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Volkswagenwerk v. FMC, 390 U.S. 261 (1968)

American Government Special Collections Reference Desk

American Government Topics:  Volkswagen

Volkswagenwerk v. FMC, 390 U.S. 261 (1968)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   VOLKSWAGENWERK V. FMC.

Case #: 390US261


       VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FEDERAL MARITIME

           COMMISSION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

        NO. 69.  ARGUED NOVEMBER 13, 1967.-- DECIDED MARCH 6,
1968. 


THE PACIFIC MARITIME ASSOCIATIN (PMA), REPRESENTING THE PACIFIC COAST
SHIPPING INDUSTRY EMPLOYERS, AND THE INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION REACHED AN AGREEMENT WHEREBY THE UNION CONSENTED
TO THE USE OF LABOR-SAVING DEVICES AND THE ELIMINATION OF CERTAIN
RESTRICTIVE WORK PRACTICES IN RETURN FOR PMA'S PROMISE TO CREATE A
$29,000,000 FUND TO MITIGATE THE EFFECT OF TECHNOLOGICAL UNEMPLOYMENT. 
THE AGREEMENT RESERVED TO PMA THE RIGHT TO DETERMINE HOW TO RAISE THE
FUND FROM ITS MEMBERS.  PMA APPROVED AN ASSESSMENT PER "REVENUE TON,"
BASED EITHER ON WEIGHT (2,000 POUNDS) OR MEASUREMENT (40 CUBIC FEET),
DETERMINED BY THE MANNER IN WHICH CARGO HAD CUSTOMARILY BEEN
MANIFESTED, WITH THE EXCEPTION OF AUTOMOBILES, WHICH WERE TO BE
DECLARED BY MEASUREMENT.  FOR PETITIONER'S AUTOMOBILES THE ASSESSMENT
CAME TO $2.35 PER VEHICLE, AN INCREASE IN UNLOADING COSTS OF 22.5%,
RATHER THAN 25 CENTS UNDER AN ASSESSMENT BY WEIGHT, OR ABOUT 2.4%
INCREASE IN COSTS, COMPARABLE TO THE AVERAGE FUND ASSESSMENT OF 2.2%
FOR ALL OTHER GENERAL CARGO.  PETITIONER OBTAINED A STAY OF THE ACTION
BROUGHT BY PMA TO COLLECT THE ASSESSMENT FROM THE TERMINAL COMPANY
UNLOADING PETITIONER'S AUTOMOBILES, TO PERMIT IT TO INVOKE THE PRIMARY
JURISDICTION OF THE FEDERAL MARITIME COMMISSION (FMC) TO DETERMINE
WHETHER THE ASSESSMENTS WERE CLAIMED UNDER AN AGREEMENT REQUIRED TO BE
FILED WITH AND APPROVED BY THE FMC UNDER SEC. 15 OF THE SHIPPING ACT,
1916, AND WHETHER THE ASSESSMENTS VIOLATED SECS. 16 AND 17 OF THAT
ACT.  THE FMC DISMISSED PETITIONER'S COMPLAINT, HOLDING THAT THE
AGREEMENT DID NOT "AFFECT COMPETITION" AND DID NOT COME WITHIN SEC. 15
IN THE ABSENCE OF AN ADDITIONAL AGREEMENT BY PMA TO PASS ON ALL OR A
PORTION OF THE ASSESSMENTS TO THE CARRIERS AND SHIPPERS SERVED BY THE
TERMINAL OPERATORS; THAT SEC. 16 WAS NOT VIOLATED SINCE PETITIONER HAD
NOT SHOWN ANY UNEQUAL TREATMENT BETWEEN ITS CARS AND OTHER AUTOMOBILES
OR CARGO COMPETITIVE THEREWITH; AND THAT THERE WAS NO VIOLATION OF SEC.
17 SINCE THE PETITIONER HAD RECEIVED "SUBSTANTIAL BENEFITS" IN RETURN
FOR THE ASSESSMENT.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE AGREEMNT WAS REQUIRED TO BE FILED WITH THE FMC UNDER SEC. 15
OF THE ACT.  PP. 268-278. 

  (A) THE FMC RECOGNIZED THAT THE ASSESSMENT FORMULA WAS A
"COOPERATIVE WORKING AGREEMENT" CLEARLY WITHIN THE PLAIN LANGUAGE OF
SEC. 15.  P. 271. 

  (B) IN HOLDING THAT THE AGREEMEND DID NOT "AFFECT COMPETITION:
THE FMC IGNORED ECONOMIC REALITIES WHICH REQUIRED MOST OF THE
ASSESSMENTS TO BE PASSED ON.  P. 273. 

  (C) THE FMC HAS NOT PREVIOUSLY LIMITED SEC. 15 TO HORIZONAL
AGREEMENTS AMONG COMPETITORS, BUT HAS APPLIED IT TO OTHER AGREEMENTS
WITHIN ITS LITERAL TERMS.  P. 274. 

  (D) THE LEGISLATIVE HISTORY OF THIS BROAD STATUTE INDICATES THAT
CONGRESS INTENDED TO SUBJECT TO THE SCRUTINY OF A SPECIALIZED AGENCY
THE MYRIAD OF RESTRICTIVE MARITIME AGREEMENTS.  PP. 275-276. 

  (E) WHILE THE FMC MAY DETERMINE THAT SOME DE MINIMIS OR ROUTINE
AGREEMENTS NEED NOT BE FILED UNDER SEC. 15, THIS AGREEMENT, LEVYING
$29,000,000, BINDING THE WHOLE PACIFIC COAST SHIPPING INDUSTRY, AND
RESULTING IN SUBSTANTIALLY INCREASED STEVEDORING AND TERMINAL CHARGES,
WAS NEITHER DE MINIMIS NOR ROUTINE.  PP. 276-277. 

  (F) THE ONLY AGREEMENT INVOLVED HERE IS THE ONE AMONG PMA MEMBERS
ALLOCATING THE IMPACT OF THE FUND LEVY; AND ONLY THE ASSESSMENT ON
AUTOMOBILES IS CHALLENGED.  P. 278. 

2.  WHEN THE AGREEMENT IS FILED, THE FMC MAY CONSIDER ANEW WHETHER
THE MERE ABSENCE OF A COMPETITIVE RELATIONSHIP SHOULD FORECLOSE INQUIRY
UNDER SEC. 16.  PP. 279-280. 

3.  THE PROPER INQUIRY UNDER SEC. 17 IS WHETHER THE CHARGE LEVIED IS
IS REASONABLYRELATED TO THE SERVICE RENDERED.  PP. 280-282. 

125 U.S.APP.D.C. 282, 371 F.2D 747, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A GERMAN MANUFACTURER OF AUTOMOBILES, IS ONE OF THE
LARGEST USERS OF THE PORTS ON THE WEST COAST OF THE UNITED STATES,
DELIVERING THROUGH THEM MORE THAN 40,000 VEHICLES EACH YEAR, THE
MAJOIRTY TRANSPORTED THERE BY VESSELS CHARTERED BY THE PETITIONER
RATHER THAN BY COMMON CARRIER.  THIS CASE GROWS OUT OF THE PETITIONER'S
CLAIM THAT CHARGES IMPOSED UPON THE UNLOADING OF ITS AUTOMOBILES AT
PACIFIC COAST PORTS ARE IN VIOLATION OF THE SHIPPING ACT, 1916, AS
AMENDED.  39 STAT. 728, 46 U.S.C. 801 ET SEQ. THE DISPUTE HAS A LONG
AND SOMEWHAT COMPLICATED HISTORY. 

THE PACIFIC MARITIME ASSOCIATION (THE ASSOCIATION) IS AN EMPLOYER
ORGANIZATION OF SOME 120 PRINCIPAL COMMON CARRIERS BY WATER,
STEVEDORING CONTRACTORS, AND MARINE TERMINAL OPERATORS, REPRESENTING
THE PACIFIC COAST SHIPPING INDUSTRY.  THE PRIMARY FUNCTION OF THE
ASSOCIATION IS TO NEGOTIATE AND ADMINISTER COLLECTIVE BARGAINING
CONTRACTS WITH UNIONS REPRSENTING ITS MEMBERS' EMPLOYEES, OF WHICH THE
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION (ILWU) IS ONE. 
IN LATE 1960 THE ASSOCIATION AND ILWU REACHED A MILESTONE AGREEMENT
WHICH, IT WAS HOPED, WOULD END A LONG AND TROUBLED HISTORY OF LABOR
DISCORD ON THE WEST COAST WATERFRONT.  /1/  THE ILWU AGREED TO THE
INTRODUCTION OF LABOR-SAVING DEVIDES AND THE ELIMINATION OF CERTAIN
RESTRICTIVE WORK PRACTICES.  IN RETURN, THE ASSOCIATION AGREED TO
CREATE OVER THE PERIOD FROM 1961 TO 1966 A "MECHANIZATION AND
MODERNIZATION FUND" OF $29,000,000 (THE MECH FUND) TO BE USED TO
MITIGATE THE IMPACT UPON EMPLOYEES OF TECHNOLOGICAL UNEMPLOYMENT.  /2/
THE AGREEMENT SPECIFICALLY RESERVED TO THE ASSOCIATION ALONE THE RIGHT
TO DETERMINE HOW TO RAISE THE MECH FUND FROM ITS MEMBERS, AT THE RATE
OF SOME $5,000,000 A YEAR. 

A COMMITTEE OF THE ASSOCIATION INVESTIGATED VARIOUS POSSIBLE
FORMULAS FOR COLLECTING THE FUND FROM THE STEVEDORING CONTRACTORS AND
TTERMINAL OPERATORS-- I.E., THOSE ASSOCIATION MEMBERS WHO WERE
EMPLOYERS OF WORKERS REPRESENTED BY THE ILWU.  A MAJORITY OF THE
COMMITTEE RECOMMENDED THAT THE MECH FUND ASSESSMENT BE BASED SOLELY ON
TONNAGE HANDLED, AND THIS RECOMMENDATION WAS ADOPTED BY THE ASSOCIATION
MEMBERSHIP.  /3/  UNDER THIS FORMULA, GENERAL CARGO WAS ASSESSED AT 27
1/2[ PER "REVENUE TON."  /4/  A REVENUE TONE IS BASED EITHER ON WEIGHT
(2,000 LBS. ONE TON) OR MEASUREMENT (40 CU. FT. ONE TON).  WHETHER
TONNAGE DECLARATIONS ON A PARTICULAR ITEM OF CARGO WERE TO BE BY WEIGHT
OR BY MEASUREMENT WAS TO DEPEND, WITH ONE EXCEPTION, UPON HOW THAT
CARGO HAD CUSTOMARILY BEEN MANIFESTED (AND REPORTED TO THE ASSOCIATION
FOR DUES PURPOSES) IN 1959.  THE ONE EXCEPTION WAS AUTOMOBILES, FOR
WHICH THERE HAD BEEN NO UNIFORM MANIFESTING CUSTOM.  /5/  THE
ASSOCIATION DECIDED THAT AUTOMOBILES WERE TO BE DECLARED BY MEASUREMENT
FOR MECH FUND PURPOSES, REGARDLESS OF HOW THEY WERE OR HAD BEEN
MANIFESTED. 

UNLIKE SHIPPERS BY COMMON CARRIER, THE PETITIONER MUST ARRANGE AND
PAY FOR THE UNLOADING OF ITS OWN CHARTERED VESSELS UPON THEIR ARRIVAL
IN PORT.  FOR THIS PURPOSE IT HAS SINCE 1954 CONTRACTED WITH MARINE
TERMINALS CORPORATION AND MARINE TERMINALS CORPORATION OF LOS ANGELES
(TERMINALS), WHICH ARE MEMBERS OF THE ASSOCIATION, FOR THE PERFORMANCE
OF STEVEDORING AND RELATED SERVICES IN UNLOADING VEHICLES FROM THE
PETITIONER'S CHARTERED SHIPS IN WEST COAST PORTS, AT A NEGOTIATED
PRICE.  PRIOR TO THE MECH FUND ASSESSMENT AGREEMENT, TERMINALS' CHARGE
TO THE PETITIONER FOR THESE UNLOADING SERVICES WAS $10.45 PER VEHICLE,
OF WHICH ABOUT A DOLLAR PRESENTED TERMINALS' PROFIT.  WHEN THE VEHICLES
WERE ASSESSED FOR THE MECH FUND BY MEASUREMENT, THE ASSESSMENT CAME TO
$2.35 PER VEHICLE-- REPRESENTING, IF PASSED ON TO THE PETITIONER, AN
INCREASE IN UNLOADING COSTS OF 22.5%.  /6/  IF THE VEHICLES HAD BEEN
ASSESSED BY WEIGHT (0.9 TONS) RATHER THAN BY MEASUREMENT (8.7 TONS),
/7/  THE ASSESSMENT WOULD HAVE BEEN 25[ PER VEHICLE-- AN INCREASE OF
ABOUT 2.4%, COMPARABLE TO THE AVERAGE MECH FUND ASSESSMENT OF 2.2% FOR
ALL OTHER GENERAL CARGO.  ASSESSMENT BY MEASUREMENT RATHER THAN BY
WEIGHT THUS RESULTED IN AN ASSESSMENT RATE FOR THE PETITIONER'S
AUTOMOBILES OF 10 TIMES THAT FOR OTHER WEST COAST CARGO-- ALTHOUGH
AUTOMOBILES HAD LESS TO GAIN THAN OTHER CARGO FROM THE MECH FUND
AGREEMENT.  /8/  THE PETITIONER AND TERMINALS BOTH PROTESTED THESE
SEEMING INEQUITIES TO A COMMITTEE OF THE ASSOCIATION SET UP TO HANDLE
SUCH CLAIMS, BUT WITHOUT SUCCESS.  /9/ 

THE PETITIONER REFUSED TO PAY ANY ADDITIONAL CHARGE RESULTING FROM
THE ASSOCIATION'S LEVY, AND TERMINALS, WHILE CONTINUING TO UNLOAD
VOLKSWAGEN AUTOMOBILES FOR THE PETITIONER, DID NOT PAY ITS RESULTING
ASSESSMENT TO THE ASSOCIATION.  THE ASSOCIATION SUED TERMINALS IN A
FEDERAL COURT IN CALIFORNIA FOR ITS FAILURE TO PAY THE MECH FUND
ASSESSMENTS; TERMINALS ADMITTED ALL THE ALLEGATIONS OF THE COMPLAINT
AND IMPLEADED THE PETITIONER AS A DEFENDANT.  THE PETITIONER THEN
OBTAINED A STAY OF THAT ACTION TO PERMIT IT TO INVOKE THE PRIMARY
JURISDICTION OF THE FEDERAL MARITIME COMMISSION, IN ORDER TO DETERMINE
THE FOLLOWING ISSUES: 

     "1.  WHETHER THE ASSESSMENTS CLAIMED FROM (THE PETITIONER) ARE

  BEING CLAIMED PURSUANT TO AN AGREEMENT OR UNDERSTANDING WHICH IS

  REQUIRED TO BE FILED WITH AND APPROVED BY THE FEDERAL MARITIME

  COMMISSION UNDER SECTION 15 OF THE SHIPPING ACT, 1916, AS

  AMENDED, 46 U.S.C. 814 (1961), BEFORE IT IS LAWFUL TO TAKE ANY

  ACTION THEREUNDER, WHICH AGREEMENT HAS NOT BEEN SO FILED AND

  APPROVED. 

     "2.  WHETHER THE ASSESSMENTS CLAIMED FROM (THE PETITIONER)

  RESULT IN SUBJECTING THE AUTOMOBILE CARGOES OF (THE PETITIONER)

  TO UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE IN VIOLATION

  OF SECTION 16 OF THE SHIPPING ACT, 1916, AS AMENDED, 46 U.S.C.

  815 (1961). 

     "3.  WHETHER THE ASSESSMENTS CLAIMED FROM (THE PETITIONER)

CONSTITUTE AN UNJUST AND UNREASONABLE PRACTICE IN VIOLATION OF

  SECTION 17 OF THE SHIPPING ACT, 1916, AS AMENDED, 46 U.S.C. 816

  (1961)." 

THE PETITIONER THEN BEGAN THE PRESENT PROCEEDINGS BY FILING A
COMPLAINT WITH THE COMMISSION RAISING THE ABOVE ISSUES.  THE PETITIONER
ALLEGED THAT THE ASSOCIATION WAS DOMINATED BY COMMON CARRIERS /10/
WHICH HAD AGREED UPON THE ASSESSMENT FORMULA IN ORDER TO SHIFT A
DISPROPORTIONATE SHARE OF THE MECH FUND ASSESSMENT ONTO THE PETITIONER,
WHICH DID NOT PATRONIZE THOSE COMMON CARRIERS.  /11/  THE COMMISSION,
AFTER A HEARING, UPHELD THE INITIAL DECISION OF ITS EXAMINER AND
DISMISSED THE COMPLAINT, WITH TWO DISSENTS.  /12/  THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED, /13/ AND WE GRANTED
CERTIORARI TO CONSIDER IMPORTANT QUESTIONS UNDER THE SHIPPING ACT. 
/14/

        I. 

THE PETITIONER'S PRIMARY CONTENTION-- SUPPORTED BY THE UNITED
STATES, A PARTY-RESPONDENT-- IS THAT IMPLEMENTATION OF THE
ASSOCIATION'S FORMULA FOR LEVYING THE MECH FUND ASSESSMENTS WAS
UNENFORCEABLE, BECAUSE THE AGREEMENT AMONG ASSOCIATION MEMBERS IMPOSING
THAT FORMULA WAS NOT FILED WITH THE COMMISSION IN ACCORD WITH SEC. 15
OF THE ACT.  THAT SECTION PROVIDES THAT THERE BE FILED WITH THE
COMMISSION "EVERY AGREEMENT" AMONG PERSONS SUBJECT TO THE ACT 

"FIXING OR REGULATING TRANSPORTATION RATES OR FARES; GIVING OR
RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER SPECIAL PRIVILEGES OR
ADVANTAGES; CONTROLLING, REGULATING, PREVENTING, OR DESTROYING
COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR TRAFFIC;
ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE NUMBER AND
CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING IN ANY WAY
THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO BE CARRIED;
OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL, OR
COOPERATIVE WORKING ARRANGEMENT . . . "  /15/ 

UNTIL SUBMITTED TO AND APPROVED BY THE COMMISSION, "IT SHALL BE
UNLAWFUL TO CARRY OUT IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY
SUCH AGREEMENT . . . "  /16/  THE COMMISSION IS DIRECTED TO DISAPPROVE
ANY AGREEMENT 

"THAT IT FINDS TO BE UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN
CARRIERS, SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN
EXPORTERS FROM THE UNITED STATES AND THEIR FOREIGN COMPETITORS, OR TO
OPERATE TO THE DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR TO BE
CONTRARY TO THE PUBLIC INTEREST, OR TO BE IN VIOLATION OF (THE ACT) . .
. "  /17/ 

AN AGREEMENT FILED WITH AND APPROVED BY THE COMMISSION IS IMMUNIZED
FROM CHALLENGE UNDER THE ANTITRUST LAWS.  /18/ 

THE COMMISSION HELD THAT, ALTHOUGH THE MECH FUND ASSESSMENT FORMULA
WAS A "COOPERATIVE WORKING AGREEMENT" CLEARLY WITHIN THE PLAIN LANGUAGE
OF SEC. 15, IT NONETHELESS WAS NOT THE KIND OF AGREEMENT REQUIRED TO BE
FILED WITH THE COMMISSION UNDER THAT SECTION: 

     "ALTHOUGH THE LITERAL LANGUAGE OF SECTION 15 IS BROAD ENOUGH
TO

  ENCOMPASS ANY 'COOPERATIVE WORKING ARRANGEMENT' ENTERED INTO BY

PERSONS SUBJECT TO THE ACT, THE LEGISLATIVE HISTORY IS CLEAR THAT

  THE STATUTE WAS INTENDED BY CONGRESS TO APPLY ONLY TO THOSE

  AGREEMENTS INVOLVING PRACTICES WHICH AFFECT THAT COMPETITION

  WHICH IN THE ABSENCE OF THE AGREEMENT WOULD EXIST BETWEEN THE

  PARTIES WHEN DEALING WITH THE SHIPPING OR TRAVELING PUBLIC OR

  THEIR REPRESENTATIVES. 

     .          .          .          . 

     "IT IS NOT CONTESTED THAT THE MEMBERSHIP OF (THE ASSOCIATION)

  ENTERED INTO AN AGREEMENT AS TO THE MANNER OF ASSESSING ITS OWN

  MEMBERSHIP FOR THE COLLECTION OF THE 'MECH' FUND.  SUCH AN

  AGREEMENT, HOWEVER, DOES NOT FALL WITHIN THE CONFINES OF SECTION

  15 AS, STANDING BY ITSELF, IT HAS NO IMPACT UPON OUTSIDERS.  WHAT

  MUST BE DEMONSTRATED BEFORE A SECTION 15 AGREEMENT MAY BE SAID TO

  EXIST IS THAT THERE WAS AN ADDITIONAL AGREEMENT BY THE

  (ASSOCIATION) MEMBERSHIP TO PASS ON ALL OR A PORTION OF ITS

  ASSESSMENTS TO THE CARRIERS AND SHIPPERS SERVED BY THE TERMINAL

  OPERATORS."  9 F.M.C.,AT 82-83. 

THE COURT OF APPEALS AFFIRMED.  THAT COURT FELT ITSELF CONFINED BY
OUR DECISION IN CONSOLO V. FMC, 383 U.S. 607, TO DETERMINING SIMPLY
WHETHER COMMISSION'S RULING WAS SUPPORTED BY "SUBSTANTIAL EVIDENCE." 
WITH "DUE DEFERENCE TO THE EXPERTISE OF THE COMMISSION," IT CONCLUDED
"(ALBEIT WITH SOME HESITATION) THAT THERE IS SUBSTANTIAL EVIDENCE IN
THE RECORD CONSIDERED AS A WHOLE TO SUPPORT THE COMMISSION'S
DECISION."  124 U.S.APP.D.C.,AT 290, 371 F.2D, AT 755. 

