitrep States District Court
For THE NortHERN District OF CALIFORNIA
SoutHERN Division
Before: Hon. William T. Sweigert, Judge.
No. 41153
CaRNATION ComMPANy, a corporation, Plaintiff,
vs.
Pactric WestspounpD CONFERENCE, an unincorporated as-
sociation, Far East CoNFERENCE, an unincorporated us-
sociation, et al., Defendants.
Transcript oF HEARING ON Motion To Dismiss AND MoTIon
or FreperRAL MaritiME CoMMIsSsION FoR LEAVE TO INTER-
VENE AS DEFENDANT—April 8, 1963
[fol.62] APPEARANCES:
On behalf of the Plaintiff:
Messrs. Dunne, Bledsoe, Smith, Phelps, Catheart &
Johnson, 315 Montgomery Street, San Francisco,
California, By: Arthur B. Dunne, Esquire and
James R. Baird, Jr., Esquire.
63
On behalf of Defendant Westbound Conference and de-
fendant carriers in that Conference:
Messrs. Lillick, Geary, Wheat, Adams & Charles,
311 California Street, San Francisco, California,
By: Edward D. Ransom, Esquire, William H.
King, Esquire.
On behalf of Co-defendant Far East Conference:
Elkan Turk, Jr., Esquire, 120 Broadway, New York
5, New York.
On behalf of Defendant-Intervener Federal Maritime
Commission:
Robert B. Hood, Jr., Esquire, Federal Maritime Com-
mission, Washington 25, D. C.
[fol. 63]
Monday, April 8, 1963 2:00 o’elock p.m.
The Court: All right, gentlemen. Whenever you are
ready.
The Clerk: Civil Action 41,153. Carnation Company
versus Pacific Westbound Conference. Motion to dismiss
and motion for Federal Maritime Commission for leave to
intervene as defendant.
Will counsel please state their appearances for the record.
Mr. Ransom: Edward D. Ransom of Lillick, Geary,
Wheat, Adams & Charles, counsel for the defendant Pacific
Westbound Conference and the defendant carriers in that
Conference.
With the leave of this Court, which I hope will be granted,
Elkan Turk, Jr., from New York City for the Far East Con-
ference and its member-line carriers, co-defendant in this
case.
The Court: We are glad to grant the motion. We wel-
come you.
64
We had some lawyers in our last trial from New York. I
hope we treated them all right.
Mr. Ransom: Also with the leave of the Court, Robert B.
Hood, Jr., for the Federal Maritime Commission.
Mr. Dunne: For the plaintiff, Arthur B. Dunne and
[fol. 64] James R. Baird, Jr.
Mr. Ransom: May I formally move for the admission for
the purpose of this proceeding Mr. Elkan Turk, Jr., member
of the Bar of New York, and Mr. Robert Hood, Jr., member
of the Bar of Virginia.
The Court: No objection. I am glad to grant the motion
for appearance in this court for this case.
CoLttoquy Between Court anp CouNSEL
Gentlemen, I have read, as best I could, the memoranda
and I have an abstract of the situation before me. I do not
claim to know all about it, but as I understand it, this is an
action brought under the Sherman and Clayton Acts. It is
in the nature of an antitrust action against these defen-
dants. It arises out of a claim that the defendants entered
into an agreement to fix certain shipping rates, and the
charge is that this was a conspiratorial agreement contrary
to antitrust.
The defendants point out that any rates which they
charge are supposed to be approved by the Federal Mari-
time Commission although these particular rates involved,
as far as I can understand the matter, were not actually
approved.
As I understand it, the fixing of rates without approval of
the Federal Maritime Commission is unlawful and contrary
to the terms of the Shipping Act itself.
The Federal Maritime Commission asks leave to inter-
vene in this case for the purpose of making a motion to dis-
miss the Complaint. The defendants also move to dismiss
the Complaint.
[fol. 65] The dismissals, as I understand it, are asked upon
the ground that the Federal Maritime Commission has the
primary exclusive jurisdiction over these matters.
65
The defendants, however, take the position, as I read your
briefs, that since these particular rates were not approved
by the Federal Maritime Commission that they are just an
ordinary garden-variety part of some conspiratorial anti-
trust agreement and that the Federal Maritime Commission
has nothing to do with it.
Let me ask this one question before we get going on the
matter: Am I correct in assuming that it is admitted here
that the rates which are the subject of this suit or a part of
the alleged conspiracy were not in fact approved by the
Federal Maritime Commission?
SraTeMENT By Mr. Ransom on BEHALF OF DEFENDANT,
WEsTBoUND CONFERENCE, ET AL.
Mr. Ransom: If Your Honor please, that is approxi-
mately correct. It is not really the rate that is approved. It
is the agreement, the method of fixing the rates, the agree-
ment by which the rates were arrived at. It is our position,
Your Honor, that in fact they were and that this is an issue
in the case which will have to be determined in the case,
whether or not the approvals of the agreements which have
been approved cover the particular transaction of which
the plaintiff complains.
The Court: Let me ask this question: Does the Shipping
[fol. 66] Act contain provisions whereby shippers can under
certain circumstances and with the approval of the Mari-
time Commission enter into agreed tariffs? Agree upon
tariffs among themselves?
Mr. Ransom: You mean the carriers. Yes, it does.
The Court: That is why it has the provision that if that
type of agreement is approved it is taken out of the anti-
trust action.
Mr. Ransom: It is our position, Your Honor, and I really
have to almost argue the case to answer that, that while
there is an express exception out of the antitrust for that
which is approved, the exception from the antitrust laws
under the cases which have been decided, under the doctrine
of primary jurisdiction, whether approved or not approved,
66
it still comes within the Shipping Act, its set of regulations,
and is taken out of the Court’s power to—
The Court: You cite certain cases which you say hold
that?
- Mr. Ransom: Yes, Your Honor.
The Court: Do I understand you to say that these cases
which you have cited actually hold as they appear to hold,
that even though the rates involved or the agreements for
rates involved have not been approved, actually approved,
by the Maritime Commission, that nevertheless the subject
matter of those agreements and rates is within the exclusive
[fol. 67] primary jurisdiction of the Federal Maritime Com-
mission?
Mr. Ransom: Very definitely, Your Honor.
The Court: If the cases hold as you say they do, isn’t
that the end of this matter?
Mr. Ransom: Precisely, Your Honor.
The Court: Let’s ask counsel for the other side if they
have any contention to the contrary.
You have just heard the statement of counsel made here
concerning the cases. I have not read them, but that is coun-
sel’s version of them. I would like to ask the plaintiff if the
eases do hold that when agreements are made between car-
riers for fixing rates, if that is the term to use, that, then,
even though those agreements and rates have not been ap-
proved by the Maritime Commission that nevertheless the
subject matter is still the primary exclusive jurisdiction of
the Federal Maritime Commission.
