APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Rosenn and Hunter, Circuit Judges, and Hannum, District Judge.*fn*
This appeal involves a novel issue of considerable importance to the shipping industry and to American maritime ports. The plaintiffs are parties interested in the promotion of the shipping industry in the Port of Philadelphia. The defendant, Transamerican Trailer Transport, Inc. (TTT), is a steamship company and common carrier by water.*fn1 TTT ships do not call at the Port of Philadelphia, but TTT maintains steamship service between New York and San Juan, Puerto Rico, and between Baltimore and San Juan. The plaintiffs contended before the district court that solicitation of cargo by TTT illegally encourages certain shippers of Puerto Rico-bound containerized cargo to ship their cargo from the TTT port facilities in New York or Baltimore, rather than from another carrier's Philadelphia port facilities.
The district court, in an action not contested on this appeal, held that the merits of the contention by the plaintiffs should first be considered by the Federal Maritime Commission (FMC) under the doctrine of primary jurisdiction. In addition, however, the district court entered a preliminary injunction prohibiting TTT from the "solicitation of cargo" which is "naturally tributary to the Port of Philadelphia"*fn2 and which is destined for Puerto Rico, pending ultimate resolution of the controversy by the FMC and the appellate courts.*fn3
TTT appeals from the grant of the preliminary injunction.*fn4 The FMC and the Maryland Port Administration, as amicus curiae, have filed briefs supporting reversal of the injunction. For the reasons expressed below, we reverse.
Underlying our consideration of the issues is the proposition that
As a prerequisite to the issuance of a preliminary injunction the moving party must generally show: (1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is not granted to prevent a change in the status quo.
A.L.K. Corp. v. Columbia Pictures Industries, Inc., 440 F.2d 761, 763 (3d Cir. 1971). Moreover, this court has repeatedly stated that the district court, in considering whether to grant a preliminary injunction, should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.*fn5 It is also clear, however, that consideration of these factors by the district court requires a "delicate balancing," and that the district court's grant or denial of a preliminary injunction will be reversed only for an abuse of discretion. See, e.g., Scooper Dooper, Inc. v. Kraftco Corp., 460 F.2d 1204 (3d Cir. 1972), and cases cited therein. We must determine, therefore, whether the grant of a preliminary injunction in this case was an abuse of discretion.
We first consider whether the plaintiffs have shown "a reasonable probability of eventual success in the litigation." The district court found, without further discussion of this issue, that the plaintiffs were "likely to prevail" before the FMC. Our consideration of this issue requires a review of the factual background of the case and of the legal theory upon which the plaintiffs rely.
The findings of fact made by the district court included the following:
7. The Holt Hauling and Warehousing Company, (Holt) maintaining its principal office in Philadelphia, Pennsylvania is the agent of TTT in approximately a five state territory from Pittsburgh, Pennsylvania to as far south as Washington, D.C. and as far east as the Atlantic seaboard.
8. As the agent for TTT, acting through its sales force and advertising, Holt solicited shipping business in the ...