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LUDLOW CORP. v. DESMEDT

January 25, 1966

LUDLOW CORPORATION, Petitioner,
v.
A. T. DeSMEDT, President, American Export Isbrandtsen Lines, Inc., American Export Lines, et al., Respondents



The opinion of the court was delivered by: RYAN

RYAN, Chief Judge.

 Petitioners Ludlow Corporation and the Federal Maritime Commission seek, pursuant to § 29 of the Shipping Act of 1916, 46 U.S.C. § 828, to enforce obedience to certain subpoenas issued by the Commission. Each petitioner by order to show cause moved to intervene in support of the other's application. An order has been entered permitting Ludlow to intervene and the Commission has withdrawn its motion.

 Ludlow, a Massachusetts corporation with its principal place of business in that state, is engaged in the manufacture and distribution of jute products. Respondents are officers or agents of shipping companies which are member carriers of the Calcutta, East Coast of India and East Pakistan/U.S.A. Conference - "the Calcutta Conference," *fn1" which has common tariffs, rates, practices and rules established pursuant to Agreement No. 8650 and approved by the Federal Maritime Commission on March 31, 1964, under Section 15 of the Shipping Act of 1916, thus giving its domestic and alien member carriers exemptions from domestic antitrust laws. The member carriers of the Calcutta Conference are engaged in common carrier transportation from East India and Pakistan Ports to United States Atlantic and Gulf of Mexico Ports. By virtue of a "dual-rate" contract concluded on July 11, 1964, Ludlow has assumed the obligation to transport all of its imports with member carriers of the Conference.

 Whether respondents are American or Foreign Flag members is not disclosed; both take the same position on this application.

 On July 6, 1965, the Conference filed with the Commission notice of a general across-the-board rate increase to become effective on October 11, 1965. Ludlow immediately entered a protest, and thereafter on August 10, 1965, filed a complaint with the Commission under § 22 of the Act, 46 U.S.C. § 821.

 Specifically, the complaint alleges that after October 11, 1965, Ludlow would be required to pay ocean transportation rates detrimental to the commerce of the United States contrary to the public interest, and unreasonably high, in violation of §§ 14b, 15, and 18(b)(5) of the Shipping Act of 1916, 46 U.S.C. §§ 813a, 814, 817(b)(5). The complaint seeks damages, an injunction against the continued use of the allegedly illegal rates, and the establishment of a lawful rate by the Commission.

 Pursuant to § 27 of the Act, *fn2" 46 U.S.C. § 826, a Hearing Examiner of the Commission on October 18, 1965 granted Ludlow's application for the issuance of subpoenas compelling the production of documents by respondents. Later the Examiner issued a clarification of his ruling directing that his decision was not to be construed as requiring production of documents from any place not in the United States. Thereafter, on November 12, 1965, the Commission granted Ludlow's application for the issuance of additional subpoenas requiring the production of documents "wherever located."

 On that application respondents sought leave to appeal from the Examiner's ruling compelling production of any documents and in addition contended that the restricting of the subpoenas to documents located only in the United States placed American Flag carriers at a disadvantage with their foreign competitors. This last argument was resolved by the granting of complainant's application and leave to appeal was denied. Respondents have refused to comply as to any documents. They argue that the Commission's application to enforce the subpoenas should be denied because they were not served in accordance with administrative rules, because they were issued without statutory authorization in that no alleged violation of the Act is involved, in that they seek production of documents located outside the United States and of documents irrelevant to an alleged violation. To this petitioners reply that the limitations sought to be imposed on the Commission's power would frustrate its investigative power and Congressional purpose.

 Rule 9(c) of the Rules of Practice and Procedure of the Federal Maritime Commission, 46 C.F.R. § 502.133 provides in pertinent part:

 
"In making service the original subpoena shall be exhibited to the person served, shall be read to him if he is unable to read, and a copy thereof shall be left with him."

 Respondents contend that seventeen of the subpoenas here involved were served improperly because they were exhibited and delivered to employees of the respondents. We do not agree that Rule 9(c) requires nothing less than personal service upon the officers of the carriers named as defendants in this action. The Rule does not direct that the person served must be the person named in the subpoena. Moreover, respondents do not question the authority of the employees served. We conclude that the manner of service was in full compliance with Rule 9(c) of the Commission.

 By the literal terms of § 27 a subpoena may issue only pursuant to an investigation of an "alleged violation." (See Alcoa Steamship Co. v. Federal Maritime Commission, 121 U.S. App. D.C. 144, 348 F.2d 756, 759 (D.C.Cir.1965)).

 Ludlow's complaint, filed in compliance with the Commission's rules, 46 C.F.R. § 502.62, and § 22 of the Act, 46 U.S.C. § 821, clearly alleges violations of §§ 14b, 15 and 18(b)(5). Nevertheless the respondents maintain that the requirements of § 27 have not been met because the acts charged, i.e., the unreasonably high rates, are not declared unlawful by the Act and cannot constitute a violation of it until they have been outlawed by the Commission - in short that there can be no violation of § 18(b) in advance. This position is in no way supported by the wording of the Act and in principle offends the entire scheme of regulation embodied in the statute. Moreover, it ignores the violations of §§ 14b and 15 charged.

 Sections 14b, 15 and 18(b)(5) are similar in language and composition. Their interpretation should be ...


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