Mr. Dunne: It is our position that the cases do not so
hold.
The Court: That is what I wanted to hear.
Mr. Dunne: If we can get right down to what I think it is,
it becomes comparatively simple.
Counsel very correctly told Your Honor with respect to
rates of foreign carriers.
Now, Your Honor will have an occasion to look at the
[fol. 68] Shipping Act. I call Your Honor’s attention to the
fact that in dealing with carriers by water it deals with two
‘
67
classes of carriers; carriers in interstate commerce, or do-
mestic carriers, and carriers in foreign commerce. The first
section of the Act is very explicit in its definitions of car-
riers in foreign commerce and carriers in interstate com-
merce. The provisions of the Act are different in some re-
spects with respect to carriers in foreign commezce and
carriers in domestic commerce.
The Court: Would they be different in the connection that
counsel has referred to these cases?
Mr. Dunne: Yes, Your Honor.
The Court: You, then, make a distinction between inter-
state commerce and foreign commerce?
Mr. Dunne: That is correct, because of certain provi-
sions of the Act with respect to filing of tariffs by domestic
carriers and the maintaining of reasonable rates by do-
mestic carriers. There are provisions that apply to all of
them about preferences and discrimination, but with re-
spect to the rates of domestic carriers the scheme is very
much like the scheme of the Interstate Commerce Act as to
the carriers by railroad for the filing of tariffs and main-
taining of reasonable rates, My recollection is that they
charge only the rates that are filed.
The scheme as to rates as to foreign carriers is quite dif-
(fol. 69] ferent. At least it was before the amendment of
1961. I want to call Your Honor’s attention to the fact that
this case arises before the 1961 amendment. The 1961
amendment changed the scheme of regulation as to foreign
carriers, carriers in foreign commerce, to make it very much
like that of railroads and like that for domestic carriers re-
quiring that rates be filed and that the carriers collect
neither anything more nor less and different from the filed
rates. But until the 1961 amendment the scheme of this Act
as to foreign carriers in foreign commerce was quite differ-
ent as to rates.
The Court: Before you get into the distinction, let me ask
you this question: With respect to interstate carriers,
would counsel’s version of the cases be substantially cor-
rect?
Mr. Dunne: Certainly would in certain respects as to rail
carriers. One of the cases they rely on is the Teal case,
common carriers by railroad. As far as I know, none of us
have cited any case that touches on that exact point, even on
domestic water carriers.
As to the rail carriers, the leading case there, as to the file
and approved rates, is the Teal case.
The Court: In other words, counsel would be correct if
he said that there are cases which hold, let us say, that inter-
state rail agreements and rates, even though not actually
approved by the Maritime Commission, would remain
{fol. 70] within the exclusive primary jurisdiction of the
Commission.
Mr. Dunne: The Maritime Commission applies, of course,
only to carriers by water.
You put a question as to rail carriers.
The Court: That is right. An analogy.
Mr. Dunne: The situation as to rail carriers is slightly
complicated.
The Court: Well, let’s stay away from the rail carriers.
Let me ask counsel this question. I am going to let you
go your own way later on. I just want to see if we can nar-
row it down a little bit.
Mr. Ransom, will you state again your version of what
these cases hold as you described them before.
I am not going to interrupt your train of thought here,
Mr. Dunne. You can later on go into this in your own way.
[ am making it a little difficult, I guess, for you now.
Mr. Dunne: Your Honor is trying to see if we cannot
meet head-on on this.
The Court: That is right.
Mr. Ransom: I think we can, Your Honor.
The Court: You state how we can, then. Generally there
is an issue in these cases and sometimes it is a very cir-
cuitous route by which we try to get at those issues, and I
am trying to see if we cannot cut through and see if there is
[fol. 71] not an issue of fact or law, or whatever it is, be-
tween you people that at least you can agree on the issue.
RIE LEE RN TLE LEER TL IIE SEI RIOR IVE. CPT ENERO EE I IIE TY CASI: Se hanna —
69
Mr. Ransom: Your Honor, I do not think this question of
the difference in how rates are made up, foreign or do-
mestic, goes to the essence of this case at all. What Carna-
tion is complaining about is that a rate was set by reason of
agreements between these carriers and that the agreements
were beyond the scope of agreements which had been ap-
proved. Therefore, they say the agreements by which these
rates were set were unapproved, and being unapproved they
are subject to the Antitrust Laws.
We say whether approved or not approved they are still
subject to the Shipping Act and unapproved agreements
making rates between foreign carriers is unlawful under the
Shipping Act. The Shipping Act is the act which deals with
that particular unlawfulness and that the Sherman Act to
that extent is superseded.
Now, we also say, and this is an issue of fact, that the
agreement which was approved was broad enough to in-
clude in fact the actions of these parties so that we will con-
tend as a factual matter and a legal matter in the Commis-
sion when we are there, or if we have to, in this Court, that
you do not ever really reach the question of approved or un-
approved because we acted under an approved agreement.
Now, this is an issue where We say this is an issue of dis-
[fol. 72] agreement. The further issue of disagreement is:
Assuming we are wrong about whether we are approved
or disapproved, Mr. Dunne and Carnation Company say if
that is the case you are at large under the Antitrust Laws.
We say: no, the courts have decided that question and we
are still under the Shipping Act and we are not under the
Antitrust Laws.
The Court: All right. Let’s get a little specific. What are
those cases that you say have established that proposition?
Mr. Ransom: I would like to review them at some length.
The Court: Befor® we review them at length, and we
probably will have to, do you know offhand which ones they
are?
Mr. Ransom: Yes, Your Honor. It is United States Navi-
gation Company against Cunard, which was decided in
1932; the Far East Conference against United States, de-
70
cided in 1952. Those are the two Supreme Court cases.
Those deal with injunction proceedings.
The third case which settled the issue for all time, as far
as we believe, is the American Union Transport against
River Plate and Brazil Conference. That is a District Court
decision of the District of New York, affirmed without even
writing an opinion.
{fol. 73] .The Court: Yes. That is the 1954 case.
Mr. Ransom: Yes.
The Court: Those are the three cases?
Mr. Ransom; Those are the three cases which we think
this case should be decided on without the necessity of re.
ferring to any other cases, and those are the cases we say
hit the issue right exactly between us.
The Court: Will you just, then, if you will, state for me
as concisely as you can what those cases hold.
Mr. Ransom: I will endeavor to.
I should add this, if Your Honor please, that all these
three cases concern themselves with not domestic water
carriers but water carriers in foreign commerce that we are
concerned with here.
