Virginia v. Civil Aeronautics Board

498 F.2d 129
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 6, 1974
DocketNos. 73-2070, 73-2076
StatusPublished
Cited by1 cases

This text of 498 F.2d 129 (Virginia v. Civil Aeronautics Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Virginia v. Civil Aeronautics Board, 498 F.2d 129 (4th Cir. 1974).

Opinion

WINTER, Circuit Judge:

Virginia’s and Maryland’s petitions to review an order of the Civil Aeronautics Board (Board), a proceeding in which two carriers — Pan American World Airways, Inc., and Trans World Airways, Inc. — and numerous affected localities —Philadelphia, Washington, Chicago, Detroit, Boston, Metropolitan New York-New Jersey — have been permitted to intervene, raises the basic question of whether the Board exceeded its statutory powers or acted arbitrarily or unreasonably in prescribing the formula for fixing new transatlantic cargo rates after it concluded that the then existing rate unduly preferred New York and prejudiced Boston, Philadelphia, Baltimore, Washington, Cleveland, Detroit and Chicago. Specifically, the Board' found that cargo rates to United States gateway cities other than New York, constructed by adding the domestic rate from gateway city to New York to the New York-European rate, irrespective of whether the shipment was in fact flown through New York, was unduly preferential to New York and unduly prejudicial to the other gateway cities.1 ******None of the parties contests the correctness or lawfulness of this conclusion.

Having concluded that the then existing rates were unlawful, the Board directed the establishment of rates computed by multiplying the mileage, by the shortest point-to-point route from European points to the various United States gateway points, by the New York-European rate per mile. It rejected the recommendation of the Administrative Law Judge that the best way to remedy the prejudicial rate structure was to prescribe a common rate, i. e., the same rate, for the gateways of Boston, New York, Philadelphia, Baltimore and Washington.2 In these petitions for re[133]*133view, Baltimore and Washington, joined by Philadelphia,3 contend that the Board erred in failing to prescribe a common rate for the Northeast Corridor cities with New York.

From our review of the record, we conclude that the Board did not exceed its statutory authority or act arbitrarily or unreasonably in prescribing the mileage rate. We affirm the Board’s order.

I.

While the Board has authority to prescribe rates, fares and practices in domestic air transportation, 49 U.S.C. §. 1482(d), its authority over rates and fares for international air transportation is more limited. This is so because of Congressional recognition that the rate-making authority of one nation in international air transportation necessarily can be exercised only with the acquiescence of another nation to which traffic is destined or from which it originates.4 Thus, except for the recently granted limited power to suspend or reject unjust or unreasonable rates and fares in international transportation but not to prescribe just and reasonable new rates or fares,5 the rate-making authority of the Board in a case like the instant one is limited to a determination of whether a rate, fare or charge “is or will be unjustly discriminatory, or unduly preferential, or unduly prejudical,” and if so, “ [to] alter the same to the extent necessary to correct such discrimination, preference, or prejudice . . . .” 49 U.S.C. § 1482(f).

Both Virginia and Maryland advance two overall contentions why the Board’s order should be set aside: first, that as a matter of law the Board was required to prescribe a common rate for all United States gateway cities, and, second, that the milage rate prescribed by the Board continues the previously existing undue preference to New York and undue discrimination against the other cities, especially Washington and Baltimore. These overall contentions involve a number of subsidiary arguments which we will treat seriatim. Additional facts will be stated where they are pertinent.

II.

The argument that, as a matter of law, the Board was required to prescribe a common rate is in part factual and in part legal. Both the Administrative Law Judge and the Board found that New York handles eighty percent of the nation’s international air cargo; that, as a result of this volume, New York experiences the highest rate of pilferage from shipments of any other terminal in the United States; that congestion and delays result from the proliferation of traffic through New York; that non-transport expenses are greater at New York; and that shippers in places other than New York are encouraged by New York’s then existing preferential rate to employ surface transportation (trucks) to and from New York rather than through air transportation to points of origin and destination in the gateway city nearest to the shipper. It is argued that since there is a strong national interest in avoiding a monopoly of imports and exports in a single port, the way to achieve equality of opportunity — indeed, [134]*134the only way as prescribed by Congress • — is to prescribe a common rate, notwithstanding that New York is 190 miles closer to European cities than Baltimore-Washington. Heavy reliance is placed upon the provisions of the Interstate Commerce Act, 24 Stat. 379, and I.C.C. and court decisions interpreting it to permit or require common-rating in certain instances, because it is asserted that such Act served as a model for the anti-discrimination provisions of the Federal Aviation Act of 1958, and therefore the latter should receive a like interpretation.

We think that there are several reasons to reject this argument. First, there can be little doubt that, in fashioning a remedy where undue preference and undue discrimination have been found to exist, an administrative agency possesses a large measure of discretion in choosing measures to remedy the discrimination. Its exercise of this discretion will not be disturbed -absent a showing that its order lacks evidentiary support, transgresses some constitutional limit, or otherwise amounts to an abuse of power. Board of Trade v. United States, 314 U.S. 534, 546, 62 S.Ct. 366, 86 L.Ed. 432 (1942) ; Ayshire Collieries Corp. v. United States, 335 U. 5. 573, 593, 69 S.Ct. 278, 93 L.Ed. 243 (1948).

Factually, the premise of the Board’s order that “the most equitable and practical rate structure is one based on mileage” has substantial evidentiary support. The record shows that major costs for air transportation tend to vary with miles flown. It is, of course, true that the anti-discrimination provisions of the Federal Aviation Act are closely modeled on their counterparts in the Interstate Commerce Act, but that is not to say that the decisional precedents of one statute can be indiscriminately imputed to another. Substantial differences in the operations of rail and air transportation may well warrant a different regulatory approach to each industry. Chicago & Southern Air Lines, Inc. v. Waterman S.S Corp., 333 U.S. 103, 108, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Las Vegas Hacienda, Inc. v. C.A.B., 298 F.2d 430 (9 Cir. 1962). Unit costs of railroad operations do not tend to increase with distance nearly as much as in air carrier operations.

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498 F.2d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/virginia-v-civil-aeronautics-board-ca4-1974.