Danaher, Burger and Wright, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Carriers of the Port of New York, James Hughes, Inc., Henry
Gillen's Sons Lighterage Line, Inc., McAllister Lighterage
Line, Inc., and Petterson Lighterage & Towing Corporation,
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
This case is before the court on a petition to review an order of the Federal Maritime Commission issued and served on May 16, 1966, pursuant to the Shipping Act of 1916, 39 STAT. 728 (1916), as amended, 46 U.S.C. § 801 et seq. (1964). The order deals with certain provisions of the truck and lighterage tariffs filed by the petitioners here, the New York Terminal Conference, and grows out of the New York waterfront investigation ordered by the Commission in October 1963. The purpose of the investigation was to determine whether the rates, rules, regulations and practices contained in petitioners' Lighter Tariff No. 2 and Truck Tariff No. 6 violated Sections 15, 16 and 17 of the Shipping Act. *fn1
A full and lengthy hearing was conducted at which petitioners and various intervenors were permitted to introduce evidence, cross-examine witnesses and present oral argument. The hearing examiner filed an extensive initial decision and exceptions were taken. On May 16, 1966, the Commission issued its report and order, which generally adopted the findings and recommendations of the examiner. The Commission found that several of petitioners' practices were in violation of the Act and ordered petitioners to modify certain provisions of their tariffs so as to comply with the requirements of the Act. Petitioners object on several grounds to virtually every segment of the Commission's order. Before assessing the order and the objections thereto, it is necessary to summarize briefly the workings of the New York waterfront and the role which petitioners perform there as terminal operators.
Petitioners are companies which operate maritime terminals in New York Harbor. They are associated in the New York Terminal Conference and operate under a Conference Agreement *fn2 which permits them to establish uniform reasonable rates and regulations covering loading, unloading and storage of waterborne cargo. *fn3 With respect to oceangoing cargo, these terminal operators enter into negotiated stevedoring contracts with steamship companies, under which the terminal's employees load and unload the vessels. *fn4 At least 85 per cent of this cargo is brought to and from the wharf or pier by truck, while the small and diminishing remainder is handled by lighters *fn5 and barges which transfer the cargo between the pier (or ship) and some other point in the harbor.
When a trucker arrives at the pier he must check in with a clerk employed by the terminal operator. Once his papers are processed he receives a gate pass and takes his place in line. Though all truck loading must be done by the terminal operators, the trucker has an option either to unload his truck himself or, for an additional charge, to have the terminal operator perform or assist in the unloading. But the so-called "three o'clock rule" of petitioners' truck tariff assures the same-day services of forklift operators and checkers, who must be terminal employees, at straight-time rates only if the unloading is done exclusively by terminal employees. No matter who does the initial unloading, the cargo is then moved by hilo or forklift from the base of the truck to a place of rest on the pier or, occasionally, directly to the hold of the ship. These forklift operators, as well as the checker who inventories the cargo, must be employees of the terminal operators. Though the piers are under their direct authority and control, the operators in Item 16 of Truck Tariff No. 6 disclaim all liability for truck delays, whatever their cause. *fn6
Lighter loading and unloading is also done in one of two ways -- "over the side" or "to the pier." When the lighter is unloaded "to the pier," it is moored alongside the pier and, using the rigging on the lighter or a crane on the pier, the cargo is transferred from the lighter to the pier. From there the cargo is usually moved to a less congested area for later transfer to the ship. Virtually all "to the pier" operations are performed by the Wm. Spencer Stevedoring Company, whose longshoremen, known as "Chenangos," compose a separate local of the International Longshoremen's Association. The lightermen pay Spencer for unloading the lighter at a negotiated contract rate. When Spencer labor is unavailable, the terminal operators provide the necessary labor for "to the pier" work, also at a negotiated rate.
When a lighter is loaded (or unloaded) "over the side," it is moored along the non-pier side of the oceangoing vessel and the cargo is transferred directly from the hold of the ship to the deck of the lighter (or vice versa), usually with the use of the ship's rigging. This work is always performed by longshoremen employed by the terminal operator in its stevedoring capacity. When the lighter is loaded or unloaded alongside the ship, the lighterman is required under the tariff to pay the terminal operator for the services of its men. Since the cargo need not be transferred either to or from the pier, this procedure avoids one step in the process of getting cargo on or off the ship. The method by which a lighter will be worked and when it will be worked are entirely within the control of the terminal operator who has, by contract, assumed the stevedoring function for the ship. Yet there is no provision in the lighterage tariff for compensation to lightermen for delays within the terminal operator's control.
It is primarily with the foregoing practices that the Commission's investigation ...