The Court: You say these three cases deal with water
carriers in foreign commerce as in this case
Mr. Ransom: As in this case.
Now, the first one, the Cunard case was a suit—Do you
wish me to—
The Court: Let’s start with the general and then get
down to the details. I may not be able to understand it if
you get too much detail. Tell me what you think they hold
just a plain garden-variety statement as to what you think
they hold related to this case.
Mr. Ransom: These cases hold, if Your Honor please.
[{fol. 74] that where an agreement is entered into betweer
carriers in foreign commerce of an antitrust, anticompeti
tive nature, a rate-making agreement, and the agreement
has not either been submitted to or approved by the Fed
eral Maritime Commission, the parties find their remedy
they must seek their remedy under the Shipping Act be.
~~ ee |
.
71
cause the Shipping Act has for the steamship industry a
scheme of regulations, a scheme of antitrust regulations,
which applies as to that industry and which is the exclusive
remedy for matters which come within or which relate to
agreements of a shipping act section 15 type. I think that
is exactly what they hold.
The Court: Let's put it this way: If they do hold that, I
take it from your statement that they would be dispositive
of this case because, as you have described them, they seem
to be on all fours. Is that correct?
Mr. Ransom: Yes, Your Honor. | would say the only at-
tempt that I can see, the only possibility of trying to dis-
tinguish these cases from our case, is that in the two Su-
commerce. In neither case is there any indication or hint or
suggestion that the fact that they are seeking an injunction
has anything to do with the theory of the case,
[fol. 75] The reason that I cite to Your Honor the third
case is that it dealt with treble damages. It was as Carna-
tion here. It sought treble damages under the Antitrust
Act. The Court there had the benefit of the opinion in the
Cunard case and in the Far Kast case, and the Court there
again dismissed the treble- damage action.
I should say, also, that of these cases there was a dissent
in the Far East Conference case by Mr. Justice Douglas.
The Court: That is the last one?
Mr. Ransom: That is the second of the two Supreme
Court cases.
Mr. Justice Douglas’ dissent presented the same argu-
ment which Carnation has presented here in its brief :
namely, if you do not have an approval you do not have an
exception.
The Court discussed Mr. Justice Douglas’ dissent and
said: whether there is merit to it or not merit, we are bound
= P ———
72
by the decision of the Supreme Court in the Cunard and the
majority in the Far East. So this point was argued in that
ease, if Your Honor please.
I should also like to point out that the Cunard decision
was a unanimous decision of all nine Justices, written by
Mr. Justice Sutherland.
{fol. 76] The Court: I will have to read that myself.
Mr. Ransom: It is very unusual, Your Honor. It had on
the Court at that time such quite well known Justices as
Justice Holmes and Justice Brandeis. .
In the Far East case, six out of the eight of the Supreme
Court Justices were in favor of our position.
Stepping back a moment, in the Cunard case in the Sec-
ond Circuit, Judge Augustus Hand wrote the opinion, which
I think is a classic. All the arguments that could have been
brought up were disposed of. Justice Learned Hand con-
curred with it.
The A.U.T. ease, which I mentioned, was by Judge Edel-
stein in New York. When it got to the Second Circuit,
Justices Clark, Medina and Dimock adopted the opinion,
considering that the law was so well established that there
was no need to write a further opinion.
Now, there are other cases besides these that follow then,
but those three cases we say are definitely dispositive of this
case.
The Court: Let’s stop here for a minute.
Mr. Dunne, you have heard that version of the situation.
STaTEMENT BY Mr. DunNE on BEHALF OF PLAINTIFF
Mr. Dunne: And you would like me to be just as short and
concise and confine myself to a few main authorities as coun-
sel from the other side.
{fol. 77] Now, our first proposition, and I do not under-
stand it to be disputed directly, is this: Section 15 of the
Shipping Act, actually providing that carriers in foreign
commerce might enter into agreements to fix rates, should
be lawful when approved by the Federal Maritime Com-
mission.
PENH POR NPE IE MARMOT FOAL MOOV Nn, RINNE OV eR IRR as ——
—
————
73
Now, we are all going to refer to it as the Commission.
There have been various agencies from time to time which
have been charged with the administration of this Act.
They then should be lawful. It provided that to carry out
unapproved agreements was unlawful. Then it said this:
“Every agreement, modification, or cancellation law-
ful under this section . . . shall be excepted from the
provisions”—
I am reading now from the Code.
“of Sections 1-11 and 15 of Title 15 and amendments
and Act supplementary thereto.”
So it provided a method of getting an exemption from the
antitrust statutes which were by approval by the Federal
Maritime Commission.
On Page 6 of our brief we have cited cases. The last one
which we have quoted is California against Federal Power
Commission approving the holding in Maryland and Vir-
ginia, the Bar Association, and so forth, for the proposition
that when Congress has provided a method for exemption
[fol. 78] from the antitrust statutes you get an exemption
only in the way provided for by Congress. That is one point
upon which we have never really met anywhere.
Now, the second thing is this. Counsel calls your attention
to the Cunard case and the Far East case, two decisions of
the Supreme Court of the United States. We are going to
submit to Your Honor that aside from this first point, the
question which Your Honor eventually is going to decide is
this: Is the ease in hand controlled by Cunard or is the case
in hand controlled by Great Northern against Merchants
Elevator, 259 U.S, 285.
Now, there is a very significant thing about Great North-
ern against Merchants Elevator. It is cited and quoted at
great length, and is the principal reliance of Justice Suther-
land in the Cunard ease. In due time when we argue this I
will point out where Great Northern fits into this whole pie-
ture. I just say now it was Mr. Justice Sutherland's princi-
74
pal reliance, with a long quotation, for the explanation of
the doctrine upon which he was relying in Cunard. When
we get to the facts of this case, then I will point out to Your
Honor what Great Northern against Merchants Elevator
holds. Well, it is not exactly flippant, but in an endeavor in
the closing brief to dispose of the Merchants Elevator case,
it is pointed out somewhat solemnly that the case was de-
cided in 1922.
[fol.79] But in the United States against Western Pacific
Railroad Company, 352 U.S. 59, Mr. Justice Harlan was
very careful to point out that the Court reaffirmed and ad-
hered to the distinction made in Great Northern against
Merchants Elevator. So it is not a case, by any means, that
has lost its vitality.
The Court: Let’s call it the Great Northern case.
Mr. Dunne: Yes, Your Honor.
In due time we will enlarge on that, Your Honor.
