Medina, Waterman and Moore, Circuit Judges. Moore, Circuit Judge (concurring).
There is before us a petition for a writ of certiorari, in a civil anti-trust case, to review the interlocutory rulings of Judge Ryan, in the Southern District of New York, denying applications for a stay and for other relief. In the exercise of our discretion we deny the petition, without reaching the merits. See Rule 21 of the Federal Rules of Appellate Procedure. An application for certification under 28 U.S.C., Section 1292(b) was denied by Judge Ryan.
This is an action pursuant to the provisions of Section 4 of the Clayton Act, 15 U.S.C., Section 15, and Sections 1 and 2 of the Sherman Act, 15 U.S.C., Sections 1, 2. The complaint requests a recovery of $49,000,000 in damages, attorneys' fees and injunctive relief. Petitioners, defendants in the action, are members of the Japan Atlantic & Gulf Conference and the New York Freight Bureau (Hong Kong) Conference. Plaintiff Sabre Shipping Corporation is an independent. The gist of the anti-trust charge is that prior to 1962 petitioners and other defendants did most of the business of shipping goods in the Hong Kong-United States and Japan-United States trade and commerce, but that plaintiff was a substantial competitor. Thereafter, and as part of an alleged conspiracy, petitioners and others reduced their rates "to an unreasonably low level below the cost of transporting the commodities" and put Sabre out of business, after which the old rates were restored.
Proceedings before the Maritime Commission on Sabre's complaint were begun by order of the Commission on December 10, 1962, on the charge that the rates above referred to were "so unreasonably high or low as to be detrimental to the commerce of the United States," in violation of Section 18(b) (5) of the Shipping Act, 46 U.S.C., Section 817 (b) (5). There were seemingly interminable delays. The present anti-trust case was commenced on October 29, 1966. Finally, the Examiner sustained Sabre's allegations of unreasonably low rates and Judge Ryan commented that the situation was so absurd "that some rates to Atlantic ports from Hong Kong were less than those to the West Coast."
Nevertheless, on November 3, 1967, the Commission held the issue had become moot and ordered the proceeding discontinued insofar as it related to the matters under discussion here. The Commission stated "some useful purpose must be served before the Commission will undertake to examine a carrier's now-defunct rate structure." Sabre's petition to the Commission for reconsideration was denied on January 19, 1968.
In denying the writ in the exercise of our discretion we have taken into consideration all the facts and circumstances set forth in the voluminous papers submitted by petitioners and respondent. We are also mindful of the delays that have already occurred and Judge Ryan's statement that "the time has come for plaintiff to have its day in court on the merits." This is no by-passing of the Commission which has already dismissed the proceeding before it, insofar as it concerns the issues in this case, as moot, thus eliminating any use of the expertise of the Commission. An opportunity to exercise its primary jurisdiction has been availed of and rejected by the Commission. The only effect of our granting the writ would be further to postpone the day of reckoning for perhaps another several years until a new proceeding before the Commission finally reached the stage at which the Commission could decide that it meant what it said when it held on November 3, 1967 that the issues were moot because the rates under attack had long since been discontinued. In thus exercising our discretion we do not think we violate any of the principles outlined in U.S. Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 76 L. Ed. 408, 52 S. Ct. 247 (1932); Far East Conference v. U.S., 342 U.S. 570, 96 L. Ed. 576, 72 S. Ct. 492 (1952); Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 15 L. Ed. 2d 709, 86 S. Ct. 781 (1966) and the other cases relied upon by petitioners.
The various questions of statutory construction and interpretation were well within Judge Ryan's competency to decide and thus we are faced with no more than another effort to induce us to take cognizance of an interlocutory appeal of which we have no jurisdiction.
We hold that 28 U.S.C., Section 1292(b) does not supplant the All Writs Act. It is our view that in a proper case the mere denial by a District Judge of an application for certification under 28 U.S.C., Section 1292(b) does not preclude our consideration of a petition for any of the traditional writs. See D'Ippolito v. Cities Service Company, 374 F.2d 643 (2d Cir. 1967).
The various miscellaneous alleged erroneous rulings by Judge Ryan in his opinion below may be reviewed on an appeal from a final judgment in this case, as in others.
Petition for writ of certiorari denied.
Petition for writ of certiorari denied.