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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Appendix — Carnation Co. v. Pacific Westbound Conference · 383 U.S. 213 | Frix