Now, to go back to the two United States Supreme Court
cases that counsel has called Your Honor’s attention to, the
Cunard case and the Far East Conference case, Mr. Chief
Justice Warren in his landmark opinion in this field in
United States against Radio Corporation of America, RCA,
358 U.S. 334, undertook some discussion of the United States
Supreme Court decisions in this field and noticed both Cu-
nard and Far East Conference. He cited them both but he
eited them this way, as explained in Federal Maritime
Board against Isbrandtsen Co., 356 U.S. 481—
The Court: In what? Federal Maritime—?
Mr. Dunne: Federal Maritime Board against Isbrandt-
sen Co., 356 U.S. 481.
When we come down to that case, when we compare on the
one hand the case upon which Cunard relied, the Great
Northern case, and its theory, and, then, on the other hand
[fol. 80] look at the reaffirmation of the theory of Great
Northern in Isbrandtsen, and Mr. Chief Justice Warren’s
citation of Cunard and Far East, but as explained in
Isbrandtsen, I think we will come down to the nub of the
issue in the case,
Your Honor wanted a very short statement of what we
think are the few controlling authorities, although there are
ee SF Nal ENR IP NET POSS —
75
other decisions of the Supreme Court that deal with various
facets.
The Court: Let me ask you a few questions so I can get
these in order. What was the date of Far East ané Cunard,
each of those cases? If you know.
Mr. King: Cunard was 1932, Your Honor, and Far East
| was 1952. Federal Maritime Board against Isbrandtsen was
. 1958,
| Mr. Dunne: Great Northern is 259 U.S., and that would
come before Cunard. About 1932, or so.
Mr. King: 1922.
The Court: U.S. versus Western Pacific, approximately?
Mr. Dunne: That is 1961 or so. U.S. against RCA, that is
a little later. That is 358. That is about 1961 or 62. No. It
is farther back than that.
The Court: Approximately.
Mr. Dunne: It is in the late fifties. These cases come
after Far East Conference.
The Court: Your position is, then, that these cases that
he cites, properly read, properly understood, are not ap-
[fol. 81] plicable to this?
Mr. Dunne: Have nothing to do with this case. This isa
simple overcharge case which falls squarely within Great
Northern. There is not an administrative question in this
case. It is a plain case of charging more than the only law-
ful rate and doing it because there was a conspiracy in viola-
tion of the antitrust statutes.
The Court: This is not an action. if there is such an ac-
tion, provided under the Shipping Act to collect overcharges
or recover overcharges, is it?
Mr. Dunne: Not under the Shipping Act, no, because the
overcharge was unlawful under the antitrust statutes.
The Court: You mean arguendo.
Mr. Dunne: That is right. It is not remitted to the Ship-
ping Act because the Shipping Act cannot give us the full
remedy we are entitled to under Antitrust Acts.
The Court: What remedy does the Shipping Act give?
Mr. Dunne: It hasa two-year limitation, whereas we have
four under the antitrust. They give single damages; we get
—— PRA I sa anes
76
treble in antitrust. If it is a jury trial, under the antitrust
statutes the Government awards attorney fees whereas the
Shipping Board Commission cannot give us anything.
The Court: The Shipping Act gives what, a two-year
limited right to what?
Mr. Dunne: Reparations.
{fol.82] The Court: To reparations. By a suit?
Mr. Dunne: By a proceeding before the Commission.
The Court: By a proceeding before the Commission.
Mr. Dunne: That is right.
The Court: Whereas by proceeding under the Antitrust
Act you have more time, the right to a jury trial, and et
cetera.
Mr. Dunne: In other words, we should point out that the
remedy under the Shipping Act does not displace any rem-
edy under the Antitrust Act assuming the same conduct
violates both the Shipping Act and the Antitrust Act be-
cause it does not give the complete remedy and does not
displace the other remedies.
The Court: Maybe this would be the time for you to tell
me as briefly as you can, remembering that you can go into
detail later to any extent you wish, just what you mean when
you say that those cases referred to by Mr. Ransom, on
which he has given his version, are distinguishable in the
light of, let us say, Great Northern.
Mr. Dunne: Great Northern—
The Court: Before you do it, let me see if 1 can repeat
what he said. He said that where agreements between car-
riers in foreign commerce have not been submitted to or ap-
proved by FMC, the parties must seek their remedies under
the Shipping Act because it has a scheme of antitrust regu-
{fol. 88] lation, and so forth, and that this is exclusive. He
says that that in effect is what has been held by Far East, by
Cunard, and followed by what we will call Brazil.
Mr. Ransom: American Union Transport versus River
Plate and Brazil Conference.
The Court: Now, you must say and you say impliedly,
that it really cannot hold exactly that.
nies ‘ ae gPrtseic asic x te et _
77
Mr. Dunne: That is right.
The Court: What do these three cases hold, that is, Far
Kast, Cunard, and the New York case, according to your
version in the light of, jet us say, Great Northern? Very
briefly.
Mr. Dunne: Let me put Great Northern on its very lowest
common terms. I have to go back just a little bit to do that.
Of course, the fountainhead about which we are all talk-
ing about is Mr. Chief Justice Fuller’s opinion in the Texas
versus Abiline Cotton Oil Company case. He held in that
case that where there was a regulatory statute—in this case
the Interstate Commerce Act, which had set up, to use a
later expression of Mr. Chief Justice Warren, a pervasive
scheme of regulation of the particular industry, that there
were certain things that were committed to that Commis-
sion, it would act on certain matters, and where uniformity
Was essential to the whole regulatory scheme, and particu-
[fol. 84] larly where the question upon which uniformity
turns, Was not a question of law which could be resolved for
everybody by an appeal to the United States Supreme
Court.
[am not relying on my imagination on this. The cases
have later pointed that out.
But where it turned on question of fact—and as Your
Honor knows, the courts on question of fact can only bind
the parties immediately before them—that in such cases to
determine who should act, then in aid of the general regula-
tory scheme, so that it should be applied generally, the regu-
latory commission should be permitted to act. That is the
beginning of the primary jurisdictien doetrine.
Following that, there were p series of cases involving
railroad rates in which it was held thet these disputes over
these rates amount toa question upon which there must be
u.formity. Indeed, as Mr. Justice Brandeis pointed out in
the Great Northern ease, it may also require some expertise.
Those cases had to go to the Commission first. Then eame
along Great Northern. Now, in Great Northern there was
an overcharge, or so it: was claimed, and the suit was
. . eee eer ow
ie... PRONE SG re: ee epucte Hs es AEN HE Hl Eanes WAP AMP ROM Kem. ale
. ——
78
brought to collect that overcharge without first going to the
Interstate Commerce Commission.
