Opinion · District Court, S.D. New York

Isbrandtsen Co. v. United States

81 F. Supp. 544

Type
Opinion
Court
District Court, S.D. New York
Jurisdiction
New York
Date
1948-12-20
Topic
antitrust

RIFKIND, District Judge. We are all in agreement that a temporary injunction should issue to maintain the status quo pending further proceedings to adjudicate the legality of the Conference agreements and the action contemplated pursuant thereto. It may be that the “exclusive patronage” provisions are prohibited by 46 U.S.C.A. § 812 2 and that the Commission is powerless to approve such provisions under 46 U.S.C.A. § 814. Very considerable doubt upon such a holding is thrown by Swayne & Hoyt, Ltd., v. U.

Citator

UpLaw has not yet analyzed Isbrandtsen Co. v. United States. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
17 opinions
ISBRANDTSEN CO. v. UNITED STATES, (S.D.N.Y. 1948)
81 F. Supp. 544
ISBRANDTSEN CO., Inc. v. UNITED STATES et al.
United States District Court, S.D. New York.
December 20, 1948.
West Page 545
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]West Page 546
John J. O'Connor and William L. McGovern, both of Washington, D.C., for plaintiff.

John F.X. McGohey, of New York City, Walter K. Bennett, Sp. Asst. to the Atty. Gen., Antitrust Division, and Joseph E. McDowell, Sp. Asst. to the Atty. Gen., for the United States.

Paul D. Page, Jr., and George F. Galland, both of Washington, D.C., for U.S. Maritime Commission.

Burlingham, Veeder, Clark Hupper, of New York City (Roscoe Hupper, of New York City, of counsel), for defendant carriers.

Tompkins, Boal Tompkins, of New York City (Arthur M. Boal, of New York City, of counsel), for Lykes Bros. Steamship Co., Inc.
Before FRANK, Circuit Judge, and RIFKIND and KAUFMAN, District Judges.
RIFKIND, District Judge.
We are all in agreement that a temporary injunction should issue to maintain the status quo pending further proceedings to adjudicate the legality of the Conference agreements and the action contemplated pursuant thereto.

It may be that the "exclusive patronage" provisions are prohibited by 46 U.S.C.A. § 8122and that the Commission is powerless to approve such provisions under 46 U.S.C.A. § 814. Very considerable doubt upon such a holding is thrown by Swayne Hoyt, Ltd., v. U.S., 1937,300 U.S. 297,306,307and note 3,57 S.Ct. 478,81 L.Ed. 659, and by the legislative history of the statute, H.R.Doc. No. 805, 63rd Cong., 2nd Sess., 1914, 287-292.

But we need not decide that question now. The statute is not very explicit in its provision of an administrative remedy. It does, however, provide, 46 U.S.C.A. § 814, that the Commission may cancel or modify any agreement "* * * whether or not previously approved by it * * *", and for fifteen years the Commission has followed a procedure for reviewing on its own motion, Pacific Coast European Conference Agreement, 1948, 3 U.S.M.C. 11, and for hearing complaints concerning agreements previously approved by it. Cf. Olsen v. Blue Star Line, Ltd., 1941, 2 U.S.M.C. 529; Rawleigh v. Stoomvart, 1933, 1 U.S.S.B. 285. That procedure has not yet been availed of by plaintiff. We should not at this stage pass on the validity of the agreements before the Commission, in accordance with its established procedure, has had an opportunity to pass thereon in an adversary proceeding.

But were the defendant carriers to institute their exclusive patronage system pending the Commission's decision upon such a proceeding, the plaintiff would beWest Page 547gravely prejudiced. Since the Commission disclaims the power to afford temporary relief, and the equitable power of the court to preserve the status quo to protect the rights of all concerned has not been withdrawn by statute,3an injunction as prayed should issue, conditioned on the plaintiff's diligent prosecution before the Commission of a complaint challenging the validity of the agreements. The defendant carriers' motion to dismiss the action is denied.West Page 551
  1. Section 14 of the Shipping Act, 46 U.S.C.A. § 812, prohibits, deferred rebates and retaliation by discriminating or unfair methods against a shipper because such shipper has patronized any other carrier. ↩
  2. In West India Fruit S.S. Co., Inc., v. Seatrain Lines, Inc., 2 Cir.,170 F.2d 775, the Court of Appeals sustained an injunction granted with the Commission's approval on the theory that the Commission itself lacked power to grant relief pending its determination on a formal complaint. Cf.28 U.S.C.A. § 2324; 5 U.S.C.A. § 1009. ↩