Board to determine their validity. At page 925, the Court specifically stated:
'Plaintiffs, in this motion, challenge no order or decision of the board nor do they ask the court to declare the rates and practices of Tariff No. 3 illegal. They seek merely the maintenance of the status quo of the date of the board's order of inquiry, during the pendency of the administrative proceedings, and the injunction requested is said to be in aid of the board's processes. It has been held that such a temporary injunction may be granted by the court in the exercise of its equity powers. West india Fruit & Steamship Co. v. Seatrain Lines, 2 Cir., 170 F.2d 775; Isbrandtsen Co. v. United States, D.C., 81 F.Supp. 544. * * *'
True it is that the Court in that case did not grant the relief prayed for. However, the final decision was based on a balancing of the equities, the Court neve for a moment expressing a lack of power to act if action was necessary. See United States Trucking Corp. v. American Export Lines, Inc., D.S.S.D.N.Y.1956, 148 F.Supp. 61.
This Court also rejects the other principal cases cited by the defendant as being precedents controlling the disposition of the instant controversy.
Having concluded that this Court has jurisdiction to act in the instant cause, the next question to be determined is whether the plaintiff, upon a balancing of the equities, will suffer irreparable harm unless injunctive relief is granted until the Board acts.
To adequately determine this issue, the Court held extensive hearings for a number of days. Both sides introduced evidence as to the issue of irreparable harm. After a careful consideration of the entire record, the Court concludes that the plaintiff would suffer irreparable harm unless equitable relief is granted.
Initially, the evidence adduced at the hearings makes it abundantly clear that prior to April 1, 1960, it was optional with truckers whether they wished to load and unload their own trucks or desired to have this service performed by the Terminal Operators. Further, the first public notice of the institution of the compulsory truck loading and unloading requirement, as previously noted, was on March 31, 1960. The evidence indicated that in view of the sudden imposition of the mandatory regulation -- it became effective on only one day's notice -- there was a serious disruptive effect on port commerce because of the uncertainty and confusion on the part of shippers and other port users. This disruptive effect on the movement of commerce in the Port of Philadelphia is attributable to the sudden imposition of the loading and unloading regulation and extra charge without sufficient notice to afford the parties affected an opportunity to make the necessary adjustments in rates and cost of goods as required.
From the evidence it would appear that the compulsory loading and unloading of trucks by pier operators will not result in any reduction of the cost of transportation by truckers for the reason that the same number of truck drivers and helpers are required by the truckers as previously. Likewise, the increased charge on shippers and consignees as a result of the regulation, will seriously affect the competitive position of many of them. As a result, members of the plaintiff association stand to lose a substantial part of their business, should such shippers or consignees either manufacture their products in other plants, or divert the shipment of their goods to other means of transportation.
On the other hand, there is no substantial evidence in the record as to the total cost to the Terminal Operators in performing the loading and unloading services or whether the rates for loading and unloading set forth in the tariff will result in any profit.
They did submit evidence of loss of gross revenue during the time a temporary restraining order was in effect. Further, the Terminal Operators introduced evidence indicating that their marine terminal operations are not on the soundest of financial footing and they require more income from operations to continue to exist. In this regard, the evidence indicates that in the past few years the Terminal Operators have experienced a significant increase in their costs relating to labor, maintenance and repair, and dredging operations. However, an over-all appraisal of the situation finds the equities in favor of the plaintiff pending the Board's final determination on the merits.
As a ground for denying equitable relief, the defendant maintains that the Federal Maritime Board can grant reparation orders against the Terminal Operators in favor of those parties paying for services in compliance with § VII (5) of the tariff. This possibility is no basis for denying equitable relief under the circumstances here. Enforcement of this tariff regulation would necessarily, and already has, created disruptions in the truckers', shippers' and consignees' business, with a real question as to whether there will be a substantial decline in the tonnage handled by the Port of Philadelphia. Monetary reparations would not be an adequate remedy. Further, the regulation has caused disruptions of the truckers' relationships with both their shipper customers and their employees, who in large part are covered by collective bargaining agreements between the truckers and various locals of the Teamsters Union. There was testimony as well that if the regulation is put into effect, the truckers' requirements as to equipment and labor would have to be adjusted downward.
It is also to be noted that there is a serious question as to whether the Federal Maritime Board will eventually approve the entire tariff provision for exclusive truck loading and unloading by the Terminal Operators. In this regard, the Court notes that the pier operators in the Port of New York also attempted to impose a requirement that all truck loading and unloading be performed by them. The Federal Maritime Board, after full hearings, rejected this contention and ordered that truckers' choice continue as to unloading. Empire State Highway Transportation Ass'n v. American Export Lines, Inc., 5 F.M.B. 565, 592 (1959). This observation by the Court however, is not to be considered as an expression of opinion as to the merits of the regulation as it pertains to the Port of Philadelphia. The Court does deem it important, however, in regard to the question of balancing the equities in this proceeding, and has considered the matter in that light only.
In conclusion, the Court finds that the plaintiff is entitled to equitable relief enjoining the enforcement of § VII (5) of Terminal Tariff No. 1 pending the approval of that provision by the Federal Maritime Board. In so acting, the Court is utilizing the preliminary injunction as a recognized tool to maintain the status quo until the ultimate substantive issues between the parties can be determined in an orderly manner in a proper administrative proceeding.
This opinion shall constitute the Court's Findings of Fact and Conclusions of Law.
For the foregoing reasons, Defendant's Motion to Dismiss is Denied. Let the Plaintiff submit an order for a Preliminary Injunction.