The Supreme Court of the United States looked at the
matter and said: this is just a question of construction of a
tariff, it is a question of law. A decision of the United
[fol. 85] States Supreme Court will establish uniformity on
this question of law. We can construe this tariff as well as
anybody else can. Accordingly they held that that over-
charge did not present an administrative question which
must first go to the Interstate Commerce Commission but
that the matter might be presented in the courts.
That case held that the primary jurisdiction doctrine did
not require resort to the administrative agency before
bringing suit in court, when there was no intricate question
of fact, there was no question of upsetting a general regula-
tory scheme. It was a simple question of construction of a
tariff. If the tariff was construed one way, it was an over-
charge; if it was construed the other way, there was not an
overcharge. Now, that has been compared with Cunard.
Going back some considerable time, water carriers, at
least water carriers in foreign commerce, having organized
conferences with approved conference rates, the agreement
to fix rates was approved, and then they issued their rates.
Under some of those approved agreements, these confer-
ences set up the so-called dual rate structure. That was this
kind of a scheme. They would set up the regular tariff rates
and anybody who offered shipments to them, who ordered
their service, could have it, paying those rates. But if the
shipper would agree to ship only in conference bottoms,
then he got a lower rate. This question of the validity of
[fol. 86] this dual rates has been going on in the Commis-
sion and before the courts and even before the Congress,
and finally was upset by the Isbrandtsen case, and they had
to go to Congress for legislation to change that situation,
and eventually did get legislation. They got a moratorium
statute for awhile and then some more permanent legisla-
tion.
FR OE CEILI REED nin? —
‘aa
US Bete ea lS PIA. ee
79
The United States Navigation brought an action under
the antitrust statutes. It was not a conference member and
it claimed that this agreement for this dual-rate structure
was illegal under the Antitrust Laws, and so it brought an
action under the Antitrust Laws only for an injunction, not
for mere damages for past conduct, but an injunction which
would be prospective in its operation. Now, there were two
things that were peculiar about that.
The Court: Pardon me. What case are we talking about?
Mr. Dunne: Cunard. United States Navigation Company
against Cunard Steamship Company. The question was
when there is an attack on dual-rate structure and when the
question is whether or not it is valid or whether or not it
falls within the original approval of a conference agree-
ment, you have got a question of such nature that you ought
to go to the Federal Maritime Commission first and not sue
first.
Now, remembering that the relief that was sought there
was by way of injunction only, Judge Hand in the Court of
(fol. 87] Appeals in the Second Circuit Court pointed out
this peculiar thing that would happen. He said, suppose the
Court went ahead and gave relief here and issued an injune-
tion and then the dual-rate structure is submitted to the
Federal Commission and be approved. It might be ap-
proved even while the case is pending out of court. In view
of the fact that the only remedy sought was prospective in
operation by way of an injunction.
Mr. Justice Sutherland who did not adopt that line of
reasoning, or at least did not mention it in his opinion, but
his general line of reasoning was this: this is a complicated
industry. It is not within the general province of Courts to
know about the details of an industry like the shipping in-
dustry and how a whole rate structure is constructed, and it
is something upon which there should ‘e uniformity and
regularity.
Now, I do not want counsel on the other side to get up and
tell me that I haven’t accurately quoted the case because I
do not pretend to quote the case. I am stating to Your
80
Honor my reading of the case and my interpretation of the
case.
So Mr. Justice Sutherland, looking at the distinctions
made in the Great Northern itself, said this kind of a case
is a case for an administrative remedy first. Let me carry
that on just very briefly, and if necessary we can now dis-
[fol. 88] cuss the details of that. That was a suit by the
United States Navigation Company, private suitor. Some
time later in the Far East Conference case the United
States itself made an attack on the dual-rate structure. Mr.
Justice Frankfurter wrote the opinion in Far East Confer-
ence, and he said—the relief there being asked, of course,
was prospective in operation only. He said, why, this is just
like Cunard. This is asking for relief in the future, injunc-
tive relief on this dual-rate structure; what difference
whether the United States is the plaintiff or whether it is a
private suitor; it is the same type of question. He said this
is a primary question for the administrative agency.
Then comes up something that is extremely interesting in
Far East Conference. He then said shall we dismiss or shall
we retain this case until we see what the agency does.
Your Honor must remember that the agency here had the
power to issue a cease and desist order which in effect is an
injunction. So he said in this case we are going to dismiss
because the Commission can give the United States all the
relief to which it is entitled. Then he added a very signifi-
cant sentence, which in effect is this, but if it does not, then
the Government can bring a similar suit. There is only one
way to read Mr. Justice Frankfurter’s opinion in that case,
and that is: we will dismiss, we won’t pertain.
[fol. 89] No.1, because the Government can get all the r. .
lief to which it is entitled and which it seeks before the Com-
mission, but if it does not, then, there will be time enough
for it to complain, and in that event it can bring a similar
suit, which was a suit for injunctive relief under the Anti-
trust Laws.
Let me call Your Honor’s attention to one other thing. I
do not think there is any mistake about what we had to say
about this in our brief but there has been an attempt to cast
=
a few stones at it. If Your Honor will read Mr. Justice
Frankfurter’s dissent in the Isbrandtsen case, if you will
look at that dissent, it is an extremely important dissent be-
cause it is his reading of what the majority was doing so far
as Cunard and their decision in Isbrandtsen.
This is a pretty long answer to a rather simple question
which Your Honor put as to what do we think that Cunard
holds. We think Cunard with its explanation in effect in
Far East Conference where Mr. J ustice Frankfurter points
out that two remedies that the Court can have, either by re-
’ taining and waiting to see what the Commission is going to
do, or either by dismissal, because if they do not get all the
relief they want they can still bring an action.
Then, if you will read the majority opinion in the Is-
brandtsen and the way it is highlighted by Mr. Justice
Frankfurter’s dissent, Your Honor will then see why it is we
say that Cunard is not controlling here, but the case that is
[fol. 90] controlling here is the case that Cunard relied on,
¥ which is Great Northern.
Your Honor, we are caught in a curious bind. One brief
on the other side accuses us of being entirely too pedantic
and introducing into this matter a heap of confusion. One
of the other briefs on the other side said we are oversim-
plifying it. I do not know quite where we stand.
The Court: Plead guilty to both.
Allright. Fine. We can hear from you later on this.
Mr. Dunne: Yes. As I understood Your Honor, you
wanted me to present our central line of argument, what we
have, and then these modifications, details, and peripheral
decisions can be dealt with later.
The Court: That is right.
Mr. Ransom, you have now heard Mr. Dunne’s comments.
Who wants to be heard on that?
