Carnation Company, a Corporation v. Pacific Westbound Conference, Far East Conference and the Federal Maritime Commission

336 F.2d 650 CARNATION COMPANY, a corporation, Appellant, v. PACIFIC WESTBOUND CONFERENCE, Far East Conference and the Federal Maritime Commission, et al., Appellees. No. 18926. United States Court of Appeals Ninth Circuit. July 30, 1964. Rehearing Denied September 28, 1964. Arthur B. Dunne, Wallace R. Peck, San Francisco, Cal., James R. Baird, Jr., William H. Birnie, Los Angeles, Cal., Dunne, Bledsoe, Smith, Phelps, Cathcart & Johnson, San Francisco, Cal., for appellant. Herman Goldman, Elkan Turk, Jr., Sol. D. Bromberg, New York City, for appellees Far East Conference and members and former members thereof. Edward D. Ransom, William H. King, Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for appellees Pacific Westbound Conference and others. James L. Pimper, Gen. Counsel, Robert E. Mitchell, Deputy Gen. Counsel, Robert B. Hood, Jr., and John E. Cograve, Attys., Federal Maritime Commission, Washington, D. C., for appellee Federal Maritime Commission. Before CHAMBERS, POPE and JERTBERG, Circuit Judges. POPE, Circuit Judge. 1 On December 5, 1962, the appellant Carnation Company filed in the court below its complaint against Pacific Westbound Conference and Far…

On December 5, 1962, the appellant Carnation Company filed in the court below its complaint against Pacific Westbound Conference and Far East Conference, and numerous individual shipping lines, members of those conferences, seeking recovery of treble damages under the antitrust acts 1 on account of damages claimed to have been suffered by Carnation through an alleged unlawful combination fixing prices and rates for shipment of Carnation’s manufactured products to the Philippine Islands, pursuant to agreements among them which had not been filed with or approved by the Federal Maritime Commission. 2 This appeal is from an order dismissing the action on the ground that the matters complained of were within the primary^ jurisdiction of the Commission.

Each of the defendant conferences had on file with the Maritime Commission an approved agreement of the kind referred to in See. 15 of the Shipping Act, Pacific Westbound Conference’s approved agreement known as No. 57, was designed, among other things, to carry out the purpose of that Conference to fix the rates at which conference members would serve shippers in foreign commerce westbound from Pacific Coast ports. The Far East…

UPON PETITION FOR REHEARING

Appellant’s petition for rehearing discloses a failure to note the main thrust of the opinion which holds that appel *668 lant’s action in the court below was properly dismissed on the ground that the matters complained of were within the primary jurisdiction of the Federal Maritime Commission.

Appellant has failed to note that we said: (immediately following the reference to footnote 16 on page 659) “In the exercise of its ‘regulatory and remedial powers’ to enforce the Act’s ‘pervasive regulatory scheme’, it is for the Commission to pass upon the following questions: whether the defendants did or did not make certain agreements, whether those agreements, if made were such as to require Commission approval * * Again we discuss this matter at great length (beginning at the middle of page 664, where we said among other things: “Cunard and Far East Conference, as we have noted, both hold that failure of approval does not affect the Commission’s primary jurisdiction. But even if it did, the question would remain as to whether what defendants did amounted to agreements which required Commission approval. And that is something for the Commission to decide.…