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FMC v. NEW YORK TERMINAL CONF.

December 1, 1966

FEDERAL MARITIME COMMISSION, Petitioner,
v.
NEW YORK TERMINAL CONFERENCE et al., Respondents



The opinion of the court was delivered by: LEVET

LEVET, District Judge.

 By order to show cause, dated August 26, 1966, the Federal Maritime Commission submitted a petition of said Commission to enforce certain subpoenas theretofore served upon the New York Terminal Conference and certain of its members and upon United States Lines Company and issued in a certain proceeding entitled, "Empire State Highway Transportation Association, Inc. v. American Export Lines, Inc., et al., Docket No. 65-39 and Truck Loading and Unloading Rates at New York Harbor, Docket No. 65-46."

 THE BACKGROUND OF PROCEEDINGS

 The petition sets forth the following:

 1. The Federal Maritime Commission is an agency of the United States, responsible, among other things, for regulating the shipping and related industries pursuant to the Shipping Act, 1916 (46 U.S.C. § 801 et seq). (Par. II)

 2. On October 5, 1965, Empire State Highway Transportation Association, Inc. (hereinafter "Empire State") filed a complaint with the Federal Maritime Commission pursuant to the provisions of Section 22 of the Shipping Act, 1916 (46 U.S.C. § 821) against named respondents herein alleging, inter alia, that said respondents were violating Sections 15 and 17 of the Shipping Act, 1916 (46 U.S.C. §§ 814 and 816). (A copy of the complaint was attached and marked as Exhibit A.) (Par. III)

 3. Thereafter, the Federal Maritime Commission, pursuant to said Section 22 of the Shipping Act, 1916, instituted a proceeding entitled, "Empire State Highway Transportation, Inc. v. American Export Lines, Inc., et al., Docket No. 65-39," to adjudicate the issues therein presented. (Par. IV)

 4. On December 14, 1965 the Federal Maritime Commission on its own initiative, pursuant to Section 22 of the Shipping Act aforesaid, instituted an investigation to determine, inter alia, whether named respondents were violating Sections 15, 16 and 17 of the Shipping Act, 1916 (46 U.S.C. §§ 814, 815 and 816). (A copy of the Order of Investigation entitled, "Truck Loading and Unloading at New York Harbor, Docket No. 65-46" as amended was attached thereto and marked as Exhibit B.) (Par. V)

 5. On the motion of the Federal Maritime Commission counsel, the proceeding in Dockets No. 65-39 and 65-46 were consolidated upon the representations that matters of common interest were involved. (Par. VI)

 6. Individual respondents herein are common carriers by water operating in the commerce of the United States or are engaged in the business of furnishing wharfage, dock, warehouse, and other terminal facilities or services in connection with common carriers by water. (Par. VII)

 7. Respondent, New York Terminal Conference, operates under and by virtue of an agreement (No. 8005) approved and sanctioned by the Federal Maritime Commission under authority of Section 15 of the Shipping Act, 1916 (46 U.S.C. § 814). (Par. VIII)

 8. Pursuant to the Federal Maritime Commission Rules of Practice and Procedure (46 CFR 502.131) on the application of complainant, Empire State, and Federal Maritime Commission counsel subpoenas were regularly made and duly issued to and upon the respondents calling for the production of documentary evidence in the consolidated proceedings. (Par. IX, marked "IV")

 9. Motions to quash the subpoenas were filed with the hearing examiner, who subsequently denied said motions. (A copy of the ruling was attached, marked as Exhibit C.) (Par. X)

 10. By further order of the hearing examiner, the subpoenas were made returnable at a hearing on August 24, 1966, whereupon the respondents failed and refused to comply with the subpoenas in any respect. (Par. XI)

 11. The petitioner, Federal Maritime Commission, seeks enforcement of the subpoenas issued on the application of its hearing counsel, who is charged with the representation of the public interest pursuant to the Federal Maritime Commission Rules of Practice and Procedure (46 CFR 502.42). (A copy of the subpoenas served upon each of the respondents was attached and marked as Exhibit D.) (Par. XII)

 The petition also alleges that noncompliance with the subpoenas adversely affects the adjudicatory responsibilities of the Federal Maritime Commission and prevents the complainant, Empire State, from producing evidence in its complaint case and, therefore, the Commission seeks the aid of this court for enforcement of the subpoenas. (Par. XIII)

 DISCUSSION

 Respondent, New York Terminal Conference (hereinafter "Conference"), in its memorandum in opposition to the petition, and respondent, United States Lines Company, in its answering affidavit and memorandum, acknowledge the Commission's authority to administer the provisions of the Shipping Act of 1916 (Par. II of petition), and they admit issuance of the subpoenas (Par. IX, marked "IV"), denial of the motion to quash by the hearing examiner (Par. X), and their own refusal to comply with the subpoenas (Par. XI). Respondents concede that they are common carriers or within the term ...


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