Trans-Pacific Freight Conference of Japan v. Federal Maritime Board
Trans-Pacific Freight Conference of Japan v. Federal Maritime Board
Opinion of the Court
This case raises questions as to the authority of the Federal Maritime Board
The order now before us on appeal directs petitioners, the Trans-Pacific Freight Conference of Japan and its members, to refrain from assessing fines against intervenors, States Marine Lines, Inc., and its affiliate, Global Bulk Transport Corporation, or taking any action to collect such fines, pending the final disposition of proceedings which intervenors instituted against the Conference before the Board.
The Conference is a group of steamship companies operating from Japan, Korea and Okinawa to Hawaii and the Pacific Coast ports of North America. Petitioners act in concert in the conduct of their business by authority of an agreement filed with and approved by the Federal Maritime Board pursuant to Section 15 of the Shipping Act of 1916, 46 U.S.C.A. § 814. So long as approved by the Board, such agreements are exempted from the antitrust laws. Petitioner’s Section 15 agreement permits them to combine to fix tariff rates and trade practices, and sets out a code of business practices. It also contains a schedule of monetary penalties, payable to the Conference, for violating various provisions. As a means of enforcement, an amendment to the agreement provides for employment of a “neutral body,” empowered to investigate the complaint of any member line and to impose a fine upon discovery of an infraction of the agreement. One of the offenses for which a fine may be imposed is the refusal of a Conference member to make its business records available to the neutral body on demand.
Intervenors are members of the Conference. On January 13, 1959, the accounting firm of Lowe, Bingham & Thomsons, which was acting as the “neutral body” under the Conference agree
“It is Ordered, that from the date of this order and until the Board issues a final order in this proceeding, respondents shall cease and desist: (1) from assessing or collecting any fines against complainants; and (2) taking any action to collect fines heretofore assessed against the complainants * *
Respondents and intervenors contend that the Board’s order is not final and consequently not reviewable under the Administrative Orders Review Act of 1950 (the Hobbs Act), 5 U.S.C.A. § 1031 et seq. But, as we said in the Isbrandtsen case—
“Whether or not the statutory requirements of finality are satisfied in any given case depends not upon the label affixed to its action by the administrative agency but rather upon a realistic appraisal of the consequences of such action. ‘The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control’ Thus, administrative orders are ordinarily reviewable when ‘they impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process.’ Under this test, a final order need not necessarily be the very last order.” (Footnotes omitted.)3
This brings us to the question whether the Board has the power to maintain the status quo by the order now under appeal. The Board relies for its authority on Sections 22 and 15 of the Shipping Act, 46 U.S.C.A. §§ 821 and 814. When a sworn complaint has been filed, Section 22 gives the Board power to investigate it “in such manner and by such means, and [to] make such order as it deems proper,” including an order for reparations to the complainant for the injury caused by the violation of the Act.
Nor does Section 15 support the Board’s order.
Our conclusion is reinforced by the -administrative interpretation placed on "the Act by the Board. The Shipping Act was passed in 1916. But not until as recently as 1960 has the Board ■ or its predecessors even asserted that it possessed the kind of interim injunctive powers asserted in this case.
“1. The Board should be given the power to enter cease and desist orders of an interlocutory nature prior to the completion of full evidentiary hearings. * * *
“ * * * the Board should have the power to maintain or restore the status quo upon a prima facie showing of irreparable damage, substantial injury to the public interest, or little likelihood of success on the merits. In this respect, the Board would in general be acting in a fashion similar to that of a court of equity in the disposition of applications for interlocutory injunction.”10
The power which the Board now claims is in many ways a drastic one, and in fact more akin to judicial injunctive power than the power which Congress has given some agencies to issue cease and desist orders against conduct deemed in violation of law. The order here is not a directive to comply with existing law or an existing Board regulation. On the contrary, it seeks to prohibit one party (in what is at this stage essentially a private dispute) from enforcing an agreement, previously approved by the Board, made with another private party. But the Board is not a court, and cannot rely for its action on the powers of a court of equity. On the contrary, the law is settled that an administrative agency can exercise only those powers conferred on it by Congress. See, e. g., Civil Aeronautics Board v. Delta Air Lines, 367 U.S. 316, 322, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961); United States v. Seatrain Lines, 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396 (1947); Alaska Airlines v. Civil Aeronautics Board, 103 U.S.App.D.C. 225, 257 F.2d 229 (1958). We will not lightly assume that Congress has attempted to confer injunctive powers on this or any other administrative agency.