81
ARGUMENT By Mr. Turk ON BEHALF oF
Co-DEFENDENT, Far East CONFERENCE
Mr. Turk: Your Honor, that depends somewhat on
whether you are ready to hear us present our arguments in
82
the order in which we had planned to make them or whether
you wish—
The Court: I would like to hear without reference to your
agenda, just to stand up here and tell me what is wrong with
Mr. Dunne’s picture.
Mr. Turk: Quite a few things in our view of it, Your
Honor.
{fol.91] In the first place, the Great Northern case was
strictly a question of primary jurisdiction under the Inter-
state Commerce Act. There was no question there of the
relationship between the Antitrust Laws and the Interstate
Commerce Act. What has not been fully emphasized here is
the manner in which the Supreme Court dealt with, first, the
question of the relationship between the Antitrust Laws and
the Shipping Act in both United States against Cunard and
the Far East case, and then proceeded to decide where the
proceedings should be tried.
Now, you will observe in reading United States Naviga-
tion against Cunard—
The Court: Let’s call these by familiar names. Cunard,
Far East, Great Northern. If you mention the defendants,
sometimes I think you are talking about another case.
Mr. Turk: All right.
In Cunard the Court at the outset stated the nature of the
charges and then it made a review of the provisions of the
Shipping Act and it found that the provisions of the Ship-
ping Act fully covered every detail of the conduct charged
to be unlawful by the antitrust complaint, finding full reme-
dial and substantive procedure in the Shipping Act. The
Court did not say this is a technical matter and we will get
rid of it. It said the Shipping Act pro tonto supersedes the
[fol. 92] Antitrust Laws.
Then it had the question of what do we do with a Shipping
Act case charging an unfiled agreement among common ear-
riers by water.
It examined Section 15 of the Shipping Act which makes
it unlawful to carry out an unfiled agreement among com-
mon carriers by water and said, well, there is no remedy un-
; )
der Section 16 of the Clayton Act because that is as we have
said before, it has been superseded, and even though this
agreement that is charged in U.S, N avigation, its complaint
looks pretty bad and looks horrible to a judge, it is entirely
possible that on a full consideration of all the economic fac-
tors involved the then Shipping Board might approve it and
we will not attempt to decide that in court, but following the
primary jurisdiction doctrine, the question was referred to
the Shipping Board.
At least the plaintiff was remitted to seek his remedy
there.
The same question arose in Far East. Again, you had an
antitrust complaint by the United States. Right at the out-
set Mr. Justice Frankfurter, who did write the majority
opinion in this case, said we had a problem here of consider-
ing the relationship between the Antitrust Laws and the
Shipping Act. U.S. Navigation against Cunard answers our
H problem and the Court proceeded on the theory that the
(fol. 93] Antitrust Laws, again, have been superseded inso-
far as the agreements of common carriers by water are con-
cerned.
Disagreeing with the District J udge in that case, Judge
Frankfurter stated that the Attorney General had a right to
bring a complaint before the Federal Maritime Board as it
then was charging the very conduct which he was charging
in his Antitrust complaint.
I think it must be clarified here what the gist of the griev-
ance here is. Now, it may seem presumptuous of the defen-
dants to tell the plaintiff what his gripe is, but still I think
that we must analyze that in order to appreciate the applica-
tion of supersession first, and then primary jurisdiction.
There has been a lot of talk here about the power of the Fed-
eral Maritime Commission over its rates and agreements.
The two are quite different.
Carriers in foreign commerce are authorized to initiate
rates individually or pursuant to approved agreements and
there is no requirement of approval of the individual rates,
and until quite recently there was no provision for suspen-
sion and a determination as to reasonableness. But it is
83
St
equally true that interstate carriers do not have to get ad-
vance approval of their rates. They file their rates. After
they have been on file after a stated period they become law-
ful rates unless the Commission on its own motion, Inter-
state Commerce Commission, or some other carrier or ship-
{fol. 94] per brings a suspension~proceeding and attacks
the rates. So there is not quite all this great difference be-
tween ocean foreign commerce rates and domestic rail rates
as it first may have appeared.
Secondly, and most important, Section 15 of the Shipping
Act specifically requires the filing with the Commission of
any agreement for the fixing of rates or the limiting or de-
stroying of competition, pooling, allocation of traffic, et
cetera. That is not limited to domestic commerce. It ap-
plies, or it at least had applied originally, with equal vigor
to domestic or foreign commerce.
In 1940 the Water Carriers Act transferred jurisdiction
over strictly interstate rates to the Interstate Commerce
Commission and at the same time repealed the Shipping Act
insofar as it applied to carriers who were going to be regu-
lated thereafter by the Interstate Commerce Commission.
So far as having a domestic regulatory act here, the
Shipping Act has the exclusive application to foreign com-
merce.
I think the air should be cleared on this subject. These
agreements that are charged here are agreements of car-
riers of foreign commerce. Section 15 applies with full force
to agreements of carriers in foreign commerce.
Now, Section 15, after prescribing the filing of these
[{fol. 95] agreements, tells the Commission that if it makes
findings that these agreements are unjustly discriminatory
among carriers, shippers or ports, or discriminate against
American exporters as compared with their foreign com-
petitors, something that Carnation refers to in its com-
plaint, or are detrimental to the commerce of the United
States or violate any other section of the Shipping Act, the
Commission shall disapprove such agreement, otherwise it
shall approve the agreement.
ee a
85
A further paragraph of Section 15 states that it is unlaw-
ful to carry out an agreement before or after approval.
The further paragraph of Section 15 states that anybody
who violates any provision of this section shall be liable to a
civil penalty. It used to be a flat $1,000 a day. Since 1961 it
is up to a thousand dollars for each day that the violation
continues.
The reason I am bothering you with the details of what
Section 15 describes as to the agreements which must be
filed, what it says the Commission is entitled to do, the
standards that are applied under the statute by the Com-
mission and what the penalty is, is to give Your Honor a full
appreciation of the fact that an agreement among common
carriers by water in foreign commerce, free onppetition, is
subject to the fullest kind of regulatory scheme ander Sec-
tion 15.
(fol. 96] The Court: What I am interested in right now is
something just specifically to Mr. Dunne’s statement which
was generally to the effect that the Cunard and the Far East
cases involved application for injunctive relief only, pro-
spective relief, and that that some way or another distin-
guishes those cases from Great Northern which was an
attempt to collect overcharges in the courts without going
to the Commission and on which it was held that the issue
involved only the question of law and that it was not an ad-
ministrative question.
But before hearing from you on that, let’s give this re-
porter a little recess.
(Recess taken.)
Mr. Turk: Your Honor, I will bring myself directly to the
question you put before me before the recess ; namely, where
do we stand on this question of injunction versus treble
damages. I think there are two answers to that. One is the
easy one. In the cases under the Shipping Act or involving
carriers subject to the Shipping Act regulations where com-
plaints have been brought under the Sherman Act seeking
treble damages, they have been dismissed.