THE ISSUE IN THIS CASE, HOWEVER, RELATES NOT TO THE SUFFICIENCY OF
EVIDENCE BUT TO THE CONSTRUCTION OF A STATUTE.  THE CONSTRUCTION PUT ON
A STATUTE BY THE AGENCY CHARGED WITH ADMINISTERING IT IS ENTITLED TO
DEFERENCE BY THE COURTS, AND ORDINARILY THAT CONSTRUCTION WILL BE
AFFIRMED IF IT HAS A "REASONABLE BASIS IN LAW."  NLRB V. HEARST
PUBLICATIONS, 322 U.S. 111, 131; UNEMPLOYMENT COMMISSION V. ARAGON, 329
U.S. 143, 153-154.  BUT THE COURTS ARE THE FINAL AUTHORITIES ON ISSUES
OF STATUTORY CONSTRUCTION, FTC V. COLGATE-PALMOLIVE CO., 380 U.S. 374,
385, AND "ARE NOT OBLIGED TO STAND ASIDE AND RUBBER-STAMP THEIR
AFFIRMANCE OF ADMINISTRATIVE DECISIONS THAT THEY DEEM INCONSISTENT WITH
A STATUTORY MANDATE OR THAT FRUSTRATE THE CONGRESSIONAL POLICY
UNDERLYING A STATUTE."  NLRB V. BROWN, 380 U.S. 278, 291.  "THE
DEFERNECE OWED TO AN EXPERT TRIBUNAL CANNOT BE ALLOWED TO SLIP INTO A
JUDICIAL INERTIA . . . "  AMERICAN SHIP BUILDING CO. V. NLRB, 380 U.S.
300, 318.  CF. FMB V. ISBRANDTSEN CO., 356 U.S. 481, 499-500 (WHERE
THIS COURT OVERTURNED THE COMMISSION'S CONSTRUCTION OF SEC. 14 OF THE
SHIPPING ACT). 

IN LIMITING SEC. 15 TO AGREEMENTS WHICH "AFFECT COMPETITION" AND IN
FINDING THAT THE ASSESSMENT AGREEMENT DID NOT SO "AFFECT COMPETITION,"
THE COMMISSION IN THIS CASE USED THAT PHRASE IN A HIGHLY ARTIFICIAL
SENSE-- BY REQURING "AN ADDITIONAL AGREEMENT BY THE (ASSOCIATION)
MEMBERSHIP TO PASS ON ALL OR A PORTION OF ITS ASSESSMENTS . . . "
THERE IS NO QUESTION THAT THE ASSESSMENT AGREEMENT NECESSARILY AFFECTED
THE COST STRUCTURES OF, AND THE CHARGES LEVIED BY, INDIVIDUAL
ASSOCIATION MEMBERS.  MOST, THOUGH NOT ALL, OF THE STEVEDORING
CONTRACTORS AND TERMINAL OPERATORS DID PASS THE ASSESSMENT ON.  THE
ECONOMIC REALITIES WERE SUCH THAT MANY OF THEM HAD NO CHOICE-- A FACT
OF WHICH THEY APPRISED THE ASSOCIATION AT THE TIME THE ASSESSMENT
ARRANGEMENT WAS BEING DEVISED.  /19/  IN THE CASE OF TERMINALS, THE
ASSESSMENT IT HAD TO PAY ON VOLKSWAGEN AUTOMOBILES WAS MORE THAN TWICE
ITS PROFIT MARGIN. 

THE COMMISSION THUS TOOK AN EXTREMELY NARROW VIEW OF A STATUTE THAT
USES EXPANSIVE LANGUAGE.  IN SUPPORT OF THAT VIEW, THE COMMISSION
ARGUED IN THIS COURT THAT A NARROW CONSTRUCTION OF SEC. 15 SHOULD BE
ADOPTED IN ORDER TO MINIMIZE THE NUMBER OF AGREEMENTS THAT MAY RECEIVE
ANTITRUST EXEMPTION.  HOWEVER, ANTITRUST EXEMPTION RESULTS, NOT WHEN AN
AGREEMENT IS SUBMITTED FOR FILING, BUT ONLY WHEN THE AGREEMENT IS
ACTUALLY APPROVED; AND IN DECIDING WHETHER TO APPROVE AN AGREEMENT, THE
COMMISSION IS REQUIRED UNDER SEC. 15 TO CONSIDER ANTITRUST
IMPLICATIONS.  /20/  FMC V. AKTIEBOLAGET SVENSKA AMERIKA LINIEN, ANTE,
P. 238; SEE ALSO ISBRANDTSEN CO. V. UNITED STATES, 93 U.S.APP.D.C. 293,
211 F.2D 51.  /21/     THE COMMISSION ITSELF HAS NOT HERETOFORE LIMITED
SEC. 15 TO HORIZONTAL AGREEMENTS AMONG COMPETITORS, BUT HAS APPLIED IT
TO OTHER TYPES OF AGREEMENTS COMING WITHIN ITS LITERAL TERMS.  SEE,
E.G., AGREEMENTS NOS. 8225 AND 8225-1, BETWEEN GREATER BATON ROUGE PORT
COMMISSION AND CARGILL, INC., 5 F.M.B. 648 (1959), AFFIRMED, 287 F.2D
86, AND AGREEMENT NO. T-4; TERMINAL LEASE AGREEMENT AT LONG BEACH,
CALIFORNIA, 8 F.M.C. 521 (1965).  APPLYING SEC. 15 TO LEASE
AGREEMENTS.  /22/  IN THE LATTER CASE, DECIDED ONLY FOUR MONTHS BEFORE
ITS DECISION IN THE CASE BEFORE US THE COMMISSION SAID:

"SECTION 15 DESCRIBES IN UNAMBIGUOUS LANGUAGE THOSE AGREEMENTS THAT
MUST BE FILED; IT DOES NOT SPEAK OF AGREEMENTS PER SE VIOLATIVE OF THE
SHERMAN ACT.  SINCE THE WORDING OF SECTION 15 IS CLEAR, WE NEED NOT
REFER TO THE LEGISLATIVE HISTORY; THERE IS SIMPLY NO AMBIGUITY TO
RESOLVE."  8 F.M.C.,AT 531.  TO LIMIT SEC. 15 TO AGREEMENTS THAT
"AFFECT COMPETITION," AS THE COMMISSION USED THAT PHRASE IN THE PRESENT
CASE, SIMPLY DOES NOT SQUARE WITH THE STRUCTURE OF THE STATUTE.  /23/ 

THE LEGISLATIVE HISTORY OFFERS NO SUPPORT FOR A DIFFERENT VIEW.  THE
GENESIS OF THE SHIPPING ACT WAS THE "ALEXANDER REPORT" IN 1914.  24 FMB
V. ISBRANDTSEN CO., 356 U.S. 481, 490.  WHILE IT IS TRUE THAT THE
ATTENTION OF THAT CONGRESSIONAL COMMITTEE WAS FOCUSED PRIMARILY UPON
THE PRACTICES THAT HAD CARTELIZED MUCH OF THE MARITIME INDUSTRY, IT IS
CLEAR THAT THE CONCERNS OF ITS INQUIRY WERE FAR MORE BROADLY RANGING. 
THE REPORT SUMMED UP THE TESTIMONY BEFORE THE COMMITTEE: 

"NEARLY ALL THE STEAMSHIP LINE REPRESENTATIVES . . . EXPRESSED
THEMSELVES AS NOT OPPOSED TO GOVERNMENT SUPERVISION . . . AND APPROVAL
OF ALL AGREEMENTS OR ARRANGEMENTS WHICH STEAMSHIP LINES MAY HAVE
ENTERED INTO WITH OTHER STEAMSHIP LINES, WITH SHIPPERS, OR WITH OTHER
CARRIERS AND TRANSPORTATION AGENCIES.  ON THE OTHER HAND, THE SHIPPERS
WHO APPEARED AS WITNESSES . . . WERE IN THE GREAT MAJORITY OF INSTANCES
FAVORABLE TO A COMPREHENSIVE SYSTEM OF GOVERNMENT SUPERVISION . . .
(AND) THE APPROVAL OF CONTRACTS, AGREEMENTS, AND ARRANGEMENTS, AND THE
GENERAL SUPERVISION OF ALL CONDITIONS OF WATER TRANSPORTATION WHICH
VITALLY AFFECT THE INTERESTS OF SHIPPERS."  ALEXANDER REPORT, AT 418. 
THE COMMITTEE RECOMMENDED, AMONG OTHER THINGS: 

     "THAT ALL CARRIERS ENGAGED IN THE FOREIGN TRADE OF THE UNITED

  STATES, PARTIES TO ANY AGREEMENTS, UNDERSTANDINGS, OR CONFERENCE

  ARRANGEMENTS HEREINAFTER REFERRED TO, BE REQUIRED TO FILE FOR

  APPROVAL . . . A COPY OF ALL WRITTEN AGREEMENTS (OR A COMPLETE

MEMORANDUM IF THE UNDERSTANDING OR AGREEMENT IS ORAL) ENTERED

  INTO (1) WITH ANY OTHER STEAMSHIP COMPANIES, FIRMS, OR LINES

  ENGAGED DIRECTLY OR INDIRECTLY IN THE AMERICAN TRADE, OR (2) WITH

  AMERICAN SHIPPERS, RAILROADS OR OTHER TRANSPORTATION AGENCIES." 

  ALEXANDER REPORT, AT 419-420. 

NOTHING IN THE LEGISLATIVE HISTORY SUGGESTS THAT CONGRESS, IN ENACTING
SEC. 15 OF THE ACT, MEANT TO DO LESS THAN FOLLOW THIS RECOMMENDATION OF
THE ALEXANDER REPORT AND SUBJECT TO THE SCRUTINY OF A SPECIALIZED
GOVERNMENT AGENCY THE MYRIAD OF RESTRICTIVE AGREEMENTS IN THE MARITIME
INDUSTRY.  /25/ 

THIS IS NOT TO SAY THAT THE COMMISSION IS WITHOUT POWER TO
DETERMINE, AFTER APPROPRIATE ADMINISTRATIVE PROCEEDINGS, THAT SOME
TYPES OR CLASSES OF AGREEMENTS COMING WITHIN THE LITERAL PROVISIONS OF
SEC. 15 ARE OF SUCH A DE MINIMIS OR ROUTINE CHARACTER AS NOT TO REQUIRE
FORMAL FILING.  SINCE THE COMMISSION'S DECISION IN THE PRESENT CASE,
CONGRESS HAD EXPLICITLY GIVEN IT SUCH AUTHORITY: 

   "THE FEDERAL MARITIME COMMISSION, UPON APPLICATION OR ON ITS

  OWN MOTION, MAY BE ORDER OR RULE EXEMPT FOR THE FUTURE ANY CLASS

  OF AGREEMENTS BETWEEN PERSONS SUBJECT TO THIS CHAPTER OR ANY

  SPECIFIED ACTIVITY OF SUCH PERSONS FROM ANY REQUIREMENT OF THIS

  CHAPTER, OR INTERCOASTAL SHIPPING ACT, 1933, WHERE IT FINDS THAT

  SUCH EXEMPTION WILL NOT SUBSTANTIALLY IMPAIR EFFECTIVE REGULATION

  BY THE FEDERAL MARITIME COMMISSION, BE UNJUSTLY DISCRIMINATORY,

  OR BE DETRIMENTAL TO COMMERCE. 

     "THE COMMISSION MAY ATTACH CONDITIONS TO ANY SUCH EXEMPTIONS

  AND MAY, BY ORDER, REVOKE ANY SUCH EXEMPTION."  /26/  46 U.S.C.

  833A (1964 ED., SUPP. II). 

BUT THE AGREEMENT WITH WHICH WE DEAL HERE-- LEVYING $29,000,000 OVER
FIVE YEARS, BINDING ALL PRINCIPAL CARRIERS, STEVEDORING CONTRACTORS,
AND TERMINAL OPERATORS ON THE PACIFIC COAST, AND NECESSARILY RESULTING
IN SUBSTANTIALLY INCREASED STEVEDORING AND TERMINAL CHARGES-- WAS
NEITHER DE MINIMIS NOR ROUTINE.  WE HOLD THAT THIS AGREEMENT WAS
REQUIRED TO BE FILED UNDER SEC. 15 OF THE ACT. 

IT IS TO BE EMPHASIZED THAT THE ONLY AGREEMENT INVOLVED IN THIS CASE
IS THE ONE AMONG MEMBERS OF THE ASSOCIATION ALLOCATING THE IMPACT OF
THE MECH FUND LEVY.  WE ARE NOT CONCERNED HERE WITH THE AGREEMENT
CREATING THE ASSOCIATION OR WITH THE COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE ASSOCIATION AND THE ILWU.  NO CLAIM HAS BEEN MADE IN THIS
CASE THAT EITHER OF THOSE AGREEMENTS WAS SUBJECT TO THE FILING
REQUIREMENTS OF SEC. 15.  THOSE AGREEMENTS, REFLECTING THE NATIONAL
LABOR POLICY OF FREE COLLECTIVE BARGAINING BY REPRESENTATIVES OF THE
PARTIES' OWN UNFETTERED CHOICE, FALL IN AN AREA OF CONCERN TO THE
NATIONAL LABOR RELATIONS BOARD, AND NOTHING WE HAVE SAID IN THIS
OPINION IS TO BE UNDERSTOOD AS QUESTIONING THEIR CONTINUING VALIDITY. 
BUT IN NEGOTIATING WITH THE ILWU, THE ASSOCIATION INSISTED THAT ITS
MEMBERS WERE TO HAVE THE EXCLUSIVE RIGHT TO DETERMINE HOW THE MECH FUND
WAS TO BE ASSESSED, AND A CLAUSE TO THAT EFFECT WAS INCLUDED IN THE
COLLECTIVE BARGAINING AGREEMENT.  THAT ASSESSMENT ARRANGEMENT,
AFFECTING ONLY RELATIONSHIPS AMONG ASSOCIATION MEMBERS AND THEIR
CUSTOMERS, IS ALL THAT IS BEFORE US IN THIS CASE.  MOREOVER, SO FAR AS
THE RECORD SHOWS, ONLY THE ASSESSMENT ON AUTOMOBILES IS NOW CHALLENGED,
AND THERE IS NO REASON TO SUPPOSE THAT THE COMMISSION WILL NOT CONSIDER
EXPEDITIOUS APPROVAL OF SO MUCH OF THE AGREEMENT AS IS NOT IN DISPUTE. 

        II. 

THE PETITIONER ALSO ATTACKED THE ASSOCIATION'S ASSESSMENT OF ITS
AUTOMOBILES UNDER SEC. 16 AND SEC. 17 OF THE SHIPPING ACT.  SECTION 16
MAKES IT UNLAWFUL "TO SUBJECT ANY PARTICULAR PERSON, LOCALITY, OR
DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE,"  /27/  AND SEC. 17 FORBIDS ANY "UNJUST OR UNREASONABLE"
REGULATION OR PRACTICE "RELATING TO OR CONNECTED WITH THE RECEIVING,
HANDLING, STORING, OR DELIVERING OF PROPERTY.?  /28/  THE COMMISSION
RULED THAT NEITHER OF THESE SECTIONS HAD BEEN VIOLATED, AND THE COURT
OF APPEALS AFFIRMED. 

IF THE AGREEMENT IS NOW FILED UNDER SEC. 15, THE COMMISSION WILL BE
CALLED UPON AGAIN TO CONSIDER THE EFFECT OF SECS. 16 AND 17, SINCE AN
AGREEMENT THAT VIOLATES A SPECIFIC PROVISION OF THE ACT MUST BE
DISAPPROVED.  /29/  ACCORDINGLY, IT IS NOT INAPPROPRIATE, WITHOUT NOW
PASSING UPONTHE ULTIMATE MERITS OF THE SEC. 16 AND 17 ISSUES, TO GIVE
BRIEF CONSIDERATIONTO THE COMMISSION'S HANDLING OF THOSE ISSUES UPON
THE PRESENT RECORD. 

THE COMMISSION RULED THAT THE PETITIONER HAD FAILED TO DEMONSTRATE
ANY "UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE" UNDER SEC. 16
SOLELY BECAUSE IT HAD NOT SHOWN ANY UNEQUAL TREATMENT AS BETWEEN ITS
AUTOMOBILES AND OTHER AUTOMOBILES OR CARGO COMPETITIVE WITH
AUTOMOBILES.  IN SO RULING, THE COMMISSION APPLIED THE "COMPETITIVE
RELATIONSHIP" DOCTRINE WHICH IT HAS DEVELOPED IN CASES CONCERNING RATES
FOR CARRIAGE OF GOODS BY SEA.  /30/  BUT THE COMMISSION, IN CASES NOT
INVOLVING FREIGHT RATES AND THE PARTICULARIZED ECONOMICS THAT RESULT
FROM A VESSEL'S FINITE CARGO CAPACITY, /31/  HAS OFTEN FOUND SEC. 16
VIOLATIONS EVEN IN THE ABSENCE OF A "COMPETITIVE RELATIONSHIP."  SEE,
E.G., PRACTICES, ETC., OF SAN FRANCISCO BAY AREA TERMINALS, 2 U.S.M.C.
588 (1941) AND 709 (1944), AND STORAGE PRACTICES AT LONGVIEW,
WASHINGTON, 6 F.M.B. 178 (1960), INVOLVING STORAGE CHARGES; AND NEW
YORK FOREIGN FREIGHT FORWARDERS AND BROKERS ASSN. V. FMC, 337 F.2D 289,
INVOLVING FREIGHT FORWARDERS' FEES.  IN A PROCEEDING SUBSEQUENT TO ITS
DECISION IN THE PRESENT CASE, THE COMMISSION EXPLICITLY DISPENSED
WITHTHE COMPETITIVE RELATIONSHIP REQUIREMENT WITH RESPECT TO PORT "FREE
TIME."  INVESTIGATION OF FREE TIME PRACTICES-- PORT OF SAN DIEGO, 9
F.M.C. 525 (1966); CF. CALIFORNIA V. UNITED STATES, 320 U.S. 577.  SEE
ALSO INVESTIGATION ON HOUSEHOLD GOODS, NORTH ATLANTIC MEDITERRANEAN
FREIGHT CONFERENCE, F.M.C. DOCKET NO. 66-49 (JUNE 30, 1967).  WHEN THE
AGREEMENT IN THE PRESENT CASE IS FILED, THE COMMISSION MAY CONSIDER
ANEW WHETHER THE MERE ABSENCE OF A COMPETITIVE RELATIONSHIP SHOULD
FORECLOSE FURTHER SEC. 16 INQUIRY.  /32/ 

WITH RESPECT TO SEC. 17, THE COMMISSION FOUND THAT THE ASSESSMENT
UPON THE PETITIONER'S AUTOMOBILES WAS NOT "UNREASONABLE," BECAUSE THE
PETITIONER HAD RECEIVED ,SUBSTANTIAL BENEFITS" IN RETURN FOR THE
ASSESSMENT, AND THERE WAS NO SHOWING OF A DELIBERATE INTENT TO IMPOSE
AN UNFAIR BURDEN UPON THE PETITIONER.  THIS, WE THINK, REFLECTS FAR TOO
NARROW A VIEU OF SEC. 17.  IT MAY BE THAT A RELATIVELY SMALL CHARGE
IMPOSED UNIFORMLY FOR THE BENEFIT OF AN ENTIRE GROUP CAN BE REASONABLE
UNDER SEC. 17, EVEN THOUGH NOT ALL MEMBERS OF THE GROUP RECEIVE EQUAL
BENEFITS.  SEE EVANS COOPERAGE CO. V. BOARD OF COMMISSIONERS OF THE
PORT OF NEW ORLEANS, 6 F.M.B. 415.  /33/  BUT HERE A RELATIVELY LARGE
CHARGE WAS UNEQUALLY IMPOSED.  THE BENEFITS RECEIVED BY THE PETITIONER
MAY HAVE BEEN SUBSTANTIAL, BUT OTHER CARGO RECEIVED GREATER BENEFITS AT
ONE-TENTH THE COST.  /34/  MOREOVER, THE QUESTION OF REASONABLENESS
UNDER SEC. 17 DOES NOT DEPEND UPON UNLAWFUL OR DISCRIMINATORY INTENT. 
AS THE COMMISSION ITSELF HAS SAID: 

"(SECTIONS 16 AND 17) PROSCRIBE AND MAKE UNLAWFUL CERTAIN CONDUCT,
WITHOUT REGARD TO INTENT.  THE OFFENSE IS COMMITTED BY THE MERE DOING
OF THE ACT, AND THE QUESTION OF INTENT IS NOT INVOLVED."  HELLENIC
LINES LTD.-- VIOLATION OF SECTIONS 16 (FIRST) AND 17, 7 F.M.C. 673, 675
676 (1964).  CF. UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S.
515, 523-526; ICC V. CHICAGO G.W.R. CO., 209 U.S. 108. 

THE QUESTION UNDER SEC. 17 IS NOT WHETHER THE PETITIONER HAS
RECEIVED SOME SUBSTANTIAL BENEFIT AS THE RESULT OF THE MECH FUND
ASSESSMENT, BUT WHETHER THE CORRELATION OF THAT BENEFIT TO THE CHARGES
IMPOSED IS REASONABLE.  THE "SUBSTANTIAL BENEFITS" MEASURE OF
UNREASONABLENESS USED BY THE COMMISSION IN THIS CASE IS FAR TOO BLUNT
AN INSTRUMENT.  NOTHING IN THE LANGUAGE OR HISTORY OF THE STATUTE
SUPPORTS SO TORTUED A CONSTRUCTION OF THE PHRASE "JUST AND
REASONABLE."  THE COMMISSION HAS CITED NO SIMILAR CONSTRUCTION OF THE
PHRASE BY ANY OTHER REGULATORY AGENCY OR COURT.  INDEED, IN PAST
DECISIONS THE COMMISSION ITSELF HAS NOT APPLIED ANY TEST.  SEE
CALIFORNIA STEVEDORE & BALLAST CO. V. STOCKTON ELEVATORS, INC., 8
F.M.B. 97 (1964), AND PRACTICES, ETC., OF SAN FRANCISCO BAY AREA
TERMINALS, 2 U.S.M.C. 588 (1941), AFFIRMED, 320 U.S. 577, WHERE THE
COMMISSION FOUND VIOLATIONS OF SEC. 17 EVEN THOUGH THE BENEFITS
RECEIVED WERE CLEARLY SUBSTANTIAL.  THE PROPER INQUIRY UNDER SEC. 17,
IS, IN A WORD, WHETHER THE CHARGE LEVIED IS REASONABLY RELATED TO THE
SERVICE RENDERED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  ALL PARTIES AGREE THAT THIS AGREEMENT WAS AN ENLIGHTENED,
FORWARD-LOOKING STEP IN WEST COAST LONGSHORE LABOR RELATIONS.  SEE
KOSSORIS, WORKING RULES IN WEST COAST LONGSHORING, 84 MONTHLY LABOR
REV. 1 (1961); KILLINGSWORTH, THE MODERNIZATION OF WEST COAST LONGSHORE
WORK RULES, 15 IND. & LAB.REL.REV.  295 (1962); ILWU (AMERICAN MAIL
LINE), 144 N.L.R.B. 1432, 1442 (1963). 

THE AGREEMENT WAS NOT SIGNED IN FINAL FORM UNTIL NOVEMBER 15, 1961,
ALTHOUGH IT WAS IMPLEMENTED IN MANY RESPECTS PRIOR TO THAT DATE. 

