dissenting:

I dissent and would remand to the district court to have it decide whether the alleged agreement not to deal with Dreisbach actu *731 ally did exist. Appellants alleged such an agreement and the issue thus was presented whether the carriers’ refusal to deal was in each case an independent business judgment or was a concert of action pursuant to an agreement between them to deal only with Murphy. The district court never reached that question, ruling that any such agreement would be rendered immune from the antitrust laws by reason of the PMC approval of the section 15 agreements 10012 and 10252. It is the validity of that holding that is the question presented on this appeal. 1

While the § 15 agreements do purport to authorize the parties to agree upon any subject of common interest in the trade, in my opinion Commission authorization and approval must be held to be limited to routine implementation of the agreements and to conduct that they apparently contemplated.

Section 15 of the Shipping Act, 46 U.S.C. § 814 , requires that carriers shall file with the Commission “every agreement * * * giving or receiving * * * special privileges or advantages; controlling, regulating, preventing or destroying competition; * * * or in any manner providing for an exclusive, preferential, or co-operative working arrangement * * “The Commission shall * * * disapprove * * * any agreement * * that it finds to be unjustly discriminatory or unfair * * * or to be contrary to the public interest * * *.” (Emphasis supplied.)

The requirement of Commission approval is understandable, since it was contemplated by Congress that conference agreements would have anticompetitive aspects. Accordingly, the public interest in free competition must be balanced against the need of the carriers, in the public interest, to avoid the consequences of open competition. The alleged agreement not to deal with Dreisbach is an anticompetitive arrangement that has never had such Commission consideration and approval.

While it is true that the carriers were dealing with Murphy at the time their agreements received Commission approval, that arrangement did not then amount to a refusal to deal with anybody else. Dreisbach was not then on the scene. The agreement now under scrutiny is the alleged agreement not to deal with Dreisbach. It goes far beyond a routine agreement between carriers not to compete with each other in certain respects. The carriers are doing more than enjoying their own immunity from antitrust violation. Their alleged agreement confers monopoly status and antitrust immunity upon Murphy- — one not otherwise immune, not party to the approved agreements, and not subject to Commission regulation. I would hold that such an agreement requires independent Commission approval.

Accordingly, I would remand to the district court for determination of the question whether the alleged agreement not to deal with Dreisbach in fact did exist. Should it be found to exist, I would hold that it must be held invalid in absence of Commission approval.

. I do not believe that this issue should be disposed of on the basis of ambiguous and confusing statements as to the nature of the appellants’ claim made by counsel at the hearing on summary judgment in the district court. I do not find anything that can fairly be construed as a waiver of Dreisbach’s claim that he had been subjected to a boycott.