Now, the leading case on that, of course, is the American
Union Transport.
saennenineiiienaes —_
86
The Court: You are referring to some other case now?
Mr. Turk: No. I think you have that listed.
{fcl.97} The Court: Is that the New York case? That is
the Antitrust Act.
Mr. Turk: Yes.
The Court: As I understand it, that case was ordered dis-
missed on the authority of Far East and Cunard.
Mr. Turk: Exactly.
The Court: I am trying to find out, though, from you
what you think is wrong with Mr. Dunne’s attempt to dis-
tinguish these three cases by reference to other cases re-
ferred to in some of these decisions.
Mr. Turk: You mean, for example, his reference to the re-
cent cases of California against Federal Power Commis-
sion?
The Court: No, I do not.
Mr. Turk: I do not—
The Court: Well, you heard his statement in answer to
your version of what these cases hold.
Mr. Turk: You mean his reference to the Isbrandtsen
decision?
The Court: Isbrandtsen, Great Northern ... In other
words, why do you think that Mr. Dunne has attempted to
tell me to distinguish these three case?
Mr. Turk: That isa very long story.
The Court: Make it a short one.
Mr. Turk: Let’s start out with the Isbrandtsen decision
of 1958. Mr. Dunne says in his brief and in his argument
[fol. 98] that that explains away U.S. Navigation and Far
East Conference as authorities requiring the application of
the supersession and primary jurisdiction doctrines. [ think
this involves misapprehension as to what went on between
the majority and the dissent in the Isbrandtsen case.
In the first place, | think we must emphasize that Is-
brandtsen was not an antitrust case and it was not even a
primary jurisdiction case, It arose under the Review Act
of 1950 to review an order of the Maritime Commission
granting Section 15 approval to one of these dual-rate con-
__
tract systems. The case first came up.in the District of Co-
lumbia Cireuit and that Court held that these dual-rate
systems are rendered illegal, per se, by Section 14 of the
Shipping Act.
One of the questions presented to the Supreme Court was
that was the Court below correct in holding that these are
illegal proceedings.
Now, arguing there for the conference there involved, it
Was asserted that these earlier cases of Cunard and Far
East Conference could not have been decided the way they
were if the Court, the Supreme Court, had entertained the
notion that these dual-rate systems were illegal per se.
Someone on the Great Northern argued that if it were sim-
ple question of law the Court would not have had to defer
to the administrative agency for its expertise; the Court
would have said, well, maybe the Antitrust Laws do not
apply but under Section 14 of the Shipping Act these sys-
(fol. 99] tems are so clearly illegal that we will grant an in-
junction under the Shipping Act.
Well, we were repulsed in that argument. The majority
in the Isbrandtsen said: no, that this is not a correct in-
terpretation of those earlier decisions; the primary jurisdic-
tion doctrine applies to give the Court the benefit of a
preliminary consideration by the expert ageney which can
compile a full factual record and develop all of the economic
situations involved; then when the agency is done we still
have the right to say whether their result was correct under
the law.
It should be noted that the majority in the Isbrandtsen
did not hold contract rate systems to be unlawful per se.
They said that they are unlawful if they have certain at-
tributes, if they are predatory, stifle competition, et cetera.
Mr. Justice Frankfurter in his dissent in Isbrandtsen al.
most quarreled with the good faith of the majority. He re-
viewed the history of these dual-rate Systems and said they
are always used to meet competition and to protect the
carryings of conferenees as against non-conference lines so
that in effect the majority of today ruled them illegal per se
a iiaeresienceaceeniinsiaonas
87
. nna
88
even though they do not come out and say it. He says that
in so doing I think that they go contrary to the necessary
(fol. 100] implication of Far East and U.S. Navigation
against Cunard. This has nothing to do at all with the issue
of supersession and the issue of primary jurisdiction in
U.S. Navigation and Far East with which we are concerned
with here. Fx
Our position is that dsbrandtsen has nothing to do with
the present case. r
The Court: What about Great Northern?
Mr. Turk: Great Northern, again, as | believe I said be-
fore—if I did I think it bears repetition—was not an anti-
trust case. It was a case brought to recover a charge
claimed to have been excessive under the tariff.
Now, in that connection I think it must be remembered
that Section 9 of the Interstate Commerce Act gives persons
who claim that they had been injured by a carrier subject
to that act the right to proceed either before the Interstate
Commerce Commission or before a Court so that there has
had to evolve some philosophy of what type of question is
more appropriate for administrative consideration and
what type of question is appropriate for judicial decision.
The Court said all that is involved here is a reading and
interpretation of a tariff provision. The Courts read con-
tracts, wills, and statutes every day of the week; that is the
kind of thing we can do; and as long as there is no technical
question of the nature of the commodity and its use with
which we are not familiar, we can decide the case as well as
[fol. 101] the Commission.
The Court: Right. Suppose that the plaintiff here was
bringing the suit in this court to collect a claim for excessive
charges. Would he then be in the same position as Great
Northern?
Mr. Turk: You mean under the Shipping Act? If he was
bringing a suit—
The Court: Right here in this court.
Mr. Turk: Overcharge by water carrier?
The Court: Yes.
P w
Mr. Turk: I don’t think he would for this reason, that the
Shipping Act does not contain any provision giving the
option to sue either by a complaint for reparations to the
Commission or—
The Court: Isn’t that what was held in Great N orthern?
Mr. Turk: That was the Interstate Commerce Act.
The Court: That is right.
Mr. Turk: That involved a railroad regulated under
LC.C.
I think that this would be an appropriate time to say that
in considering a case under any other regulatory statute you
have got to be careful to compare the regulatory scheme and
the provisions as far as power to award reparations, the
savings of remedies under other statutes, the savings of the
(fol. 102] right to proceed in court before you can conclude
that that case is authority for similar result under the
Shipping Act.
The Court: At any rate, in Great Northern, it was held
you coula bring a suit in the court to collect what was
claimed overcharges beyond the tariff.
Mr. Turk: I would not agree that is an overcharge case.
As I understand it, Your Honor, under the Interstate Com-
merce Act an overcharge has technically become the ter-
minology for a case where for used shoves the railroad has a
rate of $2.00 a hundred pounds and it charged this shipper
2.10 a hundred pounds. The difference between the tariff
rate and what he was charged was an overcharge.
The Court: That is what I understand to be an over-
charge.
Mr. Turk. Yes. But I think the Great Northern involved
the question of whether Commodity Q which good shippers
ship properly should have been charged the rate for this
kind of old shoes or whether it was actually used clothing.