/2/  THE AGREEMENT HAS BEEN CONTINUED, AND THE MECH FUND IS STILL
BEING COLLECTED AND PAID OUT. 

/3/  A MINORITY OF THE COMMITTEE RECOMMENDED THAT THE MECH FUND BE
RAISED BY THE SAME FORMULA BY WHICH THE ASSOCIATION'S DUES WERE LEVIED-
A FORMULA COMBINING BOTH TONNAGE HANDLED AND MAN-HOURS EMPLOYED, IN A
RATION OF 40/60. 

ALTHOUGH THE MECH FUND WAS INITIALLY ASSESSED ENTIRELY ON THE BASIS
OF TONNAGE, THE FORMULA WAS LATER AMENDED TO ASSESS EMPLOYERS OF MARINE
CLERKS ON A MAN-HOUR BASIS.  ABOUT 12% OF THE FUND WAS COLLECTED IN
THIS WAY. 

/4/  BULK CARGO WAS ASSESSED AT 5 1/2[ PER REVENUE TON.  IN DECEMBER
1961, THE RATES WERE INCREASED TO 28 1/2[ FOR GENERAL CARGO AND 9[ FOR
BULK CARGO. 

/5/  ON CHARTERED VESSLES AUTOMOBILES ARE MANIFESTED ON A UNIT BASIS
(SHOWIG WEIGHT AND SOMETIMES MEASUREMENT).  ON COMMON CARRIERS BOTH
WEIGHT AND MEASUREMENT ARE SHOWN.  IN COASTWISE TRADE AUTOMOBILES ARE
MANIFESTED BY WEIGHT. 

/6/  SOME TIME AFTER THE ASSESSMENT AGREEMENT WAS IMPLEMENTED,
TERMINALS' CHARGE TO THE PETITIONER EXCLUSIVE OF THE ASSESSMENT
DECREASED.  THE AMOUNT OF THE DECREASE DOES NOT APPEAR IN THE RECORD. 

/7/  THESE FIGURES REPRESENT A WEIGHTED AVERAGE OF THE PETITIONER'S
TWO MODEL LINES AT THE TIME OF THE ASSESSMENT AGREEMENT.  PASSENGER
MODELS WERE 0.8 TON BY WEIGHT AND 7.8 TONS BY MEASUREMENT; UNLOADING
COSTS INITIALLY INCREASED AN ESTIMATED 22%.  TRANSPORTER MODELS WERE
1.1 TONS BY WEIGHT AND 11.4 TONS BY MEASUREMENT; UNLOADING COSTS
INITIALLY INCREASED AN ESTIMATED 31%. 

/8/  WHEN THE MECH FUND AGREEMENT WAS REACHED, THE UNLOADING OF
AUTOMOBILES WAS ALREADY SO HIGHLY MECHANIZED THAT THERE WAS LITTLE
LIKELIHOOD OF IMPROVEMENT.  HENCE SHIPPERS OF AUTOMOBILES STOOD TO
RECEIVE FROM THE AGREEMENT ONLY THE GENERAL BENEFITS OF A STABLE LABOR
SITUATION, SUCH AS FREEDOM FROM STRIKES AND SLOWDOWNS. 

/9/  THE COMMITTEE DID MAKE DOWNWARD ADJUSTMENTS FOR SCRAP METAL AND
LUMBER. 

/10/  BY VIRTUE OF THE ASSOCIATION'S BYLAWS, CARRIERS CONTROL THE
BOARD OF DIRECTORS AND A-L MEMBERSHIP VOTES.  BOTH THE COMMITTEE WHICH
DEVISED THE ASSESSMENT FORMULA AND THE ONE WHICH LATER RULED ON CLAIMS
OF INEQUITIES WERE MADE UP ENTIRELY OF CARRIERS; NEITHER COMMITTEE HAD
A SINGLE MEMBER WHO WAS A STEVEDORING CONTRACTOR OR TERMINAL OPERATOR. 
/11/  THE PETITIONER IS THE LARGEST SHIPPER OF DRY CARGO BY CHARTER
TO WEST COAST PORTS.  IT SHIPS MORE THAN 75% OF ITS VEHICLES BY CHARTER
AND MOST OF THE REST BY COMMON CARRIERS WHICH ARE NOT MEMBERS OF THE
ASSOCIATION.  ABOUT TWO-THIRDS OF ALL AUTOMOBILES IMPORTED THROUGH WEST
COAST PORTS ARE VOLKSWAGENS.  IT APPEARS THAT NO OTHER IMPORTER OF
AUTOMOBILES THROUGH WEST COAST PORTS USES CHARTERED VESSELS.     MOST,
BUT NOT ALL, OF THE STEVEDORING CONTRACTORS AND TERMINAL OPERATORS
PASSED THE MECH FUND ASSESSMENT ON TO THEIR CUSTOMERS.  IN MOST
INSTANCES THESE CUSTOMERS WERE COMMON CARRIERS WHO WERE MEMBERS OF THE
ASSOCIATION.  THE MEMBER CARRIERS DID NOT PASS THE ASSESSMENT ON TO
SHIPPERS.  HENCE, EXCEPT IN SITUATIONS LIKE THE PETITIONER'S, THE COST
OF THE MECH FUND WAS BORNE BY ASSOCIATION MEMBERS. 

/12/  VOLKSWAGENWERK AKTIENGESELLSCHAFT V. MARINE TERMINALS CORP., 9
F.M.C. 77. 

/13/  VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FMC, 125 U.S.APP.D.C.
282, 371 F.2D 747. 

/14/  388 U.S. 909. 

/15/  "EVERY COMMON CARRIER BY WATER, OR OTHER PERSON SUBJECT TO
THIS CHAPTER, SHALL FILE IMMEDIATELY WITH THE COMMISSION A TRUE COPY,
OR, IF ORAL, A TRUE AND COMPLETE MEMORANDUM, OF EVERY AGREEMENT WITH
ANOTHER SUCH CARRIER OR OTHER PERSON SUBJECT TO THIS CHAPTER, OR
MODIFICATION OR CANCELLATION THEREOF, TO WHICH IT MAY BE A PARTY OR
CONFORM IN WHOLE OR IN PART, FIXING OR REGULATING TRANSPORTATION RATES
OR FARES; GIVING OR RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER
SPECIAL PRIVILEGES OR ADVANTAGES; CONTROLLING, REGULATING, PREVENTING,
OR DESTROYING COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR
TRAFFIC; ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE
NUMBER AND CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING
IN ANY WAY THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO
BE CARRIER; OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL,
OR COOPERATIVE WORKING ARRANGEMENT.  THE TERM 'AGREEMENT' IN THIS
46 U.S.C. 814. 

THE ORIGINAL STATUTE IN 1916 REQUIRED FILING WITH THE UNITED STATES
SHIPPING BOARD.  39 STAT. 728, 729, 733.  THE SHIPPING BOARD WAS
SUCCEEDED IN 1933 BY THE UNITED STATES SHIPPING BOARD BUREAU OF THE
DEPARTMENT OF COMMERCE, EXEC. ORDER NO. 6166, SEC. 12(1933); IN 1936 BY
THE UNITED STATES MARITIME COMMISSION, 49 STAT. 1985; IN 1950 BY THE
FEDERAL MARITIME BOARD, 64 STAT. 1273; AND IN 1961 BY THE FEDERAL
MARITIME COMMISSION, 75 STAT. 840.  IN THIS OPINION THE FEDERAL
MARITIME COMMISSION AND ITS PREDECESSORS ARE COLLECTIVELY REFERRED TO
AS THE COMMISSION. 

/16/  "ANY AGREEMENT AND ANY MODIFICATION OR CANCELLATION OF ANY
AGREEMENT NOT APPROVED, OR DISAPPROVED, BY THE COMMISSION SHALL BE
UNLAWFUL, AND AGREEMENTS, MODIFICATIONS, AND CANCELLATIONS SHALL BE
LAWFUL ONLY WHEN AND AS LONG AS APPROVED BY THE COMMISSION; BEFORE
APPROVAL OR AFTER DISAPPROVAL IT SHALL BE UNLAWFUL TO CARRY OUT IN
WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY SUCH AGREEMENT,
MODIFICATION, OR CANCELLATION; EXCEPT THAT TARIFF RATES, FARES, AND
CHARGES, AND CLASSIFICATIONS, RULES, AND REGULATIONS EXPLANATORY
THEREOF (INCLUDING CHANGES IN SPECIAL RATES AND CHARGES COVERED BY
BETWEEN SUCH RATES AND CHARGES AND THE RATES AND CHARGES APPLICABLE TO
NONCONTRACT SHIPPERS) AGREED UPON BY APPROVED CONFERENCES, AND CHANGES
AND AMENDMENTS THERETO, IF OTHERWISE IN ACCORDANCE WITH LAW, SHALL BE
PERMITTED TO TAKE EFFECT WITHOUT PRIOR APPROVAL UPON COMPLIANCE WITH
THE PUBLICATION AND FILING REQUIREMENTS OF SECTION 817(B) OF THIS TITLE
AND WITH THE PROVISIONS OF ANY REGULATIONS THE COMMISSION MAY ADOPT." 
46 U.S.C. 814. 

/17/  "THE COMMISSION SHALL BY ORDER, AFTER NOTICE AND HEARING,
DISAPPROVE, CANCEL OR MODIFY ANY AGREEMENT, OR ANY MODIFICATION OR
CANCELLATION THEREOF, WHETHER OR NOT PREVIOUSLY APPROVED BY IT, THAT IT
FINDS TO BE UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS,
SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE
UNITED STATES AND THEIR FOREIGN COMPETITORS, OR TO OPERATE TO THE
DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR TO BE CONTRARY TO
THE PUBLIC INTEREST, OR TO BE IN VIOLATION OF THIS CHAPTER, AND SHALL
APPROVE ALL OTHER AGREEMENTS, MODIFICATIONS, OR CANCELLATIONS.  NO SUCH
AGREEMENT SHALL BE APPROVED, NOR SHALL CONTINUED APPROVAL BE PERMITTED
FOR ANY AGREEMENT (1) BETWEEN CARRIERS NOT MEMBERS OF THE SAME
CONFERENCE OR CONFERENCES OF CARRIERS SERVING DIFFERENT TRADES THAT
WOULD OTHERWISE BE NATURALLY COMPETITIVE, UNLESS IN THE CASE OF
AGREEMENTS BETWEEN CARRIERS, EACH CARRIER, OR IN THE CASE OF AGREEMENT
BETWEEN CONFERENCES, EACH CONFERENCE, RETAINS THE RIGHT OF INDEPENDENT
ACTION, OR (2) IN RESPECT TO ANY CONFERENCE AGREEMENT, WHICH FAILS TO
PROVIDE REASONABLE AND EQUAL TERMS AND CONDITIONS FOR ADMISSION AND
READMISSION TO CONFERENCE MEMBERSHIP OF OTHER QUALIFIED CARRIERS IN THE
TRADE, OR FAILS TO PROVIDE THAT ANY MEMBER MAY WITHDRAW FROM MEMBERSHIP
UPON REASONABLE NOTICE WITHOUT PENALTY FOR SUCH WITHDRAWAL. 

"THE COMMISSION SHALL DISAPPROVE ANY SUCH AGREEMENT, AFTER NOTICE
AND HEARING, ON A FINDING OF INADEQUATE POLICING OF THE OBLIGATIONS
UNDER IT, OR OF FAILURE OR REFUSAL TO ADOPT AND MAINTAIN REASONABLE
PROCEDURES FOR PROMPTLY AND FAIRLY HEARING AND CONSIDERING SHIPPERS'
REQUESTS AND COMPLAINTS."  46 U.S.C. 814. 

/18/  "EVERY AGREEMENT, MODIFICATION, OR CANCELLATION LAWFUL UNDER
THIS SECTION, OR PERMITTED UNDER SECTION 813A OF THIS TITLE, SHALL BE
EXCEPTED FROM THE PROVISIONS OF SECTIONS 1-11 AND 15 OF TITLE 15, AND
AMENDMENTS AND ACTS SUPPLEMENTARY THERETO."  46 U.S.C. 814. 

/19/  THE DISSENTING OPINION OF COMMISSIONER PATTERSON VIGOROUSLY
ATTACKED THE COMMISSION'S FINDING THAT THERE WAS NO IMPLIED
UNDERSTANDING AMONG THE ASSOCIATION MEMBERS THAT THE ASSESSMENT WOULD
BE PASSED ON.  9 F.M.C.,AT 101-104.  THE COURT OF APPEALS FOUND
CONSIDERABLE EVIDENCE IN SUPPORT OF COMMISSIONER PATTERSON'S VIEW.  125
U.S.APP.D.C.,AT 290, N. 7, 371 F.2D, AT 290, N. 7, 371 F.2D, AT 755, N.
7.  HOWEVER, APPLYING THE SUBSTANTIAL EVIDENCE RULE, THE COURT UPHELD
THE COMMISSION'S FINDING, ALTHOUGH INDICATING THAT IT MIGHT HAVE FOUND
THE FACTS DIFFERENTLY ITSELF.  124 U.S.APP.D.C.,AT 290-291, 371 F.2D,
AT 755, 756. 

/20/  ONE OF THE STANDARDS FOR APPROVAL UNDER SEC. 15, ADDED IN
1961, 75 STAT. 763, IS WHETHER OR NOT THE AGREEMENT IS "CONTRARY TO THE
PUBLIC INTEREST."  SEE N. 17, SUPRA.  "WE THINK IT NOW BEYOND DISPUTE
THAT 'THE PUBLIC INTEREST' WITHIN THE MEANING OF SECTION 15 INCLUDES
THE NATIONAL POLICY EMBODIED IN THE ANTITRUST LAWS."  MEDITERRANEAN
POOLS INVESTIGATION, 9 F.M.C. 264, 289. 

ANY AGREEMENT SUBJECT TO SEC. 15 FILING THAT IS NOT BOTH FILED AND
APPROVED IS NOT ONLY ILLEGAL UNDER SEC. 15 BUT ALSO SUBJECT TO ATTACK
UNDER THE ANTITRUST LAWS.  CARNATION CO. V. PACIFIC WESTBOUND
CONFERENCE, 383 U.S. 213. 

/21/  "(THE SHIPPING ACT SPECIFICALLY PROVIDES MACHINERY FOR
LEGALIZING THAT WHICH WOULD OTHERWISE BE ILLEGAL UNDER THE ANTI-TRUST
LAWS.  THE CONDITION UPON WHICH SUCH AUTHORITY IS GRANTED IS THAT THE
AGENCY ENTRUSTED WITH THE DUTY TO PROTECT THE PUBLIC INTEREST
SCRUTINIZE THE AGREEMENT TO MAKE SURE THAT THE CONDUCT THUS LEGALIZED
DOES NOT INVADE THE PROHIBITIONS OF THE ANTI-TRUST LAWS ANY MORE THAN
IS NECESSARY TO SERVE THE PURPOSES OF THE REGULATORY STATUTE."  93
U.S.APP.D.C.,AT 299, 211 F.2D, AT 57. 

/22/  SEE ALSO STATEMENT OF COMMISSION CHAIRMAN HARLLEE REQUESTING
FROM CONGRESS THE AUTHORITY FOR THE COMMISSION TO EXEMPT FROM SEC. 15
SUCH OTHERWISE INCLUDED AGREEMENTS AS THOSE BETWEEN TWO FREIGHT
FORWARDERS IN DIFFERENT PORTS TO PERFORM SERVICES FOR EACH OTHER.  H.R.
REP.NO. 2248, 89TH CONG., 2D SESS., 4-5 (1966). 

/23/  SECTION 15 REQUIRES FILING OF "EVERY AGREEMENT" IN ANY OF
SEVEN CATEGORIES, AND ONE OF THE SEVEN COMPRISES ALL AGREEMENTS WHICH
"REGULATE) . . . COMPETITION."  SEE N. 15, SUPRA.  THE OTHER SIX
CATEGORIES WOULD BE RENDERED VIRTUALLY MEANINGLESS BY THE COMMISSION'S
CONSTRUCTION. 

/24/  HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, REPORT ON
STEAMSHIP AGREEMENTS AND AFFILIATIONS, H.R. DOC. NO. 805, 63D CONG., 2D
SESS., 415-424 (1914). 

/25/  THE RECOMMENDATIONS OF THE ALEXANDER REPORT WERE INCORPORATED
INTO BOTH THE HOUSE AND SENATE REPORTS ON THE SHIPPING ACT.  H.R. REP.
NO. 659, 64TH CONG., 1ST SESS., 27-32 (1916); S. REP. NO. 689, 64TH
CONG., 1ST SESS., 7-12 (1916). 

/26/  THE NEED FOR THIS PROVISION IS SET FORTH IN S. REP. NO. 1459,
89TH CONG., 2D SESS., 2 (1966): 

"THE FEDERAL MARITIME COMMISSION UNDER THE SHIPPING ACT, 1916,
REGULATES CERTAIN OPERATIONS OF WATER CARRIERS AND OTHER PERSONS
SUBJECT TO THE ACT WHICH HAVE ONLY SLIGHT EFFECT ON THE FOREIGN
COMMERCE OF THIS COUNTRY AND ARE NOT SIGNIFICANT IN THE OVERALL DESIGN
OF REGULATION CONTEMPLATED BY THE 1916 ACT.  EXACTING COMPLIANCE WITH
WITH THE ACT UNDER THESE CIRCUMSTANCES HAS PROVEN UNNECESSARILY COSTLY
TO THE CARRIER AND THE GOVERNMENT. 

"THE AUTHORITY CONFERRED UNDER THIS LEGISLATION WILL RELIEVE THE
COMMISSION AND AFFECTED CARRIERS OF AN UNDUE REGULATORY BURDEN.  IN
ADDITION, A GENERAL EXEMPTION WILL PRECLUDE THE NECESSITY FOR A
PIECEMEAL APPROACH IN THE FUTURE." 

PRIOR TO THIS 1966 AMENDMENT, THE COMMISSION HAD TAKEN SOME STEPS TO
PROTECT ITSELF FROM DE MINIMIS FILINGS.  IN SECTION 15 INQUIRY, 1
U.S.S.B. 121 (1927), THE COMMISSION HELD "ROUTINE" INTRACONFERENCE
CHANGES AND TRANSACTIONS NOT SUBJECT TO SEC. 15.  IN ORANJE LINE V.
ANCHOR LINE, 6 F.M.B. 199, 209 (1961), THE COMMISSION CONSTRUED ITS
DECISION IN LOS ANGELES BY-PRODUCTS CO. V. BARBER S.S. LINES, 2
U.S.M.C. 106 (1939), AS HOLDING JOINT ADVERTISING NOT SUBJECT TO SEC.
15.  PROCEEDING UNDER GENERAL POWER TO ISSUE REGULATIONS CONFERRED ON
IT IN 1961, 46 U.S.C. 841A, THE COMMISSION EXEMPTED AT LEAST ONE CLASS
OF DE MINIMIS AGREEMENTS IN 46 CFR SECS. 530.5(D)(4) AND (5), DEALING
WITH CERTAIN TERMINAL AGREEMENTS. 

/27/  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY WATER, OR
OTHER PERSON SUBJECT TO THIS CHAPTER, EITHER ALONE OR IN CONJUNCTION
WITH ANY OTHER PERSON, DIRECTLY OR INDIRECTLY-- 

"FIRST.  TO MAKE OR GIVE ANY UNDUE OR UNREASONABLE PREFERENCE OR
ADVANTAGE TO ANY PARTICULAR PERSON, LOCALITY, OR DESCRIPTION OF TRAFFIC
IN ANY RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR PERSON,
LOCALITY, OR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER . . . "  46 U.S.C.
815. 

/28/  "EVERY SUCH CARRIER AND EVERY OTHER PERSON SUBJECT TO THIS
CHAPTER SHALL ESTALBISH, OBSERVE, AND ENFORCE JUST AND REASONABLE
REGULATIONS AND PRACTICES RELATING TO OR CONNECTED WITH THE RECEIVING,
HANDLING, STORING, OR DELIVING OF PROPERTY.  WHENEVER THE BOARD FINDS
THAT ANY SUCH REGULATION OR PRACTICE IS UNJUST OR UNREASONABLE IT MAY
DETERMINE, PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE
REGULATION OR PRACTICE."  46 U.S.C. 816. 

/29/  SEE N. 17, SUPRA. 

/30/  SEE, E.G., BOSTON WOOL TRADE ASSN. V. M. & M.T. CO., 1
U.S.S.B. 24 (1921); EAGLE-OTTAWA LEATHER CO. V. GOODRICH TRANSIT CO., 1
U.S.S.B. 101 (1926); PHILADELPHIA OCEAN TRAFFIC BUREAU V. EXPORT S.S.
CORP., 1 U.S.S.B. 538 (1936); HUBER MFG. CO. V. N.V. STOOMVAART
MAATSCHAPPIJ "NEDERLAND," 4 F.M.B. 343 (1953); WEST INDIES FRUIT CO. V.
FLOTA MERCANTE, 7 F.M.C. 66 (1962). 

/31/  SEE S. BROSS, OCEAN SHIPPING 189-190 (1956); C. CUFLEY, OCEAN
FREIGHTS AND CHARTERING 400-407 (1962). 

/32/  THE INTERSTATE COMMERCE COMMISSION HAS A COMPETITIVE
RELATIONSHIP RULE WITH RESPECT TO SEC. 3(1) OF THE INTERSTATE COMMERCE
ACT, 54 STAT. 902, 49 U.S.C. 3(1), RHEEM MFG. CO. V. CHICAGO, R.I. &
P.R. CO., 273 I.C.C. 185; UNITED STATES V. GREAT NORTHERN R. CO., 301
I.C.C. 21.  HOWEVER, THAT COMMISSION HAS SAID: 

"THIS COMMISSION HAS NEVER HELD THAT COMPETITION IS AN INDISPENSABLE
ELEMENT IN A SITUATION OF UNDUE PREJUDICE AND PREFERENCE, ALTHOUGH IT
HAS FREQUENTLY SAID THAT 'ORDINARILY,' OR 'GENERALLY,' A COMPETITIVE
RELATION MUST APPEAR."  JOSEPH A. GODDARD REALTY CO. V. NEW YORK, C. &
ST. L.R. CO., 229 I.C.C. 497, 501. 