Our examination of the statute and the administrative interpretation of it does not support the Board’s contention that Congress has granted it the authority it has here sought to exercise. The order must be set aside. Our decision is, of course, without prejudice to any proceeding which the agency or the intervenors may bring in a court of equity to seek injunctive relief against petitioners. With this possibility in mind, the entry of our judgment will be postponed for fifteen days.
Reversed.
. The Federal Maritime Board, which issued the order under review, has been succeeded by the Federal Maritime Commission. See Reorganization Plan No. 7 of 1961, 26 Fed.Reg. 7315. References to the Board in this opinion should, where appropriate in the context, be deemed to include the Commission.
. States Marine claimed that Lowe-Bingham was not qualified to act as a neutral body under the terms of the Conference agreement because of its relationship with Price, Waterhouse & Co., which also acted as auditor for one of the Conference members.
. Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 297, 211 F.2d 51, 55, cert.
. The Board’s order is, of course, a type of injunction. In apparent recognition of the fact that injunctive orders are “final” in the sense that they dispose of the rights of the parties for a period of time, 28 U.S.C. § 1292 (1958), has long provided that the courts of appeals have jurisdiction of interlocutory orders of the district courts granting or refusing injunctions.
. The Hobbs Act gives us exclusive jurisdiction “to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” such final orders of the Federal Maritime Board as “are now subject to judicial review” pursuant to Section 31 of the Shipping Act, 46 U.S.C.A. § 830. Section 31 in turn is based on the procedures available for suspension of orders of the Interstate Commerce Commission under the Urgent Deficiencies Act of 1913, as amended and codified, 28 U.S.C. §§ 1336, 2321-2325 (1958). However, neither the cited statutes nor the decisions interpreting them appear to be of direct aid in solving the problem of finality presented by the instant case.
. 46 U.S.C.A. § 821 (Section 22 of the Shipping Act) provides:
“Any person may file with the Federal Maritime Board a sworn complaint setting forth any violation of this chapter by a common carrier by water, or other person subject to this chapter, and asking reparation for the injury, if any, caused thereby. The Board shall furnish a copy of the complaint to such carrier or other person, who shall, within a reasonable time specified by the Board, satisfy the complaint or answer it in writing. If the complaint is not satisfied the Board shall, except as otherwise provided in this chapter, investigate it in such manner and by such means, and make such order as it deems proper. The Board, if the complaint is filed within two years after the cause of action accrued, may direct the payment, on or before a day named, of full reparation to the complainant for the injury caused by such violation.
“The Board, upon its own motion, may in like manner and, except as to orders for the payment of money, with the same powers, investigate any violation of this chapter.”
. 46 U.S.C.A. § 814 (Section 15 of the Shipping Act) provides:
“Every common carrier by water, or other person subject to this chapter, shall file immediately with the Federal Maritime Board a true copy * * * of every agreement, with another such carrier * * * or modification or cancellation thereof * * * fixing or regulating transportation rates or fares*879 * * * or in any manner providing for an exclusive, preferential, or cooperative working arrangement. * * *
“The Board may by order disapprove, .cancel, or modify any agreement, or any modification or cancellation thereof, ■whether or. not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States .and their foreign competitors or to operate to the detriment of the commerce of the United States, or to be in violation -of this chapter, and shall approve all other agreements, modifications, or can- ■ cellations.
“ * * It shall be unlawful to carry out any agreement or any portion thereof disapproved by the Board.
“All agreements, modifications, or cancellations made after the organization of ■the Board shall be lawful only when and .as long as approved by the Board
. In Pacific Coast European Conference, 5 F.M.B. 65 (1956), the Board asserted the authority to issue a cease and desist order prohibiting the parties from carrying out an unapproved agreement. We need not express a view as to whether such an order is within the Board’s authority. But we do note that different considerations might well be involved in such a case. Cf. Isbrandtsen Co. v. United States, supra, 93 U.S.App.D.C. at 299, 211 F.2d at 57 (action of the Board in issuing order allowing dual rate system agreement to go into effect prior to Board approval field contrary to specific requirements of Section 15 of the Shipping Act).
. Compare note 8, supra.
. Dept. of Commerce letter submitted to House Merchant Marine and Fisheries Committee March 20, 1961, H.R.Rep. No. 498, 87th Cong., 1st Sess., 14, 22.
Reference
- Full Case Name
- TRANS-PACIFIC FREIGHT CONFERENCE OF JAPAN, American Mail Line, Ltd. v. FEDERAL MARITIME BOARD, now Federal Maritime Commission, and United States of America, States Marine Lines, Inc., and Global Bulk Transport Corporation, Intervenors
- Cited By
- 12 cases
- Status
- Published