It was a question of which was the correct tariff provision
to apply rather than strictly a charge of a rate higher than
: the rate clearly applicable.
| The Court: Your position is, then, that as far as claimed
overcharges by a water carrier under the Shipping Act pro-
a
SO A ee Seas aE
‘ nee
90
visions is concerned that the aggrieved party could not come
[fol. 103] into court here and collect that overcharge.
Mr. Turk: That is correct.
The Court: Because the situation is different from I.C.C.
Mr. Turk: There is no choice provided under the Ship-
ping Act to proceed either before the Commission or the
Court. The only provision is in Section 22 of the Shipping
Act which gives the Commission the right to award repara-
tions for violation of the Act.
Now, I do not concede at all that this is an overcharge
case.
The Court: Well, the next question I was going to ask is
this: This is a suit for treble damages by reason of alleged
antitrust conspiracy. I suppose it is based upon the fact
that charges were made which were arrived at by unap-
proved agreements.
Mr. Turk: That is the gravamen of it.
The Court: That may be the gist of it but it is not specifi-
cally an overcharge case.
Mr. Turk: No, it couldn’t be an overcharge case.
The Court: I do not even know whether the damages
would be the same, the elements would be quite the same. I
am not sure.
Mr. Turk: I think Mr. Dunne would agree that he does
not claim that Carnation was charged anything in excess of
[fol. 104] what the Pacific Westbound tariff showed.
Mr. Dunne: I claim Carnation is charged exactly $2.50 a
ton more than the only lawful tariff.
Mr. Turk: You haven’t answered my question. I guess I
can’t get an agreement on it.
Mr. Dunne: You cannot get an agreement from me that
any kind of conduct which purports to fix a tariff which is
expressly declared to be illegal can fix a tariff. It is illegal
conduct made expressly illegal by the Antitrust statutes as
well as the Shipping Act.
Mr. Turk: I think what has been said makes it clear that
the claim is for concerted action, whatever elevation of the
rate may have resulted from concerted action.
TEE ESR ERE EAE REE IOS, RS ELE IA IMIR IE TEST FEM
wn
»
‘
re | ;
It is our position, of course, that Section 15 is the sub-
stantive law and that Section 22 of the Shipping Act pro-
vides the remedy. Now, just because Section 22 does not
provide for treble damages and lawyers’ fees is, we submit,
no basis for holding that the plaintiff is entitled to proceed
under the Antitrust Laws. After all, if supersession means
what it says, the theory is that Congress removed this seg-
ment of our industrial structure, these public servants,
from antitrust and subjected them to an entirely different
regulatory philosophy, and if it did provide a remedy of
reparations for the injury suffered that was deliberate and
it was deliberately different from the standard of damages
[fol. 105] prescribed for commercial enterprises generally.
I think that to the extent there is talk of a difference be-
tween the prospective operation of an injunction and the
retrospective operation of damages the interference with
obedience to a coherent regulatory policy is equal. It is trae
that the injunction focuses our attention on the fact that the
Court under antitrust may enjoin conduct which the Com-
mission under Section 15 might well approve. But we of
the industry are subject to equal pulling and hauling if we
take the combined action which is conceivably approvable
under Section 15 but for thai action may be subjected to
treble-damage suits under the Antitrust Laws we are again
being compelled te serve two inconsistent miasiers if this
type of suit is allowed to succeed.
I think that the representative of the Government may
have more to say on that aspect of it, the degree to which
the allowance of treble-damage suits under the Antitrust
Laws would interfere with the Commission’s activity.
Speaking for the industry, I think we would be equally
saddled with two inconsistent philosophies of regulation if
we are subject to reguiation and, indeed, punishment by
treble-damage suits under the Antitrust Laws and at the
same time have to obey the dictates of the Shipping Act.
The Court: This is all on the assumption that these de-
[fol. 106] fendants did not obey the provisions of the Ship-
ping Act.
92
Mr. Turk: Yes. We are assuming, as I believe we must
on a motion to dismiss, that what the Complaint says is so,
but what we have done here has been done without approval.
The Court: isn’t that precisely what was done in Cunard?
Mr. Turk: It certainly was.
The Court: .And Far East, and more specifically in the
New York case.
Mr. Turk: Certainly. There is no question about it, that
the same claim was made there, that because these agree-
ments were not submitted and approved they are at large.
In the New York ease the opinion | think is noteworthy
because Judge Edelstein said that he is a little tempted by
Mr. Justice Douglas’ philosophy in his dissent in Far East
but he said he felt he was precluded from following it be-
cause, after all, the majority said the other way around.
Mr. Ransom: | would like to comment briefly on the Great
Northern situation of that case and what I understand Mr.
Dunne is citing it for. It is my understanding that what he
is saying that the Great Northern case says that the doe-
trine of primary jurisdiction or supersession does not apply
if all you have is a simple issue of law which the Court car
decide and you do not need to concern yourself with the
expertise of the Commission and there is no problem, no
[fol. 107] issue involved that has anything to do with this
expertise.
Now, this, then, addresses itself to, really, what would the
issues be in the event of a trial of the case; with what is-
sues would the Court be concerned; would there be any is-
sues which the Commission itself should first have a erack
at and which you should take advantage of the faet that
they are experts in the field; and that there should be a
uniformity of regulation.
The Court: Are you saying that in this case this Court
would have to necessurily determine whether or not these
agreements referred to by Mr. Dunne were actually beyond
the scope of any approval?
93
ARGUMENT BY Mr. Ransom on BEHALF OF DEFENDANT,
WestBouND CONFERENCE, ET AL.
Mr. Ransom: Yes. Not for the purpose of determining
the motion to dismiss but for the purpose of trial. It is
that to which I would like to address myself briefly, if I
may.
This is where Mr. Dunne says his ease is simple; he has
a simple overcharge case. This is where we say the case
is most complex when it comes to the Complaint itself.
The Court: In other words, you deny that these agrev-
ments which he is complaining of were in fact unapproved
or beyond the seope of any Commission's approval. Is that
right?
Mr. Ransom: Yes, Your Honor. What our position would
be, which is the position actually already taken by the par-
ties in a proceeding now before the Federal Maritime Com-
[fol. LOS] mission, which Government counsel will no doubt
speak of—what our position would be on the trial of this
case is that the agreement which was approved— First, the
Westbound Conference has an agreement to approve rates
and, then, the Far East Conferenee, represented by Mr.
Turk, they have a rate-making section 15 agreement. Then
these two groups decided that they were naturally competi-
tive to one another. The cargo coming from the East Coast
to the Philippines was in competition with cargo from the
West Coast to the Philippines and they developed almost a
rate war between t
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