/33/  IN THE EVANS COOPERAGE CASE THE COMMISSION UPHELD A UNIFORM
WHARFAGE CHARGE WHICH WAS IMPOSED ON ALL THOSE WHO USED THE WHARF, EVEN
THOUGH THE VARIOUS USERS OF THE WHARF DID NOT ALL RECEIVE PRECISELY
EQUAL BENEFITS FROM IT.  BUT THE COMMISSION LOOKED BEYOND "SUBSTANTIAL
BENEFITS" TO THE RELATIONSHIP BETWEEN THE SERVICE AND THE CHARGE: 

"THE (COMMISSION OF THE PORT OF NEW ORLEANS) HAS MADE A CHARGE TO
HELP DEFRAY ITS COSTS OF OPERATING FACILITIES AS MEASURED BY CARGO
HANDLED IN THE AREA AND THE ONLY QUESTION IS WHETHER ITS FACILITIES ARE
BEING USED AND THE COMMISSION IS PERFORMING A SERVICE REASONABLY
RELATED TO ITS CHARGES.  THE EXAMINER CONSIDERED THE EVIDENCE AND FOUND
THAT IT WAS."  6 F.M.B.,AT 418-419. 

/34/  SEE N. 8, SUPRA. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

ALTHOUGH I AGREE WITH THE CONCLUSIONS REACHED BY THE COURT IN THIS
CASE, I DEEM IT DESIRABLE TO AMPLIFY THE REASONS, AS I SEE THEM, FOR
WHAT IS DECIDED TODAY.  MORE ESPECIALLY, I THINK THAT FURTHER
JUSTIFICATION IS NEEDED FOR THE COURT'S DECISION (1) THAT THE
"ASSESSMENT AGREEMENT" FALLS WITHIN THE COMMISSION'S JURISDICTION UNDER
SEC. 15 NOTWITHSTANDING ITS INTIMATE CONNECTION WITH THE UNDERLYING
COLLECTIVE BARGAINING AGREEMENT; AND (2) THAT THE COMMISSION SHOULD
GIVE FURTHER CONSIDERATION TO THE SECS. 16 AND 17 ISSUES
NOTWITHSTANDING THAT IT HAS ALREADY DETERMINED THEM.              I. 

THE PACIFIC MARITIME ASSOCIATION IS A MULTI-EMPLOYER COLLECTIVE
BARGAINING GROUP.  ITS "ASSESSMENT AGREEMENT" DIRECTLY IN QUESTION HERE
IS CLOSELY RELATED TO A COLLECTIVE BARGAINING AGREEMENT COVERING A
SUBJECT ABOUT WHICH EMPLOYERS ARE REQUIRED TO BARGAIN, "TERMS AND
CONDITIONS OF EMPLOYMENT."  /1/  THIS UNDERLYING LABOR AGREEMENT WAS,
ACCORDING TO APPARENTLY UNANIMOUS INDUSTRY AND EXPERT OPINION, A HIGHLY
DESIRABLE STEP FORWARD IN THE SHIPPING INDUSTRY. 

MULTI-EMPLOYER COLLECTIVE BARGAINING UNITS HAVE LONG BEEN RECOGNIZED
AS AS AMONG THE UNIT CLASSIFICATIONS THAT THE NATIONAL LABOR RELATIONS
BOARD MAY DEEM "APPROPRIATE."  IN LABOR BOARD V. TRUCK DRIVERS UNION,
353 U.S. 87, WE HELD THAT CONGRESS INTENDED 

"THAT THE BOARD SHOULD CONTINUE ITS ESTABLISHED ADMINISTRATIVE
PRACTICE OF CERTIFYING MULTI-EMPLOYER UNITS, AND INTENDED TO LEAVE TO
THE BOARD'S SPECIALIZED JUDGMENT THE INEVITABLE QUESTIONS CONCERNING
MULTI-EMPLOYER BARGAINING BOUND TO ARISE IN THE FUTURE."  ID., AT 96. 
WE SPECIFICALLY REFERRED TO LONGSHORING AS AN INDUSTRY WITH A LONG
HISTORY OF MULTI-EMPLOYER BARGAINING, AND WE NOTED 

"COGENT EVIDENCE THAT IN MANY INDUSTRIES THE MULTIEMPLOYER
BARGAINING BASIS WAS A VITAL FACTOR IN THE EFFECTUATION OF THE NATIONAL
POLICY OF PROMOTING LABOR PEACE THORUGH STRENGHTENED COLLECTIVE
BARGAINING."  ID., AT 95.  THE BOARD HAS AUTHORIZED A MULTI-EMPLOYER
BARGAINING UNIT FOR WEST COAST SHIPPING, AND THE LABOR AGREEMENT THAT
FORMS THE BACKGROUND TO THIS CASE IS ADDITIONAL "COGENT EVIDENCE." 

AT THE SAME TIME, THE VERY EXISTENCE OF MULTI-EMPLOYER UNITS, AND
THE OBVIOUS NEED FOR THE EMPLOYERS INVOLVED TO AGREE ON COLLECTIVE
POLICY, MUST INVARIABLY H AVE COMPETITIVE EFFECTS.  THE SIGNATORIES TO
A COLLECTIVE BARGAINING AGREEMENT ARE FREQUENTLY, BY THE VERY ACT OF
SIGNING, AGREEING WITH THEIR OWN COMPETITORS ON MATTERS SUCH AS LABOR
COSTS, CERTAIN NONLABOR COSTS, SERVICES TO BE PROVIDED TO THE PUBLIC,
AND (INDIRECTLY) PRICE INCREASES. 

MULTI-EMPLOYER COLLECTIVE BARGAINING MUST THEREFORE BE RECONCILED
WITH THE SOMETIMES COMPETING POLICIES OF FEDERAL LAWS PROMOTING AND
REGULATING COMPETITION, VIZ., THE ANTITRUST LAWS AND, IN THE CASE OF
MARITIME LABOR RELATIONS, THE SHIPPING ACT.  THIS IS A PROBLEM ON WHICH
CONGRESS HAS PROVIDED RELATIVELY LITTLE DIRECT GUIDANCE, /2/  BUT IT IS
ONE OF A KIND THAT THE COURT HAS REPEATEDLY GRAPPLED WITH SINCE ALLEN
BRADLEY CO. V. UNION, 325 U.S. 797.  IT IS A PROBLEM OF LINE-DRAWING. 

THE COURT, NOTING THAT THE ASSESSMENT AGREEMENT LEVIED $29,000,000
THUS "NECESSARILY RESULTING IN SUBSTANTIALLY INCREASED STEVEDORING AND
TERMINAL CHARGES," ANTE, AT 277, HOLDS THAT THE ASSESSMENT AGREEMENT
MUST BE FILED UNDER SEC. 15 OF THE ACT.  IT SAYS THAT THE UNDERLYING
LABOR AGREEMENT IS NOT BEFORE US AND THE "CONTINUING VALIDITY" OF THAT
AGREEMENT IS NOT BROUGHT INTO QUESTION BY TODAY'S DECISION.  ANTE, AT
278. 

ON THE OTHER HAND, MY BROTHER DOUGLAS ARUGES THAT ON THE COURT'S
PREMISE THE ASSESSMENT AGREEMENT COULD NOT BE DISTINGUISHED FROM ANY
COLLECTIVE BARGAINING AGREEMENT THAT "RAISED LABOR COSTS BEYOND THE
POINT AT WHICH PMA MEMBERS COULD BE EXPECTED TO ABSORB THOSE COSTS
WITHOUT RAISING PRICES OR CHARGES."  POST, AT 313.  HE FURTHER CONTENDS
THAT IF PART OF A COLLECTIVE BARGAINING AGREEMENT IS SUBJECT TO
COMMISSION APPROVAL, THIS WILL STIFLE LABOR NEGOTIATION.  /3/
CONSEQUENTLY, HE SUGGESTS THAT A PROPER ACCOMMODATION BETWEEN "LABOR"
AND "COMPETITION" INTERESTS CAN BE REACHED BY EXEMPTING BOTH LABOR
AGREEMENTS AND LABOR-RELATED AGREEMENTS FROM THE FILING REQUIREMENT OF
SEC. 15 BUT LEAVING THEM SUBJECT TO THE SPECIFIC PROHIBITIONS OF THE
ANTITRUST LAWS AND SECS. 16 AND 17 OF THE SHIPPING ACT. 

THIS SUGGESTED ACCOMMODATION SEEMS TO ME DEMONSTRABLY WRONG.  IN THE
FIRST PLACE, AS THE COURT NOTES, THE FILING REQUIREMENT OF SEC. 15 WAS
DRAFTED BROADLY, AND THE FILING-AND-APPROVAL PROCESS INCLUDES REVIEW OF
QUESTIONS ARISING UNDER SECS. 16 AND 17, AND SPECIFICALLY CREATES AN
EXEMPTION FROM ANTITRUST ATTACK.  HENCE, IF THE QUESTION WERE SIMPLY
WHETHER SUBSTANTIVE CHALLENGE TO A MARITIME AGREEMENT (DEALING WITH
LABOR OR WITH ANY OTHER MATTER) IS TO TAKE PLACE IN ADVANCE OF
IMPLEMENTATION OF THE AGREEMENT OR, INSTEAD, DURING ITS OPERATION, I
SHOULD HAVE THOUGHT IT CLEAR THAT CONGRESS CHOSE THE FORMER
ALTERNATIVE.  FURTHERMORE, I WOULD FIND IT VERY DIFFICULT TO SEE WHY
PROVISION FOR ADVANCE APPROVAL AND EXEMPTION OF LABOR-RELATED
AGREEMENTS WOULD NOT BE PREFERABLE, FROM THE STANDPOINT OF FACILITATING
COLLECTIVE BARGAINING, TO THE "WAIT-AND-SEE" APPROACH. 

THE REAL DIFFICULTY IN THIS CASE IS NOT TO DISTINGUISH BETWEEN
AGREEMENTS THAT MUST BE FILED AND AGREEMENTS WHOSE IMPACT ON
COMPETITION WILL BE EVALUATED AFTER IMPLEMENTATION, BUT TO DEFINE THE
COMMISSION'S JURISDICTION IN SUCH A WAY THAT (WHETHER CHALLENGES ARISE
BEFORE OR AFTER IMPLEMENTATION) THE COMMISSION WILL NOT IMPROPERLY BE
BROUGHT INTO LABOR MATTERS WHERE IT DOES NOT BELONG.  THE COURT'S ONLY
SUGGESTION IS THAT THE LABOR AGREEMENTS INVOLVED IN THIS CASE "FALL IN
AN AREA OF CONCERN TO THE NATIONAL LABOR RELATIONS BOARD."  ANTE, AT
278. 

MORE CIRCUMSPECT ANALYSIS THAN THIS IS NEEDED, I BELIEVE.  IN THE
FIRST PLACE, SINCE THE LATER VALIDITY AND ANTITRUST IMMUNITY OF ALL
AGREEMENTS SUBJECT TO SEC. 15 DEPEND UPON FILING, IT IS DESIRABLE THAT
SIGNATORIES TO AGREEMENTS BE GIVEN MORE PRECISE INSTRUCTIONS THAN THAT
THEY NEED NOT FILE IF THEY ARE IN AN AREA OF LABOR BOARD "CONCERN." 
FURTHERMORE, I SEE NO WARRANT FOR ASSUMING, IN ADVANCE, THAT A MARITIME
AGREEMENT MUST ALWAYS FALL NEATLY INTO EITHER THE LABOR BOARD OR
MARITIME COMMISSION DOMAIN; A SINGLE CONTRACT MIGHT WELL RAISE ISSUES
OF CONCERN TO BOTH. 

THE COMMISSION TOOK THE POSITION THAT SEC. 15 OF THE ACT, REQUIRING
FILLING, WAS MEANT TO APPLY "ONLY TO THOSE AGREEMENTS INVOLVING
PRACTICES WHICH AFFECT TAHT COMPETITION WHICH IN THE ABSENCE OF THE
AGREEMENT WOULD EXIST BETWEEN THE PARTIES WHEN DEALING WITH THE
SHIPPING OR TRAVELING PUBLIC OR THEIR REPRESENTATIVES."  /4/  I AGREE
WITH THE COURT'S CONCLUSION THAT PROPER APPLICATION OF THAT PRINCIPLE
TO THIS CASE WOULD REQUIRE THE OPPOSITE RESULT FROM THE ONE THE
COMMISSIONREACHED.  THE DIFFICULTY, HOWEVER, IS THAT THE PRINCIPLE IS
EXCESSIVELY BROAD:  ANY SIGNIFICANT MULTI-EMPLOYER AGREEMENT ON
ECONOMIC MATTERS "AFFECTS COMPETITION" WITH RESPECT TO PRICES AND
SERVICES TO THE PUBLIC, EVEN IF IT IS A COLLECTIVE BARGAINING AGREEMENT
OR AN EMPLOYER AGREEMENT COLLATERAL THERETO. 

SINCE MARITIME EMPLOYERS ARE PERMITTED TO BARGAIN AS A GROUP, AND
SINCE THEY ARE REQUIRED TO BARGAIN ABOUT CERTAIN SUBJECTS, THE
RESULTING AGREEMENTS MUST HAVE SOME EXEMPTION FROM THE FILING
REQUIREMENTS OF SEC. 15 AND FROM SUCCESSFUL CHALLENGE UNDER THE
ANTITRUST LAWS OR UNDER THE SUBSTANTIVE PRINCIPLES IN SECS. 16 AND 17
OF THE SHIPPING ACT.  THE EXACT EXTENT OF THE "LABOR EXEMPTION" OR
LABOR IMMUNITY" FROM STATUTES REGULATING COMPETITION HAS TROUBLED THIS
COURT BEFORE; /5/  HOWEVER, SINCE NO COLLECTIVE BARGAINING AGREEMENT IN
THE MARITIME INDUSTRY IS NOW BEFORE US, IT WOULD BE INAPPROPRIATE TO
SUGGEST THE AFFIRMATIVE EXTENT OF THE IMMUNITY.  THE IMPORTANT POINT IN
THIS CASE IS AN OPPOSITE AND TWO-EDGED ONE:  THE ASSESSMENT AGREEMENT
BEFORE US IS NOT IMMUNE OR EXEMPT, FOR IT RAISES "SHIPPING"  PROBLEMS
LOGICALLY DISTINCT FROM THE INDUSTRY'S LABOR PROBLEMS; AT THE SAME
TIME, COMMISSION REVIEW ITSELF MUST BE CIRCUMSCRIBED BY THE EXISTENCE
OF LABOR PROBLEMS THAT IT IS NOT EQUIPPED TO RESOLVE. 

THE ASSESSMENT AGREEMENT WAS, OF COURSE, CONSEQUENT UPON THE LABOR
AGREEMENT COMMITTING PMA TO RAISE THE FUND.  THE UNION SIDE WAS
CONCERNED WITH A GUARANTEE THAT THE FUND WOULD BE RAISED SOMEHOW, AND
THE LABOR AGREEMENT GUARANTEED ONLY THAT MUCH.  BUT WHENEVER ANY MULTI
EMPLOYER BARGAINING UNIT AGREES TO PROVIDE BENEFIT FOR EMPLOYEES THERE
ARISES A PROBLEM OF HOW TO ALLOCATE THE COSTS AMONG THE VARIOUS
EMPLOYERS AND (IN CONSEQUENCE) AMONG THEIR CUSTOMERS. 

OFTEN, THE "ALLOCATION" DECISION FOLLOWS DIRECTLY FROM THE TERMS OF
THE LABOR AGREEMENT.  IN THE CASE OF A MULTI-EMPLOYER AGREEMENT TO
RAISE WAGES, FOR EXAMPLE, EACH EMPLOYER SIMPLY BEARS THE COST OF
BENEFITIMG HIS OWN EMPLOYEES.  IN THE PRE SENT CASE, HAD IT BEEN
POSSIBLE TO MAKE THE LEVY ON EACH EMPLOYER DIRECTLY PROPORTIONAL TO,
AND ROUGHLY SIMULTANEOUS WITH, THE SAVINGS TO THAT EMPLOYER FROM
MODERNIZATION, TWO THINGS WOULD HAVE FOLLOWED:  THE "ALLOCATION"
DECISION COULD BE SAID TO STEM DIRECTLY FROM THE TERMS OF THE LABOR
AGREEMENT, AND THE MODERNIZATION PROGRAM WOULD "PAY FOR ITSELF" AS IT
WENT ALONG, LEAVING SHIPPING CUSTOMERS UNAFFECTED. 

THE PMA, HOWEVER, DID NOT (AND PRESUMABLY COULD NOT) APPORTION COSTS
IN THIS MANNER.  TO THE EXTENT THAT, UNDER THE PLAN CHOSEN, INDIVIDUAL
EMPLOYERS WERE UNABLE TO ABSORB THE LEVY AND DEBIT IT AGAINST FUTURE
SAVINGS FROM MODERNIZATION, THE DECISION HOW MUCH EACH EMPLOYER WAS TO
PAY NECESSARILY AFFECTED THAT EMPLOYER'S CUSTOMERS AS A CLASS.  TO THE
EXTENT THAT THE PLAN WENT ON TO DETERMINE WHICH OF AN EMPLOYER'S
CUSTOMERS WOULD ULTIMATELY PAY WHICH SHARE OF AN EMPLOYER'S DUES, THE
AGREEMENT ALSO MADE CHOICES AMONG CUSTOMERS OF AN INDIVIDUAL EMPLOYER. 

THE COMMISSION NEVERTHELESS HELD THAT THE AGREEMENT DID NOT "AFFECT
COMPETITION" BECAUSE THERE WAS "NO AGREEMENT" TO PASS THE LEVY ON TO
INDIVIDUAL CUSTOMERS.  WHETHER THE ERROR BE DEEMED ONE OF "FACT" OR ONE
OF "LAW" THESE CONCLUSIONS ARE IRRECONCILABLE WITH REALITY.  TERMINAL
COMPANIES SUCH AS MTC COMPETE WITH EACH OTHER FOR THE BUSINESS OF
UNLOADING VOLKSWAGENS.  THE ALLOCATION AGREEMENT INVOLVED IN THIS CASE
INCREASES THE COST TO A TERMINAL COMPANY OF UNLOADING ONE VOLKSWAGEN BY
$2.35.  THIS IS A SUBSTANTIAL (25%) INCREASE IN THE COMPANY'S COST FOR
HANDLING THIS ONE PRODUCT.  SINCE THE MECHANIZATION AND MODERNIZATION
PROGRAM IS NOT EXPECTED TO PRODUCE A SIGNIFICANT (MUCH LESS A
COMPENSATORY) SAVING IN THE OTHER COSTS OF HANDLING VOLKSWAGENS, NO
TERMINAL COMPANY COULD, IN THE LONG RUN, "ABSORB" THIS COST:  COMPANIES
DO NOT ABSORB COSTS THAT ARE NOT EXPECTED TO PAY DIVIDENDS IN THE
FUTURE.  /6/  MTC'S ONLY CHOICE WAS WHETHER TO PASS THE $2.35 ON
DIRECTLY TO VOLKSWAGEN OR TO PASS IT ON TO ITS OTHER CUSTOMERS TO DEAL
WITH OTHER TERMINAL COMPANIES NOT BEARING THE VOLKSWAGEN CURSE, MTC WAS
IN PRACTICE COMPELLED TO PASS AT LEAST A LARGE PART OF THE ADDITIONAL
COST ON TO VOLKSWAGEN. 

THE STATEMENTS OF NUMEROUS OFFICIALS OF THE PARTICIPATING COMPANIES
TO THE EFFECT THAT THERE WERE NO "AGREEMENTS" AFFECTING VOLKSWAGEN
(STATEMENTS CONSTITUTING IN LARGE PART THE "SUBSTANTIAL EVIDENCE" ON
WHICH THE COMMISSION IS SUPPOSED TO HAVE RELIED, 125 U.S.APP.D.C.,AT
291, 371 F.2D, AT 756), ARE AT BEST QUIBBLES ABOUT THE MEANING OF
WORDS.  THE MEMBERS OF THE ASSOCIATION MUST BE TAKEN TO HAVE AGREED TO
THE OBVIOUS CONSEQUENCES OF THE PAPER THEY ALL SIGNED.  THAT PAPER DID
NOT DESTROY PRICE COMPETITION FOR VOLKSWAGEN'S TRADE; NOR WOULD A
SPECIFIC AGREEMENT TO "PASS ON" THE ADDITIONAL $2.35 CHARGE HAVE DONE
SO.  BUT THE ALLOCATION AGREEMENT MADE VOLKSWAGEN A LESS DESIRABLE
CUSTOMER TO EACH AND EVERY TERMINAL COMPANY UNLESS IT DID PASS ON THE
$2.35 CHARGE.  HOW THE COMMISSION COULD CONCLUDE THAT THIS COLLECTIVE
IMPOSITION, BY THE TERMINAL COMPANIES ON THEMSELVES, OF A HEAVY TAX FOR
HANDLING ONE KIND OF PRODUCT DID NOT "AFFECT" COMPETITION AMONG THEM
FOR THE TRADE OF SHIPPERS OF THAT PRODUCE I SIMPLY CANNOT UNDERSTAND. 

COMMISSION REVIEW OF THE FAIRNESS OF THE AGREEMENT ALLOCATING THE
COST BURDEN OF MECHANICZATION DOES NOT MEAN COMMISSION REVIEW OF A
LABOR AGREEMENT AND DOES NOT IMPLY CONSEQUENCES IN CONFLICT WITH
NATIONAL LABOR POLICY.  WHETHER TO MECHANIZE, OR OTHERWISE MODERNIZE,
AND WHAT PROVISION SHOULD BE MADE FOR DISPLACED WORKERS, ARE OBVIOUSLY
MATTERS OF UNION CONCERN, AND NEGOTIATIONS ABOUT THESE THINGS SHOULD BE
GOVERNED BY THE LAW OF COLLECTIVE BARGAINING.  RESOLUTION OF SUCH
QUESTIONS BY A DECISION TO CREATE A "MECH FUND" GAVE RISE TO A
SUBSIDIARY "ALLOCATION" QUESTION.  THE UNION WAS CONCERNED THAT THE
QUESTION RECEIVE SOME ANSWER, BUT HAD NO PROPER INTEREST IN WHICH OF
THE POSSIBLE COST ALLOCATION PLANS WAS ADOPTED, SO LONG AS ANY SUCH
PLAN RAISED THE AMOUNT PROMISED.  ON THE OTHER HAND, IN THE PRESENT
CASE NO ONE HAS SUGGESTED THAT MARITIME COMMISSION REVIEW OF A
PARTICULAR METHOD OF COST ALLOCATION MAY PROPERLY REACH THE QUESTION
WHETHER THE OBLIGATION NECESSITATING THE ALLOCATION SHOULD HAVE BEEN
ENTERED INTO, OR THAT THE COMMISSION MAY REJECT AN ALLOCATION PLAN WHEN
THERE ARE NO PREFERABLE ALTERNATIVE ROUTES TO COLLECTION OF THE
NECESSARY AMOUNT.  REVIEW OF THE FAIRNESS AND PROPRIETY OF THE USES TO
WHICH THE TAX MONEY, ONCE COLLECTED, IS PUT.  WHEN THE COURT NOTES THAT
ONLY THE ASSESSMENT AGREEMENT MUST BE FILED AND EXAMINED, IT SEEMS
CLEAR THAT IT CONTEMPLATES A COMMISSION EXAMINATION STARTING FROM THE
PREMISE THAT THE OBLIGATION TO COLLECT THE MECH FUND WILL BE FULFILLED;
AT ISSUE WILL BE ONLY THE PROPRIETY OF THE CHOICE OF THE ROUTE TO THAT
OBJECTIVE. 

