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Federal Maritime Commission v. Caragher

decided: August 3, 1966.

FEDERAL MARITIME COMMISSION, PETITIONER-APPELLANT AND CROSS-APPELLEE,
v.
E. G. CARAGHER, VICE PRESIDENT, NORTON LILLY & CO., INC., ET AL., RESPONDENTS-APPELLEES AND CROSS-APPELLANTS, AND MORDECAI CHOVERS, VICE PRESIDENT, AMERICAN-ISRAELI SHIPPING CO., INC., GENERAL AGENT FOR ZIM ISRAEL NAVIGATION CO., LTD., RESPONDENT-APPELLEE



Waterman, Moore and Friendly, Circuit Judges. Friendly, Circuit Judge (concurring).

Author: Waterman

WATERMAN, Circuit Judge:

This action was commenced in the United States District Court for the Southern District of New York by the Federal Maritime Commission (hereafter the Commission) to enforce subpoenas duces tecum issued to the Respondents-Appellees and Cross-Appellants (hereafter Respondents) pursuant to Section 27 of the Shipping Act of 1916.*fn1 Each of the respondents is either the principal officer or custodian of records for each of the respondent common carrier steamship lines, which in turn are all members of the New York Freight Bureau (Hong Kong) engaged in the transportation of commodities by water between Hong Kong and the Atlantic and Gulf ports of the United States.*fn2

I.

The subpoenas duces tecum were issued in connection with an "Investigation of Rates in the Hong Kong-United States Atlantic and Gulf Trade," begun by the Commission on December 10, 1962, pursuant to Section 22 of the Shipping Act of 1916,*fn3 after Sabre Line had filed an informal protest against the present level of rates charged by the New York Freight Bureau (Hong Kong). The original purpose of the investigation was to determine whether any rate in this trade*fn4 was "so unreasonably low as to be detrimental to the commerce of the United States" and thus should be disapproved by the Commission pursuant to Section 18(b) (5) of the Shipping Act of 1916.*fn5 Thereafter, at the instance of one of the respondents, the Isbrandtsen Steamship Company Division of American Export Lines, the investigation was expanded by a Commission order dated June 20, 1963, so as also to determine "whether any of the respondents are, or have been, engaging in practices which may be in violation of Sections 14, 16, or 17 of the Shipping Act of 1916,*fn6 or which may result in the charging of lower rates than the rates on file with the Commission, in violation of Section 18(b) (3) of the Act."*fn7

The scope of the investigation having been finally defined, Hearing Counsel,*fn8 on September 3, 1963, pursuant to authority purportedly granted the Commission by Section 27 of the Shipping Act of 1916,*fn9 filed an application to serve upon each respondent a subpoena duces tecum calling for the production of: "(1) All inbound rated manifests for cargo transported from Hong Kong to the Atlantic or Gulf coasts from January 1, 1962 to the present; (2) All inbound rated manifests in possession of the addressees at the time of the hearing for cargo loaded in Hong Kong but which vessels have not yet arrived at Atlantic or Gulf ports; (3) All stevedoring and terminal services contracts which contained rates and conditions for handling cargo moving from Hong Kong to New York City, New York, during the year 1962; (4) All invoices evidencing billing for stevedoring and terminal services in connection with handling cargo moving from Hong Kong to New York City, New York, during the year 1962; and (5) All cancelled checks or receipts for payment for stevedoring and terminal services in connection with handling cargo moving from Hong Kong to New York City, New York, during the year 1962."*fn10

A hearing in furtherance of the underlying investigation was held on April 21, 1964. Some of the named respondents produced all the documents mentioned in the subpoenas or availed themselves of an alternate procedure suggested by the Hearing Counsel and agreed to permit inspection of the documents by employees of the Commission at a time and place mutually agreeable to Hearing Counsel and to them. Respondent Mordecai Chovers, representative of Zim Israel Navigation Co., Ltd., produced the documents referred to in items (1) and (2) of the subpoena but refused to produce the documents referred to in items (3), (4), and (5). The respondents-appellees and cross-appellants in this case refused to produce any of the documents to which the subpoenas referred. On June 2, 1964 the Hearing Examiner referred the refusals to the Commission for action. The hearing was concluded on July 2, 1964 without definite action having been taken on the refusals.*fn11 Thereafter, briefs were filed by all the parties in connection with the underlying investigation and the matter was submitted to the Hearing Examiner for decision on February 5, 1965. No decision has yet been handed down by the Hearing Examiner who is awaiting the outcome of the present enforcement proceedings.*fn12

