U.S. Court of Appeals for the Sixth Circuit, 1970

Export Liquor Sales, Inc. v. Ammex Warehouse Company, Inc., and Detroit & Canada Tunnel Corporation

U.S. Court of Appeals for the Sixth Circuit · Decided May 11, 1970 · Phillips, Edwards, McCree

426 F.2d 251; 1970 U.S. App. LEXIS 9319; 1970 Trade Cas. (CCH) 73,171 (Federal Reporter, Second Series)

Counsel

Wallace M. Handler, Detroit, Mich., for plaintiff-appellant; Lebenbom, Handler & Morganroth, Fred Morganroth, Detroit, Mich., on brief., Elliott H. Phillips, Detroit, Mich., for defendant-appellee, Detroit and Canada Tunnel; Timothy D. Wittlinger, Hill, Lewis, Adams & Goodrich, Detroit, Mich., on brief., Richard Ford, Detroit, Mich., for defendant-appellee, Ammex Warehouse Co., Inc.; Fischer, Sprague, Franklin & Ford, Detroit, Mich., on brief.

Cases that cite this one

22 later published cases cite this decision. The 21 that cite it most often are listed here.

Murdock v. City of Jacksonville, Florida (United States District Court for the Middle District of Florida 1973)
Ferguson v. Greater Pocatello Chamber Of Commerce, Inc. (9th Cir. 1988)
Ferguson v. Greater Pocatello Chamber of Commerce, Inc. (9th Cir. 1988)
The Interface Group, Inc. v. Massachusetts Port Authority (1st Cir. 1987)
Tv Signal Company of Aberdeen, a Corporation v. American Telephone & Telegraph, a Corporation, and Northwestern Bell Telephone Company, a Corporation (8th Cir. 1980)
Tv Signal Company of Aberdeen v. American Telephone and Telegraph Company and Northwestern Bell Telephone Company (8th Cir. 1972)
Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co. (9th Cir. 1998)
Stearns Airport Equipment Co., Inc. v. FMC Corp. (District Court, N.D. Texas 1996)
White Industries, Inc. v. Cessna Aircraft Co. (District Court, W.D. Missouri 1987)
James R. Smith, M.D. v. Northern Michigan Hospitals, Inc. (6th Cir. 1983)
Sakamoto v. Duty Free Shoppers, Ltd. (District Court, D. Guam 1983)
Southern Pacific Communications Co. v. American Telephone & Telegraph Co. (District Court, District of Columbia 1983)
Bartleys Town & Country Shops, Inc. v. Dillingham Corp. (United States District Court for the District of Hawaii 1982)
Andrew Byars v. Bluff City News Company, Incorporated (6th Cir. 1980)
Woolen v. Surtran Taxicabs, Inc. (District Court, N.D. Texas 1978)
Valerio v. Boise Cascade Corp. (United States District Court for the Northern District of California 1978)
Advanced Office Systems, Inc. v. Accounting Systems Co., Inc. (District Court, D. South Carolina 1977)
James Freeman v. Chicago Title & Trust Co., a Corporation (7th Cir. 1974)
Rea v. Ford Motor Company (District Court, W.D. Pennsylvania 1973)
Heath v. Aspen Skiing Corporation (United States District Court for the District of Colorado 1971)
TV Signal Co. v. American Telephone & Telegraph (District Court, D. South Dakota 1971)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

McCREE, Circuit Judge.

This is an appeal from the dismissal of a private antitrust suit for failure to state a claim on which relief could be granted. The facts are not in dispute. Appellee Detroit & Canada Tunnel Corporation owns or leases a vehicular tunnel between Detroit, Michigan, and Windsor, Ontario, and other property adjacent to the tunnel entrance in Detroit. Appellee Ammex Warehouse Company carries on an export liquor business. It sells liquor in the United States to persons about to enter Canada, and delivers the liquor to them on premises leased from the Tunnel Corporation beyond the toll gates at a location where travellers are irrevocably committed to foreign travel. Ammex has an exclusive contract with the Tunnel Corporation to conduct this business on tunnel premises, and for this privilege pays the Tunnel Corporation a certain percentage of its total sales. If liquor is exported in this manner, it may be purchased free of certain taxes and duties, and thus at a considerably lower price than in retail outlets in Michigan or Ontario.

Appellant Export Liquor Sales, Inc., apparently recognized the lucrative nature of this business and decided to compete with Ammex. Unable to acquire a tunnel location because of Ammex’s exclusive lease, appellant secured premises near the tunnel entrance where it sold and issued receipts for liquor. Hired runners entered tunnel premises and delivered the merchandise to purchasers after they had paid the toll and committed themselves to cross the international boundary.

The Tunnel Corporation objected to these activities and brought suit in the Wayne County Circuit Court in Detroit to enjoin Export Liquor from trespassing on its premises. That court issued a temporary restraining order, and Export Liquor filed this suit in the United States District Court for damages and injunctive relief because of alleged antitrust violations.

We consider, first, appellant’s contention that appellees have violated the Robinson-Patman Act, 15 U.S.C. § 13(d), because the Tunnel Corporation has in effect given Ammex a monopoly of export liquor sales in the Detroit-Windsor Tunnel. It is doubtless true that monopoly is a consequence of the Tunnel Corporation-Ammex lease, but the Robinson-Patman Act prohibits only price discrimination in the sale of goods. The Act is not concerned with what we have here (assuming arguendo that the exclusive lease amounts to price discrimination), a lease of realty. See Gay-lord Shops, Inc. v. Pittsburgh Miracle Mile Town & Country Shopping Center, Inc., 219 F.Supp. 400 (W.D.Pa. 1963). We agree that the Robinson-Patman count was properly dismissed.

Appellant also alleges that appellees’ conduct violates the Sherman Act, 15 U.S.C. §§ 1, 2. This contention is untenable in view of Donovan v. Pennsylvania Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192 (1905), in which the Supreme Court recognized the right of a railroad company operating a terminal to have an exclusive arrangement with one taxi company on its premises. In other words, a corporation with control over a unique location essential to the conduct of a certain kind of business can lease a part of that location to one entity and thereby give it an effective monopoly without violating the Sherman Act.

Despite its age, Donovan enjoys continued vitality. See E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52, 56 (1st Cir. 1966); Parmalee Transp. Co. v. Keeshin, 292 F.2d 794 (7th Cir. 1961), cert. denied, 368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340, reh. denied, 368 U.S. 972, 82 S.Ct. 437, 7 L.Ed.2d 401 (1962); Friend v. Lee, 95 U.S.App.D.C. 224, 221 F.2d 96, 100 n. 5 (1955); cf. Savon Gas Stations No. Six, Inc. v. Shell Oil Co., 309 F.2d 306 (4th Cir. 1962), cert. denied, 372 U.S. 911, 83 S.Ct. 725, 9 L.Ed.2d 719 *253 (1963). And of.course the RobinsonPatman Act did not reverse the Donovan rule insofar as it is relevant here, because, as we have seen, the Act has no application to this case.

Under the Donovan holding, the Tunnel Corporation may lease to Ammex and refuse to lease to Export Liquor space on the tunnel premises, so long as it does not discriminate among users of the utility qua utility, i. e., motorists driving through the tunnel. We agree with the District Court that appellant’s complaint does not state a cause of action under the Sherman Act.

The decision of the District Court is affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.