        II. 

WITH RESPECT TO THE SECS. 16 AND 17 ISSUES, I CONSIDER THAT THE
COMMISSION'S APPROACH TO THOSE QUESTIONS RESTED, AS INDEED THE COURT'S
OPINION NOW INTIMATES, UPON AN ERRONEOUS UNDERSTANDING OF THE
"ASSESSMENT AGREEMENT" NECESSITATING RECONSIDERATION OF THOSE MATTERS
ON REMAND OF THE CASE. 

THE AGREEMENT THAT WAS BEFORE THE COMMISSION WAS, SO FAR AS APPEARS,
QUITE UNLIKE ANY AGREEMENT THAT BODY HAD CONSIDERED BEFORE.  IT DEALT
NEITHER WITH A CHARGE FOR PARTICULARIZED SERVICES IN THE CARRYING,
HANDLING, OR STORAGE OF GOODS, NOR WITH HOW SUCH SERVICES WOULD BE
PROVIDED.  RATHER, THE AGREEMENT LEVIED A "TAX" ON ASSOCIATION MEMBERS,
A TAX WHICH (INSOFAR AS THE MODERNIZATION PROGRAM DID NOT DIRECTLY "PAY
ITS OWN WAY") WOULD BE PASSED ON TO MEMBERS' CUSTOMERS AND ULTIMATELY
TO THE PUBLIC.  THE TAX WOULD BE USED TO PAY FOR A GENERAL BENEFIT TO
THE SHIPPING INDUSTRY, BUT THE ALLOCATION OF THAT TAX BORE NO DIRECT
RELATIONSHIP TO BENEFITS RECEIVED BY CUSTOMERS.     THE COURT HOLDS
THAT IT WAS ERROR FOR THE COMMISSION TO REJECT CHALLENGES TO THIS
AGREEMENT UNDER SEC. 16 SIMPLY BECAUSE THERE WAS NO SHOWING THAT THE
TAX WAS DISCRIMINATORY AS BETWEEN COMPETITIVE CUSTOMERS.  IT DECLARES
THAT SUCH A RULE MAY BE SOUND IN CASES INVOLVING RATES FOR SEA CARRIAGE
OF GOODS BECAUSE OF THE "PARTICULARIZED ECONOMICS" RESULTING FROM THE
FINITE CAPACTIY OF SHIPS, BUT THAT IT IS NOT SOUND ELSEWHERE, INCLUDING
THIS CASE, FOR UNSPECIFIED REASONS.     ON THE SURFACE, IT MIGHT APPEAR
THAT THE ARGUMENT SHOULD BE THE OTHER WAY AROUND:  IT MAKES SOME SNESE
TO SPEAK OF AN "UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE" TO, SAY,
WATERMELONS OVER AUTOMOBILES WHEN THEY ARE "COMPETING" FOR A FINITE
AMOUNT OF SHIPPING SPACE; IT BECOMES MUCH MORE DIFFICULT TO FIND
ANYTHING THAT CAN BE CALLED A "PREFERENCE" BETWEEN SUCH PRODUCTS WITH
RESPECT TO ANY SERVICES THAT ARE AVAILABLE TO BOTH IN UNLIMITED
QUANTITIES. 

MY BROTHER DOUGLAS STATES THAT THE COMMISSION HAS CONSISTENTLY
ADHERED TO ITS INSISTENCE UPON A COMPETITIVE RELATIONSHIP BETWEEN THE
PRODUCT PREFERRED AND THE PRODUCT DISADVANTAGED, EXCEPT WHERE "THERE
ARE SERVICES THAT ARE NOT DEPENDENT UPON THE NATURE OF THE CARGO AND
THE VARIOUS CHARGES THEREFOR."  POST, AT 314, N. 30.  YET, IF EVER IT
WAS CLEAR THAT "THE NATURE OF THE (PRODUCTS)" WAS NOT THE BASIS FOR A
DIFFERENCE IN RATES, IT IS IN THIS CASE. 

THE TRUE SOLUTION OF THE MATTER, IT SEEMS TO ME, IS THAT IN EACH
SITUATION THE PROBLEM HAS BEEN TO DEVISE SOME WORKABLE BASIS FOR
DETERMINING WHETHER RATES ARE FAIR VIS-A-VIS OTHER RATES.  ITSIMPLY
WOULD NOT BE FEASIBLE, AS THE SECOND CIRCUIT HAS NOTED, /8/  TO ASSESS
THE FAIRNESS OF CHARGES FOR SHIPPING HEAVY INDUSTRIAL EQUIPMENT BY
COMPARISON WITH THE COST OF SHIPPING BANANAS.  THE NOTION OF A
"PREFERENCE" FOR BANANAS OVER HEAVY EQUIPMENT IS SIMPLY TOO ELUSIVE TO
BE IMPLEMENTED.  AT THE SAME TIME, WHEN THE SERVICE RENDERED IS, FOR
EXAMPLE, PROCURING INSURANCE OR ARRANGING FOR CARTAGE, THE NATURE OF
THE PRODUCT HAS VERY LITTLE TO DO WITH EITHER THE VALUE TO THE CUSTOMER
OF THE SERVICES RENDERED OR THE COST OF SUPPLYING THEM; IN SUCH CASES
THE COMMISSION HAS QUITE REASONABLY HELD THAT CHARGING DIFFERENT
CLASSES OF SHIPPERS DIFFERENT AMOUNTS FOR EQUIVALENT SERVICES MAY BE
PREFERENTIAL.  /9/ 

IN THE PRESENT CASE, THE PROBLEM BEFORE PMA WAS THE ALLOCATION OF A
PRE-SPECIFIED TOTAL COST AMONG ITS VARIOUS MEMBERS AND THEIR
CUSTOMERS.  SINCE THIS WAS VERY MUCH A CASE OF FIRST IMPRESSION, THE
COMMISSION WOULD HAVE DONE WELL TO GO BACK TO THE LANGUAGE OF SEC. 16,
WHICH PROSCRIBES ANY "UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO
ANY . . . DESCRIPTION OF TRAFFIC IN ANY RESPECT WHATSOEVER."  /10/
CERTAINLY, SINCE A "MODERNIZATION TAX" ON ANY ONE GROUP OF CUSTOMERS
LOWERED, BY AN EQUIVALENT AMOUNT, THE COST OF MODERNIZATION TO OTHERS
OBLIGATED TO PAY FOR IT, AN UNFAIR ALLOCATION OF THE BURDEN COULD
PROPERLY BE DESCRIBED AS A "PREFERENCE" BETWEEN THAT "DESCRIPTION OF
TRAFFIC" BEARING A HEAVY BURDEN AND THAT "DESCRIPTION OF TRAFFIC" WHOSE
BURDEN WAS CORRESPONDINGLY LIGHTENED. 

THE REAL DIFFICULTY IN THIS CASE IS TO FORMULATE A WORKABLE
DEFINITION OF WHETHER THE BURDENS HAVE BEEN "UNFAIRLY" ALLOCATED. 
OBVIOUSLY, AS THE DEBATES IN THE PMA INDICATE, THERE WAS NO "PERFECT"
WAY TO APPORTION THE COSTS.  ANY ANALYSIS OF THE PRESENT PROBLEM MUST
LEAVE ROOM FOR THE IMPLEMENTATION OF SOME UNIFORM, PRACTICAL, GENERAL
RULE OF ASSESSMENT EVEN THOUGH IT HAVE SOME FEATURES THAT ARE LESS
DESIRABLE THAN SOME ALTERNATIVE IMPERFECT RULE.  THE DIFFICULTY WITH
THE METHOD OF ASSESSMENT ADOPTED BY PMA IS THAT IT WAS NOT UNIFORM AND
GENERAL BUT MADE SPECIAL PROVISION FOR AUTOMOBILES.  THE FACT THAT ALL
AUTOMOBILES ARE TREATED ALIKE SHOULD NOT HAVE PREVENTED THE COMMISSION
FROM INQUIRING WHETHER SPECIAL TREATMENT FOR THIS CLASS OF GOODS WAS
NECESSARY UNDER THE CIRCUMSTANCES AND, IF SO, WHETHER THE SPECIAL RULE
ADOPTED WAS THE FAIREST THAT COULD BE DEVISED. 

THE COMMISSION'S INTERPRETATION OF SEC. 17 WAS ALSO ERRONEOUS.  THE
COMMISSION HELD THAT SINCE PETITIONER RECEIVED SUBSTANTIAL BENEFITS
FROM THE MODERNIZATION PROGRAM IT WOULD NOT MAKE MINUTE INQUIRY INTO
WHETHER PETITIONER'S BENEFITS PRECISELY CORRESPONDED TO THE COSTS
IMPOSED.  THE FIRST DIFFICULTY IS WITH THE CONCLUSION THAT PETITIONER
RECEIVED "SUBSTANTIAL BENEFITS."  PETITIONER APPARENTLY IS NOT IN A
POSITION TO PROFIT APPRECIABLY FROM MARITIME MODERNIZATION.  PETITIONER
WILL, OF COURSE, BENEFIT FROM ANY LESSENING OF LABOR DISPUTES IN
SHIPPING AND RELATED SERVICES; BUT THE ONLY DISRUPTIONS THAT ARE
AVOIDED BY THE LABOR AGREEMENT REACHED HERE ARE THOSE THAT WOULD
OTHERWISE HAVE RESULTED FROM THE EFFORTS OF OTHER SHIPPERS AND OF
MARITIME EMPLOYERS TO INSITUTE THE VERY MODERNIZATION PRACTICES THAT
WILL NOT BENEFIT PETITIONER.  IT MAY BE THAT THOSE WHO WILL DIRECTLY
BENEFIT FROM MODERNIZATION AND THOSE WHO WILL BENEFIT ONLY FROM
INCREASED STABILITY DURING THE COURT OF A MODERNIZATION PROGRAM IN
WHICH THEY HAVE NO INTEREST (AND WHICH OTHERS HAVE IMPOSED ON THEM)
SHOULD BOTH PAY PART OF THE COST OF THE MECH FUND.  HOWEVER, THE
EXISTENCE OF SUCH A CATEGORICAL DIFFERENCE BETWEEN THE BENEFITS
RECEIVED BY DIFFERENCE GROUPS SHOULD AT LEAST INVITE INQUIRY WHETHER
CHARGES ARE AS APPROPRIATELY PROPORTIONED AS WOULD BE FEASIBLE. 

IN FACT, THE TAX ASSESSED IS NOT "EQUAL" AS BETWEEN VOLKSWAGEN AND
OTHER SHIPPERS WHO WILL BENEFIT MORE.  THE CHARGE TO MTC PER VOLKSWAGEN
WAS FIGURED ON A DIFFERENT BASIS FROM THE ASSESSMENTS FOR HANDLING
OTHER PRODUCTS; THE FIGURE REACHED WAS A SUBSTANTIALLY HIGHER
PERCENTAGE OF EXISTING COSTS AND CHARGES; AND THE FIGURE WAS SO HIGH
THAT THE ADDITIONAL COST APPARENTLY COULD NOT BE ABSORBED AND DEBITED
AGAINST FUTURE SAVINGS FROM MODERNIZATION BUT HAD TO BE PASSED ON TO
THE CUSTOMER.  OF COURSE CHARGES NEED ONLY BE "REASONABLY" RELATED TO
BENEFITS, AND NOT PERFECTLY OR EXACTLY RELATED, EVANS COOPERAGE CO. V.
BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, 6 F.M.B. 415, 418,
BUT IN THIS CASE INQUIRY CEASED BEFORE IT HAD REACHED EVEN THAT NEARER
POINT. 

FINDING NO DISAGREEMENT IN PRINCIPLE BETWEEN MYSELF AND THE COURT, I
JOIN THE COURT'S OPINION UPON THE PREMISES STATED IN THIS OPINION. 

/1/  61 STAT. 142, 29 U.S.C. 158(D). 

/2/  SECTION 6 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. 17,
PROVIDES THAT "(THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR
ARTICLE OF COMMERCE."  SECTION 15 OF THE SHIPPING ACT, 39 STAT. 733, 46
U.S.C. 814, PROVIDES THAT AGREEMENTS FILED AND APPROVED BY THE
COMMISSION "SHALL BE EXCEPTED FROM THE PROVISIONS OF SECTIONS 1-11 AND
15 OF TITLE 15 (ANTITRUST PROVISIONS) . . . 

/3/  OF COURSE, CONGRESS DID NOT, IN SEC. 15, REQUIRE "GOOD"
AGREEMENTS TO BE FILED AND EXEMPT BAD ONES.  NOR DID CONGRESS PROVIDE A
SPECIAL EXEMPTION FOR CASES IN WHICH IT WOULD CREATE A SPECIAL HARDSHIP
TO REQUIRE FILING OF AN AGREEMENT THAT WAS NOT FILED WHEN IT SHOULD
HAVE BEEN.  MY BROTHER DOUGLAS IS MAKING A MUCH MORE RELEVANT AND
SERIOUS POINT THAN THAT THE COURT'S DECISION WILL DO INCIDENTAL DAMAGE
TO A "GOOD" AGREEMENT. 

/4/  9 F.M.C.,AT 82. 

/5/  E.G., MINE WORKERS V. PENNINGTON, 381 U.S. 657; MEAT CUTTERS V.
JEWEL TEA, 381 U.S. 676; CF. KENNEDY V. LONG ISLAND R. CO., 310 F.2D
366, 372-374.  IN MINE WORKERS THE COURT SAID, "WE THINK IT BEYOND
QUESTION THAT A UNION MAY CONCLUDE A WAGE AGREEMENT WITH THE MULTI
EMPLOYER BARGAINING UNIT WITHOUT VIOLATING THE ANTITRUST LAWS . . . "
381 U.S.,AT 664.  IT SEEMS EQUALLY OBVIOUS THAT THE EMPLOYERS ARE NOT
VIOLATING THE ANTITRUST LAWS EITHER WHEN THEY CONFER ABOUT WAGE POLICY
PREPARATORY TO BARGAINING OR WHEN THEY SIGN AN AGREEMENT. 

/6/  THE FACT THAT THE FIGURE $2.35 WAS IN FACT ARITHMETICALLY
LARGER THAN MTC'S COMPUTED PROFIT PER VOLKSWAGEN ON THE ACCOUNTING
BASIS MTC USED IS OF COURSE NOT IN ITSELF CRITICAL.  IF MTC'S COMPUTED
PROFIT PER VEHICLE HAD BEEN $2.36, IT WOULD HAVE HAD NEVERTHELESS TO
MAKE UP THE $2.35 ADDITIONAL COST SOMEWHERE. 

/7/  THE FACT THAT THE "LABOR" AGREEMENT AND THE "ASSESSMENT"
AGREEMENT WERE ON DIFFERENT PIECES OF PAPER IS OF COURSE NOT CRITICAL. 
WHAT IS IMPORTANT IS THAT THE WHOLE PROCESS RAISED BOTH LABOR PROBLEMS
AND DISTINCT SHIPPING PROBLEMS.  IT WOULD NOT BE IMPOSSIBLE FOR THERE
TO BE A SINGLE AGREEMENT RAISING SOME PROBLEMS OF LABOR BOARD "CONCERN"
AND OTHER, SEPARATE PROBLEMS APPROPRIATE TO COMMISSION REVIEW. 

/8/  NEW YORK FOREIGN FREIGHT FORWARDERS AND BROKERS ASSN. V. FMC,
337 F.2D 289, 299. 

/9/ IBID.; SEE, E.G., INVESTIGATION OF FREE TIME PRACTICES-- PART OF
SAN DIEGO, 9 F.M.C. 525. 

/10/  46 U.S.C. 815. 

MR. JUSTICE FORTAS, CONCURRING IN THE JUDGMENT. 

I AGREE WITH THE JUDGMENT AND WITH PART I OF THE OPINION HEREIN.  I
DO NOT UNDERSTAND THAT THE COURT'S OPINION PURPORTS TO DETERMINE THE
EFFECT OF SECS. 16 AND 17, AND I BELIEVE THAT THE COURT CERTAINLY
SHOULD NOT DO SO.  I DO NOT JOIN PART II OF THE OPINION DEALING WITH
THESE SECTIONS. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I BELIEVE THE COURT HAS MISCONSTRUED SEC. 15 OF THE SHIPPING ACT,
1916; /1/  AND I FEAR THAT ITS ERRONEOUS CONSTRUCTION WILL CAUSE
SERIOUS DISRUPTION IN THE PROCESS OF COLLECTIVE BARGAINING IN THE
MARITIME INDUSTRY.  IF THE TARIFF EXACTED FROM PETITIONER IS
DISCRIMINATORY OR UNREASONABLE, SECS. 16 AND 17 OF THE SHIPPING ACT /2/
PROVIDE A REMEDY.  IF IT VIOLATES THE ANTITRUST LAWS, THERE IS ALSO A
REMEDY, AS I SHALL INDICATE.  BUT TO REQUIRE THE FUNDING PART OF
MARITIME COLLECTIVE BARGAINING AGREEMENTS TO RECEIVE PRIOR APPROVAL
FROM THE MARITIME COMMISSION IS TO USE A SLEDGE HAMMER TO FIX A WATCH. 
I CANNOT READ SEC. 15 SO AS TO ATTRIBUTE TO CONGRESS SUCH A HEAVY
HANDED MANAGEMENT OF SENSITIVE LABOR PROBLEMS. 

THE COLLECTIVE BARGAINING AGREEMENT INVOLVED IN THIS CASE, WITH ITS
MECHANIZATION AND MODERNIZATION FUND (MECH FUND), CANNOT BE EVALUATED
PROPERLY WITHOUT AN UNDERSTANDING OF MARITIME LABOR RELATIONS AND
TECHNOLOGICAL DEVELOPMENTS IN THE SHIPPING INDUSTRY. 

THE HISTORY OF MARITIME LABOR RELATIONS IN THIS COUNTRY HAS BEEN
PUNCTUATED WITH LENGTHY MAJOR STROKES AND CONTINUOUS MINOR
DISRUPTIONS.  /3/  THE MARITIME INDUSTRY HAS LONG BEEN FACED WITH
PROBLEMS OF INSTABILITY-- ECONOMIC AND MANAGERIAL.  EMPLOYMENT FOR
MARITIME WORKERS IS GENERALLY BOTH IRREGULAR AND INSECURE.  /4/  THAT
CONDITION LIES BEHIND THE LARGE NUMBER OF MAJOR STRIKES AND WORK
STOPPAGES ON OUR COASTS. 

BECAUSE THE SHIPPING INDUSTRY IS VITALLY IMPORTANT BOTH TO OUR
NATIONAL COMMERCE AND NATIONAL DEFENSE, THE FEDERAL GOVERNMENT HAS
MAINTAINED A SPECIAL INTEREST IN TRYING TO PROMOTE ITS GROWTH AND
STABILITY.  THE SHIPPING ACT, 1916, IS ONE EXAMPLE OF THIS CONCERN. 
/5/  WITH RESPECT TO MARITIME LABOR RELATIONS, HOWEVER, THE ACTIVITIES
OF THE FEDERAL GOVERNMENT WERE, UNTIL OUR ENTRY INTO WORLD WAR I,
PRIMARILY DEVOTED TO LAWS PROTECTING OR DISCIPLINING SEAMEN AS
INDIVIDUAL WORKERS.  THE WAR YEARS SAW THE GOVERNMENT ACTIVELY
ENCOURAGING COLLECTIVE BARGAINING IN THE MARITIME INDUSTRY, ITS EFFORTS
RESULTING BY 1920 IN A SIGNIFICANT EXPANSION OF COLLECTIVE BARGAINING. 
THERE FOLLOWED A GENERAL RETROGRESSION, WITH WAGES AND WORKING
CONDITIONS REACHING LOW LEVELS.  THAT CONDITION PREVAILED UNTIL THE
HIGHLY DISRUPTIVE AND VIOLENT PACIFIC COAST STRIKE OF 1934. 