On May 19, 1965, almost one year after the investigation was concluded and more than three months after the matter was submitted to the Hearing Examiner for decision, the Commission, pursuant to Section 29 of the Shipping Act of 1916,*fn13 applied to the court below for an order to show cause why respondents should not be compelled to comply fully with the subpoenas issued by the Examiner. Respondents opposed enforcement on the following three grounds: the requested documents were not relevant; the hearing had already been concluded and the record closed; Section 27's grant of subpoena power to the Commission expressly provided that the power could only be used "for the purpose of investigating alleged violations" of the Act and thus was inapplicable to a Section 18(b) (5) rate investigation proceeding because that Section did not in terms provide for investigations of "violations" but merely stated the Commission had the power to disapprove rates "which after hearing, it finds to be so unreasonably high or low as to be detrimental to the commerce of the United States." The district court directed compliance with items (1) and (2) of the subpoenas on the ground the documents requested (cargo manifests) appeared relevant to the investigation of possible violations of Sections 14, 16, 17 and 18(b)(3).*fn14 It sustained respondents' view of the limits of the Commission's subpoena power and denied enforcement as to items (3), (4), and (5), holding that the documents requested (stevedoring records) were relevant only to the Section 18(b)(5) claim that the rates charged by the New York Freight Bureau (Hong Kong) were unreasonably low, and that the Commission lacked the power to issue subpoenas in Section 18(b)(5) investigations. Federal Maritime Commission v. Caragher, 243 F. Supp. 136 (SDNY1965).

The Commission has appealed from the district court's order denying enforcement of the subpoenas duces tecum as to items (3), (4), and (5). All respondents other than Mordecai Chovers appeal the grant of enforcement as to items (1) and (2). We affirm the district court as to items (1) and (2) and reverse it as to items (3), (4), and (5). We remand with directions to enforce the subpoenas in their entirety.

II.

Our decision that the Commission has the power to subpoena in a Section 18(b)(5) investigation requires a preliminary review of the manner in which the Shipping Act of 1916 attempted to regulate common carriers by water in foreign commerce, defined by the Act as transportation between the United States and foreign countries.*fn15 As originally enacted, the Act contained at least three distinct types of regulatory provisions. Some provisions, in terms, proscribed certain objectionable anticompetitive practices: for example, Section 14 forbade regulated carriers to employ deferred rebates, or "fighting ships," or to retaliate against shippers;*fn16 Section 16, in terms, prohibited rebates on established tariffs and outlawed undue preference or prejudice to any person, locality, or type of traffic.*fn17 A second group of provisions combatted anticompetitive practices indirectly by granting the Commission power to determine on a case-by-case basis in light of broad normative criteria whether certain practices should be disapproved: for example, Section 15 required anticompetitive agreements to be filed with the Commission and granted the Commission power to disapprove unfair or unjustly discriminatory agreements and those detrimental to United States commerce or contrary to the public interest.*fn18 See Note, Rate Regulation in Ocean Shipping, 78 Harv.L.Rev. 635, 639 (1965). Yet a third group of provisions in the 1916 Act granted the Commission power to investigate matters not subject to its regulatory jurisdiction, which investigations would not lead to adjudicative orders but would result in reports to Congress or to the President for such action as might be deemed advisable. Shipping Act of 1916 § 12, 46 U.S.C. § 811 (investigations as to costs of domestic and foreign merchant vessels);*fn19 § 26, 46 U.S.C. § 825 (investigations as to acts of foreign governments).

In addition to the authority granted by the 1916 Act to the Commission to conduct the investigations provided for in Sections 12 and 26, the Commission is authorized under Section 22 also to investigate "any violation" of the Act upon complaint or upon its own motion. Investigations such as the one at bar, which culminate in adjudicatory action by the Commission rather than in reports to Congress or the President are conducted under the authority granted by Section 22 to "investigate any violation" of the Act.*fn20

Section 27 of the 1916 Act gave the Commission power to issue subpoenas "for the purpose of investigating alleged violations" of the Act. Respondents' contention, sustained below, is that the grant of this power in Section 27 only permits the Commission to issue subpoenas in Section 22 investigations commenced to determine whether there has been a violation of a provision like Section 14 that proscribes certain anticompetitive practices; and that this grant of subpoena power does not permit the Commission to issue subpoenas in Section 22 investigations commenced in furtherance of the Commission's responsibility under a provision like Section 15, or like Section 18(b)(5), that requires the Commission to decide in light of broad normative criteria whether certain practices should be disapproved. Respondents apparently argue that a practice that the Act does not, in terms, denominate unlawful but instead subjects to Commission scrutiny cannot be said to "violate" the Act until the Commission has held a hearing and disapproved it. Respondents thus urge that we conclude that an investigation commenced in order to decide whether a certain practice should be disapproved is not an investigation "for the purpose of investigating alleged violations" of the Act and that the subpoena power is therefore not available to the Commission in conducting such an investigation.

We reject respondents' contention as inconsistent with both the ostensible purpose of the regulatory pattern established by the Shipping Act of 1916 ...


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