THAT STRIKE WAS THE PRODUCT OF DEEP-SEATED GRIEVANCES OF MARITIME
EMPLOYEES REGARDING LOW WAGES AND POOR WORKING CONDITIONS.  /6/  THE
SITUATION ON THE ATLANTIC COAST WAS NOT MUCH BETTER.  ALTHOUGH AN
AGREEMENT WAS REACHED IN LATE 1934 FOR ATLANTIC COAST WORKERS, LABOR
RELATIONS REMAINED UNSTABLE AND WORK STOPPAGES WERE RAMPANT.  ON BOTH
COASTS, INTRO-UNION ANDINTER-UNION DISAGREEMENTS, COUPLED WITH EMPLOYER
UNION HOSTILITY, MADE AGREEMENT HIGHLY DIFFICULT.  QUICKIE STRIKES
DOTTED THE PORTS, AND ANOTHER GENERAL STRIKE FOLLOWED IN 1936.  ON THE
PACIFIC COAST, THE EMPLOYERS AND THE ILWU (WHICH HAD ACHIEVED
RECOGNITION AFTER THE 2934 STRIKE) WERE IN CONSTANT CONFLICT THROUGH
1948, WHEN STILL ANOTHER GENERAL STRIKE ERUPTED.  THIS PERIOD, FROM
1934 TO 1948, HAS BEEN APTLY DESCRIBED AS SOMETHING LIKE "CLASS
WARFARE."  /7/ 

     "THE ILWU (THEN A PART OF THE AFL INTERNATIONAL LONGSHOREMEN'S

  ASSOCIATION) GAINED FORMAL EMPLOYER REOCGNITION AS A RESULT OF

  THE GENERAL STRIKE OF 1934, WHICH FOLLOWED YEARS OF EXPLOITATION

  AND ABUSE OF LONGSHOREMEN BY THEIR EMPLOYERS.  THE BITTERNESS

WHICH HAD CHARACTERIZED THE INDUSTRY CARRIED OVER INTO THE

  SUBSEQUENT EMPLOYER-UNION RELATIONSHIP.  THE EMPLOYERS DID THEIR

  BEST TO BREAK THE UNION, AND THE UNION RETALIATED JUST AS

  MILITANTLY.  THE YEARS WHICH FOLLOWED WERE AMONG THE STORMIEST IN

  U.S. LABOR HISTORY.  BETWEEN 1934 AND 1948, THE WEST COAST HAD

  OVER 20 MAJOR PORT STRIKES, MORE THAN 300 DAYS OF COASTWIDE

  STRIKES, ABOUT 1,300 LOCAL 'JOB ACTION' STRIKES, AND ABOUT 250

  ARBITRATION AWARDS."  /8/ 

DURING THE STORMY 1930'S, THE FEDERAL GOVERNMENT WAS GREATLY
EXPANDING ITS ROLE IN LABOR RELATIONS.  THE NIRA AND NLRA GREATLY
REVIVED UNIONISM AMONG BOTH SEAMEN AND LONGSHOREMEN IN ADDITION TO
WORKERS IN OTHER INDUSTRIES.  THOSE ACTS GUARANTEED THE RIGHT OF
COLLECTIVE BARGAINING AND OFFERED A MEANS FOR RECOGNITION OF UNIONS;
THE UNIONS GAINED MEMBERS AND STRENGTH.  AND WITH STRONGER UNIONS,
COLLECTIVE BARGAINING BECAME MORE WIDESPREAD.  BUT THE EXPLOSIVE
SITUATION IN THE MARITIME INDUSTRY WAS NOT SOLVED BY THESE GENERAL
ENACTMENTS, AND CONGRESS PASSED A SERIES OF LAWS TO DEAL WITH THE LABOR
PROBLEMS IN THAT INDUSTRY.  FIRST WAS THE MERCHANT MARINE ACT, 1936, 49
STAT. 1985, CREATING A UNITED STATES MARITIME COMMISSION TO INVESTIGATE
CONDITIONS OF SEAMEN ON SHIPS AND TO DETERMINE MINIMUM WAGE SCALES AND
WORKING CONDITIONS ON VESSELS THAT WERE RECEIVING GOVERNMENT
SUBSIDIES.  DESPITE THE 1936 ACT, LABOR RELATIONS DID NOT IMPROVE
SIGNIFICANTLY; AND CONGRESS IN 1938 AMENDED THE ACT, CREATING A
MARITIME LABOR BOARD (MLB) WITH THE DUTY OF ENCOURAGING COLLECTIVE
BARGAINING AND ASSISTING IN THE PEACEFUL SETTLEMENT OF LABOR DISPUTES
THROUGH MEDIATION.  A PROVISION OF THE 1938 AMENDMENT, SEC. 1005, 52
STAT. 967, REQUIRED ALL MARITIME EMPLOYERS TO FILE WITH THE MLB WITHIN
30 DAYS A COPY OF EVERY CONTRACT WITHANY GROUP OF ITS EMPLOYEES
COVERING WAGES, HOURS, RULES, AND WORKING CONDITIONS.  ANY NEW CONTRACT
OR CHANGE IN AN EXISTING CONTRACT ALSO HAD TO BE FILED WITH THE BOARD. 
THE CONTRACTS DID NOT REQUIRE APPROVAL BY THE BOARD, BUT WERE TO BE
USED TO ASSIST THE BOARD IN ITS MEDIATION ACTIVITIES AND IN ITS
PROMOTION OF PEACEFUL SETTLEMENT OF LABOR DISPUTES.  /9/ 

THE BOARD WAS INSTRUCTED IN THE 1938 ACT TO SUBMIT TO CONGRESS BY
1940 ITS RECOMMENDATIONS FOR ESTABLISHING A PERMANENT FEDERAL MARITIME
LABOR POLICY ENSURING STABLE LABOR RELATIONS.  THE BOARD IN ITS 1940
REPORT CONCLUDED THAT CONDITIONS IN THE INDUSTRY WERE STILL UNEASY, AND
RECOMMENDED A PERMANENT FEDERAL BODY WITH WIDE JURISDICTION OVER
QUESTIONS OF MARITIME LABOR-- INCLUDING REPRESENTATION /10/  AND
SETTLEMENT DISPUTES.  THE 1938 ACT PROVIDED THAT THE BOARD WAS TO BE
DISCONTINUED IN 1941; BUT IN 1940 CONGRESS EXTENDED IT LIFE UNTIL MID
1942 TO PERMIT FURTHER STUDIES BY THE BOARD AND CONGRESS.  NOTHING MORE
WAS DONE UNTIL 1955 WHEN CONGRESS AGAIN TURNED ITS ATTENTION
SPECIFICALLY TO THE PROBLEMS OF MARITIME LABOR RELATIONS.  /11/  IN THE
MEANTIME, THE MLB HAD EXPIRED.  ALTHOUGH SEVERAL BILLS WERE INTRODUCED
PROVIDING FOR SPECIALIZED FEDERAL CONTROL OVER MARITIME LABOR
RELATIONS, NO SPECIAL MACHINERY WAS ESTABLISHED; AND THE MARITIME
INDUSTRY REMAINS SUBJECT TO THE VARIOUS PROVISIONS OF FEDERAL LABOR
LAWS.  /12/ 

IN 1948 ANOTHER GENERAL MARITIME STRIKE ROCKED THE PACIFIC COAST. 
FOLLOWING THAT STRIKE, WHICH LASTED ABOUT 100 DAYS, THERE WAS A "PERIOD
OF RELATIVE CALM."  /13/  THE 1948 STRIKE HAD LED TO A CHANGE IN
EMPLOYER LEADERSHIP, A LESS HOSTILE ATTITUDE ON THE PART OF THE UNION
LEADERSHIP, AND A CONSEQUENT LESSENING OF TENSION ALONG THE PACIFIC
COAST.  BOTH SIDES RECOGNIZED THAT THE REDUCTION OF STRIFE WAS
DESIRABLE SINCE A SUBSTANTIAL AMOUNT OF TRAFFIC HAD BEEN DIVERTED FROM
THE PACIFIC COAST TO OTHER PORTS OR TO OTHER MEANS OF TRANSPORTATION ON
ACCOUNT OF CHRONIC MARITIME LABOR DIFFICULTIES AND WORK STOPPAGES.  BUT
DESPITE THE REDUCTION IN HOSTILITY BETWEEN LABOR AND MANAGEMENT,
SOLUTIONS TO PROBLEMS WERE NOT READILY FORTHCOMING.  BUSINESS WAS BAD
FOR THE SHIPPING COMPANIES-- FOREIGH COMPETITORS HAD CUT HEAVILY INTO
THE MARKET, AND A DECLINE IN BUSINESS MEANT LESS WORK FOR BOTH SEAMEN
AND LONGSHOREMENT.  MODERNIZATION WAS SORELY NEEDED, BUT IT WAS ALSO
GREATLY FEARED, FOR MECHANIZATION WOULD CUT OUT JOBS.  BUT WITHOUT
IMPROVED TECHNIQUES AND FACILITIES, THE EMPLOYERS COULD NOT REGAIN A
STRONG COMPETITIVE POSITION.  /14/  IN ADDITION TO LACK OF MODERN
EQUIPMENT, EMPLOYERS WERE FURTHER HAMPERED BY HIGHLY RESTRICTIVE WORK
RULES THAT HAD BEEN IN EFFECT SIN,E THE 1930'S, SUCH AS MULTIPLE
HANDLING, /15/ SLING-LOAD WEIGHT, /16/  AND GANG-SIZE RESTRICTIONS. 

IT IS ONLY AGAINST THIS BACKGROUND OF CHRONIC STRIKES AND
RESTRICTIVE LABOR PRACTICES THAT THE TREMENDOUS IMPACT OF THE MECH FUND
CAN BE APPRECIATED.  THAT WAS THE HEART OF THE 1960-1961 SETTLEMENT. 
AS NOTED BY ONE COMMENTATOR INTIMATELY ACQUAINTED WITH THE NEGOTIATIONS
OF THE PARTIES, "(THIS AGREEMENT DID NOT SPRING FULLBLOWN FROM THE BROW
OF ZEUS, OR FROM THE BRAIN OF BRIDGES."  /18/  RATHER, "(THE AGREEMENT,
WHICH WAS HAMMERED OUT IN 5 MONTHS OF NEGOTIATIONS ENDING IN OCTOBER
1960, CULMINATED 4 YEARS OF DISCUSSION BETWEEN THE PMA AND THE ILWU." 
/19/ 

EARNEST BARGAINING BEGAN IN 1957.  PMA WANTED TO OBTAIN A GUARANTEE
FROM THE ILWU THAT STRIKES AND WORK STOPPAGES WOULD NOT RESULT FROM THE
INTRODUCTION AND USE OF MECHANIZATION AND OTHER LABOR-SAVING DEVICES. 
IN RETURN, THE UNION WANTED ITS WORKERS TO SHARE IN THE COST SAVINGS
RESULTING FROM MODERNIZATION, AND DESIRED ASSURANCES THAT CHANGES IN
WORK METHODS WOULD NEITHER CREATE UNSAFE WORKING CONDITIONS NOR
ACCELERATE THE PRODUCTIVITY REQUIRED OF INDIVIDUAL WORKERS.  AFTER TWO
YEARS OF PRELIMINARY NEGOTIATIONS, AN AGREEMENT WAS MADE IN AUGUST 1959
WHICH PROVIDED FOR A FURTHER STUDY OF THE PROBLEMS OF MECHANIZATION AND
FOR THE ESTABLISHMENT BY PMA OF A FUND OF $1,500,000 FOR THE BENEFIT OF
UNION WORKERS.  /20/ 

NEGOTIATIONS BEGINNING IN MAY 1960 LED TO A "MEMORANDUM OF AGREEMENT
ON MECHANIZATION AND MODERNIZATION," CONCLUDED IN OCTOBER 1960, AND
PROVIDING FOR A $29,000,000 TRUST FUND TO BE FINANCED BY PMA.  THE FUND
WAS TO CONSIST OF THE $1,500,000 DUE UNDER THE 1959 AGREEMENT PLUS
ANOTHER $27,500,000 TO BE ACCUMULATED OVER A FIVE-AND-ONE-HALF-YEAR
PERIOD AT THE RATE OF $5,000,000 PER YEAR.  THE FUND WAS TO BE USED TO
PROTECT LONGSHOREMENT AND MARINE CLERKS FROM THE CONSEQUENCES OF
REDUCED EMPLOYMENT CAUSED BY MECHANIZATION.  THE AGREEMENT WAS TO ENTER
INTO FORCE UPON APPROVAL BY THE MEMBERS OF PMA AND THE ILWU, AND WAS TO
EXPIRE ON JULY 1, 1966.  /21/  THE AGREEMENT ALSO PROVIDED MANAGEMENT
WITH THE RELATIVELY FREE REIN IT HAD SOUGHT TO ELIMINATE RESTRICTIVE
WORK PRACTICES.  THE FORMER PRACTICE OF MULTIPLE HANDLING WAS
ELIMINATED, AND THE MINIMUM SIZE OF A GANG FOR LOADING AND UNLOADING
OPERATIONS WAS SPECIFIED.  THE SLING-LOAD LIMIT FOR LOADS WAS TO REMAIN
UNCHANGED IF THE MANNER OF OPERATION WAS THE SAME AS WHEN THE LIMIT WAS
FIRST NEGOTIATED; OTHERWISE, THE EMPLOYER COULD SET THE WEIGHT,
PROVIDED THAT HE ACTED "WITHIN SAFE AND PRACTICAL LIMITS AND WITHOUT
SPEED UP OF THE INDIVIDUAL." 

THUS, THE AGREEMENT SATISFIED THE DESIRE OF EMPLOYERS TO MODERNIZE
AND ELIMINATE OUTMODED AND RESTRICTIVE WORK RULES, AND AT THE SAME TIME
PROVIDED A MEASURE OF SECURITY FOR THE WORKERS WHOSE JOBS WOULD BE
AFFECTED BY THE USE OF THE NEW DEVICES.  THE AGREEMENT, HOWEVER, LEFT
OPEN THE QUESTION OF HOW THE EMPLOYERS' CONTRIBUTIONS OF $5,000,000 A
YEAR WOULD BE RAISED.  THE QUESTION OF A PROPER METHOD OF ASSESSMENT
HAD BEEN DISCUSSED BY THE UNION AND MANAGEMENT DURING THE PROCEDING
NEGOTIATIONS; SEVERAL SUGGESTIONS WERE OFFERED BY THE PARTIES.  BUT IN
RETURN FOR A COMMITMENT FROM THE PMA MEMBERS OBLIGATING THEMSELVES
INDIVIDUALLY AND COLLECTIVELY TO THE PAYMENT OF THE FUND, THE ILWU
AGREED TO PERMIT PMA TO ESTABLISH THE METHOD OF PAYMENT. 

PMA THEN SET UP A WORK IMPROVEMENT FUND COMMITTEE TO DETERMINE THE
BEST METHOD OF RAISING THE MONEY.  THAT COMMITTEE CONSIDERED VARIOUS
BASES FOR ASSESSING CONTRIBUTIONS-- MAN-HOURS OF EACH EMPLOYER, CARGO
TONNAGE, A COMBINATION OF THE TWO, CARGO TONNAGE MOVING IN CONTAINERS,
MEASUREMENT OF IMPROVEMENTS IN LONGSHORE PRODUCTIVIITY.  THE COMMITTEE
MAJORITY RECOMMENDED A CARGO TONNAGE BASIS; ITS REASON FOR DOING SO
WERE SUMMARIZED BY THE COURT BELOW AS FOLLOWS: 

     "THE COMMITTEE RECOMMENDED A FORMULA BASED ON CARGO TONNAGE AS

  A 'ROUGH-AND-READY' WAY TO DIVIDE THE COST, ADMITTEDLY LACKING

  THE REFINEMENT OF THE PRODUCTIVITY MEASUREMENT METHOD BUT ALSO

  LACKING ITS INFEASIBILITY AND AVOIDING THE INEQUITY OF THE

  MAN-HOUR METHOD WHEREBY CONTRIBUTIONS ARE IN INVERSE PROPORTION

  TO BENEFITS RECEIVED.  IT CONSIDERED THAT CARGO VOLUME THOUGH NOT

  NECESSARILY PROPORTIONAL WAS SOME INDICATOR OF STEVEDORING

  ACTIVITIES AND THAT ADMINISTRATIVE SIMPLICITY WAS A CARDINAL

  CONSIDERATION. 

     "THE COMMITTEE RECOGNIZED FURTHER THAT THERE WERE ALSO

  OBJECTIONABLE FEATURE OF THE TONNAGE FORMULA BUT CONSIDERED THESE

  TO BE LESS WEIGHTY THAN THE OBJECTIONS INHERING IN THE OTHER

  FORMULAE.  IT RECOMMENDED THAT THE FORMULA BE REVIEWED TO PREVENT

  THE CONTINUATION OF ANY HARDSHIP OR INEQUITY THAT MIGHT

  DEVELOP."  /22/ 

IN RECOMMENDING THE TONNAGE FORMULA, THE COMMITTEE NOTED THAT THE
SAME SYSTEM WAS USED FOR ASSESSING A PART OF PMA DUES.  IT HAD ALSO
BEEN THEPRACTICE OF PMA TO USE A TONNAGE FORMULA FOR ASSESSMENTS
ALLOCATING OTHER TYPES OF LABOR COSTS, SUCH AS JOINT MAINTENANCE OF
DISPATCH HALLS AND THE PAYMENT OF ARBITARTORS' SALARIES.  /23/  IN
FACT, IT APPEARS THAT THE ILWU HAD ITSELF PROPOSED A TONNAGE FORMULA
DURING THE NEGOTIATIONS AND ASKED THAT IT BE INCORPORATED INTO THE
COLLECTIVE BARGAINING AGREEMENT; BUT PMA RESISTED THIS APPROACH,
APPARENTLY WISHING TO KEEP ITS OPTIONS OPEN AND FEARING THAT
INCORPORATION IN THE AGREEMENT MIGHT TEND TO COMMIT THE PMA TO A FIXED
FORMULA THAT WOULD ALSO BE INCLUDED IN A FUTURE AGREEMENT.  THE TONNAGE
FORMULA RECOMMENDED BY THE COMMITTEE WAS SUBSEQUENTLY ADOPTED BY THE
PMA MEMBERSHIP. 

IT WAS SPECIFICALLY PROVIDED IN THE AGREEMENT THAT EACH EMPLOYER
WOULD ABIDE BY THE FORMULA ADOPTED BY THE ASSOCIATION; AND THIS PROMISE
TO COMPLY WAS THE QUID PRO QUO FOR THE UNION'S AGREEMENT NOT TO WRITE
ANY PARTICULAR FORMULA INTO THE CONTRACT OR TAKE PART IN THE
DETERMINATION OF THE METHOD OF ASSESSMENT.  /24/  THUS THE PMA DECISION
ON THE METHOD OF ASSESSMENT WAS PART AND PARCEL OF THE COLLECTIVE
BARGAINING AGREEMENT.  INDEED, THE MODERNIZATION PLAN WAS THE HEART OF
THAT AGREEMENT, AND THE SUBSEQUENT ASSESSMENT PLAN MERELY IMPLEMENTED
THE EMPLOYERS' DUTY UNDER THE COLLECTIVE BARGAINING AGREEMENT TO
ESTABLISH A FUND SPECIFICALLY MARKED TO PROTECT MARITIME WORKERS
AGAINST THE FAR-REACHING EFFECTS OF MODERNIZATION. 

PMA TREATED THE FINANCING OF THE FUND AS AN INTEGRAL PART OF THE
COLLECTIVE BARGAINING PROCESS.  THE COMMITTEE ESTABLISHED BY PMA TO
RECOMMEND A FUNDING FORMULA WAS APPOINTED BY THE NEGOTIATING COMMITTEE
WHICH WORKED ON THE COLLECTIVE BARGAINING AGREEMENT; /25/  AND THE PMA
MEMBERSHIP RATIFIED BOTH THE COLLECTIVE BARGAINING AGREEMENT AND THE
FUNDING FORMULA AT THE SAME TIME. 

IT IS NOT, I SUBMIT, OSSIBLE, AS A PRACTICAL MATTER, TO SEPARATE THE
MECH FUND PROVISION IN THE COLLECTIVE BARGAINING AGREEMENT FROM THE
SUBSEQUENT DECISION OF THE PMA MEMBERSHIP CONCER-ING HOW THE FUND WAS
TO BE RAISED.  A COLLECTIVE BARGAINING AGREEMENT IS THE PRODUCT OF
NEGOTIATIONS.  HOW CAN NEGOTIATORS SITTING AT A TABLE ARRIVE AT AN
AGREEMENT IF THEY KNOW THAT A MAJOR PART OF IT DEPENDS ON THE APPROVAL
OF THE FEDERAL MARITIME COMMISSION?  HOW MANY MONTHS-- OR YEARS-- WILL
IT TAKE TO GET APPROVAL?  WHAT WILL HAPPEN MEANWHILE?  WILL NOT THE
IMPOSITION OF THAT KIND OF ADMINISTRATIVE SUPERVISION BRING AN END TO,
OR AT LEAST PARTIALLY PARALYZE, COLLECTIVE BARGAINING? 

THE MECH FUND IS A LABOR EXPENSE.  INCREASED LABOR COSTS NORMALLY
ARE PASSED ON AT LEAST IN PART BY INCREASED PRICES.  WHEN THE AUTO
WORKERS WERE RECENTLY NEGOTIATING WITH GENERAL MOTORS FOR A GUARANTEED
ANNUAL WAGE, WHAT WOULD HAVE BEEN THE CONSEQUENCE IF NOTHING COULD HAVE
BEEN DECIDED UNTIL A FEDERAL AGENCY HAD DETERMINED WHETHER THE IMPACT
ON PRICES OR ON THE ECONOMY WAS PROPER?  I CAN IMAGINE A REGIME OF
TOTAL CONTROLS WHERE SUCH PRIOR APPROVAL WOULD BE REQUIRED.  BUT WE
HAVE NO SUCH REGIME AT PRESENT; AND I CAN SEE NO POSSIBLE JUSTIFICATION
FOR A JUDICIALLY CREATED ONE IN THE EXPLOSIVE MARITIME FIELD.  TO M EET
THE COSTS INCREASED BY ANY COLLECTIVE BARGAINING AGREEMENT, A COMPANY
MIGHT HAVE TO RAISE ITS PRICES AND PASS AT LEAST PART OF THE ADDED COST
ON TO THE CONSUMER.  BUT THIS HAPPENS ALL THE TIME IN THE MARITIME
INDUSTRY, AS WELL AS IN OTHER INDUSTRIES, AND DOES NOT CONSTITUTE RATE
FIXING OF THE TYPE AT WHICH THE SHIPPING ACT IS AIMED.  THERE IS
NOTHING IN THELEGISLATIVE HISTORY OF THE SHIPPING ACT WHICH SUGGESTS
THAT SEC. 15 GIVES THE FMC THE POWER OR LICENSE TO OVERSEE LABOR
NEGOTIATIONS.  BUT THAT IS THE EFFECT OF WHAT THE COURT DOES TODAY WHEN
IT DECIDES THAT THE EMPLOYERS' AGREEMENT HERE MUST BE SUBMITTED TO THAT
BODY FOR APPROVAL. 

MY BROTHER HARLAN SUGGESTS THAT THE ASSESSMENT AGREEMENT CAN BE
DISTINGUISHED FROM THE COLLECTIVE BARGAINING AGREEMENT BECAUSE "(THE
UNION WAS CONCERNED THAT THE QUESTION (OF HOW THE COST BURDEN OF THE
FUND WAS TO BE ALLOCATED) RECEIVE SOME ANSWER, BUT HAD NO PROPER
INTEREST IN WHICH OF THE POSSIBLE COST ALLOCATION PLANS WAS ADOPTED . .
. "  (ANTE, AT 290).  BUT TO ARGUE THAT THE UNION DOES NOT CARE FROM
WHAT SOURCE THE PMA GETS THE MONEY FOR THE FUND IS BOTH QUESTIONABLE
/26/  AND IRRELEVANT, FOR SUCH AN APPROACH IGNORES THE FACT THAT THERE
ARE TWO PARTIES TO A COLLECTIVE BARGAINING AGREEMENT.  THE PMA MEMBERS
DO CARE HOW THEY WILL BE ASSESSED $27,500,000 FOR A FUND DEDICATED TO
THE BENEFIT OF THEIR EMPLOYEES.  THE MECH FUND WAS THE KEY PROVISION IN
THE AGREEMENT, AND WITHOUT IT THERE MAY WELL HAVE BEEN NO AGREEMENT AT
ALL.  THE PARTIES SHOULD NOT BE EXPECTED TO WAIT TO SETTLE THEIR
DIFFERENCES WHILE THE FMC DECIDES UNDER SEC. 15 WHETHER THE EMPLOYERS'
FUNDING PLAN IS IN THEPUBLIC INTEREST.  SPEEDY RESOLUTION OF LABOR
DISPUTES BY COLLECTIVE BARGAINING HAS BEEN THE CONSISTENT FEDERAL
POLICY. 

THE SOLICITOR GENERAL WOULD HAVEUS ATOMIZE THE COLLECTIVE BARGAINING
AGREEMENT AND TREAT THE SCHEDULE OF CHARGES THAT CREATE THE FUND AS A
MERE "SIDE AGREEMENT."  BUT WITHOUT THE SO-CALLED "SIDE AGREEMENT"
THERE WOULD HAVE BEEN NO COLLECTIVE BARGAINING AGREEMENT.  AND IT MUST
BE REMEMBERED THAT SEC. 15, IF APPLICABLE, REQUIRES THAT AN AGREEMENT
BE FILED "IMMEDIATELY WITH THE COMMISSION."  WHAT WOULD HAVE TO BE
FILED IS THE ENTIRE AGREEMENT, NOT MERELY THE PROVISO TO WHICH
PETITIONER NOW OBJECTS.  THE COMMISSION THEN MUST GIVE NOTICE AND A
HEARING AND "DISAPPROVE, CANCEL OR MODIFY" THE AGREEMENT.  WHICH
PERSONS WOULD BE ENTITLED TO PARTICIPATE IN THE HEARING PRESENTS AN
INITIAL PROBLEM.  /27/  THEREAFTER, WHAT PROVISIONS WOULD BECOME THE
TARGET IN THE HEARING IS CONJECTURAL.  THE TARGET MIGHT BE SMALL OR
LARGE.  BUT CERTAINLY NO COLLECTIVE BARGAINING AGREEMENT COULD BECOME
OPERATIVE UNTIL ITS UNDERPINNING-- THE FUND-- WAS THOROUGHLY
LITIGATED.  MEANWHILE YEARS MIGHT PASS AS THE CONTEST WOUND ITS WAY
SLOWLY THROUGH VARIOUS TRIBUNALS AND THE LABOR PROBLEMS CONTINUED TO
FESTER.     THIS IS WHAT MY BROTHER HARLAN OVERLOOKS WHEN HE SUGGESTS
THAT ADVANCE APPROVAL OF "LABOR-RELATED AGREEMENTS" MIGHT BE MORE
DESIRABLE FROM THE STANDPOINT OF FACILITATING COLLECTIVE BARGAINING
THAN LEAVING OPEN THE QUESTION WHETHER THE AGREEMENT, OR PARTS OF IT,
WOULD BE SUBJECT TO THE ANTITRUST LAWS.  PRESUMABLY, HE MEANS THAT
LEGAL UNCERTAINTY CONCERNING THE POSSIBLE VULNERABILITY OF CERTAIN
PROVISIONS OF AN AGREEMENT TO ATTACK UNDER THE ANTITRUST LAWS MIGHT
STALL NEGOTIATIONS OR LEAD SOME ASSOCIATION MEMBERS TO DECLINE TO
COOPERATE IN CARRYING OUT THE AGREEMENT, FEARING A TREBLE-DAMAGE
ACTION.  TO BE SURE, THE PARTIES TO A COLLECTIVE BARGAINING PACT MUST
FRAME THEIR AGREEMENT TO FIT WITHIN THE STANDARDS OF THE ANTITRUST LAWS
OR ANY OTHER GOVERNING STATUTES.  BUT WITHOUT A REQUIREMENT OF ADVANCE
APPROVAL OF THE TERMS OF THE AGREEMENT, THEY REMAIN FREE TO BARGAIN
SPEEDILY.  FRUSTRATION OF THE COLLECTIVE BARGAINING PROCESS COMES NOT
SO MUCH FROM THE POSSIBILITY THAT ONE OR MORE PROVISIONS IN A
COLLECTIVE BARGAINING PACT MIGHT BE FOUND ILLEGAL AT SOME FUTURE DATE
UNDER THE ANTITTURST LAWS, OR OTHER STATUTES SUCH AS SECS. 16 AND 17 OF
THE SHIPPING ACT, BUT RATHER FROM THE UNDUE AND POSSIBLY LENGTHY
FREEZING OR STULTIFICATION OF SOLUTIONS TO TROUBLESOME LABOR PROBLEMS
WHILE AN INTIMATE PART OF THE PROPOSED AGREEMENT IS SENT TO THE FMC FOR
APPROVAL. 

WITH ALL RESPECT, THE COURT'S APPROACH IN REQUIRING THE FUNDING PLAN
TO BE SUBMITTED TO THE FMC FOR APPROVAL UNDER SEC. 15 OF THE SHIPPING
ACT WILL FRUSTRATE LEGITIMATE AND SPEEDY COLLECTIVE BARGAINING IN THE
MARITIME INDUSTRY.  NEITHER THE COURT NOR MY BROTHER HARLAN IS ABLE TO
REFER TO ANY LEGISLATIVE HISTORY WHICH INDICATES THAT CONGRESS
CONSIDERED THE SHIPPING ACT TO REQUIRE THE FILING OF LABOR AGREEMENTS
OR PROVISIONS OF THOSE AGREEMENTS UNDER SEC. 15.  /28/  THE COURT
INSTEAD TAKES THE APPROACH THAT THE SHIPPING ACT PROVISIONS WERE
PURPOSELY DRAWN BROAD ENOUGH TO ENCOMPASS ASSOCIATION AGREEMENTS WHICH
HAVE MORE THAN A DE MINIMIS EFFECT ON COMMERCE.  THIS RATIONALE WOULD
REQUIRE THE FILING OF ANY COLLECTIVE BARGAINING PROVISION AGREED TO BY
PMA MEMBERS THAT RAISED LABOR COSTS BEYOND THE POINT AT WHICH PMA
MEMBERS COULD BE EXPECTED TO ABSORB THOSE COSTS WIHOUT RAISING PRICES
OR CHARGES. 

THE COURT MAY WELL MEAN, AS MY BROTHER HARLAN SUGGESTS, THAT THE
"OBLIGATION TO COLLECT THE MECH FUND," CONTAINED IN THE COLLECTIVE
BARGAINING AGREEMENT, IS NOT TO BE EXAMINED BY THE COMMISSION ON
REMAND, BUT RATHER THE QUESTION IS TO BE LIMITED TO THE "PROPRIETY OF
THE CHOICE OF THE ROUTE TO THAT OBJECTIVE."  BUT THAT MISSES THE MARK. 
MY POINT IS THAT THE LATTER QUESTION IS AS MUCH A PART OF THE
BARGAINING PROCESS AS THE FORMER.  COMMISSION CONTROL OVER EITHER
QUESTION RUNS SUBSTANTIAL RISK OF FRUSTRATING AGREEMENT BY THE PARTIES
ON BOTH ISSUES, NOT TO MENTION OTHER MATTERS IN THE COLLECTIVE
BARGAINING PACT.  FOR EXAMPLE, IF AN ALLOCATION FORMULA SATISFACTORY TO
PMA MEMBERS AND TO THE COMMISSION COULD NOT BE DEVISED, THE FUND MIGHT
NEVER BE ESTABLISHED, REQUIRNG PERHAPS OTHER CHANGES IN THE AGREEMENT,
SUCH AS HIGHER WAGES OR CONTINUANCE OF SOME OR ALL OF THE RESTRICTIVE
WORK RULES. 

IF THE PRESENT PRACTICE IS AN ABUSE, THERE IS AN EXISTING REMEDY. 
THIS AGREEMENT BETWEEN EMPLOYERS COULD OF COURSE BE CHALLENGED IN THE
COURTS AS VIOLATIVE OF THE ANTITRUST LAWS.  /29/  MOREOVER, SECS. 16
AND 17 OF THE SHIPPING ACT AFFORD PROTECTION TO FOREIGN COMMERCE IN
CASES OF UNDUE DISCRIMINATION OR UNREASONABLE PRACTICES AFFECTING THAT
COMMERCE.  WHILE I CANNOT SAY THAT THE COMMISSION ERRED IN FINDING NO
VIOLATION OF SEC. 16, I CONCUR IN A REMAND TO THE COMMISSION FOR
FURTHER FINDINGS UNDER SEC. 17.  /30/  IF THE FINDING IS FOR PETITION,
THERE MAY BE AN INCIDENTAL AND AFTER-THE-FACT EFFECT ON THE PROVISIONS
OF THE COLLECTIVE BARGAINING AGREEMENT.  BUT IT WILL NOT PRODUCE THE
PARALYZING EFFECT WHICH WILL FOLLOW WHEN PRIOR APPROVAL IS REQUIRED. 
THE APPLICATION OF SECS. 16 AND 17 IN PARTICULAR INSTANCES CAN INDEED
REALISTICALLY BE COMPARED WITH ENFORCEMENT OF FEDERAL ANTITRUST LAWS
DIRECTED AGAINST SPECIFIC PRACTICES. 

/1/  SECTION 15 PROVIDES, IN RELEVANT PART, THAT EVERY PERSON
SUBJECT TO THE SHIPPING ACT "SHALL FILE IMMEDIATELY WITH THE
COMMISSION" EVERY AGREEMENT WITH ANOTHER PERSON SUBJECT TO THE ACT:
"FIXING OR REGULATING TRANSPORTATION RATES OR FARES; GIVING OR
RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER SPECIAL PRIVILEGES OR
ADVANTAGES; CONTROLLING, REGULATING, PRE VENTING, OR DESTROYING
COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR TRAFFIC;
ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE NUMBER AND
CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING IN ANY WAY
THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO BE CARRIER;
OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL, OR
COOPERATIVE WORKING AGREEMENT."  46 U.S.C. 814 (SEC. 15). 

THE COMMISSION IS INSTRUCTED IN SEC. 15 TO "DISAPPROVE, CANCEL OR
MODIFY ANY AGREEMENT" WHICH IT FINDS, AFTER NOTICE AND HEARING, TO BE
"UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS, SHIPPERS,
EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE UNITED
STATES AND THEIR FOREIGN COMPETITORS, OR TO OPERATE TO THE DETRIMENT OF
THE COMMERCE OF THE UNITED STATES, OR TO THE CONTRARY TO THE PUBLIC
INTEREST, OR TO BE IN VIOLATION OF THIS CHAPTER . . . " 

ANY AGREEMENT WHICH IS NOT APPROVED, OR WHICH IS DISAPPROVED, BY THE
COMMISSION IS DECLARED BY SEC. 15 TO BE "UNLAWFUL."  AND IT IS ALSO
PROVIDED THAT "BEFORE APPROVAL OR AFTER DISAPPROVAL IT SHALL BE
UNLAWFUL TO CARRY OUT IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY
SUCH AGREEMENT . . . " 

/2/  THOSE SECTIONS READ, IN RELEVANT PART: 

"IT SHALL BE UNLAWFUL FOR ANY . . . PERSON SUBJECT TO THIS CHAPTER,
EITHER ALONE OR IN CONJUNCTION WITH ANY OTHER PERSON, DIRECTLY OR
INDIRECTLY . . . TO SUBJECT ANY PARTICULAR PERSON, LOCALITY, OR
DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE IN ANY RESPECT WHATSOEVER . . . "  46 U.S.C. 815 (SEC.
16). 

"EVERY . . . PERSON SUBJECT TO THIS CHAPTER SHALL ESTABLISH,
OBSERVE, AND ENFORCE JUST AND REASONABLE REGULATIONS AND PRACTICES
RELATING TO OR CONNECTED WITH THE RECEIVING, HANDLING, STORING, OR
DELIVERING OF PROPERTY.  WHENEVER THE BOARD FINDS THAT ANY SUCH
REGULATION OR PRACTICE IS UNJUST OR UNREASONABLE IT MAY DETERMINE,
PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE REGULATION OR
PRACTICE."  46 U.S.C. 816 (SEC. 17). 

/3/  FOR A COMPREHENSIVE STUDY OF THE HISTORY OF LABOR RELATIONS IN
THE MARITIME INDUSTRY UP TO 1940, SEE MARITIME LABOR BOARD, REPORT TO
THE PRESIDENT AND TO THE CONGRESS, H.R. DOC. NO. 646, 76TH CONG., 3D
SESS. (1940).  FOR A VALUABLE HISTORY OF MARITIME LABOR RELATIONS ON
THE WEST COAST, SEE B. SCHNEIDER, INDUSTRIAL RELATIONS IN THE WEST
COAST MARITIME INDUSTRY, INSTITUTE OF INDUSTRIAL RELATIONS, UNIVERSITY
OF CALIFORNIA (BERKELEY, 1958). 

/4/  LONGSHOREMENT AND SEAMEN DEPEND, OF COURSE, ON THE MAMOUNT OF
WORK TO BE DONE.  IF BUSINESS IS BAD, THE WORKERS ARE WITHOUT WORK AND
WITHOUT PAY.  WITH RESPECT TO LONGSHOREMENT ON THE PACIFIC COAST,
HIRING IS DONE THROUGH HIRING HALLS OPERATED JOINTLY BY THE UNION AND
MANAGEMENT.  EMPLOYERS CAN OBTAIN LONGSHOREMEN ONLY THROUGH THESE
HALLS, AND ONLY FOR SPECIFIC JOBS.  NO LONGSHOREMAN MAY BE EMPLOYED
STEADILY BY ANY ONE EMPLOYER; RATHER, EACH IS DISPATCHED TO AN EMPLOYER
AS PART OF A GANG TO PERFORM A SPECIFIC LOADING OR UNLOADING JOB.  SEE
KOSSORIS, WORKING RULES IN WEST COAST LONGSHORING, 84 MONTHLY LABOR
REV. 1 (1961), FOR AN ACCOUNT OF THE HIRING PRACTICE ON THE WEST
COAST. 

/5/  THIS ACT WAS THE DIRECT RESULT OF THE ALEXANDER REPORT OF
1914.  HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, H.R. DOC. NO.
805, 63D CONG., 2D SESS. (1914). 

/6/  IN THAT STRIKE THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
DEMANDED WAGE INCREASED, A SIX-HOUR DAY, A CLOSED SHOP, AND UNION
CONTROL OF HIRING HALLS.  THE EMPLOYERS REFUSED TO ACCEDE TO THESE
DEMANDS, AND THE ENSUING STRIKE TIED UP SHIPPING FOR ALMOST THREE
MONTHS AT ALL PACIFIC PORTS.  PRESIDENT ROOSEVELT APPOINTED A NATIONAL
LONGSHOREMEN'S BOARD TO INTERVENE, AFTER A MEDIATION BOARD HAD FAILED
TO SETTLE THE DISPUTE.  THE UNION AND MANAGEMENT AGREED TO SUBMIT TO
ARBITRATION BY THE BOARD, AND TO END THE STRIKE WHILE ARBITRATION WAS
PROCEEDING.  BOTH SIDES AGREED TO ABIDE BY THE BOARD'S DECISION.  THE
ARBITRATION PROCEEDINGS TOOK SEVERAL MONTHS, AND THE AWARD WHICH WAS
EVENTUALLY RENDERED REPRESENTED SUBSTANTIAL GAINS FOR THE UNION. 
HIRING HALLS WERE TO BE OPERATED JOINTLY, WAGE INCREASES WERE GRANTED,
AND A SIX-HOUR DAY ESTABLISHED.  IN ADDITION, PORT LABOR RELATIONS
COMMITTEES WERE ESTABLISHED ON WHICH BOTH EMPLOYERS AND THE UNION WERE
REPRESENTED EQUALLY,; AND ALL ISSUES NOT DECIDED BY THOSE COMMITTEES
WERE TO BE SUBMITTED TO ARBITRATION. 

/7/  KILLINGSWORTH, THE MODERNIZATION OF WEST COAST LONGSHORE WORK
RULES, 15 IND. & LAB.REL.REV.  295, 296 (1962). 

/8/  KOSSORIS, SUPRA, N. 4, AT 1. 

/9/  IT WAS NOTED IN A 1941 HOUSE COMMITTEE REPORT ON A BILL
PROVIDING FOR A TWO-YEAR EXTENSION OF THE MLB THAT THE MLB WAS THE
"ONLY GOVERNMENT AGENCY WITH WHICH COPIES OF ALL LABOR AGREEMENT ARE
REQUIRED TO BE FILED AND THESE HAVE BEEN STUDIED BY THE BOARD WITH A
VIEW TO PROMOTING STABLE LABOR RELATIONS IN THE MARITIME INDUSTRY." 
HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, TWO-YEAR EXTENSION OF
THE MARITIME LABOR BOARD, H.R. REP. NO. 354, 77TH CONG., 1ST SESS., 2
(1941). 

/10/  UNDER THE 1938 ACT, QUESTIONS OF REPRESENTATION WERE RESERVED
TO THE NLRB.  SECTION 1002 OF THE MERCHANT MARINE ACT, AS AMENDED,
PROVIDED THAT: 

"THE PROVISIONS OF THIS TITLE SHALL NOT IN ANY MANNER AFFECT OR BE
CONSTRUED TO LIMIT THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT,
NOR SHALL ANY OF THE UNFAIR LABOR PRACTICES LISTED THEREIN BE
CONSIDERED A DISPUTE FOR THE PURPOSES OF THIS TITLE.  QUESTIONS
CONCERNING THE REPRESENTATION OF EMPLOYEES OF A MARITIME EMPLOYER SHALL
BE CONSIDERED AND DETERMINED BY THE NATIONAL LABOR RELATIONS BOARD IN
ACCORDANCE WITH THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT:
PROVIDED, HOWEVER, THAT NOTHING IN THIS TITLE SHALL CONSTITUTE A REPEAL
OR OTHERWISE AFFECT THE ENFORCEMENT OF ANY OF THE NAVIGATION LAWS OF
THE UNITED STATES OR ANY OTHER LAWS RELATING TO SEAMEN."  52 STAT.
965. 

/11/  HEARINGS ON H.R. 5734, BEFORE THE HOUSE COMMITTEE ON MERCHANT
MARINE AND FISHERIES, 84TH CONG., 1ST AND 2D SESS. (1955-1956). 

/12/  SEE, E.G., HANNA MINING CO. V. MARINE ENGINEERS, 382 U.S. 181
(PRE-EMPTION OF STATE LAW BY FEDERAL LABOR ENACTMENTS); MCCULLOCH V.
SOCIEDAD NACIONAL, 372 U.S. 10 (JURISDICTION OF NLRB OVER EMPLOYEES OF
FOREIGH-FLAG SHIPS); MARINE ENGINEERS V. INTERLAKE S.S. CO., 370 U.S.
173 (PRE-EMPTION); MARINK COOKS V. PANAMA S.S. CO., 362 U.S. 365
(APPLICATION OF NORRIS-LAGUARDIA ACT); BENZ V. COMPANIA NAVIERA
HIDALGO, 353 U.S. 138 (APPLICATION OF LABOR MANAGEMENT RELATIONS ACT TO
DISPUTES BETWEEN MARITIME EMPLOYEES AND FOREIGN SHIPS); LONGSHOREMEN V.
JUNEAU SPRUCE CORP., 343 U.S. 237 (RIGHT OF ACTION BY EMPLOYER AGAINST
UNION UNDER SEC. 303(A)(4) OF L.M.R.A.); NLRB V. PITTSBURGH S.S.CO.,
337 U.S. 31 (REPRESENTATION; REFUSAL TO BARGAIN); NLRB V. WATERMAN S.S.
CORP., 309 U.S. 206 (UNFAIR LABOR PRACTICE). 

/13/  KOSSORIS, SUPRA, N. 4, AT 2. 

/14/  AS ONE COMMENTATOR NOTED IN 1961: 

"THE LONGSHORE INDUSTRY IS TECHNOLOGICALLY AMONG THE MOST BACKWARD. 
AN INDUSTRIAL ENGINEER FROM ANY ONE OF THE MASS PRODUCTION INDUSTRIES
WOULD BE HORRIFIED TO FIND SACKS OF COFFEE ON THE SAN FRANCISCO DOCKS
BEING HANDLED JUST AS THEY HAVE BEEN HANDLED SINCE SAILING SHIP DAYS. 
NO ONE OF THE MANY SEPARATE CORPORATE LINKS IN THE TRANSPORTATION CHAIN
HAS SUFFICIENT INTEREST IN GREATER EFFICIENCY TO FORCE THE CHANGES IN
COFFEE HANDLING METHODS, FOR EXAMPLE, WHICH, TO BE EFFECTIVE, MUST
START IN BRAZIL AND BE CARRIED RIGHT THROUGHT TO HILLS BROTHERS OR
FOLGERS IN SAN FRANCISCO."  FIARLEY, THE "ILWU-PMA MECHANIZATION AND
MODERNIZATION AGREEMENT, 12 LAB.L.J. 664, 665 (1961). 

THE FIRST BIG CHANGE IN TECHNOLOGY ALONG THE DOCKS, NOTES MR.
FAIRLEY, WAS THE USE OF LIFT TRUCKS, PROPELLED BY WARTIME DEMANDS FOR
GREATER EFFICIENCY DURING WORLD WAR II.  SINCE THAT TIME, NEW METHODS
OF BULK HANDLING OF CARGO HAVE BEEN DEVELOPED, AND UNIT LOADS HAVE BEEN
INCREASINGLY USED (SUCH AS THOSE MADE BY GLUING ITEMS TOGETHER OR
STRAPPING THEM TOGETHER OR CONTAINERIZING THEM).  ID., AT 666.  ONE OF
THE MOST EFFICIENT OPERATIONS OF CONTAINERIZATION HAS BEEN USED BY THE
MATSON NAVIGATION CO. IN AUGUST 1964 THAT COMPANY CUT ITS RATES BY
NEARLY 10%, CITING COST REDUCTIONS MADE POSSIBLE BY A SHIP IMPROVEMENT
AND "CONTAINERIZATION" PLAN.  THE PLAN RELATES TO CONTAINER CARGO,
WHERE THE CONTAINERS ARE BOXES HOLDING UP TO 40 TONS OF FREIGHT.  THEY
ARE LOADED AT A FACTORY OR DISTRIBUTION POINT AND LIFTED ABOARD A SHIP
AND UNLOADED AS SINGLE UNITS.  MATSON CO. REPORTED THAT IT TOOK ABOUT
850 MAN-HOURS TO LOAD AND UNLOAD A SPECIALLY DESIGNED CONTAINER SHIP
CARRYING 6,500 TONS USING MECHANIZED EQUIPMENT.  THE SAME CARGO CARRIED
IN CONVENTIONAL LOOSE FORM WOULD TAKE 11,000 MAN-HOURS (ABOUT 13 TIMES
AS MUCH LABOR) TO LOAD AND UNOAD.  AN ADDED ATTRACTION OF THIS SAVING
IN TIME IS THE FACT THAT THE SHIPS GET IN AND OUT OF PORT FASTER,
PROVIDING ADDITIONAL COST SAVINGS.  FOR EXAMPLE, MATSON'S CONTAINER
SHIPS STAY IN PORT LESS THAN A DAY, COMPRED WITH FIVE DAYS FOR A
CONVENTIONAL SHIP.  SHIPPERS ESTIMATE THAT IT COST IN 1964 ABOUT $3,000
TO $5,000 FOR SUCH THINGS AS DEPRECIATION, SEAMEN'S WAGES AND PIER
CHARGES FOR EACH DAY A SHIP STAYS IN PORT.  THE WALL STREET JOURNAL,
NOV. 20, 1964, AT 8, COL. 2.  FOR A MORE TOROUGH CONSIDERATION OF THE
CHANGES IN TECHNOLOGY THAT PROMISE GREAT BENEFITS FOR THE SHIPPING
INDUSTRY, SEE THE COMPREHENSIVE EIGHT-VOLUME STUDY OF THE UNITED STATES
DEPARTMENT OF LABOR, MANPOWER UTILIZATION, JOB SECURITY IN THE
LONGSHORE INDUSTRY (1964).  SEE ALSO SHILS, INDUSTRIAL UNREST IN THE
NATION'S MARITIME INDUSTRY, 15 LAB.L.J. 337, 356-358 (WHERE THE AUTHOR
NOTES IMPROVEMENTS IN CONSTRUCTION OF VESSELS, THE USE OF HIGHLY
MECHANIZED CARGO SHIPS, CHANGES IN ENGINE ROOM OPERATION, IN THE DECK
DEPARTMENT AND IN THE STEWARD DEPARTMENT, AND A NEW LINE OF SEMI
AUTOMATED VESSLES); O. HAGEL & L. GOLDBLATT, MEN AND MACHINES, JOINT
PUBLICATION OF THE I.L.W.U. AND P.M.A. (SAN FRANCISCO, 1963).     /15/
MULTIPLE HANDLING REFERS TO THE LABOR PRACTICE REQURING THE CARGO TO
TOUCH THE "SKIN OF THE DOCK" AFTER BEING UNLOADED BEFORE SOMEONE OTHER
THAN A LONGSHOREMAN CAN HANDLE IT.  FOR LOADING OF CARGO, ONLY THE
LONGSHOREMAN CAN PLACE IT ON THE SHIP AFTER A TEAMSTER HAS UNLOADED IT
FROM HIS TRUCK ONTO THE DOCK.  KOSSORIA, SUPRA, N. 4, AT 2. 

/16/  SLING-LOAD WEIGHT IS THE WEIGHT LIMIT FOR A LOAD OF CARGO.  IN
1961 THE MAXIMUM WEIGHT WAS USUALLY ABOUT 2,100 POUNDS PER PALLET
(ALTHOUGH MUCH HEAVIER LOADS APPARENTLY COULD HAVE BEEN CARRIED
SAFELY).  LARGER PALLETS WERE "SKIMMED DOWN" TO 2,100 POUNDS BY
LONGSHOREMEN.  IBID. 

/17/  EACH MAJOR PORT WOULD HAVE ITS OWN RULES STIPULATING THE
NUMBER OF MEN NEEDED ON GANGS.  FREQUENTLY, THE NUMBER WAS MORE THAN
WAS NEEDED FOR THE JOB.  FOR EXAMPLE, THE "FOUR-ON FOUR-OFF" GANG
REQURIED EIGHT MEN IN THE HOLD OF A SHIP, ALTHOUGH ONLY FOUR ACTUALLY
WORKED WHILE THE OTHER FOUR RESTED.  ID., AT 3.  SEE GENERALLY
KILLINGSWORTH, SUPRA, N. 7; P. HARTMENT, UNION WORK RULES:  A BREIF
THEORETICAL ANALYSIS AND SOME EMPIRICAL RESULTS, U. OF ILL. BULL.,
INSTITUTE OF LABOR & INDUSTRIAL RELATIONS (1967). 

/18/  FAIRLEY, SUPRA, N. 14, AT 666. 

/19/  KOSSORIS, SUPRA, N. 4, AT 1. 

/20/  ALTHOUGH THE METHOD OF RAISING THIS AMOUNT OF MONEY WAS NOT
SPECIFIED IN THE AGREEMENT, PMA ACCUMULATED THE FUND BY ASSESSING ITS
MEMBERS UNDER A MAN-HOUR FORMULA. 

/21/  IN AUGUST 1966 A NEW AGREEMENT WAS SIGNED WHICH CONTINUED THE
MECH FUND UNTIL 1971; BUT THIS TIME THE EMPLOYERS AGREED TO PAY EVEN
MORE INTO THE FUND EACH YEAR-- $6,900,000.  BOTH THE UNION AND THE
EMPLOYERS WERE HIGHLY SATISFIED WITH THE WAY THE PLAN HAD WORKED.  FOR
A GENERAL DESCRIPTION OF THE 1966 CONTRACT, SEE BUSINESS WEEK, JULY 30,
1966, AT 108; KOSSORIS, 1966 WEST COAST LONGSHORE NEGOTIATIONS, 89
MONTHLY LABOR REV. 1067.  KOSSORIS POINTS OUT THE GREAT EFFECT HWICH
ABOLITION OF RESTRICTIVE WORK PRACTICES AND INCREASED USE OF MODERN
TECHNOLOGY HAD HAD FOR THE EMPLOYERS:  "TONNAGE INCREASED BY ABOUT 32
PERCENT; BUT MAN-HOURS REMAINED ABOUT THE SAME.  DESPITE AN INCREASE
OVER THE PERIOD OF 56 CENTS IN THE BASIC WAGE AND LIBERALIZATION OF
FRINGE BENEFITS, INCLUDING THE $5 MILLION THE EMPLOYERS PAID INTO THE
FUND, THE COST PER TON DROPPED FROM $6.26 TO $6.16 . . . MAKING
ALLOWANCE FOR ALL IMPORTANT FACTORS INVOVLED, THE GAIN TO EMPLOYERS
FROM THE M&M AGREEMENT MAY BE PLACED CONSERVATIVELY AS WELL IN EXCESS
OF $150 MILLION.  SUBTRACTING FROM THIS THE $27.5 MILLION PAID INTO THE
M&M FUND OVER THE 5 1/2 YEAR PERIOD OF THE LAST CONTRACT MAKES THE
EMPLOYER ESTIMATE OF $120 MILLION NET GAIN APPEAR REALISTIC."  ID., AT
1068-1069. 

/22/  125 U.S.APP.D.C. 282, 293, 371 F.2D 747, 758 (1967). 

/23/  WE ARE TOLD THAT THIS IS NOT THE FIRST TIME THAT PMA MEMBERS
HAVE ENTERED INTO AGREEMENTS AMONG THEMSELVES TO FORM AND FINANCE THEIR
COLLECTIVE BARGAINING AGREEMENTS.  THEY HAVE AGREED TO THE PRESENTATION
OF UNIFORM BARGAINING TERMS, AND HAVE PROVIDED, THROUGH AGREEMENTS
AMONG THEMSELVES, FOR THE ADMINISTRATION AND IMPLEMENTATION OF THEIR
UNION CONTRACTS.  ALL OF THESE WOULD AFFECT TRANSPORTATION RATES.  IN
ESSENCE, SUCH AGREEMENTS, NO LESS THAN THE FUNDING METHOD EMPLOYED BY
PMA, HAVE ESTABLISHED UNIFORM COSTS FOR ALL EMPLOYERS OF MARITIME LABOR
- INDEED THE PRIMARY OBJECT OF INDUSTRY-WIDE BARGAINING HAS BEEN TO
ESTABLISH UNIFORM WAGES, FRINGE BENEFITS, AND WORKING CONDITIONS. 

/24/  MR. PAUL ST.SURE, PRESIDENT OF PMA, TESTIFIED: 

"IT (THE METHOD OF PAYMENT OF THE FUND) WAS A DEFINITE PART OF THE
NEGOTIATIONS IN THAT THE UNION TOOK A POSITION WITH REGARD TO THE
METHOD OF COLLECTION.  PMA TOOK A POSITION WITH REGARD TO THE METHOD OF
COLLECTION.  THERE WERE DISCUSSIONS WITH THE UNION DURING NEGOTIATION
AS TO THE PROBLEMS THAT HAD BEEN PRESENTED BY THE METHOD OF COLLECTION
USED WITH RELATION TO THE MILLION DOLLARS AND A HALF. 

"WE DISCUSSED WITHTHE UNION THE DIFFERENCES OF OPINION AMONG OUR OWN
MEMBERS AS TO THE EQUITABLE METHOD OF PROVIDING FOR THE COLLECTION OF
THIS MONEY. 

"WE ENDED UP WITH AN AGREEMENT BY THE UNION THAT, INASMUCH AS THE
EMPLOYER MEMBERS OF THE BARGAINING UNIT HAD COMMITTED THEMSELVES
SPECIFICALLY TO THE PAYMENT OF THE SUM, THAT WHEREAS THEY WERE
INTERESTED IN THE ASSURANCE THAT THE SUM WOULD BE COLLECTED, THEY WOULD
ALLOW US TO WORK OUT AMONG OURSELVES THE METHOD OF ACTUAL COLLECTION
WITHIN THE MEMBERSHIP OF PMA." 

SUCH ACTION, HOWEVER, DID NOT MAKE THE UNION A DISINTERESTED PARTY;
RATHER, THE UNION CERTAINLY HAD A CONTINUING INTEREST IN THE METHOD OF
FINANCING THE FUND.  MR. ST.SURE, WHO WAS DEEPLY INVOLVED SINCE 1948 IN
NEGOTIATIONS WITH THE ILWU, TESTIFIED: 

"THERE WAS A CONTINUING INTEREST AND A CONTINUING CONCERN AS TO
WHETHER OR NOT THE COLLECTIONS UNDER THE FUND WERE BEING MET. 
OBVIOUSLY THEY HAVE, BY JOINT TRUSTEESHIP, JOINT CUSTODY OF THE FUND,
AND I CAN ASSURE YOU THAT THEY WERE ALERT AS TO WHETHER OR NOT THE
METHOD OF THE CUSTODY, WAS WORKING, BECAUSE THEY BELIEVED THIS AND, IN
FACT, KNEW IT WAS THEIR MONEY TO SPEND IN ACCORDANCE WITH THE
AGREEMENT. 

.          .          .          . 

"AFTER ALL, THIS WAS A CONTINUING RELATIONSHIP THAT WE HAVE, BY THE
COLLECTIVE BARGAINING AGREEMENT,AND MY EXPERIENCE WOULD SUGGEST TO ME
THAT WE COULDN'T HAVE ADOPTED THE METHOD WHICH WOULD DEFEAT THE VERY
PURPOSE FOR UHICH WE HAD REACHED A BARGAIN WITHOUT HAVING FURTHER
NEGOTIATIONS." 

THE HEARING EXAMINER STATED IN HIS OPINION THAT MR. ST.SURE
TESTIFIED THAT THE ILWU'S INTEREST IN THE METHOD TO BE ADOPTED, CEASED
AFTER IT WAS AGREED THAT THE METHOD OF COLLECTION WAS TO BE RESERVED TO
PMA."  IN THE PRINTED RECORD BEFORE THE COURT, HOWEVER, I FIND NO
REFERENCE IN MR. ST.SURE'S TESTIMONY TO A LACK OF INTEREST ON THE PART
OF THE UNION CONCERNING THE METHOD OF CO-LECTION OF THE FUND.  THE
HEARING EXAMINER DOES NOT INDICATE THE TESTIMONY ON WHICH HIS
INTERPRETATION OF MR. ST.SURE'S PRESENTATION IS BASED; AND, AT THE
LEAST, THAT PART OF HIS TESTIMONY QUOTED WOULD APPEAR TO RAISE A STRONG
DOUBT WHETHER IT COULD BE SAID THAT THE INTEREST OF THE UNION CEASED. 
IN ANY EVENT, IT IS CLEAR FROM MR. ST.SURE'S TESTIMONY THAT THE METHOD
OF COLLECTION WAS A PRIME TOPIC OF NEGOTIATIONS BETWEEN THE PARTIES,
AND THAT THE EMPLOYERS' DECISION ON THE MATTER WAS INTIMATELY TIED WITH
THE COLLECTIVE BARGAINING AGREEMENT. 

/25/  MR. ST.SURE TESTIFIED: 

"WELL, THIS WAS STILL PART OF THE BARGAINING PROCESS.  WE WERE STILL
ACTUALLY TRYING TO CONCLUDE THE BARGAIN WHICH WE HAD DEVELOPED AND HAD
SIGNED A MEMORANDUM TO COVER.  WE STILL HAD THE RESPONSIBILITY AS A
NEGOTIATING COMMITTEE OF REPORTING BACK TO THE BOARD OF DIRECTORS, AND
THEN TO THE MEMBERSHIP, AND THIS WAS SIMPLY A CONVENIENT MEANS OF
CALLING IN SOME MEN THAT WE FELT WERE MORE EXPERT IN THIS FIELD THAN
THE NEGOTIATORS WERE WHO WERE OPERATING PEOPLE TO MAKE A RECOMMENDATION
AS TO A METHOD OF PAYMENT." 

/26/  SEE N. 24, SUPRA. 

/27/  SEE FMC RULE 5(1), 46 CFR 502.72 (PETITIONS FOR INTERVENTION
IN FMC PROCEEDINGS).  SEE ALSO FMC RULE 10(C), 46 CFR 502.143 (NOTICE
OF HEARINGS). 

/28/  INDEED, THE LEGISLATIVE HISTORY WOULD APPEAR TO BE TO THE
CONTRARY.  SEE N. 9, SUPRA. 

/29/  THE CIRCUMSTANCES THAT THE FUNDING PLAN ORIGINATED IN
COLLECTIVE BARGAINING AND WAS A PART OF A COLLECTIVE BARGAINING
AGREEMENT WOULD NOT AUTOMATICALLY CREATE AN EXEMPTION FROM THE
ANTITRUST LAWS.  SEE MINE WORKERS V. PENNINGTON, 381 U.S. 657; MEAT
CUTTERS V. JEWEL TEA, 381 U.S. 676; ALLEN BRADLEY CO. V. UNION, 325
U.S. 797. 

/30/  THE COMMISSION HELD UNDER SEC. 16 THAT THAT SECTION IS
VIOLATED ONLY IF THERE IS DISCRIMINATION BETWEEN COMPETITORS, WHICH WAS
NOT THE SITUATION HERE BECAUSE THE MARINE TERMINAL COMPANIES HAVE
IMPOSED NO HIGHER CHARGES ON VOLKSWAGENS THAN ON OTHER AUTOMOBILES. 
ALTHOUGH SUCH AN INTERPRETATION IS SUPPORTED BY THE CONSTRUCTION PLACED
ON SEC. 3(1) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 3(1), UNITD
STATES V. GREAT NORTHERN R. CO., 301 I.C.C. 21, 26-27, ON WHICH SEC. 16
OF THE SHIPPING ACT IS MODELED, UNITED STATES NAV. CO. V. CUNARD S.S.
CO., 284 U.S. 474, 480-481, IT HAS BEEN SUGGESTED THAT THE COMMISSION
HAS UNDERMINED ITS OWN RULE BY NOT REQUIRING A COMPETITIVE RELATIONSHIP
IN CASES NOT INVOLVING FREIGHT RATES:  INVESTIGATION OF FREE TIME
PRACTICES-- PORT OF SAN DIEGO, 9 F.M.C. 525 (1966) (PORT FREE TIME);
NEW YORK FOREIGN FREIGHT FORWARDERS AND BROKERS ASSN. V. FMC, 337 F.2D
289 (C.A. 2D CIR. 1964), CERT. DENIED, 380 U.S. 910 (BILLING METHODS OF
FREIGHT FORWARDERS); SWIFT & CO. V. GULF & SOUTH ATLANTIC HAVANA
CONFERENCE, 6 F.M.B. 215 (1961) (ROUTE RESTRICTIONS); STORAGE PRACTICES
AT LONGVIEW, WASHINGTON, 6 F.M.B. 178 (1960) (STORAGE CHARGES). 
MOREOVER, IT IS ARGUED THAT THE COMPETITIVE RELATIONSHIP TEST EMPLOYED
BY THE ICC UNDER SEC 3(1) OF THE INTERSTATE COMMERCE ACT IS NOT "AN
INDISPENSABLE ELEMENT IN A SITUATION OF UNDUE PREJUDICE AND PREFERENCE
. . . "  JOSEPH A. GODDARD REALTY CO. V. NEW YORK, C. & ST. L.R. CO.,
229 I.C.C. 497, 501.  THE MARITIME COMMISSION'S REFUSAL TO REQUIRE A
COMPETITIVE RELATIONSHIP INCERTAIN CASES, HOWEVER, HAS DILUTED THAT
PRINCIPLE ONLY IN THOSE SITUATIONS IN WHICH THERE ARE SERVICES THAT ARE
NOT DEPENDENT UPON THE NATURE OF THE CARGO AND THE AVRIOUS CHARGES
THEREFOR.  IN THE INSTANT CASE, HOWEVER, THERE ARE DIFFERENT CHARGES
LEVIED DEPENDING UPON THE NATURE OF THE CARGO INVOVLED.  PETITIONER
CONCEDED BEFORE THE HEARING EXAMINER THAT ((WE DO NOT CLAIM THAT THE
MEASUREMENT FORMULA 'REGARDLESS OF HOW MANIFESTED' SUBJECTS VOLKSWAGEN
AUTOMOBILES TO 'PREJUDICE OR DISADVANTAGE' AS COMPARED TO OTHER
AUTOMOBILES, AND WE ADMIT THAT THERE IS NO OTHER CARGO CLASSIFICATION
IN COMPETITION WITH AUTOMOBILES."  THE COMPETITIVE RELATIONSHIP RULE
HAS BEEN APPLIED CONSISTENTLY BY THE COMMISSION IN APPROPRIATE
CIRCUMSTANCES.  THE SAME RULE HAS ALSO BEEN USED BY THE ICC.  SINCE I
CANNOT SAY IN THE CIRCUMSTANCES OF THIS CASE THAT THE REQUIREMENT OF A
COMPETITIVE RELATIONSHIP IS UNREASONABLE OR INCONSISTENT WITH THE
PROVISIONS OF THE SHIPPING ACT, I WOULD DEFER TO THE COMMISSION'S
EXPERTISE.  CONSOLO V. FMC, 383 U.S. 607 

WITH RESPECT TO SEC. 17, THE COMMISSION EXPRESSLY NOTED THAT (1) THE
MEASUREMENT BASIS FOR ASSESSING AUTOMOBILES RESULTED IN AN ASSESSMENT
ALMOST 10 TIMES GREATER THAN A WEIGHT BASIS ($2.35 PER VEHICLE AS
AGAINST APPROXIMATELY $0.25); (2) THAT ALTHOUGH OTHER CARGO WAS
ASSESSED AS MANIFESTED, VEHICLES WERE ALWAYS ASSESSED ON A MEASUREMENT
BASIS; AND (3) WHILE AUTOMOBILE CARGO WOULD PROBABLY RECEIVE ONLY
GENERAL BENEFITS FROM THE MECHANIZATION PLAN (SUCH AS FREEDOM FROM
STRIKES AND SLOWDOWNS), SUCHCARGO, UNLIKE SOME OTHER CARGO, WAS
UNLIKELY TO BENEFIT FROM TECHNOLOGICAL IMPROVEMENTS IN LOADING AND
UNLOADING.  YET, THE COMMISSION HELD THAT THE DIFFERENCE IN TREATMENT
WAS NOT UNREASONABLE BECAUSE ALTHOUGH AUTOMOBILE CARGO MAY NOT HAVE
BENEFITED AS MUCH AS OTHER CARGO, IT DID RECEIVE "SUBSTANTIAL BENEFITS"
FROM THE MECHANIZATION AGREEMENT.  AS THE COURT HOLDS, HOWEVER, SUCH A
STANDARD, WHICH FOCUSES ON ONLY THE BENEFITS RECEIVED, REPRESENTS TOO
NARROW A VIEW OF SEC. 17.  WHAT PETITIONER IS CONTESTING ESSENTIALLY IS
PMA'S DECISION TO ADOPT AS THE REVENUE TON FOR AUTOMOBILES NOT A WEIGHT
TON (2,000 POUNDS) BUT A MEASUREMENT TON EXPRESSED IN VOLUMETRIC TERMS
(40 CUBIC FEET/TON).  SINCE THE AVERAGE VOLKSWAGEN WEIGHS ONLY 1,800
POUNDS, BUT MEASURES ABOUT 8.7 TONS ON A VOLUME BASIS, IT IS BEING
ASSESSED $2.35 COMPARED WITH THE $0.25 IT WOULD OTHERWISE HAVE TO PAY
ON THE BASIS OF A WEIGHT-TON MEASUREMENT.  IT IS ARGUED THAT THIS
EXACTION IS GROSSLY DISPROPORTIONATE IN LIGHT OF THE LIMITED BENEFITS
WHICH PETITIONER COULD EXPECT TO RECEIVE FROM THE ME CHANIZATION
AGREEMENT AS COMPARED WITH THOSE WHICH OTHER SHIPPERS COULD
ANTICIPATE.  TO FOCUS AN INQUIRY SOLELY ON THE BENEFITS RECEIVED MAY
OBSCURE THE DISPARITY BETWEEN THE CHARGES ULTIMATELY FALLING UPON
PETITIONER AND THOSE EXACTED FROM OTHER SHIPPERS.  THE COMMISSION
SHOULD COMPARE THE BENEFITS RECEIVED WITH THE CHARGES IMPOSED ON
PETITIONER'S CARGO AND WITH THOSE LEVIED UPON OTHER CARGO, WHICH
RECEIVES SUBSTANTIALLY SIMILAR BENEFITS, BEFORE THE QUESTION OF
REASONABLENESS CAN BE RESOLVED.  THIS DETERMINATION IS FOR THE
COMMISSION TO MAKE IN THE FIRST INSTANCE. 

WALTER HERZFELD ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE CECELIA H. GOETZ, RICHARD A. WHITING, ROBERT J. CORBER AND
STANLEY J. MADDEN. 

RICHARD A. POSNER ARUGED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE ACTING SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY
GENERAL TURNER, HOWARD E. SHAPIRO AND MILTON J. GROSSMAN. 

ROBERT N. KATZ ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT
FEDERAL MARITIME COMMISSION.  GARY J. TORRE ARGUED THE CAUSE FOR
RESPONDENTS PACIFIC MARITIME ASSOCIATION ET AL.  WITH HIM ON THE BRIEF
FOR PACIFIC MARITIME ASSOCIATION WERE EDWARD D. RANSOM AND R. FREDERIC
FISHER.  ON THE BRIEF FOR MARINE TERMINALS CORP. WERE OWEN JAMESON AND
WILLIAM W. SCHWARZER. 

NORMAN LEONARD FILED A BRIEF FOR THE INTERNATIONAL LONGSHOREMEN'S &
WAREHOUSEMEN'S UNION, AS AMICUS CURIAE, URGING AFFIRMANCE. 



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